From Fells v. SEIU, decided yesterday by the D.C. Court of Appeals in an opinion by Judge Joshua Deahl, joined by Judges Corinne Beckwith and John Fisher; not as colorful as the inimitable Memphis Pub. Co. v. Nichols (Tenn. 1978), but still an interesting modern example of the libel-by-implication doctrine:
Kendall Fells was a high-level employee within the Service Employees International Union (SEIU). After his seemingly forced resignation, SEIU issued a press statement tying his departure to an "ongoing investigation" that was triggered by another executive's sexual misconduct, namely, sleeping with subordinates. In announcing Fells' departure, the statement explained that Fells' own "abusive behavior towards … predominantly female staff" was brought to light by that investigation. Fells sued SEIU for defamation and related claims. He contends that SEIU's statement falsely implied that he was forced out due to sexual misconduct, when in fact, there is no dispute that Fells' departure was not related to any sexual misconduct….
We conclude, contrary to the trial court's view, that a reasonable jury could find SEIU's statement falsely implied that Fells was ousted for sexual misconduct….
The core facts are not in dispute. Kendall Fells held various staff and leadership roles over the course of his thirteen-year career with SEIU. At the time of his resignation, Fells was interim President of the National Fast Food Workers' Union, a labor organization within SEIU that grew out of the "Fight for $15" minimum wage movement that he championed. While Fells was in that role, SEIU's President, Mary Kay Henry, began actively encouraging employees to report sexual harassment and abuse amid the #MeToo movement. As a result of several accusations involving inappropriate sexual relationships with subordinates, SEIU suspended its Executive Vice President, Scott Courtney, who resigned shortly thereafter. SEIU's spokesperson told BuzzFeed News that Courtney engaged in "sexual misconduct and abusive behavior," as revealed through a still-ongoing "internal investigation launched to look into … sexual misconduct and abusive behavior towards union staff."
Ten days later, Fells resigned, seemingly under threat of termination. SEIU's spokesperson issued a statement to multiple news outlets regarding Fells' and another employee's contemporaneous departure, indicating that those "personnel actions" were the result of its aforementioned "ongoing internal investigation" and pertained to "serious problems related to abusive behavior towards staff, predominantly female staff." The statement in its entirety read as follows:
As a result of information that has come to light through our ongoing internal investigation, today SEIU took action on two senior staff. These personnel actions are the culmination of this stage of the investigation, which brought to light the serious problems related to abusive behavior towards staff, predominantly female staff. We know that progress does not stop with these personnel actions alone. [SEIU] President Henry has taken important steps toward ensuring that our workplace environment reflects our values, and that all staff is respected, their contributions are valued, and their voices are heard.
Several media outlets then published articles connecting Fells' and Courtney's resignations and, in at least one instance, expressly attributing Fells' ouster to sexual misconduct allegations. In fact, as SEIU concedes, Fells' departure was not related to any claims of sexual misconduct….
