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. Blouise,
    I agree with you except for the part about DOD’s disgust for denigrating MOH recipients. I think they are only concerned with the greenbacks and benefits they get to sign with these defense contractors. I hope I am wrong.

  2. raff,

    Actually bringing a suit of defamation (as opposed to threatening to bring) requires courage. It’s a sacrificing of oneself on the field in the name of honor. (You’re a lawyer so I know I’m saying something you know to be true.)

    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.

  3. Jan Schakowsky is one of the good ones.

    It is laughable that the cartoon character, Prince, and the lawyers who serve his “watch-me-strut-my-stuff” self, would attempt such toothless tactics. When the going got tough, Prince tucked his tail between his legs and ran like hell to the UAE from whom, interestingly enough, Pakistan has also been a major recipient of economic aid. Money which could have been used to purchase BAE’s high-tech equipment for insurgents to which Marine Sgt. Meyer objected.

    That it is alleged a BAE supervisor, Bobby McCreight characterized Marine Sgt. Meyer, a MoH recipient, as mentally unstable, not performing BAE tasks assigned and having a problem related to drinking in a social setting seems so tactically cartoonish as to be right up there with the behavior of Eric Prince.

    However, Bobby McCreight and BAE must now prove the truth of their alleged description of Marine Sgt. Meyer. I strongly suspect they may eventually find themselves in exactly the same position as the firm of Steven J. Baum.

    Good on you Marine Sgt. Meyer … you are still protecting the lives of your fellow Marines.

  4. “The President of the United States in the name of The Congress takes pleasure in presenting the MEDAL OF HONOR to

    CORPORAL DAKOTA L. MEYER
    UNITED STATES MARINE CORPS

    For service as set forth in the following:

    For conspicuous gallantry and intrepidity at the repeated risk of his life above and beyond the call of duty as a member of Marine Embedded Training Team 2-8, Regional Corps Advisory Command 3-7, in Kunar Province, Afghanistan, on 8 September 2009. When the forward element of his combat team began to be hit by intense fire from roughly 50 Taliban insurgents dug-in and concealed on the slopes above Ganjgal village, Corporal Meyer mounted a gun-truck, enlisted a fellow Marine to drive, and raced to attack the ambushers and aid the trapped Marines and Afghan soldiers. During a six hour fire fight, Corporal Meyer single-handedly turned the tide of the battle, saved 36 Marines and soldiers and recovered the bodies of his fallen brothers. Four separate times he fought the kilometer up into the heart of a deadly U-shaped ambush. During the fight he killed at least eight Taliban, personally evacuated 12 friendly wounded, and provided cover for another 24 Marines and soldiers to escape likely death at the hands of a numerically superior and determined foe. On his first foray his lone vehicle drew machine gun, mortar, rocket grenade and small arms fire while he rescued five wounded soldiers. His second attack disrupted the enemy’s ambush and he evacuated four more wounded Marines. Switching to another gun-truck because his was too damaged they again sped in for a third time, and as turret gunner killed several Taliban attackers at point blank range and suppressed enemy fire so 24 Marines and soldiers could break-out. Despite being wounded, he made a fourth attack with three others to search for missing team members. Nearly surrounded and under heavy fire he dismounted the vehicle and searched house to house to recover the bodies of his fallen team members. By his extraordinary heroism, presence of mind amidst chaos and death, and unselfish devotion to his comrades in the face of great danger, Corporal Meyer reflected great credit upon himself and upheld the highest traditions of the Marine Corps and the United States Naval Service.”

    He was also awarded the Purple Heart Medal as a result of being wounded in combat.

    He has since been promoted to Sergeant.

  5. I am with you OS. For this company to allegedly defame a MOH honoree is the height of arrogance. This Marine should be on a pedestal for all of us, not just the military.
    I hope he can be successful in this suit.
    anon nurse and Swarthmore mom,
    Schawosky is one of the good ones in Congress.

  6. Swarthmore mom, I’ve always liked her… and hope that she continues to be re-elected. I’m guessing that your sisters have supported her…

  7. First of all it isstupid to call this soldier (a hero), a “winner” ! MOH recipients are in no way “winners”! Look how our own countrymen call him a winner! Bea Systems should never be allowed to contract heroes at all! They are shit as fresh as the smell in a dairy! But Obama wouldn’t know the difference anyway! It is all Muslims who are our enemy in the first place, so why kiss their asses? Remove me from your mailings!!!

  8. He’s fortunate that he has his Medal of Honor to help him in this battle. Most of the time, people are destroyed without much of a fight. As OS rightly stated, “such harassment for whistle-blowing is rampant in both industry and government.”

    “garyonthenet” – It’s worse than many know. I wish you the best.

    Jonathan Turley, wrote: “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.”

    Defamation is the least of it…, but many don’t want to hear about it. It’s easier to believe that the victim is delusional.

    I hope that Dakota Meyer prevails in his case.

  9. “Absolute privilege” strikes me as typical abuse of power. Some kind of “hold harmless” would serve the same purpose, yet leave recourse to the injured party.

  10. I realize that Sgt. Meyer, like all who have been awarded the MoH, are human, subject to all the foibles and problems that plague ordinary people. However, being the recipient of the Medal of Honor places him in a special category. He mentions that his former employer minimized or belittled him for his service and the award. The employer, especially a defense contractor, should know they are treading on thin ice with that.

    This is a man who, by military rules, is saluted by Generals before he is required to salute them. All military tombstones are identical for all, from the lowest private to the highest General or Admiral–except for those who have the Medal of Honor. Their headstones are deeply engraved with the image of that ornate five-pointed star.

    There is a lot about this matter that does not smell right; namely, that such harassment for whistle-blowing is rampant in both industry and government.

  11. I am trying to juxtapose this article with one of my own circumstance.

    I have a governmental body (state CPS) that makes all kinds of defamatory proclamations about me, with no evidence, court finding or anything other than the worker’s opinion.

    The statement is supposedly confidential to the public by law, but obviously everyone in the agency is privy to the defamatory statements.

    It is frustratingly irksome to have someone, or agency, make provably false defamatory aspersions of my person and character, yet not be able to call them on it in a court of law; I suspect there is some kind of qualified immunity in place, and of course an element of defamation is the publication (oral or otherwise) of the defamatory statement.

    But I am so troubled by this, I may try anyway, even to the point of self-publishing the defamation, which I understand can satisfy that element even if the defamer did not publish it themselves.

    Any commentary here would be greatly appreciated.

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