HR Director’s Comment About Low Performance Supports Defamation Suit

By Joanne Deschenaux November 15, 2019
HR Director’s Comment About Low Performance Supports Defamation Suit

An HR director's statement that an employee who was being fired was a "low performer" could serve as the basis for a defamation action against the employer, a California appeals court ruled.

The trial court incorrectly dismissed the plaintiff's defamation claim after it concluded that the comment was an opinion and not a statement of fact, and an opinion could not form the basis for a defamation claim. This was error, the appeals court said, because an opinion based on implied, undisclosed facts can support a defamation action if the speaker has no factual basis for the opinion.

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The plaintiff worked as a project manager for Samsung at the software company's San Jose project delivery center. In 2014, the plaintiff's supervisor completed his performance evaluation, assigning him a "B" grade. The New Jersey-based director of Samsung's human resources department later modified the grade from a "B" to a "D." The HR director did not consult with the plaintiff's supervisor before lowering the grade.

At the end of 2014, Samsung decided to fire the plaintiff, and in January 2015, the HR director invited the employee to dinner, told him about the impending termination and called him a "low performer."

Later that month, the plaintiff met with an HR representative in the San Jose office to discuss his firing. After the meeting, the HR representative wrote an e-mail to the director explaining that during the dinner, the plaintiff said he felt "humiliated" by being called a "low performer."

Samsung fired the plaintiff in February 2015. At that time, he was 55 years old and the oldest project manager working at Samsung.

At his exit interview, the plaintiff was told that he was being fired due to "lack of work." He sued for age discrimination and added a claim for defamation based on the HR director's comment. The trial court dismissed the lawsuit before trial, and the employee appealed.

The appellate court, however, ruled that the employee could take the defamation claim to trial. The HR director's comment about the employee being a "low performer" implied that the director had undisclosed, defamatory facts that could potentially be proven false, the court said.

Kim v. Samsung SDS America Inc., Calif. Ct. App., No. H044775 (Oct. 22, 2019).

Professional Pointer: A critical part of a workplace defamation claim is demonstrating that the language the employer used was an assertion of fact and not an opinion. To determine if a statement was a fact or an opinion, courts consider the totality of the circumstances. This includes a review of the words used and the context in which the statement was made.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md. 


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