                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-12-2002

Howard v. Deklinski
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-4171




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                                                                     NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                                          No. 01-4171


                                    WILLIAM R. HOWARD,
                                                               Appellant
                                                v.

         KAREN DEKLINSKI; GARY SMITH; JOHN DUNN; JOHN CONNOLLY;
                SUSAN WERTZ; ROGER FICKES; ABILITECH INC.;
          DEPARTMENT OF CONSERVATION AND NATURAL RESOURCES


                         On Appeal from the United States District Court
                             for the Middle District of Pennsylvania
                                    (D.C. No. 00-cv-01649)
                             District Judge: Hon. Sylvia H. Rambo


                           Submitted Under Third Circuit LAR 34.1(a)
                                      October 31, 2002

                         Before: SLOVITER, FUENTES, Circuit Judges
                                 and FULLAM,* District Judge

                                   (Filed: November 12, 2002)


                                  OPINION OF THE COURT

___________________

*     Hon. John P. Fullam, Senior Judge, United States District Court for the Eastern
      District of Pennsylvania, sitting by designation.
SLOVITER, Circuit Judge.

        The appellant, William R. Howard, brought this action under 42 U.S.C. § 1983,

asserting, among others, a claim of defamation regarding communications from Defendants

John Connolly, Susan Wertz and Abilitech, Inc. (hereafter “the Abilitech Defendants”) to

Howard’s employer, the Pennsylvania Department of Conservation and Natural Resources

(hereafter “the DCNR”). On April 11, 2001, the District Court granted a motion to dismiss

all counts against the Abilitech Defendants excepting the state law defamation claim. On

October 4, 2001, after determining that Howard failed to establish a question of material

fact, the District Court granted summary judgment for the Abilitech Defendants on the

remaining claim. See Memorandum and Order, Howard v. Deklinski, Civ. No. 00-1649

(M.D. Pa. Oct. 4, 2001). That Order is the subject of this appeal.

        Howard asserts, as he did before the District Court, that the Abilitech Defendants

abused the conditional privilege by which the communications were otherwise protected

because those Defendants were motivated by malice and because the information conveyed

went beyond that relevant to the investigation of sexual harassment which was the genesis

of the inquiry into Howard’s conduct. Because we conclude that the District Court

correctly applied the law, and that there are no genuine issues of material fact as to either

the existence of malice or the Abilitech Defendants’ exceeding the scope of the

conditional privilege, we will affirm.




                                                     2
                                                     I.

        In 1998 and 1999, Howard was employed by the DCNR as a manager in the Bureau

of State Parks and served as project manager for the State Park Reservation and Revenue

System. His responsibilities necessitated interaction with the employees at a park system

reservations call center staffed by the Pennsylvania Institute for the Blind and Handicapped,

pursuant to its contract with the DCNR. Abilitech, as subcontractor, employed disabled

individuals to serve as telephone operators at the call center.

        In September 1999, Defendant Susan Wertz, an Abilitech employee and office

manager of the call center, received a sexual harassment complaint from a female

employee at the call center regarding Jiles Clugh, a male employee. In the course of her

investigation of the complaint, Wertz learned that Howard was present during and

participated in some alleged incidents of sexual harassment. She reported her findings,

including specific allegations against Howard made by the employees interviewed, to her

supervisor, Defendant John Connolly. Connolly then met with Howard’s immediate

supervisor at the DCNR, Defendant Gary Smith, and provided him with Wertz’s report as

well as a supplemental document prepared by Connolly. This supplemental document

included additional concerns regarding Howard’s conduct while at the call center, including

unprofessional behavior and possible inebriation, as well as concerns regarding his

participation in incidents of sexual harassment. Following an investigation by the DCNR,

Howard was notified that based on his participation “in a pattern of sexual

misconduct/sexual harassment directed at female employees at the Abilitech call center,”

                                                     3
he was being suspended for five days and demoted. Howard appealed the disciplinary acts

to the State Civil Service Commission which conducted a hearing and concluded that good

cause existed for the DCNR’s imposition of disciplinary action. Howard then filed this

action with the District Court. The District Court concluded that:

                [the Abilitech] Defendants have established, and Plaintiff has
                conceded, that the communication of information about
                Plaintiff by Defendant Wertz to Defendant Connolly and by
                Defendant Connolly to Commonwealth Defendant Smith was
                published in the context of a conditionally privileged occasion.
                Moreover, Plaintiff has failed to raise an issue of fact as to the
                abuse of the conditional privilege. The information was not
                actuated by malice or negligence; was not made for a purpose
                other than that for which the privilege was given; was not made
                to any persons not reasonably believed to be necessary for the
                accomplishment of the purpose of the privilege; and did not
                include defamatory matter not reasonably believed to be
                necessary for the accomplishment of the purpose.
                Accordingly, Plaintiff has failed to raise an issue of fact for
                trial as to the abuse of a conditional privilege . . .

Oct. 4, 2001 Memorandum at 13-14. Howard timely appealed the District Court’s October

4, 2001 grant of summary judgment regarding his defamation claim against the Abilitech

Defendants.

                                                    II.

        We exercise jurisdiction under 28 U.S.C. § 1291. Our review of the District Court's

grant of summary judgment is plenary and we must affirm summary judgment if there is no

genuine issue of material fact and the moving party is entitled to judgment as a matter of

law. See, e.g., Matczak v. Frankford Candy and Chocolate Co., 136 F.3d 933, 936 (3d Cir.

1997). We review the facts in the light most favorable to the non-moving party. See

                                                    4
Beers-Capitol v. Whetzel, 256 F.3d 120, 130 n.6 (3d Cir. 2001). That party must, however,

point to specific facts demonstrating that a genuine issue exists for trial, and may not rest

upon entirely unsupported allegations. See Fed. R. Civ. P. 56(e); Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).1

                                                     III.

        A publication that might otherwise be defamatory is subject to a conditional

privilege “‘if the publisher reasonably believes that the recipient shares a common interest

in the subject matter and is entitled to know.’” Miketic v. Baron, 675 A.2d 324, 330 (Pa.

Super. 1996) (quoting Daywalt v. Montgomery Hosp., 573 A.2d 1116, 1118 (Pa. Super.

1990)).2 The privilege may, however, be waived by abuse, which occurs when a publication

of misinformation (1) is actuated by malice or negligence; (2) is made for a purpose other

than that for which the privilege is given; (3) is made to a person not reasonably believed to

be necessary for the accomplishment of the purpose of the privilege; or (4) includes

defamatory matter not reasonably believed to be necessary for the accomplishment of the



   1
         See also id. at 249 (noting that a factual dispute is “genuine” only if there is a
sufficient evidentiary basis to allow a reasonable fact finder to return a verdict for the non-
moving party). Appellant’s assertion that “it is outside the province of a court to decide
whether or not a defendant” has abused a conditional privilege reflects a fundamental
misunderstanding of the law. See Brief of Appellant at 14.
   2
         See also Garvey v. Dickinson College, 763 F. Supp. 796, 798 (M.D. Pa. 1991)
(noting that Pennsylvania courts recognize a conditional privilege which applies if “‘the
circumstances are such as to lead . . . persons having a common interest in a particular
subject matter correctly or reasonably to believe that facts exist which another sharing such
common interest is entitled to know’”) (quoting Gaiardo v. Ethyl Corp., 697 F. Supp. 1377,
1383 (M.D. Pa. 1986)); Restatement of Torts (2d) § 596 (1977).

                                                      5
purpose. Elia v. Erie Ins. Exch., 634 A.2d 657, 661 (Pa. Super. 1993).3 As discussed

above, Howard contends that the Abilitech Defendants abused the conditional privilege

because they were motivated by malice and because the information published to his

supervisor went beyond the scope of the initial sexual harassment inquiry. The burden is on

the plaintiff to demonstrate that the privilege has been abused. See 42 Pa. Cons. Stat. Ann.

§ 8343(a).

                                                   IV.

        Howard asserts that the Abilitech Defendants’ communications were motivated by a

desire to remove him in an effort to conceal their own mismanagement of the call center

and that they conducted their investigation in a biased fashion. He does not contend that the

Abilitech Defendants falsely reported the results of the employee interviews or that they

had reason to believe that the information conveyed to Howard’s supervisor was false or

inaccurate. Rather, Howard is apparently relying on the subjective malice which he asserts

may be inferred from the Abilitech Defendants’ supposed antipathy toward him as a result

of alleged disagreement regarding administrative matters.

        Howard has proffered no evidence whatsoever of actual malevolence on the part of

the Abilitech Defendants. See October 4, 2001 Memorandum at 8-10 (noting that

Connolly’s report included many complimentary statements regarding Howard’s work,



   3
        For purposes of summary judgment, the District Court proceeded as though the
information published constituted misinformation as the parties did not put the question at
issue. The Court noted, however, that the presumption did not constitute a binding factual
determination.

                                                    6
indicating a lack of malice, and that Howard fails to identify any incidents of hostility or

malice toward him or any basis for inferring that the investigation was biased).

        Moreover, although the conditional privilege may be “forfeited if the author of the

defamatory communication is motivated solely by spite or ill-will against the plaintiff and

not by a desire to benefit a common legitimate objective through full disclosure,” Garvey,

763 F. Supp. at 798 (emphasis added), where the defendant reasonably believes in the

necessity of the communication, his or her remarks remain subject to the privilege. See id.

(upholding conditional privilege where evidence failed to demonstrate as a matter of law

that the publication “resulted from ‘intentional, reckless, or wanton conduct and was not a

good faith judgment’”) (quoting Beckman v. Dunn, 419 A.2d 583, 588 (Pa. Super. 1980));

Beckman, 419 A.2d at 588 (holding that where publication was not excessive in the scope

of material communicated or extent of circulation, and was made for a proper purpose, the

fact that it may have been inspired, in part, by resentment or indignation at conduct of

person defamed does not constitute abuse of the privilege); Gutman v. TICO Ins. Co., 1998

WL 306502, *7 (E.D. Pa. 1998) (noting, in discussion of alleged abused of conditional

privilege based on malice, that malice “is defined under Pennsylvania’s defamation

precedents as ‘a wrongful act, done intentionally without cause or excuse’”) (quoting

Simms v. Exeter Architectural Prods., Inc., 916 F. Supp. 432, 436 (M.D. Pa. 1996)

(citation omitted)).4 Compare Rockwell v. Allegheny Health, Educ. & Research Found., 19



   4
        Cf. New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964) (requiring actual
malice defined as knowledge of falsity or reckless disregard in order to overcome First

                                                      7
F. Supp. 2d 401, 408-409 (E.D. Pa. 1998) (finding conditional privilege inapplicable where

defendant’s statements were not “consistent with the interest related to a conditional

privilege” and plaintiff “pled numerous facts demonstrating a systematic and continuous

pattern of activity by [defendant] to harm his professional reputation”)5 with Daywalt, 573

A.2d at 1119 (affirming summary judgment, finding employee failed to demonstrate abuse

of conditional privilege where record did not reflect any animus toward employee before

incident, defendant “made an effort to ascertain the truth of the matter,” and defendant had

reasonable cause for believing truth of published allegations).

        We therefore agree with the District Court that the evidence raises no disputed issue

of material fact as to the presence of malice on the part of the Abilitech Defendants.

                                                    V.

        Howard alleges that substantial portions of the Abilitech Defendants’ report to his

supervisor did not concern allegations relevant to charges of sexual harassment and

therefore were outside the conditional privilege. However, as the trial court correctly

observed, the Abilitech Defendants’ privilege extends not only to the purpose of preventing



Amendment privilege in defamation action brought by public figure); Buker v. Blake, 1986
WL 11440, * 2 (E.D. Pa. 1986) (“To show malice [to obviate the conditional privilege] for
the purposes of a defamation action, the plaintiff must demonstrate that the defendant made
the defamatory communication with the knowledge that it was false or with reckless
disregard of whether it was false.”) (citing Raffensberger v. Moran, 485 A.2d 447, 453 (Pa.
Super. 1984)).
   5
         The Court concluded that defendant’s statements “demonstrate[d] disregard for . . .
truthfulness” and that “[a]ccordingly [those statements] were beyond the confines of any
claims of privilege . . . .” Id. at 409.

                                                     8
workplace harassment, but also to Abilitech’s and the DCNR’s shared purpose of ensuring

proper operation of the call center in accordance with their contract.6 Because all of the

conduct at issue was alleged to have taken place in the context of Howard’s supervision of

that operation, and related to Howard’s job performance and interaction with other

employees, it is clear that any potentially defamatory information in the reports pertained

to that privileged purpose. See Garvey, 763 F. Supp. at 798 (communication to prospective

employer, providing fair account of employment performance, including “account of

circumstances which caused [plaintiff] some difficulty and perhaps detracted from his job

performance,” were “clearly conditionally privileged”); Daywalt, 573 A.2d at 1118-1119

(finding no abuse of privilege in communication of possible misconduct to those with an

employment “interest in [plaintiff]’s activities,” who were “entitled to know of [defendant]’s

suspicions”).

                                                    VI.

        For the reasons set forth above, we will affirm the decision of the District Court.

_______________________




   6
         See generally Miketic, 675 A.2d at 329 (upholding privilege as to communication of
incidents involving employee and supervisor, noting that proper occasion giving rise to
conditional privilege exists when “(1) some interest of the person who publishes
defamatory matter is involved; (2) some interest of the person to whom the matter is
published or some other third person is involved; or (3) a recognized interest of the public
is involved”) (citing Keddie v. Pennsylvania State Univ., 412 F. Supp. 1264 (M.D. Pa. 1976)
(citations omitted)). The Miketic Court concluded that the publishers and recipient of
communications about the employee’s performance shared a common interest giving rise
to a conditional privilege. Id. at 330.

                                                    9
TO THE CLERK:

          Please file the foregoing opinion.




                  /s/ Dolores K. Sloviter
                  Circuit Judge
