Tracey Smith v. United Way of Genesee County ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
TRACEY SMITH, UNPUBLISHED
February 20, 2018
Plaintiff-Appellant,
v No. 335985
Genesee Circuit Court
UNITED WAY OF GENESEE COUNTY and LC No. 16-106968-NZ
UNITED WAY WORLDWIDE,
Defendants-Appellees.
Before: JANSEN, P.J., and SERVITTO and SHAPIRO, JJ.
PER CURIAM.
In this wrongful termination and defamation action, plaintiff appeals as of right an order
dismissing defendant United Way Worldwide, with prejudice from this wrongful termination,
defamation, and slander action. During the same motion hearing, a second order was entered
dismissing, with prejudice, defendant United Way of Genesee County. We affirm as to both
orders.
I. RELEVANT FACTS
On August 17, 2015, plaintiff began serving as an AmeriCorps VISTA member in two
Flint-area schools. Plaintiff’s status as an AmeriCorps VISTA member was managed through
the Corporation for National and Community Services (CNCS), a federal organization.
However, United Way Worldwide, through its local affiliate United Way of Genesee County,
oversaw plaintiff’s placement on a local level.
On November 13, 2015, plaintiff was dismissed from her service placement, and placed
on administrative leave with pay, pending plaintiff finding another service placement. CNCS
sent plaintiff a letter on November 19, 2015, informing her that her placement had been
terminated, per United Way Worldwide’s request, due to plaintiff’s “failure to meet the service
hour requirement and communication challenges with partnering site staff members.” Plaintiff
was officially terminated from the AmeriCorps VISTA program on December 7, 2015.
Acting in propria persona, plaintiff filed a complaint alleging wrongful termination,
slander, and defamation of character solely against United Way of Genesee County. Plaintiff
claimed that despite performing excellent work, she was dismissed from her service placement
without being disciplined. Plaintiff alleged that an employee of another organization who was
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“not a very honest individual,” had told fabricated stories about plaintiff’s performance to United
Way of Genesee County.
Moving pursuant to MCR 2.116(C)(8), United Way of Genesee County argued that
plaintiff had failed to state a claim upon which relief could be granted, and requested that the
trial court dismiss plaintiff’s complaint, with prejudice. The trial court granted United Way of
Genesee County’s motion with respect to plaintiff’s wrongful termination claim. The trial court
denied United Way of Genesee County’s motion with respect to plaintiff’s defamation claim, and
ordered plaintiff to amend her defamation claim within 28 days by pleading specific facts to
support her claim.
Plaintiff did amend her complaint by adding United Way Worldwide as a defendant.
Plaintiff went on to allege that United Way of Genesee County and United Way Worldwide
“gave negative feedback to [CNCS] and requested that . . . plaintiff be removed from her service
position.” Plaintiff maintained that her removal was “petty,” and that she had never been
previously disciplined. According to plaintiff, the only basis for her termination was an
individual employed by another organization did not like her, and therefore, provided negative
feedback regarding her job performance. However, plaintiff did not detail any specific incidents
or articulate any specific defamatory comments to support her claim. The only support plaintiff
provided was the November 19, 2015 letter she had received from CNCS.
United Way of Genesee County filed a renewed motion for summary disposition
regarding plaintiff’s defamation claim. Likewise, United Way Worldwide filed a motion for
summary disposition, pursuant to MCR 2.116(C)(8), regarding plaintiff’s defamation claim. The
trial court granted both motions on the record during a hearing on November 14, 2016.
II. DEFAMATION CLAIM
Although it is difficult to discern what, exactly, plaintiff argues in her brief on appeal, it
appears as though plaintiff contends that the trial court committed error requiring reversal by
granting United Way of Genesee County and United Way Worldwide’s motions for summary
disposition regarding plaintiff’s defamation claim. We disagree.
This Court reviews a trial court’s decision on a motion for summary disposition de novo.
Maiden v Rozwood, 461 Mich. 109, 118; 597 NW2d 817 (1999). A motion for summary
disposition brought under MCR 2.116(C)(8) tests the legal sufficiency of the pleadings, and
should be granted when the complaint is so legally deficient that recovery would be impossible
even if all well-pleaded facts are taken as true and viewed in the light most favorable to the
nonmoving party. Id. at 119. Accordingly, only the pleadings may be considered by the trial
court when deciding a motion for summary disposition under MCR 2.116(C)(8). Id. at 119-120.
As an initial matter, we note that plaintiff makes no mention of United Way of Genesee
County in her brief on appeal. Rather, United Way Worldwide is the only defendant listed in the
caption and on the proof of service. Further, plaintiff does not actually advance any arguments
relating to her defamation claims against either United Way of Genesee County or United Way
Worldwide. Plaintiff instead focuses the entirety of her brief on the actions of Crim Fitness
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Foundation, a defendant in a separate action. See Docket No. 335988. Any mention of United
Way of Genesee County or United Way Worldwide is cursory, at most.
“An appellant may not merely announce [her] position and leave it to this Court to
discover and rationalize the basis for [her] claims, nor may [she] give only cursory treatment
with little or no citation of supporting authority.” Kubicki v Mtg Electronic Registration Sys, 292
Mich. App. 287, 291; 807 NW2d 433 (2011) (citation and quotation marks omitted). Therefore,
plaintiff has essentially abandoned her claims on appeal. Regardless, we will briefly address
plaintiff’s claim on the merits.
To successfully plead a defamation claim, the plaintiff must prove the existence of:
(1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged
communication to a third party, (3) fault amounting at least to negligence on the
part of the publisher, and (4) either actionability of the statement irrespective of
special harm (defamation per se) or the existence of special harm caused by the
publication. [Edwards v Detroit News, Inc, ___ Mich App ___, ___; ___ NW2d
___ (2017) (Docket No. 334058); slip op at 6, quoting Lakin v Rund, 318 Mich
App 127, 133; 896 NW2d 76 (2016).]
“A plaintiff claiming defamation must plead a defamation claim with specificity by identifying
the exact language that the plaintiff alleges to be defamatory[.]” Sarkar v Doe, 318 Mich. App.
156, 179 n 13; 897 NW2d 207 (2016) (citation omitted). This Court is required to analyze each
“allegedly defamatory statement identified in” the complaint. Id. at 179.
Plaintiff failed to plead her defamation claim with the specificity required by Michigan
law. In her original complaint, plaintiff failed to identify any specific statement, false,
defamatory, or otherwise, made by an employee of United Way of Genesee County. At most,
plaintiff claimed that an individual employed by another organization at her service placement
was “not a very honest individual,” and that individual had told fabricated stories about
plaintiff’s work performance to United Way of Genesee County. Those stories, plaintiff alleged,
resulted in her termination as an AmeriCorps VISTA member. Plaintiff failed to provide any
details regarding these fabricated stories.
Instead of dismissing her defamation claim outright, the trial court provided plaintiff with
an opportunity to amend her complaint in order to plead any potential defamation claim with
more specificity. In amending the complaint, plaintiff added United Way Worldwide as a
defendant, but did nothing to make her defamation claim more specific. Instead, plaintiff
surmised that she had been removed from her service placement due to “petty reasons.” Plaintiff
attempted to support her claim by attaching a letter from CNCS, which stated plaintiff was
removed from her service placement, in part, due to “communication challenges with partnering
site staff members.” However, this letter is not sufficient to support a defamation claim, as it
does not specifically identify “the exact language that the plaintiff alleges to be defamatory[.]”
Sarkar, 318 Mich. App. at 179 n 13. Without explicitly stating who, what, where, and when,
plaintiff cannot meet the specific pleading requirements of Michigan law.
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We also briefly address United Way Worldwide’s argument that even if plaintiff had
identified a specific defamatory statement made by an employee of United Way Worldwide, that
statement would be covered by qualified privilege.
The defendant has the burden of proving the existence of a qualified privilege in a
defamation action. Dadd v Mount Hope Church, 486 Mich. 857, 861; 780 NW2d 763 (2010),
citing Lawrence v Fox, 357 Mich. 134, 141; 97 NW2d 719 (1959). “An employer has the
qualified privilege to defame an employee by making statements to other employees whose
duties interest them in the subject matter.” Gonyea v Motor Parts Fed Credit Union, 192 Mich
App 74, 78-79; 480 NW2d 297 (1991). To show the existence of qualified privilege, the
defendant must show
(1) good faith, (2) an interest to be upheld, (3) a statement limited in its scope to
this purpose, (4) a proper occasion, and (5) publication in a proper manner and to
proper parties only.” [Prysak v Polk Co, 193 Mich. App. 1, 15; 483 NW2d 629
(1992).]
“A plaintiff may overcome a qualified privilege only by showing that the statement was made
with actual malice, i.e., with knowledge of its falsity or reckless disregard of the truth.” Id.
The letter sent to plaintiff by CNCS indicated that United Way Worldwide had requested
that plaintiff be terminated from her service placement due to plaintiff’s “failure to meet the
service hour requirement and communication challenges with partnering site staff members.”
Therefore, any defamatory statements would have been made by an individual within plaintiff’s
supervising organization, United Way Worldwide, through its local affiliate United Way of
Genesee County, to CNCS, specifically regarding plaintiff’s performance in her AmeriCorps
VISA placement. Therefore, any defamatory statement would have been limited in scope, for a
proper purpose, and made to the proper parties. Further, plaintiff has failed to show that any
defamatory statement made was done with actual malice, “i.e., with knowledge of its falsity or
reckless disregard of the truth.” Prysak, 193 Mich. App. at 15 (emphasis removed).
Based on the foregoing, even if all allegations are taken as true and viewed in a light most
favorable to plaintiff, plaintiff’s defamation claims against United Way of Genesee County and
United Way Worldwide are legally deficient. The trial court properly granted United Way of
Genesee County’s renewed motion for summary disposition and United Way Worldwide’s
motion for summary disposition, pursuant to MCR 2.116(C)(8). Maiden, 461 Mich. at 118.
Affirmed.
/s/ Kathleen Jansen
/s/ Deborah A. Servitto
/s/ Douglas B. Shapiro
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