Medal of Honor Recipient Sues Defense Contractor For Defamation

There is an interesting defamation case that has been filed in Texas. Dakota Meyer, a former U.S. Marine who received the Medal of Honor is alleging that BAE Systems OASYS defamed him to a prospective employer by saying that he has a drinking problem, poor work habits, and is mentally or emotionally unstable.

Meyer worked for the defense contractor after his service, including his heroic rescue as a young corporal of 36 fellow soldiers by driving his humvee into a fire fight and killing at least eight insurgents. He claims that he was defamed and harassed after he complained about the company sending high-tech equipment to Pakistan — noting that our own troops often lack the equipment and find insurgents who are better equipped then they are in the field. He alleges that the company responded by ridiculing him and his service, including his famous rescue.

He says that a BAE Systems manager told a prospective employer that Meyer “was mentally unstable, that Sgt. Meyer was not performing BAE tasks assigned and that Sgt. Meyer had a problem related to drinking in a social setting.” The supervisor, Bobby McCreight, is named in the lawsuit and is still employed by BAE.

Meyer said he learned about the bad mouthing when he tried to obtain a job at a former employer, San Diego-based Ausgar Technologies.

Ironically, today we are covering this very issue of defamation as part of our torts class. These cases often arise either out of comments made to fellow employees or prospect employers. The former situation often involves the question of “intracorporate privilege.” That privilege treats employees in a company as essentially a single entity. Thus, there is no publication when one part of the company speaks to another. However, this privilege only exists in the scope of employment, so employees spreading rumors or malicious accounts are often denied the privilege. It protects employees working in regular channels or as part of their positions. This can include reporting concerns to a designate official to handling unstable or dangerous employees. For example in Doe v. Gonzaga Univ., 143 Wn.2d 687, 24 P.3d 390, 397 (Wash. 2001), rev’d on other grounds, 536 U.S. 273, 153 L. Ed. 2d 309, 122 S. Ct. 2268 (2002), the privilege was rejected because “it could be reasonably found that Julia Lynch was not acting in the ordinary course of her work as an office assistant when she told another student that John Doe has injured Jane Doe during a sexual relationship.”

The issue of speaking to outsiders can raise a different matter. A former or current employers is allowed to share their opinion of an employee, including their view that the employee was lacking skills or discipline. See Zerr v. Johnson, 894 F.Supp. 372 (D. Colo. 1995) (rejecting a defamation suit against a school principal). However, to the extent that such views are based on suggested or stated facts, it can become defamation if untrue. (Truth is a defense to defamation). One issue that can bar such lawsuit is consent. Some companies have employees sign a release authorizing the former employer to provide references. There is also a qualified privilege in most states where (a) the employer believed in good faith that the information is true, (b) the information served a legitimate business purpose, and (c) it was provided only to an appropriate person who had a legitimate business interest in receiving the information.

Companies and universities often post these rules and the relevant state law. Here is Arizona State University’s posting for example:

ARS §23-1361 provides that it is not unlawful for an employer to provide to a requesting employer information concerning a person’s education, training, experience, qualifications, job performance, professional conduct or the reason for termination to be used for the purpose of evaluating the person for employment. The information may be provided orally or may be provided in writing. A copy of any written communication must be sent to the employee’s last known address; however, a copy of any correspondence need not be sent to the employee if the employee is seeking another job within Arizona State University, regardless of campus.

Qualified Immunity

Although it is difficult to give a precise definition of defamation (because courts frequently describe it in different terms), generally a defamatory statement is one which tends to injure a person’s reputation or to diminish their esteem, respect or good will. Defamation does not include what is generally called pure opinion. For example, a statement that the employee is truly obnoxious has been held to be not defamatory. Also, a statement that one would not rehire an employee has also been held to be not defamatory. The term “reckless disregard” means that the communicator entertains serious doubts as to the truth of the information provided to the third party.

To summarize, an employer is immune from civil liability in connection with providing information to a prospective employer unless all of the following are found to exist:

1. The information is false;
2. The information tends to bring the employee into disrepute, contempt or ridicule;
3. The information is acted upon to the harm of the person by the prospective employer; and
4. The communicator knows the information is false or entertains serious doubts about its truth.

Absolute Privilege

The statute establishes an absolute privilege for communications concerning employees made by an employer to a governmental body or agency and which are required by law or which are furnished pursuant to written rules or policies of the governmental body or agency. Under an absolute privilege, there is no liability for a defamatory statement under any circumstances.

Notably, companies are under pressure to check all references since they can be sued for negligent hiring if there was something in an employee’s past that would have alerted the company to the problem or risk.

In the case of Meyer, he is alleging that there was no drinking or other problems and that this was the result of malice. Malice is often treated as an exception to privileges under defamation cases. It is the type of case that is usually difficult to resolve before the completion of discovery and all facts are read in favor of Meyer if BAE moves to dismiss. He is alleging both slander and tortious interference with contract.

Here is the complaint: Meyer complaint

Source: BBC

32 thoughts on “Medal of Honor Recipient Sues Defense Contractor For Defamation”

  1. As an Army retiree, there is no doubt Meyer went above and beyond the call as his award states. For BAE ( whether it’s OASYS or not) to allow it to reach these levels is incredulous. However, since BAE is one of those “too big to fail” entities, at best it will get a lot of bad publicity but that will fade unfortunately. That the supervisor who instigated this is still an employee for BAE is also amazing. He should have been gone the first day that this came to light.

    As far as the Pentagon taking notice, sure they will to a point. Heck, maybe even BAE’s CEO might get a call from the SecDef but if you think these four stars are really going to go out of their way here, you are sadly mistaken. As a four star you are 3 to 4 years away from retirement, and your wife is just salivating over the fact that the four star will at least double his pay immediately upon retirement. Most four stars are now making between 225K and 250K. They will get 75 to 80% of that in retirement. Given a good professional recruiter, a four star can have his retirement ceremony on a Friday with the Prez in attendance and report to work the following Monday as a senior exec in some defense contractor like BAE earning 1 to 4 times what he made on active duty.

    They may go tsk tsk SGT Meyer is being screwed .. But they are NOT going to rock the boat too much and risk alienating prospective future employers ….That sadly won’t be happening I guarantee you….

  2. Can’t leave without addressing this:

    “Whatever the outcome, the publicity alone guarantees one thing, the DOD is paying attention. The DOD awards contracts. The DOD has an overriding, deep disgust for anyone or anything who denigrates their MoH recipients. BAE is going to know it’s started when DOD personnel stop accepting luncheon invitations.”

    Ha. No, Blouise. I’m sorry to say this, I truly am, but it does not work that way.

    DoD employees – military and civilian – know that the cush, fat, high-dollar jobs are with the BIG contractors (BAE, Lockheed, etc) and nobody but NOBODY is going to risk their chances of landing one of those jobs over some alleged disrespect of an MoH winner.

    I say ‘alleged’ because, at the moment, it is, but trust me on this, any of the big boys could bus 5000 employees into Arlington and spend the day spitting on the graves of every MoH winner there, on video live on Fox, and the only response from the DoD would be the prompt awarding, with abject apologies, of whatever size contract that company needs to make their next quarter’s numbers.

    I love my job, but you all would simply not believe how fucked-up this industry is.

  3. Somebody is full of crap here. I very, very, very much doubt that BAE would be so stupid as to give ANY prospective employer their opinion of that employee, no matter what kind of fuckup they may or may not be. It’s just not done in contractor-land.

    “A former or current employers is allowed to share their opinion of an employee, including their view that the employee was lacking skills or discipline.”

    This is technically true but again, at least in the world of the contractor, simply not done.

    (Yes, I am one of the hated contractors. I do not work for BAE)

  4. Dakota Meyer is the definition of “duty, honor, Country.” And, according to his email that got him contrary with his employer, he was again coming to the rescue of his buddies on the front lines. Wow!

    And, then the alleged series of responses by his former employer, a defense contractor to boot?

    Now that we all know that a corporation is a “person,” I think the old cliche “every man has his price,” is applicable here. And here, Meyer’s “price” was “risking” a job to stand in the gap for his fellow soldiers, known and unknown. Wow!

  5. OASYS was an independent company that was bought by BAE Systems in late 2010, and then integrated as a business unit. I wonder if this alleged bad-mouthing happened before or after the absorption? As a small company, OASYS would not have too much to lose from a scandal like this. But BAE Systems is a huge defense contractor, on both sides of the Atlantic, which could suffer a lot from bad publicity. Indeed, it could indirectly affect BAE’s ability to win some contracts.

    So I would imagine that Frank and Earnest conversations have been going on within BAE. Damage control! Damage control! And I would imagine that employees will be, if they have not already been, reminded to never, NEVER, opine about people who leave the company.

  6. OS:

    with butter, you better make it a big bag as this show might last a good while.

  7. raff, BAE and Bobby McCreight are about to find out what it means to piss off the entire Marine Corps, Marine vets and pretty much the entire military establishment.

    I’ll get the popcorn.

  8. raff,

    Except, in this case, a lot of eyes are on you and defense contractors are a dime a dozen. The kickback you don’t get from one, you can always get from the other and the other is safer because no eyes are watching.

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