Protecting Employers ...

Protecting Employers From Liability for Certain Non-Malicious Statements Made About Employee Performance, Discipline or Termination

June 18, 2020 | by H. Rowan Leathers lll

In an opinion issued in May 2020, the Tennessee Court of Appeals provided guidance regarding the application of the common interest privilege and its impact on defamation and invasion of privacy claims within the employment setting.  The practical impact of this guidance may provide some degree of protection for employers in their discussions and communications about their employees.


Kelly McGuffey was a former pre-school teacher at Belmont Weekday School (BWS).  McGuffey was terminated from her employment at BWS in February 2015 after a child in McGuffey’s class was left behind in the bathroom during a fire drill.  This incident resulted in a “supervision violation” – a violation of the Tennessee Department of Human Services law governing pre-schools and the requirements for proper supervision of the students.  Previously, in 2011, McGuffey had received a first write up for another incident resulting a supervision violation.  At that time, BWS wrote up all six teachers, including McGuffey, with students on the playground where that supervision violation occurred.  Because the 2015 fire drill incident was McGuffey’s second disciplinary action related to a supervision violation, her employment was terminated.  McGuffey’s co-teacher, who did not have any prior write ups, was disciplined for the fire drill incident, but not terminated.

McGuffey sued BWS along with the head of BWS and its parents’ association in connection with the termination of her employment.  She claimed that her employment at BWS was terminated in retaliation for complaining about safety issues at the school and asserted claims for wrongful discharge in violation of Tennessee common law and the Public Protection Act.  These claims were dismissed at the trial level and their dismissal was not appealed.

McGuffey also asserted other claims, including slander, libel, and false light invasion of privacy claims regarding the school’s communications regarding her termination.  The communications at issue were statements made to parents of students, other BWS teachers and BWS’s governmental regulators, and were in verbal, e-mail and letter form.  McGuffey claimed that these communications were false and damaged her reputation including her ability to obtain subsequent employment.

During the trial, the judge dismissed seven of McGuffey’s nine causes of action, her punitive damages claim and the defendants other than BWS, holding that she had not put forth enough evidence at trial related to these claims and defendants for them to go to a jury to decide.  A jury considered McGuffey’s two remaining causes of action, however, finding in favor of BWS on both claims.  McGuffey appealed the trial judge’s decisions regarding her claims and her request for punitive damages but did not appeal the jury’s verdict.  The Tennessee Court of Appeals affirmed the trial court’s decision in all respects.

Court of Appeals’ Decision

The Court of Appeals, among other issues, addressed the application of conditional or qualified privileges in defamation and invasion of privacy claims.  In order to prove a claim of defamation, a plaintiff must show that the defendant “published” the statement – meaning he or she told or shared the statement with others.  The common interest privilege which, just as it sounds, protects communications between individuals with a common interest, has at times been applied to communications between employees or agents of the same business or corporation.  This use of this privilege recognizes that some information must be shared for the operation of the business and should not be penalized under normal circumstances.  Where this privilege applies, it essentially protects the communication by saying the sharing of this information between these individuals doesn’t count as true “publication.”  And without a “publication” there can be no defamation.

The Court concluded that although no Tennessee cases had specifically addressed this privilege within the school context regarding communications made to parents, “the reasoning underlying the privilege would support its application to communications with the parents.”  The Court further noted that when “a statement falls under a conditional privilege, the plaintiff must prove actual malice in order for the privilege to be lost.”  The Court found that McGuffey failed establish that any of the communications to parents had been made with knowledge that the statement was false or a reckless disregard for whether or not it was true (how a plaintiff shows “actual malice”) and upheld the dismissal of her claims.  McGuffey v. Belmont Weekday School, et al., No. 15C2811 (Tenn. Ct. App. May 27, 2020).

Bottom Line

Employers need to be careful about communications that concern employee performance, discipline or termination.  This applies both to what is communicated and how it is communicated.  However, the “common interest” privilege addressed by the Court of Appeals in McGuffey can insulate employers from liability for certain communications about their employees if those communications are made for business-related purposes, are limited to the individuals with a need to know, and are limited to the information those individuals need to know.