Opinion
No. 2:18-cv-00528-MCE-CKD
08-28-2020
PETER TUCKER, Plaintiff, v. CYSTIC FIBROSIS FOUNDATION, Defendant. CYSTIC FIBROSIS FOUNDATION, Cross-Complainant, v. PETER TUCKER, Cross-Defendant.
MEMORANDUM AND ORDER
Through the present action, Plaintiff Peter Tucker ("Plaintiff" or "Tucker") seeks damages from his former employer, Defendant Cystic Fibrosis Foundation ("Defendant" or "CFF") after he was terminated by CFF in 2017. Plaintiff's Complaint includes three different causes of action, for age discrimination in violation of California's Fair Employment and Housing Act ("FEHA"), Cal. Govt. Code §§ 12940, et seq., wrongful termination premised on the alleged FEHA violation, and for defamation under California law given statements that were purportedly made by other CFF personnel about Plaintiff and the circumstances following his termination.
This case was initiated in state court, after which Defendant removed it to this Court, citing diversity jurisdiction under 28 U.S.C. § 1332. Now before the Court is Defendant's Motion for Summary Judgment, or alternatively for summary adjudication of issues brought pursuant to Federal Rule of Civil Procedure 56. According to Defendant, Plaintiff cannot establish a viable claim for age discrimination and, as a consequence, his derivative wrongful termination claim fails as well. Finally, Defendant alleges that Plaintiff's defamation cause of action is also fatally flawed because the statements in question were privileged as internal communications regarding a matter of common interest and were true in any event. As set forth below, Defendant's Motion is GRANTED.
All further references to "Rule" or "Rules" are to the Federal Rules of Civil Procedure unless otherwise noted.
Having determined that oral argument would not be of material assistance, the Court ordered this matter submitted on the briefs in accordance with E.D. Local Rule 230(g).
BACKGROUND
After previously working for CFF's Sacramento Chapter between 2000 and 2005, Plaintiff was rehired in 2010 as the Chapter's Senior Development Director. In 2012, he received a promotion to Executive Director and remained in that position until he was terminated on December 13, 2016. It appears that Plaintiff performed successfully as an Executive Director and was the subject of no disciplinary proceedings until late 2016, when certain discrepancies were noted during the course of an office audit handled by CFF's Senior Internal Auditor, Brian Presley.
A. Crow Canyon Country Club Event
In the course of Presley's October 18, 2016, visit to the Sacramento office in conjunction with the audit, he questioned Plaintiff about the coding of certain revenue received during a third-party fundraising event held at the Crow Canyon Country Club and organized by a CFF volunteer, JoAnne Williams. Plaintiff told Presley that Williams had asked that the proceeds from the event be used to support the Sacramento Chapter's 2017 "Unmask the Cure" event, but Plaintiff was unable to locate the letter he claimed Williams had sent in making that request.
About a month later, on November 14, 2016, Plaintiff sent Presley an email attaching "the request[ed] letter that I had received from the event organizer, JoAnne Williams, late last year." CFF's Exhibits in Support of Mot for Summ J., ECF No. 12-8 ("Def.'s Exs.), Ex. 12. The letter, however, was unsigned and dated two months before the event proceeds were known to have been received. Further investigation revealed that the document had been created less than four minutes before Plaintiff sent the email to which it was attached. Decl. of Brian Presley, ECF No. 12-5, ¶ 7.
During a follow-up call three days later with Presley and two members of CFF's audit department, Ashleigh Duce and Eleana Seek, Plaintiff was further questioned about the circumstances in which the letter he had forwarded to Presley had been received. According to Presley, Plaintiff repeatedly indicated that the letter had been received in the mail and that he had simply scanned and attached it to his November 18, 2016 email. Id. at ¶ 8. When confronted with the fact that the document's properties showed that it had been created only recently, Plaintiff changed his story, indicating that he created the letter using Microsoft Word based on a verbal conversation with Ms. Williams. Id. at ¶ 9. Then, about forty-five minutes later, Plaintiff emailed a signed copy of the letter in question, stating that "attached is the signed letter from JoAnne Williams that we discussed and that I knew I had received via the mail as I recalled." Id. at ¶ 9. Ultimately, when CFF's IT Department examined the letter, it determined the document had not been generated until January of 2016, several months after it was dated and about the time the funds for the Crow Canyon Event were received. See Def.'s Ex. 14. ///
B. The Ladies' Tea Event
During his initial October 18, 2016, in-office audit visit already discussed above, Brian Presley also asked Plaintiff about another event from which the Sacramento Chapter had received proceeds. JoAnne Williams, the same volunteer responsible for the Crow Canyon Country Club event discussed above, also hosted a "Ladies-Tea Event" to raise awareness of cystic fibrosis and to encourage donations. The Chapter had received 72 checks from the event, all in unique amounts. When asked about why the amounts were different, Plaintiff told Presley that the odd amounts were meant as a "joke" by the attendees and were not related to any purchases that were made. Presley Decl., ¶ 12. When Presley later reviewed the checks themselves, however, he discovered that several referred to a "craft fair" and a "boutique event". Id. at ¶ 13. When Presley asked Plaintiff again about the event during his follow-up telephone call with Ms. Duce and Ms. Seek, Plaintiff admitted that the information he provided during his initial meeting with Presley was inaccurate, and that in fact, many of the checks were used to purchase donated merchandise at the event, including "ornaments, necklaces and other crafts." Id. at ¶ 14. CFF alleges that Plaintiff tried to conceal the nature of the donations at the Ladies' Tea Event because to the extent physical items were purchased, a fair market value must be assigned to each item in order to properly account the donation for tax purposes. See Def.'s Opening Mem., n.2, 13:27-28.
C. 2016 Sacramento Great Strides Auction
Brian Presley also brought up a third concern during the course of his initial in-office audit visit on October 18, 2016, concerning certain items sold by the Sacramento Chapter at yet another CFF fundraiser, the 2016 Sacramento Great Strides Auction. When Plaintiff was unable to provide a list of the items sold at that time, Presley followed up with an email on October 25, 2016, reiterating his request for the auction list. Plaintiff emailed a list three days later.
In the course of discovery, CFF claims it discovered that information provided by Plaintiff concerning the items sold was intentionally inaccurate. An email string between Plaintiff and CFF Field Operations Supervisor Damon Tennyson discussed how Plaintiff should respond to the auditor, with Plaintiff suggesting he planned to not disclose two items sold at the auction, a pre-lit Christmas tree and group guitar lessons. See Def.'s Ex. 5. Plaintiff admitted at deposition that Tennyson had told him, in response, to disclose everything to the auditors, even if there were documentation or other issues. Pl.'s Dep., 50:22-25. Plaintiff nonetheless failed to include either the Christmas tree or the guitar lessons on the list provided to the auditors, thereby concealing the sale of those items from them. Def.'s Ex. 6. In addition, when questions were raised by the auditor as to whether three other items listed as "donor not claimed" had in fact been sold, Plaintiff's email to Tennyson conceded that two of the items had been sold. Id. at 8. Plaintiff's subsequent email to the auditor on October 31, 2016 nonetheless indicated that the "[t]wo items were not paid for nor picked up leaving only the one tangible item needing sales tax to be paid." Id. at 9 (emphasis added). Plaintiff admitted at deposition that, to the extent this was untrue, it was violation of CFF policy to provide the auditor with inaccurate information. Pl.'s Dep., 67:21-24.
Complete copies of Plaintiff's deposition transcripts were lodged with the Court by both sides in connection with their briefing on the instant Motion.
D. The Internal Audit Report and Plaintiff's Response
After completing its investigation, CFF's Internal Audit Group circulated a draft report (the "Report") raising serious questions about representations made by Plaintiff during the course of the audit, concluding, with respect to the above-enumerated circumstances, that "there were at least two instances where the Executive Director provided false or misleading information to the auditor." Report, Def.'s Ex. 1, p. 3, ¶ 3. Plaintiff responded to the Report by sending an email to his immediate supervisor, Anne Harris (CFF's Director of Field Management), on December 4, 2016. Def's Ex. 18. He stated he was caught off guard and "startled" by the auditors' request for information concerning events that had occurred, in some cases, as much as a year beforehand. Plaintiff also attributed some of the discrepancies concerning JoAnne Williams' letter to clerical error. He further claimed that after his initial meeting with Brian Presley on October 18, 2016, he contacted Ms. Williams, who helped jog his memory about the nature of the Ladies' Tea Event and the items that were sold. Id. at p. 5.
E. Plaintiff's Termination
On December 5, 2016, CFF placed Plaintiff on leave pending the results of its investigation. Plaintiff asked to provide additional information and did so by a December 11, 2016, email to Glen Goldmark, CFF's Senior Vice President of Human Resources. In that email, Plaintiff reiterated much of the same information he had already offered during the course of the audit and his subsequent email to Anne Harris discussed above. Def.'s Ex. 19.
On December 13, 2016, CFF notified Plaintiff by letter from Ms. Harris that it was terminating his employment on grounds that CFF had "lost confidence" in Plaintiff's ability to lead the Sacramento chapter given the "changing information" he provided to the auditors. Pl.'s Appendix of Exhibits, ECF No. 15-2 (Pl.'s Exs.), Ex. 11. According to CFF, it was Marc Ginsky, Defendant's Executive Vice President and Chief Operating Officer ("COO"), who actually made the decision to discharge Plaintiff. Ginsky Decl., ECF No. 12-7, ¶¶ 4-5.
F. Defendant's Post-Termination Statements
Following his termination, Plaintiff asked Anne Harris to provide a further explanation as to why CFF had ended his employment. Ms. Harris, in turn, sent an email to other management personnel asking for their input on how she should reply, stating that "[m]ay I respond to him explaining that he lied during the audit process and his story changed, and as a result we lost trust and confidence." Def.'s Ex. 22. Plaintiff claims this statement was defamatory.
CFF's staff also were faced with inquiries from the public as to why Plaintiff had been terminated, perhaps in response to information Plaintiff himself provided about the circumstances surrounding his discharge. During emails that ensued as to both that issue and Plaintiff's own inquiry mentioned above, Eleana Seek, CFF's Chief Audit and Compliance Officer, wrote Marc Ginsky, Defendant's COO, stating, in pertinent part, that "[P]laintiff made up stories and changed them on multiple occasions." She added that had Plaintiff "been truthful from the start when we followed up with him, termination could have been avoided." Def.'s Ex. 21. Ginsky concurred with that assessment in another email, suggesting that "nothing we have received changes the underlying fact that he made up a story and changed it." Id. Plaintiff alleges he was defamed by those statements.
Finally, in the initial session of Plaintiff's deposition he claimed that his replacement as Executive Director for the Sacramento Chapter, Cole Jacobson, told him that he had been told by "someone in management" that he was terminated for "misappropriating funds." Pl.'s Dep., 186:18-187:5. At the second session of Plaintiff's deposition, however, his testimony changed when Plaintiff stated that he was terminated for "lying during the audit" and claimed that it in fact was Marc Ginsky who conveyed that information to Jacobson. Pl.'s Dep., 330:25-331:25; 340:17-341:14. Plaintiff alleges that Ginsky defamed him by making that statement. Ginsky, for his part, does not recollect having made the statement but claims that any information he did convey to Jacobson concerning Plaintiff's departure was only for purposes of helping Jacobson deal with any community backlash as a result of Plaintiff's termination, and in order to impress on Jacobson the importance of strict financial compliance. Ginsky Decl., ¶ 8.
STANDARD
The Federal Rules of Civil Procedure provide for summary judgment when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 325. ///
Rule 56 also allows a court to grant summary judgment on part of a claim or defense, known as partial summary judgment. See Fed. R. Civ. P. 56(a) ("A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought."); see also Allstate Ins. Co. v. Madan, 889 F. Supp. 374, 378-79 (C.D. Cal. 1995). The standard that applies to a motion for partial summary judgment is the same as that which applies to a motion for summary judgment. See Fed. R. Civ. P. 56(a); State of Cal. ex rel. Cal. Dep't of Toxic Substances Control v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998) (applying summary judgment standard to motion for summary adjudication).
In a summary judgment motion, the moving party always bears the initial responsibility of informing the court of the basis for the motion and identifying the portions in the record "which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968).
In attempting to establish the existence or non-existence of a genuine factual dispute, the party must support its assertion by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits[,] or declarations . . . or other materials; or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251-52 (1986); Owens v. Local No. 169, Assoc. of W. Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1987). The opposing party must also demonstrate that the dispute about a material fact "is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In other words, the judge needs to answer the preliminary question before the evidence is left to the jury of "not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." Anderson, 477 U.S. at 251 (quoting Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)) (emphasis in original). As the Supreme Court explained, "[w]hen the moving party has carried its burden under Rule [56(a)], its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Therefore, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Id. at 587.
In resolving a summary judgment motion, the evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th Cir. 1987).
ANALYSIS
A. Second Cause of Action: Age Discrimination under FEHA
FEHA prohibits an employer from terminating an employee for various reasons, including the employee's age. Cal. Gov. Code § 12940(a). As Defendant points out, age discrimination can be established either by direct or circumstantial evidence. Here, Plaintiff points to no direct evidence suggesting that he was terminated because of his age. No comments made by any of CFF's management team who decided to terminate Plaintiff, for example, have been identified.
In order to establish age discrimination claim circumstantially, both California and federal courts utilize the so-called McDonnell-Douglas burden shifting framework to determine whether a viable claim has been presented. Guz v. Bechtel Nat'l Ins., 24 Cal. 4th 317, 359 (2000). Under that framework, the initial burden of establishing a prima facie case of age discrimination rests with the plaintiff. To satisfy that burden, the plaintiff must demonstrate that he was: (1) a member of the protected class (at least age 40); (2) performing his job satisfactorily; (3) subject to an adverse employment action; and (4) replaced by a substantially younger employee. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000). If Plaintiff establishes these elements, then the burden shifts to the employer, here CFF, to articulate a legitimate nondiscriminatory reason for its employment decision. Id. Then, if CFF is successful in doing so, the burden shifts again to Plaintiff to show that Defendant's reason is a pretext for a discriminatory motive. Id. Evidence too weak to support a rational inference of discriminatory intent cannot support a finding of discrimination or prevent summary judgment for CFF. Guz v. Bechtel, 24 Cal. 4th at 369-70.
In Plaintiff's case, it is undisputed that he was over 40 years old Defendant nonetheless claims he cannot make a prima facie case of discrimination because Plaintiff, having provided the CFF internal auditors false and/or misleading information prior to his termination, was not performing his job in a satisfactory manner. Plaintiff told Brian Presley that he was attaching a copy of the letter he received from JoAnne Williams concerning the Crow Canyon Country club event, rather than a Word version he created on his own computer. Moreover, when repeatedly questioned about how he had received the letter he emailed to the auditors, Plaintiff continued to insist that he had received it in the mail. Additionally, while Plaintiff ultimately told the auditors he had emailed the draft letter for Ms. Williams to sign in November of 2015, Plaintiff never provided any such emails and a search of Plaintiff's computer failed to show that any were sent. Finally, when CFF had its IT Department examine the letter, it found that the letter had not been created until approximately January of 2016, several months later and at about the time the funds in question were received. Def.'s Ex. 14. Even Plaintiff admitted that he had provided misleading information to the auditors concerning Ms. Williams' donor letter. Pl.'s Dep., 136:17-139:4.
On another topic, as detailed above, Plaintiff failed to disclose that physical items had been purchased at the Ladies' Tea event, and while he initially claimed to have forgotten the details, Plaintiff failed to update the auditors even after a telephone conversation with Ms. Williams in October of 2016 "jogged" his memory.
Finally, at yet another event, the 2016 Sacramento Great Strides Auction, Plaintiff failed to disclose that several items had sold when, as evidenced by his email to Damon Tennyson described above, he knew that they had been. He nonetheless persisted in telling the auditors otherwise even after being advised by Tennyson that he needed to make a full disclosure to the auditors.
Particularly when considered together, these collective lapses were of legitimate concern to CFF. As CFF's Motion points out, donations are the lifeblood of any non-profit charitable organization and audits ensuring that such donations are properly handled are of paramount importance since the discovery of mishandled donations can lead to potentially crippling tax audit consequences. As CFF's Chief Audit and Compliance Officer attests, "financial transparency and donor confidence in the financial integrity of non-profits are critical to their continued existence." Decl. of Eleana Seek, ECF No. 12-6, ¶ 2.
The numerous inconsistencies raised by the evolving explanations Plaintiff provided during the audit cannot be discounted, and certainly implicate whether Plaintiff was performing adequately at the time he was terminated for purposes of making a prima facia claim of age discrimination.
Even if we assume that Plaintiff has satisfied his burden in making a prima facie case such that the burden shifts to Defendant to provide a legitimate, non-discriminatory reason for his termination, the result does not change since, given the circumstances described above, the Court believes that CFF has satisfied its burden in demonstrating non-discriminatory reasons why it discharged Plaintiff. Marc Ginsky, Defendant's COO, made the actual termination decision based on the findings in the Audit Report concluding that Plaintiff had provided false and misleading information during the course of the Sacramento Chapter's 2016 Audit. Ginsky concluded that "the findings in the Audit Report were too egregious to allow Plaintiff to continue overseeing the Sacramento Chapter," particularly given the fact that Ginsky had emphasized since assuming his position earlier in 2016 "the need for strict financial compliance" and a lack of tolerance for "anything less than complete financial transparency in the operation of our local Chapters." Ginsky Decl., ¶¶ 4-5. Perhaps even more significantly, as Anne Harris' termination letter attests, Plaintiff's shifting explanations during the audit caused CFF management to lose confidence in his ability to lead the Sacramento Chapter. Pl.'s Ex. 1, Seek Decl., ¶ 9.
While Plaintiff claims that CFF's investigation was inadequate because, for example, it failed to contact JoAnne Williams to confirm that her donor intent was indeed as stated in the November 2015 letter, as CFF points out the issue became not Ms. Williams' intent but rather its trust in Plaintiff's leadership as a result of the misleading and/or inaccurate information he provided. Additionally, although Plaintiff takes issue with CFF's failure to provide the progressive discipline it normally utilizes in addressing employee shortcomings, CFF felt that the gravity of the situation, involving as it did an Executive Director who its auditors had concluded provided false and misleading information, warranted immediate termination. Even Plaintiff admits that there are instances of misconduct where immediate termination is indicated in accordance with CFF's policy and procedure. Pl.'s Ex. 1, Aff. of Peter Tucker, ¶ 3.
Because the Court concludes, for all the above reasons, that CFF has met its burden in showing it had legitimate reasons for terminating Plaintiff, the burden once again shifts to Plaintiff to demonstrate that those reasons were merely pretextual and that CFF's real motivation in terminating Plaintiff rests with his age. Plaintiff offers two arguments in that regard. First, he claims he was replaced by Cole Jacobson, a younger, less experienced employee. Second, Plaintiff argues that "he was terminated under extremely suspicious circumstances, raising an issue of pretext." Pl.'s Opp. 9; 16-17.
Having considered all the evidence, the Court does not believe that the circumstances surrounding Plaintiff's termination give rise to an inference of discrimination so as to suggest that CFF's rationale for terminating Plaintiff was pretextual. CFF has articulated legitimate reasons for acting as it did. While Plaintiff argues that he had received favorable performance evaluations during the entirety of his employment and claims CFF's investigation was inadequate (citing, for example, its failure to contact JoAnne Williams to verify her donor intent and its alleged refusal to permit Plaintiff "to tell his side of the story"), the fact remains that Plaintiff was an at-will employee, and CFF claims it lost faith in his ability to continue serving as Executive Director given the inconsistent and misleading information he provided during the audit.
As an at-will employee, Plaintiff could be terminated at any time and for any reason, so long as those reasons were not for the present purposes discriminatory in nature. See, e.g., Silo v. CHW Med. Found, 27 Cal. 4th 1097,1104 (2002) (under California law an employee can terminate an at-will employee for no reason or for an arbitrary or irrational reason). Consequently, even if CFF "overreacted" to the Audit Report or otherwise acted in an arbitrary fashion in discharging Plaintiff, it could legally do so unless its termination was motivated by a discriminatory purpose, which Plaintiff alleges here is age discrimination.
To that end, the Court is left only with Plaintiff's allegation that he was replaced by a younger employee. Any inference from that fact alone is compromised at the onset by the fact that Plaintiff was 51 years old at the time he was hired by CFF as Executive Director. In any event, without more the Court finds the fact that Plaintiff was replaced by a younger person, without any other evidence corroborating age discrimination, to be insufficient to meet his burden in showing that CFF's stated reasons for his discharge were pretextual. Plaintiff must produce evidence sufficient as a matter of law to support a finding of intentional age discrimination in order to show pretext, and he has not done so here. See Guz v. Bechtel, supra, 24 Cal. 4th at 356-57. As indicated above, evidence too weak to support a rational inference of discriminatory intent cannot suffice in that regard. Id. at 369-70. Because Plaintiff has not met the requisite burden, summary judgment as to his age discrimination claim is proper and Defendant's Motion is GRANTED as to the Second Cause of Action.
B. Third Cause of Action: Wrongful Termination
Plaintiff concedes that his Third Cause of Action, which claims he was wrongfully terminated in violation of public policy, is based on the viability of his age discrimination claim. Pl.'s Opp., 18:5-9. Given that his age discrimination claim fails, this claim thus necessarily fails as well. Defendant's Motion is accordingly also GRANTED as to the Third Cause of Action.
C. First Cause of Action: Defamation
Having determined that Plaintiff's two causes of action premised on age discrimination do not survive summary judgment, the only remaining question for the Court's consideration is whether statements made by CFF's management concerning his termination constitute actionable defamation. The Court concludes they do not.
In contending that CFF's internal communications about Plaintiff's termination were not defamatory, CFF makes two arguments. First, it claims that because the statements were true, they cannot give rise to a claim for defamation. Second, Plaintiff alleges that the statements are subject to a conditional privilege under California law in any event because, having been made internally to other CFF management employees without malice, they were communicated to persons with a "common interest" in the subject matter at issue. Cal. Civ. Code § 47(c); London v. Sears, Roebuck & Co., 619 F. Supp. 2d 854, 864-65 (N.D. Cal. 2009); Noel v. River Hills Wilsons, Inc., 113 Cal. App. 4th 1363, 1369 (2003). Employees have a privilege to communicate concerns about employees to other employees within the employer's organization, and such communications are presumptively privileged. Bierbower v FHP, Inc., 70 Cal. App. 4th 1, 2 (1999). The presumption of privilege applies so long as the statements at issue are made without malice. The malice necessary to overcome the qualified privilege created by California Civil Code § 47(c) is "actual malice," which depends on a showing that allegedly defamatory communications are motivated by hatred or ill-will towards the plaintiff, or by a showing that the employer lacked reasonable grounds to believe the communications were true and therefore acted in conscious disregard of the truth. Taus v. Loftus, 40 Cal. 4th 683, 721 (2007).
All the statements Plaintiff identifies as being defamatory were made internally by and between CFF employees concerning the reasons for Plaintiff's termination and his conduct during the audit in the context of discussing how to respond either to Plaintiff's own request for a further explanation as to why he was terminated, or in connection with inquiries made by members of the public as to why Plaintiff had been discharged. As such, they are subject to qualified privilege attaching to such communications unless Plaintiff can show that the CFF employees made the statements with actual malice. Again, Plaintiff cannot meet that burden.
The statements in question all stemmed from the findings of Defendant's Audit Report which expressly found that Plaintiff had provided false and misleading information to the auditors in connection with their work. Relying on the auditor's findings in that regard gives rise to no inference of malice on the part of CFF's management personnel. In addition, the individuals who made the statements have all submitted declarations denying that they acted with any malice whatsoever. Anne Harris, Plaintiff's immediate supervisor, denied harboring any ill-will toward Plaintiff, stating that she in fact advocated for a lesser form of discipline despite ultimately being overruled in that regard by Ginsky. Decl. of Anne Harris, ECF No. 12-4, ¶ 8. Ginsky, for his part, does not recall even meeting Plaintiff previously and also denied any malice, stating that as the chief steward for CFF's operations he felt that engaging in communications with other management about Plaintiff's termination was simply part of his job duties. Ginsky Decl., ¶ 9. Finally, Chief Compliance Officer Eleana Seek claims she made the comments she did in good faith and as part of her job duties in responding to COO Ginsky's inquiries. She denies any malice in doing so. Seek Decl., ¶ 10.
Aside from generalities that malice should be inferred simply given the nature of the statements made, Plaintiff offers no evidence to suggest that the statement he claimed defamed him were made maliciously. As such, he has failed to show any actual malice sufficient to defeat the qualified privilege attaching to the internal communications between management that he alleges were defamatory. Since the statements are protected on that basis alone, whether or not they were also true (as alternatively argued by CFF) need not be considered. Defendant's request for summary judgment as to the First Cause of Action is also GRANTED.
CONCLUSION
Based on all the foregoing, the Court concludes that Defendant CFF is entitled to judgment as a matter of law. Consequently, Defendant's Motion for Summary Judgment (ECF No. 12) is GRANTED and the Clerk of Court is directed to enter judgment in CFF's favor.
The Court recognizes that in addition to the case-in-chief, CFF filed a Cross-Complaint against Plaintiff in state court on December 5, 2017, prior to Defendant's removal herein. CFF's Cross-Complaint alleges that Plaintiff interfered with its prospective economic advantage with donors in the wake of his termination and defamed CFF in so doing. On September 6, 2019, Plaintiff filed a Motion for Summary Judgment as to CFF's Cross-Complaint concurrently with CFF's own Motion as discussed in this Memorandum and Order. Defendant's Opposition to Plaintiff's Motion, however, states unequivocally that in the event CFF's Motion for Summary Judgment is granted, as the Court does here, it "hereby agrees to dismiss its Cross-Complaint.' Def.'s Opp. ECF No. 16, 3:15-16. Consequently, Plaintiff's Motion (ECF No. 11) is DENIED as moot and the Cross-Complaint is dismissed such that the entire case is now concluded.
IT IS SO ORDERED. Dated: August 28, 2020
/s/_________
MORRISON C. ENGLAND, JR.
SENIOR UNITED STATES DISTRICT JUDGE