"He Admitted Receiving the Password" for the Laptop, but "It Took Him Over an Hour to Log In"

Defamation litigation ensues.

From Palardy v. AT&T Services Inc., decided Friday by Texas Court of Appeals (Dallas) Justice Cory Carlyle, joined by Justices Robbie Partida-Kipness and Dennise Garcia:

Appellant Francis Palardy sued appellees AT&T Services Inc. and International Business Machines Corporation for defamation. Via a staffing firm, Experis, Palardy worked as an IBM contractor on an AT&T project. The project required him to perform technical work on a computer, but when AT&T became aware Palardy appeared to lack even basic computer skills, such as logging on to a laptop, it informed IBM and Experis that Palardy was to be terminated….

The court upheld the rejection of Palardy's defamation claim, largely under the "common-interest" privilege:

"The common law provides a qualified privilege against defamation liability when 'communication is made in good faith and the author, the recipient or a third person, or one of their family members, has an interest that is sufficiently affected by the communication.'" This can be "between people having a common business interest in employment-related matters or in reference to matters that the speaker has a duty to communicate to the other." To prevail on summary judgment, the defendant must conclusively establish a lack of actual malice in making the allegedly defamatory statement. Actual malice means a statement was made with knowledge of its falsity or with reckless disregard for its truth.

First, some background: Palardy relocated to North Texas to start this job on November 26, 2018, having previously coordinated with IBM to have a laptop sent to his prior residence on the West Coast. Without informing Experis, IBM, or AT&T, Palardy left for Texas without having received the laptop. Palardy did not show up for work on the 26th, and appeared the next day but without the laptop. He waited until midday this first day to inform IBM that he did not have a computer, and was seen looking at his phone and reading books on his tablet in a corner the rest of the day.

The next day, AT&T provided a temporary laptop for Palardy, and he admitted receiving the password for it but that it took him over an hour to log in with that password. Others tried to help and referred Palardy to an 800 number to help, but Palardy claimed he didn't like calling 800 numbers and that if he did, "it would just be confusing." Someone else eventually logged on for Palardy, but he did no substantive work that second day. The third day, McEnroe, whose computer Palardy was using, instructed Palardy to change the password but Palardy struggled to do so. Palardy admitted he missed a morning meeting trying to perform this basic function. Palardy did no substantive work this third and final day, despite having all he needed to do so.

First, Palardy alleges AT&T project manager Martin McEnroe "sent emails to IBM management" seeking Palardy's dismissal and stating "I don't think he has any idea of whether a computer is working or not. He seems not to understand the most basic things about computers." McEnroe also said: "He has two computers. They are both working" and "I don't need people who will sit in a corner and not do anything." McEnroe's statement concerned an employee's performance and he made it to someone who had an interest therein. Therefore, it is subject to a qualified privilege.

Appellants establish lack of malice by conclusively proving that McEnroe and those who reported their interactions with and observations of Palardy had reasonable grounds to believe that their statements were true. They have shown more than some self-serving protestation of sincerity. Even assuming the statements were false, appellants have proved McEnroe exhibited no actual malice by way of reckless disregard—either by having "entertained serious doubts as to the truth" of the statement or by having had a "high degree of awareness of [the statement's] probable falsity." …

The court also rejected Palardy's claim based on McEnroe's statements in a police report:

McEnroe filed a police report in response to both an email Palardy sent him approximately a week after being fired and a text Palardy sent to another employee. Palardy's email covered a range of topics, from alleging a conspiracy against him during the three days he worked on this job to discussions of other large companies and references to other discrimination and retaliation complaints he had filed in the past.

In a move that understandably troubled McEnroe, Palardy ended his email by saying "I also predicted MGM would be hit by a massive terrorist attack, which the FBI didn't like. Last year someone shot five hundred people at an MGM concert. I even predicted it would be at a concert. Maybe that was coincidence. I added that so you can't ignore this email. All of this info has already been given to Experis." Palardy's text to the other employee said, "Tell Marty I'm gunning for his job. If he's called away to hr you'll know why. I could be back soon."

Palardy alleges defamation when "McEnroe claimed he felt threatened" and told police he "did not know how to log onto the Windows computer, [sic] when he was hired as a computer programmer." Appellants have conclusively shown McEnroe's report that he felt threatened was his opinion. No reasonable reader would be misled to think this statement concerned anything but McEnroe's genuine reaction to Palardy's email.

Also, a person has a qualified privilege to make statements to authorities in good faith and without malice. McEnroe's statement about Palardy's inability to log on to the computer sought to contextualize his relationship to Palardy and was an expression of his belief based on observation and consultation with others. Palardy admitted to having trouble with passwords and that resetting a password was harder for him than for someone else. McEnroe's statement, arguably attributable only to AT&T, is also subject to the qualified privilege because it was made to an entity with a duty to investigate. For the same reasons we expressed in regard to the first statement, appellants have proved McEnroe made it without malice.

Finally, Palardy seems overly focused on the fact that police declined to initiate criminal proceedings against him based on the report. The law enforcement conclusion not to refer the matter for criminal prosecution bears no relevance to this defamation claim and in no way vitiates the qualified privilege. The trial court did not err when it granted summary judgment concerning McEnroe's police statements.

There's also more, including with regard to allegations that Palardy was "mentally ill" and to matters related to Palardy's hearing problem; you can read all that here. Finally, the court adds,

Palardy [also] argues … that the trial court was improperly motivated by Palardy's federal lawsuits under the Americans with Disabilities Act. Palardy fails to cite any relevant authority that supports either contention, instead spending his time complaining about the aged, immigrants, and gay people and his perception that they fare better than those in the Deaf community.