A former Thompson Hine secretary who discovered she was the subject of emails between a law firm partner and his wife cannot sue for defamation because the communications are protected by spousal privilege and the comments were opinions, a Southern District judge has ruled.
Valerie Medcalf, who worked as a legal secretary for Thompson Hine partner George Walsh, told her firm in August 2011 that she needed five months of leave based on symptoms of postpartum depression.
The following year she discovered on Walsh’s computer emails between him and his wife, Evelyn Walsh, in which Ms. Walsh commented that Medcalf’s need for leave seemed "suspect to me" and Medcalf "doesn’t act like a person who had such severe post partum that she can’t work." Ms. Walsh also made comments about Medcalf’s daughter, according to court documents.
But Southern District Judge Paul Engelmayer (See Profile) found the comments protected as a statement of opinion and "not a false statement of fact."
"Examining the comments in context, these statements are expressions of opinion, largely consisting of Evelyn’s skepticism that Medcalf had a legitimate basis to take time away from work. None of them implies any knowledge by Evelyn of undisclosed facts," Engelmayer wrote in Medcalf v. Walsh, 1:12-cv-05091, dismissing the case with prejudice.
Medcalf worked as a legal secretary at Thompson Hine for about seven years. As part of her job, she was given full access to the email account of George Walsh, who was previously a partner-in-charge of Thompson Hine’s New York office.
After the birth of her baby in May 2011, Medcalf reported that she was experiencing symptoms of postpartum depression and associated mental health issues, including severe anxiety and panic attacks, according to her court papers.
In August 2011, a psychiatrist advised her that the severity of the issues would likely require her to take up to five months of leave. She told Walsh and her supervisors of the diagnosis by email and asked that the message be kept confidential.
She began psychiatric treatment in fall 2011 and returned to the office that November.
In February 2012, she discovered an email exchange between the Walshes from the previous August, in which Mr. Walsh had forwarded Medcalf’s note about the five-month leave time.
Ms. Walsh responded, "But generally true post partum depression appears after a few months and I’d ask why they’re asking for five months so early in the process…Is it coincidence that this gives her the rest of the year off and eligible for disability benefits? Sorry, I hope she ok but it just all seems suspect to me."
Ms. Walsh added, "All the Monday’s and Friday’s off, and other stuff which has been ongoing. You don’t need this. You’ve been very good to her. You deserve someone you can rely on."
Among the other email exchanges Medcalf discovered included one from June 2011 in which Mr. Walsh forwarded a photo of Medcalf’s daughter and wrote to his wife, "The first picture of Valerie’s baby. Very cute!!"
Ms. Walsh responded that the baby "is adorable but if [Medcalf] had had a decent shower she would have some nice cotton, clean and non fuzzy blankets to safely sleep [the baby] on. Ugh. It’s good that [Medcalf] seems to have bonded with her though and is exited [sic] enough to share pictures, that’s a good sign."
Other emails included comments from Mr. Walsh to his wife such as "UGH!!!!"; "No Valerie today"; "Not a good way to start the week"; "This is not good."
Ms. Walsh replied, "And you are so busy today and need her. This sounds fishy. It’s a nice day and a Monday. I’m sorry"; "I hope this is not the shape of things to come. Isn’t it suspect that these little emergencies are always on Friday or Monday? It’s so not fair to you. You need her to be there."
On Feb. 21, 2012, one day after discovering the messages, Medcalf emailed Ms. Walsh, copying Mr. Walsh and blind copying her firm supervisors, accusing Ms. Walsh of making "despicable and disgusting remarks" about Medcalf’s daughter and requesting that she "stop disrespecting" Medcalf and her daughter, according to the decision.
In her response, Ms. Walsh apologized if she was "unfairly judgmental" and explained that she was concerned about the effect of Medcalf’s absences on Mr. Walsh.
Medcalf asserted that the email exchanges "amount to discrimination based on pregnancy."
On Feb. 22, Medcalf’s supervisor told her to leave the office pending an investigation. Thompson Hine fired her, alleging her letter to Ms. Walsh was misconduct, said her attorney, Steven Savage.
In her June 2012 defamation suit, Medcalf claims the emails contained false statements that defamed her character and reputation, resulting in her termination.
To satisfy a claim for defamation, Engelmayer noted, a plaintiff must prove the defendant published a defamatory statement of fact to a third party, among other criteria. But he added that all communications between spouses on any subject are absolutely privileged and do not constitute publication.
Neither would Medcalf’s own forwarding of the email exchanges to her law firm supervisors constitute publication.
"Medcalf was fully aware of the allegedly defamatory nature of the Walshes’ email communications when she forwarded them to others," he wrote.
The judge also said the Walshes did not make a false statement of fact. He said a statement of opinion accompanied by fact on which it is based "is protected as a statement of opinion," he wrote, citing Ollman v. Evans, 471 U.S. 1127 (1985).
Finally, Medcalf’s complaint doesn’t support a conclusion that the emails were defamatory per se, which absolves a plaintiff from proving special harm.
"Here, the statements made about Medcalf were directed at her character or general qualities, rather than her competence as an assistant, and were not brought to the attention of the general public. They do not constitute defamation per se," the judge wrote.
Addressing a claim for intentional infliction of emotional distress, Engelmayer found the Walshes conduct "falls very far short of the egregious and outrageous conduct necessary to make out a claim."
"As to their substance, Evelyn’s comments critiquing Medcalf’s baby’s blankets as unclean and low-quality, or suggesting abusive leave-taking practices by Medcalf, are a far cry from the conduct in cases held non-actionable by the New York courts," he wrote. "These statements are the sorts of quotidian negative commentary exchanged in countless daily conversations in our free society."
In a statement to the Law Journal, Mr. Walsh wrote: "My wife and I are very pleased by this result and appreciate the thorough and well-reasoned analysis set forth in the opinion. In particular, we are gratified by the Court’s recognition that these emails were ordinary, private conversations between a husband and a wife, which were never intended to be seen by, let alone to cause harm to, anyone else."
The Walshes were represented by Peter Moore and Zachary Silverman of Edwards Wildman Palmer.
"We’re obviously very pleased with the decision," said Moore, a counsel at the firm in Chicago and Ms. Walsh’s son. "We think [Medcalf] was treated fairly."
Savage, Medcalf’s attorney, said he understands how the judge arrived at the conclusion but found it unfortunate "that my client was treated unfairly" and "they got to hide behind marital communications privilege."
Savage, whose firm is based in Newark, N.J., said his client has also filed a charge with the Equal Employment Opportunity Commission in anticipation of a right to sue letter. She may then sue the firm for wrongful termination and gender and pregnancy discrimination.
"They exacerbated her mental health issues," Savage said. "She was treated very hostilely by these people."
@|Christine Simmons can be reached at email@example.com.