Court of Appeals: Div. III – Defamation Verdict Affirmed for School District’s Rumor of Marital Affair
Patricia Valdez-Zontek (“VZ”), of Hispanic descent, worked for Eastmont as a Special Programs Director. Her employment contract did not include summer work paid under a supplemental contract, yet VZ did work during the summer. In August 2001, VZ submitted time sheets to payroll for summer hours. The time sheets were referred to Asst. Superintendant Jagla for approval. Upon inquiry, VZ stated that she had an agreement with Superintendant Thaut to work during the summer. Thaut confirmed this. When a second time sheet came, which was approved by Thaut as well, Jagla suggested that the reason Thaut was approving these time sheets was because he was having an affair with VZ. Thaut denied this.
Both Asst. Superintendants initiated an executive school board session to address the issues of VZ being paid for summer hours when it wasn’t in her contract. Jagla and Asst. Super Brophy insisted that Thaut’s direction for payments to VZ was a misuse of public funds. As evidence, Jagla submitted to the board an inaccurate modified time sheet with VZ’s signature. In fact, Jagla had created the document herself and forged VZ’s signature.
VZ was not allowed to explain her position to the board. As a result of this school board session, District Board President Miller sent a request for a school district personnel audit to the state. Miller later told the audit manager to limit the investigation to VZ and her secretary. Jagla then submitted the fake document she had created to the investigator. But this time she added the word “sample” to the document. CYA? Jagla also asked the investigator to look into the “affair” between VZ and Thaut, but the investigator said that this was outside the scope of the investigation. This sounds like a good ole boy lynching!
The investigation cleared VZ of any wrongdoing. Thaut then learned that Jagla had told the board that Thaut and VZ were having an affair and it was upsetting the administrative team. Board President Miller investigated the alleged affair and found no evidence of inappropriate conduct. However, Jagla was spreading the rumor like wild fire. She told one of the principals that the board would likely ask for Thaut’s resignation due to his affair with VZ. This principal told three other principals, and they told two teachers, and they told two teachers…you get the drift. The board took no steps to stop this rumor. The rumor spread through the District, the community, and to school personnel in the Wenatchee, Moses Lake, Yakima, Spokane, Quincy and Seattle school districts. Smut travels wide and fast! Partly due to this controversy, the District demoted VZ. VZ then resigned. Lynching complete! VZ then sued the District for discrimination, retaliation, outrage, negligent infliction of emotional distress (NIED), defamation, and invasion of privacy. You go girl! The jury found for VZ on discrimination, retaliation, NIED, and defamation and awarded $180,000 in damages. The District appealed the defamation verdict only. Now for the legal part of this mess.
The issue is whether substantial evidence shows any District official made a provably false statement regarding the alleged romantic affair between Ms. Valdez-Zontek and Mr. Thaut. A defamation plaintiff must establish four elements: (1) falsity, (2) an unprivileged communication, (3) fault, and (4) damages.
The degree of fault necessary to make out a prima facie case of defamation depends on if the plaintiff is a private individual or a public figure or official. The negligence standard of fault applies if the plaintiff is a private individual; negligence is established by a preponderance of the evidence. A plaintiff who is a public figure or official must prove "actual malice," i.e., knowledge of falsity or reckless disregard of the truth or falsity, by clear and convincing evidence. Id. To establish the falsity element of defamation, the plaintiff must show the offensive statement was "provably false." "Expressions of opinion are protected by the First Amendment" and "are not actionable." But a statement meets the provably false test to the extent it expresses or implies provable facts, regardless of whether the statement is, in form, a statement of fact or a statement of opinion. One way a statement could be provably false is when "it falsely describes the act, condition or event that comprises its subject matter." If a direct statement of facts would be defamatory, then a statement of an opinion implying the existence of those false facts supports a defamation action. Such is the case when ordinary persons hearing the statements would not perceive them to be "pure" expressions of opinion. (Citations omitted).
There was no evidence that the rumor was true and thus it was provably false. The District argued that VZ was a public figure, but the trial court held, and the COA affirmed, that VZ was a private figure (specifically as it related to the rumors).
Finally the District argued that their statements about the affair are protected by common interest privilege. The privilege applies when the declarant and the recipient have a common interest in the "subject matter of the communication." The privilege may be lost if the plaintiff can show it was abused. Abuse occurs when:
The defendant abuses the qualified privilege if he or she (1) knows the matter to be false or acts in reckless disregard as to its truth or falsity of the statement . . . (2) does not act for the purpose of protecting the interest that is the reason for the existence of the privilege . . . (3) knowingly publishes the matter to a person to whom its publication is not otherwise privileged . . . (4) does not reasonably believe the matter to be necessary to accomplish the purpose for which the privilege is given . . . or (5) publishes unprivileged as well as privileged matter.
However, the Court of Appeals held that District officials knowingly spread the affair rumor well beyond the scope of any common interest privilege for investigating a possible conflict of interest, and that they did so with a high degree of awareness that the rumor was probably false. The verdict was affirmed as to defamation.