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An employee in a public organization makes an [allegedly] slanderous
statement
(slander per se).
The person receiving the statement brings the statement
to the attention of a manager in the public organization,
but the manager does not commit to take any action to redress
the problem, and no visible action is taken by the organization.
Can the manager be sued, and for what? (slander? negligence?)
Can the manager be named in the slander lawsuit along with
the organization and the employee, or could it be in a separate lawsuit
for a separate purpose (eg negligence)?
TIA...
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"z" <z@y.x.invalid> wrote in message news:<e0c8c.14007$FC3.6048@newssvr27.news.prodigy.com>...
An employee in a public organization makes an [allegedly] slanderous
statement
(slander per se).
The person receiving the statement brings the statement
to the attention of a manager in the public organization,
but the manager does not commit to take any action to redress
the problem, and no visible action is taken by the organization.
Can the manager be sued, and for what? (slander? negligence?)
Can the manager be named in the slander lawsuit along with
the organization and the employee, or could it be in a separate lawsuit
for a separate purpose (eg negligence)?
TIA...
Not likely that the manager could be named. You would have to find
some duty that the manager owed to you but did not perform. For
example, if you filed a grievance through established channels, and
the manager responsible for handling your grievance didn't even read
it or didn't respond to it in the manner established by policy.
The organization could be sued, if the employee who allegedly
slandered you was acting in the scope of his employment. This is so in
the case of a California public entity; see Govt. Code 815.2(a). It's
so even if the person is an independent contractor rather than an
employee: see 815.4.
--
Not a lawyer,
Chris Green
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On Wed, 24 Mar 2004, "z" <z@y.x.invalid> wrote:
An employee in a public organization makes an [allegedly] slanderous
statement (slander per se).
You seem to be presuming in all your recent postings that (if admitted
or otherwise actually proven) the statement to which you refer was
"slanderous" (whether or not "per se") although you have also said
other things in those postings which at least raise (perhaps
substantial) questions about correctness of this apparent presumption
by you.
The person receiving the statement brings the statement
to the attention of a manager in the public organization,
but the manager does not commit to take any action to redress
the problem, and no visible action is taken by the organization.
This may be because that manager did not believe that the words in
question were uttered, or believed that those words might have been
uttered but that the potential plaintiff would porably not be able to
so prove if a lawsuit resulted, or believed that that they were
uttered as claimed could be proved but that those words are not
"slanderous" ("per se" or otherwise), or that some sort of remedial
action that other resasonable persons (perhaps including judges) was
"taken" that is not yet "visible" to the would-be plaintiff.
It is considerations of these sorts, among many others, that lead
courts in alleged defamation cases to invoke and apply rules (of which
you have been several times previously advised) to the effect that
"respondeat superior" and like "agency" principles are generally
insufficient to impose defamation liability on a "manager" or on the
institutional/organizational employer itself by reason of (even if
slanderous) statements made by an employee.
Can the manager be sued, and for what?
(slander? negligence?)
To "sue" is to do little more than to _claim_ that some acts occurred
as a result of which plaintiff is entitled to some sort of court
granted relief -- in other words, is basically to do little more than
to _ask_ for (or to demand) something in a certain sort of
law-formalized manner (e.g., in writing in a "complaint" or like
pleading that is then "served" on defendant with a special kind of
notice usually called a "summons" etc., etc.). This, but only this,
is why it is often said that pretty much "anyone can sue almost anyone
for anything".
_IF_ you sue (as, in this sense, obviously you "can"), whether the
defendant(s) will then have the interest (as defendant[s] define
"interest" to be) and also the economic and related means to (perhaps
among any number of other thigns) directly or in effect to countersue
(e.g., because, defendant[s] might claim and then attempt to prove,
plaintiff knew or should have known that there was no merit in fact or
in law to the lawsuit and yet deliberately sued anyway in a manner
that ought induce a court to grant some sort of relief against
plaintiff n favor of defendant[s]) is at least a possibility (and, in
some cases, maybe a probability or, perhaps, even a near certainty)
that a plaintiff will be deemed by the court to have considered even
if plaintiff failed (or chose) not to do so.
It is of course at least conjecturally possible that an instructor in
class in the state college or university you chose to attend said
something about you to others in a manner that was not "privilged" as
that term is used in defamation law context and that a court later
will conclude that those words were "slanderous, per se" or, at least,
conclude they were "slanderous" (even if not "per se") if (in the not
"per se" sense of "slander") you were also actually to prove
dollar-measurable damage in fact to your reputations/standing in the
relevant community resulting from that false statement of fact.
Whether this is so in the "anything is possible" sense (as presumably
you know by now, a common corollary to "anyone can sue anyone else for
anything") remains to be seen.
But it may be signficant in this respect that, despite numerous
newsgroup postings by you dancing around this subject, you have been
quite assiduous in avoiding reporting what it is, exactly, that you
would contend justifies your labeling whatever those words were (if
you are being realistic in also apparently presuming that you will be
able in a credible and persuasive manner to prove them) that makes
them defamatory (whether or not in a "per se" manner).
Can the manager be named in the slander lawsuit
along with the organization and the employee, or
could it be in a separate lawsuit for a separate
purpose (eg negligence)? TIA...
Generally speaking, throughout the U.S. (including in Calif.) an
individual is said to be personally liable for torts that person
commits.
Whether other factors come in to play that might make it desirable not
to sue a particular tortfeasor (e.g., a self-destructively plaintiff
making a lawsuit more expensive and complex for himself than such a
lawsuit might otherwise be) or whether so doing might be largely moot
(e.g., if, as is common in employer/employee contexts that
individually-sued defendant will be indemnified by the employer or as
an "insured" named as such in the employer's liability insurance
policy) raise separate/distinguishable issues.
[ see cautionary on related posting ]
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Sorry, this was in a required course (multicultural foundations education),
attended by about 30 or so teacher credential candidates.
The instructor asked for opinions on a particular video on discrimination
shown
in the previous class. The plaintiff chose to respond and gave a reasoned
response which was critical of the video (but not of any person,
race, etc.) (interrupted several times by one student and the prof).
The prof at last stated something like when she hears opinions like that,
it makes her think that the person who said them is unfit to teach.
Plaintiff said that's below the belt. Prof continued by saying, and all of
her
colleagues at the school of ed would agree with her. Plaintiff got
two As and one F that semester from ed school courses, and
a letter of good conduct from voluntary service in a racially mixed
local public high school.
University (through mgr and two other admin. ways) has been informed
of the allegations, along with request for written apology, but no tangible
result
to date (after several months).
Fyi, plaintiff is inclined not to name either the mgr or the prof at this
point.
(Even so, what is plaintiff's legal exposure?)
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On Wed, 24 Mar 2004, "z" <z@y.x.invalid> wrote:
[I]n a required [university] course (multicultural
foundations education) attended by about 30 or
so teacher credential candidates [the class discussion
concerned] opinions on aparticular video on discrimination
. . . [and] plaintiff . . . criti[cised] . . . the video (but
not of any person, race, etc.) . . . [whereupon t]he prof
. . . stated something like when she hears opinions like that,
it makes her think that the person who said them is unfit
to teach.
Why isn't the prof entitled to her opinion that the "think[s]" that
someone who makes statements about the video in question of the sort
the would-be plaintiff made (whatever may have been in the video and
whatever those statements may have been) was in her opinion "unfit to
teach"?
What (if anything) did that teacher say about the plaintiff that was a
statment of (purported) _fact_ which, in actuality, was not _true_?
Why isn't pretty much everything the teacher said that day
_privileged" and, if it is (or, more precisely, if a court probably
would ruled that it is) how (if at all) would the prospective
plaintiff actually prove that the statement was said in a manner that
was either intentionally/deliberately false in fact or, at least, with
a "reckless disregard" for whether it was true - assuming, that is,
that plaintiff would be able to prove that the teacher made _any_
asserted claim of "fact" (as distinguished from "opinion") about the
would-be plaintiff at all?
(Even so, what is plaintiff's legal exposure?)
Has the would-be plaintiff actually learned the lessons sought to be
taught in the class at issue? Does shewant to conclude her course of
study with the school? Does she want to induce the school and at
least a meaningful sampling of her instructors not just to provide her
with some formalistically "favorable" (or, at least, not unfavorable)
letters of recommendation and, instead, actually help her find a
well-paying and otherwise good job? Why, anyway, do you seem on the
one hand to be dwelling on the "I can sue!" alternative at the
apparent expense of your having used the occasion to which you refer
as a meaningful one to learn?
And to whatever extent you nevertheless dwell on the issue of suing,
how can you reasonably expect to be taken seriously if (as you say
you've decided to allow occur!) you've allowed many months to pass but
without suing and you say you still have not made the (minimally
required) effort about how to fill out some essentially
self-explanatory court forms?
But above all, how and why do you (reasonably?) still fantasize about
suing but without your arriving at a well-stated basis on which you
would sue?
Again: what, actually, did the teacher in question (provably) actually
_say_ that was "slanderous" in _any_ manner (whether or not "per se")?
As for the school itself, institutionally, what did _it_ (or, for that
manner, any of its employees in addition to the teacher in question)
do or say that violated any agreement by it/them or that caused you
any damage of any nature?
It may be well and good for you to want to avoid these questions in
some internet "newsgroup" -- but unless you have very well-stated and
also persuasive fact-specific answers for the court, you (at best)
will not prevail.
But what perhaps is the single most important -- indeed, the _only_
important -- question you so far have raised is why your are dwelling
about thinking of suing at all (not a question you need answer for an
internet "newsgroup" but surely one you ought find much better answers
for than you state in any of your numerous postings).
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On Wed, 24 Mar 2004, "z" <z@y.x.invalid> wrote:
Why isn't the prof entitled to her opinion that the "think[s]" that
someone who makes statements about the video in question of the sort
the would-be plaintiff made (whatever may have been in the video and
whatever those statements may have been) was in her opinion "unfit to
teach"?
(1) Opinions on theories and events are one thing, and certainly
should be allowed. However,
the opinion the prof gave was clearly of a personal nature,
clearly directed towards the plaintiff,
and clearly intended to infer that the plaintiff specifically was unfit to
teach.
(2) The prof never stated the specific reasons why she felt the
given opinion marked anyone who stated the opinion as "unfit to teach."
So it was not instructive in any formal sense of the word.
(3) Students have a common law right to academic freedom, too.
The Columbia Encyclopedia (2001), in defining academic freedom, says:
"Essential to the acceptance of the concept of academic freedom is the
notion that truth is best discovered through the open investigation of all
data. A less clearly developed corollary of academic freedom is the
obligation of all those who enjoy it to pursue the line of open and thorough
inquiry regardless of personal considerations."
It is difficult to characterize the prof's statement as anything other than
a suppression of academic freedom and slander per se against the plaintiff
student.
(4) The prof's statement is not professional when viewed in the light
of the following from the American Association of University Professors'
Statement of the Associations Council: Freedom and Responsibility (1970,
1990) (This AAUP statement can be read under Section IV "Faculty
Professional Responsibilities" at
http://www.calstate.edu/acadsen/about/pp.pdf):
"Membership in the academic community imposes on students, faculty members,
administrators, and trustees an obligation to respect the dignity of others,
to acknowledge their right to express differing opinions, and to foster and
defend intellectual honesty, freedom of inquiry and instruction, and free
expression on and off the campus."
"Students should not be forced by the authority inherent in the
instructional role to make particular personal choices as to political
action or their own part in society."
The following statement is taken from AAUP's Statement on Professional
Ethics (http://www.aaup.org/statements/Redbook/Rbethics.htm):
"As teachers, professors encourage the free pursuit of learning in their
students.... Professors demonstrate respect for students as individuals and
adhere to their proper roles as intellectual guides and counselors.... They
avoid any exploitation, harassment, or discriminatory treatment of
students.... They protect their [the students'] academic freedom."
"Evaluation of students and the award of credit must be based on academic
performance professionally judged and not on matters irrelevant to that
performance, whether personality, race, religion, degree of political
activism, or personal beliefs."
The following statement is found under Student Rights and Freedoms, in AAUPs
Policy Documents and Reports, ninth edition, commonly known as the Redbook,
page 262 (no link available):
Protection of Freedom of Expression
"Students should be free to take reasoned exception to the data or views
offered in any course of study and to reserve judgment about matters of opin
ion, but they are responsible for learning the content of any course of
study for which they are enrolled."
I think questions like these are why juries exist.
What (if anything) did that teacher say about the plaintiff that was a
statment of (purported) _fact_ which, in actuality, was not _true_?
As a student enrolled in the teaching credential program at the university,
the plaintiff has been required by the university's School of Education to
demonstrate explicit interest in becoming a certified public school teacher,
and show promise of successfully completing the university's School of
Education teaching credential program by way of transcripts, preparatory
courses, teacher observation, fingerprinting, taking tests such as CBEST
and/or PRAXIS, and so forth.
The plaintiff expressed an opinion which doubted that the video was
a documentary as it had been billed, but rather that it was contrived in
some manner. The plaintiff expressed the opinion that the documentary
was politically motivated by political forces, and that these forces
had limited validity in view of the plaintiff's opinion that the USA was
the best country in the world in which to make a living, and that
the governments of countries such as Canada and Mexico suffered in
comparison with the USA. The plaintiff stated as part of his opinion
that Canada suffered by comparison in view of its inferior socialized
medicine
system, for which can be observed the phenomenon of Canadian citizens
crossing the border to the USA to obtain quality medical treatment (eg,
surgery). As part Hispanic, the plaintiff felt obligated
to speak out on behalf of oppressed people of Hispanic descent living
under the corrupt government of Mexico.
How does any of that make a person suddenly unfit to teach by way of giving
an invited opinion in a class?
One might as well let the floodgates open here, if your premise is correct,
e.g.,
student: "the sky is blue."
professor: "when I hear an opinion like that, it makes me think that the
person
who stated it is unfit to teach."
And so on. Where does one draw the line? Or does being a prof
at a university somehow grant profs carte blanche immunity from all civil
court
actions aimed at protecting students' civil right to sue for slander per se?
Why isn't pretty much everything the teacher said that day
_privileged" and, if it is (or, more precisely, if a court probably
would ruled that it is) how (if at all) would the prospective
plaintiff actually prove that the statement was said in a manner that
was either intentionally/deliberately false in fact or, at least, with
a "reckless disregard" for whether it was true - assuming, that is,
that plaintiff would be able to prove that the teacher made _any_
asserted claim of "fact" (as distinguished from "opinion") a
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