Canfield v. Clark

• Decision Date: 28 May 2013
• Docket Number: No. 67274-6-I,67274-6-I
• Court: Washington Court of Appeals
• Parties: DONALD CANFIELD, Appellant/Cross-Respondent, v. MICHELLE CLARK and SEATTLE PUBLIC SCHOOLS, Respondents/Cross-Appellants.

DONALD CANFIELD, Appellant/Cross-Respondent, v. MICHELLE CLARK and SEATTLE PUBLIC SCHOOLS, Respondents/Cross-Appellants.

No. 67274-6-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

FILED: May 28, 2013

UNPUBLISHED OPINION

BECKER, J. — Donald Canfield, an electrician with the Seattle Public Schools, was demoted after the school district investigated a coworker's allegation that Canfield carried a gun on school property. An arbitration resulted in his reinstatement. His defamation suit against the coworker was dismissed on summary judgment. We reverse that ruling. A reasonable jury could find that the coworker made statements that were unprivileged and false. The dismissal of Canfield's claims against the school district is affirmed.

FACTS

Canfield began working for the Seattle school district as a maintenance electrician in 1992. He became foreman of the district's electrical shop in 2001.Some of Canfield's subordinates complained that he had an intimidating manner, but Canfield was not disciplined.

In August 2007, the district hired Michelle Clark to work in the electrical shop as a fire alarm technician. Canfield suggested Clark for the position. Canfield had previously worked with Clark on electrical contract jobs, and they were social acquaintances. In early December 2007, Clark complained to Auki Piffath, her carpool partner from a different maintenance trade, about a particular incident when Canfield had gotten angry with her at work. Clark said she was concerned because she knew that Canfield carried a gun. She told Piffath that years before her employment at the school district, she had seen Canfield pull a gun from his pocket soon after he had walked off school district property.

Piffath reported Clark's statements to district management. The next day, a member of the human resources department, Jeanette Bliss, contacted Clark. Clark repeated her remarks about Canfield to Bliss. She added that Canfield, while at work, had recently confirmed that he was still carrying a gun.

Police were called to the school. Canfield was publicly escorted off school property by police officers. He was placed on paid administrative leave.

Bliss interviewed Canfield, Clark, and several other maintenance employees. Canfield insisted that he never brought a gun onto school property. Several employees told Bliss they were aware Canfield owned guns, but none reported seeing Canfield carrying a gun on school property. Bliss concluded Canfield had harassed his employees and created a hostile work environment.She recommended that he be terminated. The district decided instead to demote him out of his foreman position. His pay was reduced, a written reprimand was added to his personnel file, and he was required to participate in anger management counseling.

Canfield's union filed a grievance on his behalf. After a two-day hearing in September 2009, the arbitrator sustained his grievance. The arbitrator found the school district's evidence had "certain significant defects," and Clark's initial gun allegation did "not appear to have had substance." The arbitrator lifted the demotion, awarded Canfield back wages, and converted the written reprimand to a documented oral warning, the lowest level of progressive discipline.

Canfield then sued Clark for defamation, outrage, and negligent infliction of emotional distress. Several months later, he filed a separate suit against the school district alleging retaliation, civil conspiracy, and a statutory wage claim, among other claims. The two lawsuits were consolidated, Clark and the school district were jointly represented, and both defendants moved for summary judgment. Canfield's claims against Clark and his wage claim against the district were dismissed. He was allowed to go to trial against the district on his claims of retaliation and civil conspiracy. After a nine-day trial in July 2011, the jury found for Canfield on the retaliation claim and awarded him $500,000. The trial court overturned the verdict on the school district's motion for judgment as a matter of law under Civil Rule 50. Canfield appeals.

DEFAMATION

Canfield contends the court erred by dismissing his defamation claim against Clark on summary judgment.

This court reviews summary judgment orders de novo, engaging in the same inquiry as the trial court. Mohr v. Grant, 153 Wn.2d 812, 821, 108 P.3d 768 (2005). Summary judgment is proper if the evidence shows there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. CR 56(c). Construing the evidence in the light most favorable to the nonmoving party, the court asks whether a reasonable jury could find in favor of that party. Mohr, 153 Wn.2d at 821.

Summary judgment "plays a particularly important role in defamation cases" because permitting unwarranted defamation suits to proceed to trial can chill speech protected by the First Amendment. Mohr, 153 Wn.2d at 821. Competing with these free speech concerns is society's "'pervasive and strong interest in preventing and redressing attacks upon reputation.'" Mohr, 153 Wn.2d at 821 n.5, quoting Rosenblatt v. Baer, 383 U.S. 75, 86, 86 S. Ct. 669, 15 L. Ed. 2d 597 (1966). The plaintiff in a defamation suit must prove falsity, an unprivileged communication, fault, and damages. Due Tan v. Le, No. 86021-1, slip op. at 12 (Wash. May 9, 2013). To withstand summary judgment, the plaintiff must show a genuine dispute as to each element. Mohr, 153 Wn.2d at 822.

A. Falsity

In sworn testimony, Clark did not deny making statements to school district employees that she had seen Canfield carrying a gun on school property. She admitted telling several people about the long-ago incident when she claims she saw Canfield take a gun from his pocket soon after stepping off of district property. Bliss testified that Clark also told her that after she began working with Canfield at the school district, she once asked him if he still kept a gun on him, and that he responded by saying "yes," it was in his pants. Clark admitted telling Piffath and Bliss about seeing Canfield's gun cabinet at his house—in Bliss's notes of the interview, Clark called it "an arsenal."

Clark also admitted making statements about Canfield's gun possession to other school employees, including Jessie Logan and Bill Wickersham, while Canfield was on administrative leave. Logan's declaration reports that Clark definitely said she saw Canfield carrying a gun at school:

She started talking to one of the teachers at an elementary school we went to about Don carrying a gun and having such a terrible temper. When I overheard this I asked Michelle, "Did you say that this guy, 'Don,' was carrying a gun on the school district's property?" She told me that he carried a gun and never took it off his body. I asked her if she ever actually SAW the gun on him at the school district shop and she told me, "Yes, I was in the electrical shop one day when he was there. I saw it on him." I was flabbergasted.

From the way she was talking about him, I really believed he was a potential mass killer. Michelle explained what had happened in the electrical shop just months before I took the call. She said that "Don" went off on her and became very violent on the job, and that it took a SWAT team to remove him from the school district shop. She said that nobody could stand him (not even the teachers in the schools) and that everybody was just glad that he was gone and thanked her for "getting rid of him." She told me that "Don" wascurrently on paid administrative leave while the school district could figure out a way to fire him.

(Emphasis added.) Although Clark testified that she believed Logan was exaggerating, she did not deny the substance of Logan's remarks. She admitted that until someone at the school district instructed her not to talk about Canfield's gun possession, she "didn't have an issue talking about it . . . . Don's name came up a lot, yes."

In his arbitration testimony, Canfield denied ever bringing a gun on school district property: "Never, never. Wouldn't think of it. . . . I know the laws. I have a concealed weapons permit." He also denied Clark's account of the incident from years before. Canfield testified that the outing in question was on a Saturday, Clark picked him up at his home and drove him to the store, they did not park on or enter school district property, and he decided to bring a gun with him for "protection" because the store was not in a good part of town. In his declaration filed in opposition to summary judgment, Canfield reaffirmed his arbitration testimony as being "true and correct." Canfield's insistence that he never carried a gun on school property creates a genuine dispute as to the truth or falsity of Clark's statements about him. See Lawson v. Boeing Co., 58 Wn. App. 261, 267, 792 P.2d 545 (1990) ("On summary judgment we must assume that the statements were false, since they are denied in [the plaintiff's] affidavit."), review denied, 116 Wn.2d 1021 (1991).

A defendant in a defamation case need not prove the literal truth of every statement, so long as the "gist" of the statements or the portion that carries the"sting" is true and the false statements do not cause any separate or additional harm. Mohr, 153 Wn.2d at 825; Due Tan, slip op. at 17-18. Clark contends her statements were all "substantially true" because they were all corroborated by the common understanding among electrical employees that Canfield habitually carried a gun.

Clark's argument fails. The "sting" of Clark's statements was not the mere fact that Canfield habitually possessed guns. Gun possession is generally a lawful activity. The portion that carried the "sting" and did harm to Canfield's reputation was the allegation that he carried guns with him onto school property. Such an action would violate state law, see RCW 9.41.280, as well as school district policy. It was this allegation that gave the school district grounds for...