answer questions 1 and 4.

Chapter 5: Background Checks, References, and Verifying Employment Eligibility 169 Thompson v. Bosswick 855 F. Supp. 2d 67 (S.D.N.Y. 2012) OPINION BY DISTRICT JUDGE SWEET: for all services provided, that invoices were received and that he paid each invoice promptly. According to The Defendants Mark Bosswick ("Bosswick") and San- the Defendants, there is no admissible evidence in the ford E. Ehrenkranz ("Ehrenkranz") (named solely in record that Lambert ever told Robert or Grace DeNiro their capacity as Trustees of the Riverside Trust, here- that Thompson received free lawn mowing services inafter the "Trust") and Peter Lambert (named indi- prior to Thompson's termination from the Trust. The vidually and in his capacity as Manager of the Trust) Defendants also contend that Thompson never heard ("Lambert") have filed a motion . . . to dismiss the Lambert tell the DeNiros or anyone else that he re- complaint filed by the plaintiff Michael Thompson ceived free lawn mowing services. The Plaintiff dis- ("Thompson" or the "Plaintiff"). Upon the facts and putes these contentions. conclusions set forth below, the Defendants' motion The Defendants state that, on or about September for summary judgment is granted in part and denied 23, 2009, the Plaintiff was told that his employment in part. * * * with the Trust was being terminated. * * * According Thompson . . . is a former employee of the Trust. to the Plaintiff, on October 1, 2009, Lambert met with The Trust is the owner of an estate in Ulster County, Thompson in Thompson's office to discuss the transi- New York owned by Robert DeNiro and Grace Hight- tion arrangements, and Lambert stated that finding the ower DeNiro, Bosswick and Ehrenkranz are trustees of Plaintiff's replacement would take considerable time the Trust, and Lambert, . . . was Thompson's supervi- and that Thompson's continued employment would sor during the time he was employed with the Trust. be needed for at least three to four months. * * * The According to the Plaintiff, Thompson's chosen field of Plaintiff continued his employment during this transi- employment is domestic estate management for high tion period. . . . According to the Plaintiff, Lambert was wealth individuals and families, and, prior to the con- consoling about the nature of Thompson's termination duct alleged in this lawsuit, Thompson had an untar- and promised Thompson that he would write a refer- nished work record in this field. ence letter, assist in finding a new job, forward along Thompson began working for the Trust in Septem- job contacts and help the Plaintiff in any way he could. ber 2007. . .. * * * The Plaintiff contends that when he The Plaintiff states that, in reliance on Lambert's state- first started, he understood from Lambert that Jelske, ments, he put Lambert's name down as a reference in who Plaintiff was succeeding, would remain employed submissions to employment agencies. in a diminished role under the Plaintiff's supervision. In early October 2009, Thompson began looking for . .The Plaintiff contends that Lambert requested a new job. .. . While looking for a new job, Thomp- that Thompson assist him in investigating Jelske, who son sent resumes to four employment agencies: the Lambert determined may have been involved in crimi- Pavillion Agency ("Pavillion"), the Calendar Group na! acts. The Plaintiff states that his investigation con- ("Calendar"), Mahler Private Staffing ("Mahler") and fixed that Jelske had been demanding kickbacks from Vincent Minuto of Hampton Domestics ("Minuto"), as vendors, paying ghost employees including his family well as several others. According to the Plaintiff, these maciabers and demanding at least one vendor to over- four agencies are the dominant employment agencies till sod sharing the difference with the vendor. According to the Defendants, for part of 2008 and positions. capable of placing individuals in estate management all of 2009, Thompson received free lawn mowing Pavillion sent Thompson on an interview with the services at his personal residence from Lynn Warren family of Robert and Melissa Soros, who ultimately Landscaping, the Trust's outside landscape contractor. elected not to hire Thompson. Although the Defen- The Defendants also contend that, in 2009, Thompson dants contend that there is no evidence that Lambert received free snowplowing services from the Trust's gave a bad reference to either Pavillion or the Soros snowplow vendor. . . . The Plaintiff disputes these al- Family, the Plaintiff states that, prior to a follow-up in- legations and states that, with respect to the snow re- terview, he was told by a Pavillion agent that Pavillion moval services, he instructed the vendor to bill him would be securing a reference from Lambert and waslater informed by Pavillion that no progress was being made related to the position. According to the Plaintiff, kind incompatible with the proper conduct of the busi- Thompson has had similar promising leads through ness, trade, profession or office itself." Calendar Group and Mahler Private Staffing also fail The Plaintiff has identified five statements that are Chapter 5: Background Checks, References, and Verifying Employment Eligibility 17 to materialize after the employment agencies informed alleged to be defamatory. First, on December 16, 2009, is not always honest?" Rather than constitute a state- Thompson that they would be conducting a reference Lambert allegedly made the following statement regard- ing Thompson to Claudia Pache, an employee at a pro- ment of fact, this remark represents Lambert's opinion 3. Lambert's Statements To Scott Gerow check. fessional reference checking company: "I would go for and is not actionable. Accordingly, there is insufficient The Plaintiff alleges that on or about mid-October evidence of defamation to support the Plaintiff's al- 2009, Lambert stated to Scott Gerow, a colleague at The Plaintiff contends that on or about November 30, 2009, Mahler designated the Plaintiff "dnp," mean- impromptu inspections. Normally I take what someone the Trust, that he had found out that Thompson was ing "do not place," because of Lambert's bad reference. tells me as the truth; but in performing audits things legations concerning Lambert's statements to Pache, granted with respect to these statements. that had been taken from the property . . ." The Defen- The Plaintiff also contends that on December 1, 2009, didn't come out accurately." Second, on December 16, and the Defendants' motion for summary judgment is "stealing . .. [and] that there were actual physical things dants contend that this does not constitute defamation because Thompson admittedly accepted free landscap Thompson had a telephone conversation with Vin- 2009, Lambert allegedly made the following response to a question from Ms. Pache: "Q. Based on this infor- 2. Lambert's Statements To Vincent Minuto mation, would you say that he was not always honest? Another instance of defamation alleged by the Plaintiff ing services thereby making Gerow's statement true, cent Minuto during which Minuto informed him that to Vincent Minuto, the principal at one of the em- in which Lambert allegedly told Vincent Minuto, the Plaintiff because he had heard about the Plaintiff taking A. Yes." Third, on October 28, 2009, Lambert stated involves an October 28, 2009 telephone conversation Thompson was not damaged by the statement and the his employment agency would be unable to help the statement is privileged as the statement of a co-worker principal of Hampton Domestics, that Thompson had relating to the common busin ness of Gerow, Thompson kickbacks during his employment with the Trust. * * * ployment agencies, that it had been confirmed that been taking kickbacks, not reporting to work, work- and Lambert, all of who were employed at the Trust. "New York law allows a plaintiff to recover for defa- ing from home and engaging in other misconduct. To As noted above, there are material questions re- garding whether the Plaintiff did or did not pay for the mation by proving that the defendant published to Thompson had been taking kickbacks, failing to report a third party a defamatory statement of fact that was to work and working from home. Fourth, on or about support his allegations, the Plaintiff cites testimony from Lambert's deposition. . . . However, the reasons lawn mowing services that are the alleged "kickback." for Thompson's termination, according to Lambert's While the Defendants highlight deposition testimony false, was made with the applicable level of fault, and ei- mid-October 2009, Lambert stated to Scott Gerow, a ther was defamatory per se or caused the plaintiff spe- colleague of the Plaintiff, that he had found out that deposition testimony, involved "mold and mud that in which Thompson stated that he received services Thompson was "stealing .. . that there were actual phys- was found on the property" rather than the defamatory for free, the Plaintiff contends that he never asked for cial harm, so long as the statement was not protected statements the Plaintiff has alleged. any services for free, insisted on being billed for all ser- by privilege." "In deciding whether the jury should be ical things that had been taken from the property. . . ." vices performed at his private residence and paid for Fifth, on or about October 13, 2009, Lambert stated The Defendants have presented evidence suggest- every invoice he was given by Warren. Notwithstand- allowed to pass upon statements alleged to be defama- to Lynn Warren, the provider of lawn services to the ing that Lambert made no defamatory statements to Minuto during the October 28 conversation. In an ing the Defendants' contention that Thompson was not tory, the court need only determine that the contested DeNiro estate: "Michael wasn't there. He was trying to email dated January 26, 2011, Minuto wrote to Thomp- harmed by Gerow's statement, damages in this case are son, in relevant part, "I have no idea what you are refer- presumed since Gerow's statement "tend to injure an- statements 'are reasonably susceptible of defamatory ring to in your last email regarding your last position other in his or her trade, business, or profession" and, connotation.' If any defamatory construction is possi- manage the place from (another state]" and "we think he's doing the same things as Joe [ Jelske]," a reference to of employment." Additionally, in an affidavit sworn on as such, constitute defamation per se. ble, it is a question of fact for the jury whether the state- the criminal conduct of Thompson's predecessor. February 25, Minuto stated, in relevant part: The Defendants also contend that the alleged state- ments were understood as defamatory." ments from Thompson to Gerow are not defama- Under New York law, "only statements alleging facts 1. Lambert's Statements To Claudia Pache . .*To be clear, Lambert has never to my memory tion because they are protected by qualified privilege. The Plaintiff has alleged that two statements Lambert told me, in words or substance, that Thompson had "Courts have long recognized that the public interest can properly be the subject of a defamation action." In been taking kickbacks, that he routinely (or ever) is served by shielding certain communications, though addition, a plaintiff must allege the time, place and allegedly made to Claudia Pache constitute defama- tion. Ms. Pache is employed as a professional reference failed to report to work, or that Thompson had en- possibly defamatory, from litigation, rather than risk sti- manner of the false statement and identify to whom geg:a in any kind of "venal and criminal activity." fling them altogether." "One such conditional, or quali- the false statement was made. Special harm means checker for a company called www.checkmyreference. Neither has anyone else affiliated with Riverside fied, privilege extends to a communication made by one economic or pecuniary loss. Special harm "must flow com, a service that contacts former employers and made any such statements to me. person to another upon a subject in which both have an interest. This 'common interest' privilege has been directly from the injury to reputation cause by the defa mation[,] not from the effects of defamation." In order obtains references. "There are, generally speaking, applied for example to employees of an organization." four elements necessary to establish a prima facie case well-established that credibility issues, which The rationale for applying the privilege is that the flow to constitute defamation per se, the statement must of slander: (1) an oral defamatory statement of fact, are questions of fact for resolution by a jury, are inap- of information between persons sharing a common in (i) charge an individual with a serious crime, (ii) in- (2) regarding the plaintiff, (3) published to a third party propriately decided by a court on motion for summary terest should not be impeded. * * * However, qualified jure another in his or her trade, business, or profession, by the defendant, and (4) injury to the plaintiff. The judgment. Additionally, there is a factual dispute as to privilege can be dissolved if a plaintiff can demonstrate that the defendant spoke with "malice." . . . New York (iii) claim an individual has a loathsome disease or fourth element is presumed when the defamatory state- the truth of the comments Lambert allegedly made to ment takes the form of slander per se." The Plaintiff Minuto, as the Defendants assert that Thompson did courts have applied "malice" to have both its common (iv) impute unchastity to a woman. To find that a state- receive kickbacks, while the Plaintiff denies this al- law meaning as well as its constitutional meaning. Un- ment qualifies as one that tends to injure another in his asserts that Lambert defamed him when he told Pache legation. Because a genuine issue of material fact has der the [constitutional] standard for malice, a plaintiff or her trade, business or profession, the statement "must be made with reference to a matter of significance and that he would "go for impromptu inspections" and that arisen, the Defendants' motion for summary judgment must establish that the "statements were made with a "in performing audits things didn't come out accu- with respect to the defamatory comments Lambert al- high degree of awareness of their probable falsity." "Un- der common law, malice meant spite or ill will." importance for [ the operation of the business], rather rately." The Plaintiff, however, has failed to present any legedly made to Minuto is denied. than a more general reflection upon the plaintiff's char- acter or qualities." The statement must be targeted at the evidence suggesting this comment to be false. The sec- ond statement the Plaintiff asserts to be defamatory is specific standards of performance relevant to the plain- tiff's business and must impute conduct that is "of a that Lambert replied in the affirmative to Pache's ques- tion, "Based on this information, would you say that heHere, because the Plaintiff has failed to establish Lambert's malice, ill-will or any degree of awareness could be interpreted as injuring Thompson in his trade that his statements to Gerow were false, Lambert's of estate management. Because Lambert's statements to statements to Gerow are shielded by the qualified Warren are reasonably susceptible of a defamatory con- privilege of common interest and cannot be considered notation, the Defendants motion for summary judg ment concerning these statements is denied. * * * defamatory. Accordingly, the Defendants' motion for summary judgment is granted with respect to Lam- CASE QUESTIONS bert's remarks to Gerow. 1. What was the legal issue in this case? What did the court decide? 4. Lambert's Statements To Lynn Warren 2. What are the allegedly defamatory statements that The Plaintiff alleges that on or about October 13, 2009, were made about the plaintiff in this case? For Lambert stated to Lynn Warren, the vendor who pro- which statements was summary judgment granted vided lawn services to the Trust, that "Michael wasn't to the defendants? Why? For which statements was there. He was trying to manage the place from [another summary judgment denied? Why? state]" and "we think he's doing the same things as Joe 3. What is qualified privilege? Is there an argument [Jelske] . . ." The reference to Jelske refers to Thomp- to be made that all of the alleged defamatory state- son's predecessor at the Trust who engaged in various ments are shielded by qualified privilege, and not acts of illegal conduct, including stealing, demanding just the statements made to Gerow? Why or why kickbacks and complicity in overbilling the DeNiros. not? The Defendants contend that Lambert's remark to 4. How does a former employee know whether he or Warren is not specific enough to constitute defama- she is being defamed in references from a former tion. The Defendants also contend that the phrase "we employer? think" classifies Lambert's statement as an opinion 5. Given the circumstances of his termination, how rather than a statement of fact. should representatives of the Riverside Trust * * * The statements alleged here imply that Thomp- have responded to requests for references on the son had been engaged in criminal conduct and also plaintiff