A former administrator at a continuing care retirement community, called the Woodlands, sued in federal court both his employer and its President for revealing to the community members the reason for the firing. The President of the community sent a memorandum to community residents stating the former administrator had been terminated because of a pattern of unprofessional conduct. Subsequently, the local newspaper learned of this and published two front-page stories about the firing. The former administrator did not claim that his firing was not permitted, but made a variety of claims based upon the publication of the reasons for the firing to the community residents. On March 3, 2020, the federal court, upon consideration of the retirement community’s motion to dismiss, permitted certain privacy claims to go forward even though the former administrator did not claim that the publicly revealed reason for his firing was false.
The court found that the case should not be dismissed and discovery would be permitted on the claim of public disclosure of private facts and the claim of intrusion upon seclusion both of which focused not on the truth, but the private details of the reason for the administrator’s firing, with the court finding that based upon what was alleged by the former administrator, the reasons for the administrator’s firing were not open to public inspection. The court also allowed to move forward the claim for breach of contract because the personnel policies stated that personnel files were confidential. The court at the early stage of the motion to dismiss pleading determined that it would not dismiss the claim of breach of contract until more facts developed. Irrespective of whether or not the court may later summarily dispose of some or all those claims in the future, for now the employer and its President will need to deal with the former administrator getting discovery in an attempt to support his privacy claims.
In this case, the administrator was an at-will-employee which meant he could be fired without or without cause or notice at any time. He did not dispute that he could have been fired, nor did the complaint state the reasons for the firing were false. Therefore, he could not pursue his defamation claim that he also sought and that claim was dismissed. He was able, however, to proceed forward with the two privacy-based claims stating that the public did not have the right to know about the reason why he was fired. Of course, in some circumstances, the employer balancing the risk may determine that it is appropriate to notify the public as to the reason for the firing. The court’s order provides employers with an important message to be careful about disclosing reasons for firing an individual to only people who need not know, even if the firing reason disclosed is accurate. It would be prudent to speak with employment counsel before in making a decision to publicize the firing reason both due to risk of litigation and, in some circumstances but not all, the negative effect on morale of the remaining employees in embarrassing the fired employee.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].