Gambardella v. Apple Health Care, Inc., No. 17977.

• Decision Date: 19 May 2009
• Docket Number: No. 17977.
• Court: Connecticut Supreme Court
• Parties: Laurie GAMBARDELLA v. APPLE HEALTH CARE, INC., et al.

969 A.2d 736

291 Conn. 620

Laurie GAMBARDELLA v. APPLE HEALTH CARE, INC., et al.

No. 17977.

Supreme Court of Connecticut.

Argued February 13, 2009.

Decided May 19, 2009.

Brendon P. Levesque, with whom were Karen L. Dowd and, on the brief, Wesley W. Horton, Michael S. Taylor, Hartford, and Dana M. Hrelic, certified legal intern, for the appellants (defendants).

Stephen E. Pliakas, with whom were Robert Nastri, Jr., and, on the brief, Jeffrey J. Tinley, Waterbury, for the appellee (plaintiff).

ROGERS, C.J., and NORCOTT, KATZ, PALMER and SULLIVAN, Js.

KATZ, J.

The plaintiff, Laurie Gambardella, filed a defamation action against the defendants, Apple Health Care, Inc. (Apple), Waterbury Extended Care Facility, Inc. (facility), and facility administrator John Sweeney, alleging that they had communicated false accusations of theft to others in connection with their termination of her employment. The case was tried to the court, Gallagher, J., which rendered judgment in favor of the plaintiff. The defendants appealed from the judgment of the trial court,¹ claiming that the court improperly had rejected their defense of the qualified privilege for intracorporate communications because it failed to apply an actual malice standard when determining that the defendants had lost the privilege and because there was insufficient evidence to support a finding of actual malice. We conclude that the trial court applied an actual malice standard and that its decision is supported by the record. Accordingly, we affirm the judgment of the trial court.

The record discloses the following undisputed facts and procedural history relevant to this appeal. The plaintiff was employed by the facility, which is owned and operated by Apple, as an admissions counselor from September, 1998, until her discharge on May 25, 2000. In the course of her employment, the plaintiff met with Eleanore O'Sullivan concerning the admission of O'Sullivan's aunt, Fannie Lauro, to the facility. Upon Lauro's admission to the facility on May 12, 2000, O'Sullivan brought a number of items of Lauro's personal property, including clothing and furniture, to the facility for Lauro's use. Days later, Lauro suffered a massive heart attack. She died at Waterbury Hospital on May 15, 2000.

O'Sullivan subsequently went to the facility to retrieve some articles of clothing for Lauro's funeral, and she and the plaintiff discussed the disposition of Lauro's personal property remaining at the facility. O'Sullivan told the plaintiff that she was not interested in the property and that the plaintiff should do whatever she wanted with the items. The plaintiff decided to keep two chairs for herself. On the evening of May 18, 2000, the plaintiff contacted Colleen Busk, the nursing supervisor on duty at the facility, to inform Busk that the plaintiff's son and a friend would be coming to take the chairs from Lauro's room. Busk asked if she could have the dresser from the room. The plaintiff agreed, and Busk removed the dresser. The plaintiff later informed Joseph Stolfi, the facility's maintenance supervisor, that the remaining furniture was available for use elsewhere in the facility. Stolfi asked about the chairs and the dresser, and the plaintiff informed him that those items had been taken care of already. Thereafter, Stolfi contacted Sweeney to apprise him of the situation.

Sweeney decided to conduct an investigation into the disposition of the property. He spoke with the plaintiff, who explained that O'Sullivan had given her the furniture and that she had taken some of it to her home and had given some of it to Busk. Sweeney informed her that there was a corporate policy against accepting gifts from residents and their families.² The plaintiff was not aware of the policy, but after being informed of it, she subsequently returned the chairs to the facility. Sweeney directed Kathy Breidenbach, a social worker at the facility, to contact O'Sullivan to ascertain her wishes with respect to the property. O'Sullivan confirmed the plaintiff's account to Breidenbach, and Breidenbach informed Sweeney, providing him with handwritten notes of the conversation. Sweeney then contacted O'Sullivan directly, who verified that she had given the furniture to the plaintiff to keep or give to others as she saw fit. O'Sullivan subsequently sent a letter to the plaintiff in which she stated that the property had been left for the plaintiff to keep for herself or distribute to others in her sole discretion.³ Sweeney received a copy of this letter.

Despite the results of this investigation, Sweeney decided that the plaintiff had stolen the furniture. He concluded that, because company policy barred employees from accepting gifts from residents or their families, the furniture belonged to the facility. Therefore, he determined that, when the plaintiff removed the furniture from the facility, she had committed theft. He forwarded the results of his investigation, except for the substance of his own conversation with O'Sullivan, to Jack Boynton, director of human resources for Apple, and recommended that the plaintiff's employment be terminated for theft. After reviewing the information provided to him, Boynton approved the termination.

Sweeney thereafter scheduled a meeting between himself and the plaintiff to inform her that her employment was being terminated. In accordance with Apple's corporate policy requiring the presence of a witness at termination meetings, Sweeney asked Kate Sloan, director of admissions and marketing for Apple, to be present. At the meeting, Sweeney presented the plaintiff with a disciplinary action report indicating that her employment was being terminated and explained that she was being fired for theft because she had taken the chairs, which belonged to the facility, from Lauro's room.

Other individuals subsequently learned the reason for the plaintiff's employment termination. Busk had heard some facility employees discussing the fact that the plaintiff had been fired for taking furniture. Other people, including the plaintiff's daughter, also had heard that the plaintiff had been fired for "taking furniture from a dead lady...."

Thereafter, the plaintiff brought an action for defamation against the defendants.⁴ In response, the defendants contended that any defamatory statement that may have been made was protected by a qualified privilege for intracorporate communications regarding an employee's termination.

Following a trial to the court, Judge Gallagher issued two decisions, the first of which found the defendants liable for defamation, and the second of which awarded general, special and punitive damages for a total of $224,481 in damages, plus costs, to the plaintiff. The court concluded that the plaintiff had established that O'Sullivan had given the furniture to her, and that the defendants had published false allegations of theft to third parties, which constituted defamation per se. The trial court rejected the defendants' claim that such communications were protected by the qualified privilege for intracorporate communications because, as a result of Sweeney's investigation, the defendants undoubtedly had known that the allegation of theft was false. It also found that the defendants' insistence that the plaintiff had committed theft, despite Sweeney's investigation, was further evidence of their bad faith. The trial court thereafter rendered judgment in favor of the plaintiff, and this appeal followed. See footnote 1 of this opinion. Additional facts will be set forth as necessary.

On appeal, the defendants claim that the trial court improperly determined that the qualified privilege for intracorporate communications had been abused and therefore lost. Specifically, they contend that, although Connecticut courts have recognized that a qualified privilege may be defeated by a showing of either actual malice, i.e., publication of a statement with knowledge of the statement's falsity or reckless disregard for its truth, or malice in fact, i.e., publication of a false statement with bad faith or improper motive, this case law overall has been inconsistent and this court specifically has left open the question of which standard should be applied to defeat the qualified privilege for intracorporate communications. They assert that the purpose underlying this privilege is of sufficient importance that this court should require the more stringent showing of actual malice, rather than malice in fact, to defeat the qualified privilege. The defendants further claim that there was insufficient evidence in the present case to show either actual malice or bad faith.⁵

In response, the plaintiff contends that the settled law in Connecticut permits a showing of either actual malice or malice in fact to defeat the qualified privilege for intracorporate communications in a defamation case brought by a person who is not a public figure. She also claims that the trial court properly found, and the evidence supports, that the false statements had been published both with actual malice and malice in fact.⁶ We agree with the plaintiff.

We begin our analysis by setting forth the relevant legal principles and the proper standard for our review. "A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.... To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement." (Citations omitted; internal quotation marks omitted.) Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004). If the plaintiff is a public...