Sexual harassment claims protected

Marriott hotel restaurant manager suspected of sexual harassment could not sue his accuser for defamation where the statements at issue were protected by an absolute litigation privilege — even though a formal complaint had not yet been filed, the Massachusetts Appeals Court has ruled.
The manager argued that his accuser, who worked at the hotel as a bartender, did not enjoy a privilege when she complained to Marriott officials and the EEOC because she had not demonstrated her statements were made at a time when she was seriously considering a lawsuit.
But the Appeals Court disagreed and reversed a lower court judge’s ruling on grounds that the statements were privileged.
“[The bartender] timely complained directly to Marriott, then to the EEOC,” Judge Elspeth B. Cypher wrote on behalf of the court. “Because her statements were made entirely in the confines of a protected forum, she is entitled to the defense of absolute privilege on [the manager’s] defamation claims based on libel and slander.”
Cypher added that the privilege, which protects statements made by parties during the course of judicial proceedings, also applies to EEOC matters since they are sufficiently judicial in nature.
The seven-page decision is Visnick v. Caulfield.

Equal application

The defendant bartender’s lawyer, Jody L. Newman, of Boston’s Dwyer & Collora, said the decision reaffirms the principle that the litigation privilege applies to communications made prior to the filing of a formal lawsuit.
As long as statements are made in good faith, she said the law recognizes the existence of a privilege even before the submission of an actual complaint.
“The caveat for communications preliminary to litigation is that the prospect of litigation has to be real,” she said. “It can’t be some remote possibility somewhere out on the horizon. It’s got to be real, and it’s got to be imminent.”
Despite the conclusions reached by the lower court judge, Newman said the privilege protects parties to litigation in the same manner as it would a lawyer. But where her client acted pro se when she sent a demand letter to hotel officials, the Boston lawyer said the lower court improperly applied a higher level of scrutiny.
“This is a significant decision in that it shows that parties are equally protected by the litigation privilege so long as they are not bluffing or blowing smoke,” she said. “They have to intend to file suit. In our case, how could there be any doubt of her intent to litigate, because that’s exactly what she ended up doing?”
Newman added that the ruling establishes once and for all that the denial of a privilege defense is an immediately appealable right.
“Whether you are a lawyer or a party, if you are communicating with the other side at a time when the prospect of litigation is real, the privilege applies,” she said. “The lower court found that because [my client] was acting pro se and had not retained a lawyer for her preliminary communications, that somehow her letter was not a real demand letter and didn’t deserve the protections an attorney’s demand letter would warrant.”
David F. Segadelli of Boston, who represented the plaintiff manager, could not be reached. Kristin Glennan McGurn, of Seyfarth Shaw in Boston, who represented the hotel, declined to comment.

‘Take this job and …’

The plaintiff, Gary Visnick, worked as a restaurant manager at the Marriott in Cambridge, Mass., where he supervised the defendant bartender, Jeannette Caulfield, until she resigned in May 2004.
When the bartender reapplied for a job in December 2004, she was interviewed by the same manager. Immediately following the interview, she complained to two superiors that the manager had sexually harassed her and behaved inappropriately during their meeting.
She told Marriott officials she was withdrawing her job application and declined a different manager’s suggestion that she discuss her complaint with a human resources representative.
In a Jan. 12, 2005, letter sent to Marriott’s general manager, the bartender restated her complaint about the interview and raised news allegations about the restaurant manager’s conduct during her employment.
Her letter also stated that she planned to file charges with the EEOC and the Massachusetts Commission Against Discrimination.
The bartender wrote that she had discussed her concerns with an attorney who had advised her to first seek compensation from the hotel before taking formal legal action. She concluded with a monetary request and a demand for a response within 10 days.
After receiving no answer, the bartender filed a pro se EEOC discrimination charge against the hotel, which was settled through mediation in May 2005. By that time, the restaurant manager — following an internal investigation — had been fired for violating company harassment and professional conduct policy.
In 2006, the manager filed a complaint alleging wrongful termination by the hotel and defamation by libel and slander against the bartender. The 10-count complaint also asserted two tort claims against her.
The bartender counterclaimed and sought summary judgment on all counts, asserting an absolute litigation privilege. When the judge denied her motion, the bartender appealed.

Privileged letter

In reversing the lower court judge, Cypher said the bartender’s 2005 letter clearly contained statements that were made in anticipation of a judicial proceeding. As a result, she found they were absolutely privileged.
The judge said that the bartender unequivocally stated in her letter that she had talked with an attorney and already decided to file a lawsuit, as well as charges with the EEOC and MCAD.
Quoting the Restatement (Second) of Torts, Cypher wrote that the privilege applies to cases such as the bartender’s where statements are made prior to a proposed or contemplated judicial proceeding, “as long as they bear some relation to the proceeding.”
She added: “The letter clearly contained statements made preliminary to ‘a contemplated judicial proceeding,’ and related to a ‘proceeding which is contemplated in good faith and … under serious consideration.’”
The information in the bartender’s EEOC filing, which was identical to the statements in her letter, was similarly protected by the privilege, the judge found.