In a Fox interview last night, the stepmother of ex-Atlanta police officer Garrett Rolfe raised what clearly sounds like a claim of defamation against her former employer Equity Prime Mortgage in Atlanta. Melissa Rolfe says that she was fired after her step son was charged with the murder of Rayshard Brooks. Her firing has been in the news, but the legal standing of Rolfe seemed questionable to challenge the termination. She appears to be an “at will” employee who can ordinarily be fired, as it is often said, for “good reason, bad reason, or no reason at all” (absent the violation of a statutory or constitutional protection). However, it appears that she may be contemplating a lawsuit based not on the termination by Equity Prime Mortgage but how the company explained the termination after it was criticized for allegedly firing Rolfe simply because of her son. That could present an interesting defamation action and a cautionary tale for companies in dealing with such high-profile matters.
Melissa Rolfe began work at Equity Prime Mortgage in Atlanta in February as the human resources director and she claims that she was assured by the company that her job was safe and that she would not be punished because of her son’s case. She specifically states that Equity Prime Mortgage’s president Eddy Perez called and offered her six to eight weeks of paid time off so she could be with her family. She says that she offered to work from home but she was told it would not be necessary and, she quotes him as saying something along the line of “Your job is safe. Don’t worry about anything…Just take care of your family.”
She said that she was abruptly fired one June 18th, a day after her son was hit with 11 charges, including felony murder. She said that she and her husband had just dropped off their son to be booked when she received a 56-second call with her direct manager telling her that she was fired.
At this point, the company could be criticized by those who believe that this was retaliation against a family member but it probably could not be successfully sued if she was an at will employee. As the court stated in Reed v. City of Albany, 622 S.E.2d 875 (2005):
Under Georgia law, at-will employees may be terminated for any or no reason, and they generally cannot recover for wrongful discharge. The motivation underlying the termination usually does not matter; an employer may discharge an at-will employee without liability. As noted by our Supreme Court, this bar to wrongful discharge claims in the at-will employment context ‘is a fundamental statutory rule governing employer-employee relations in Georgia.’
Many people did criticize Equity Prime Mortgage for its action. That is when the company may have unwittingly moved the matter from a wrongful termination framework to a defamation framework. It responded publicly by claiming that Rolfe was fired for creating a hostile workplace environment.
That is a specific allegation of wrongdoing that suggests possible racist or intolerant views expressed at the workplace. The statement says that there were specific violations of company policy and that she endangered “a safe environment for all employees.”
If this is now a defamation case, the threshold issue will be to define what Rolfe is: a private citizen or a public figure. As we have previously discussed many times, the Supreme Court handed down New York Times v. Sullivan to add protections for such speech criticizing public officials, and later public figures. It is a protection of the free press and free speech that President Trump has often railed against. The “actual malice” standard required a showing that the newspaper published a false report with either actual knowledge of its falsity or a reckless disregard of the truth. Imposing a high standard for proof of defamation, Brennan sought to give the free press “breathing space” to carry out its key function in our system.
The public figure standard was established in Curtis Publishing v. Butts (1967). The case involved a March 23, 1963 edition of The Saturday Evening Post alleging that former University of Georgia football coach Wallace Butts conspired with University of Alabama coach Paul “Bear” Bryant to fix a 1962 football game in Alabama’s favor. In a 5-4 decision, Chief Justice Warren wrote a concurrence that extended the ruling in New York Times v. Sullivan on public officials to public figures. He found the same reasons for applying the higher standard to public officials as present in cases involving public figures:
[I]t is plain that, although they are not subject to the restraints of the political process, “public figures,” like “public officials,” often play an influential role in ordering society. And surely, as a class, these “public figures” have as ready access as “public officials” to mass media of communication, both to influence policy and to counter criticism of their views and activities. Our citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of “public officials.” The fact that they are not amenable to the restraints of the political process only underscores the legitimate and substantial nature of the interest, since it means that public opinion may be the only instrument by which society can attempt to influence their conduct.
Rolfe was clearly not a public figure before the criminal charges against her son. She was not a public figure or even a “limited public figure” simply because her son was charged. However, Rolfe has publicly defended her son on social media. That could be viewed as sufficient basis for alleging that she is at least a limited public figure for the purposes of this controversy. She could face the same problem of my former client, Eric Foretich, who was declared a limited public figure due to a brief comment to the media in Foretich v. ABC. (I was his counsel on a different constitutional case). Her defense of her son is understandable but could be viewed as triggering the higher standard.
If she is a public figure, she would need to show that Equity Prime Mortgage made a false statement with actual knowledge of its falsity or a reckless disregard of the truth. Of course, the primary defense in any such case is truth. If the company could show that there were clear violations, the defamation would fail. The company however has given no specific examples of those violations and even Rolfe says that she was not told of the specific grounds.
The company would move for early dismissal, but assuming that this is sufficient to state a cause of action, it could be subject to probing discovery including depositions with all of its officers. If this was a manufactured rationale to get rid of an employee due to her familiar association, it could prove both costly and embarrassing. The company would have to not only offer proof of the violations but either disprove Rolfe’s account of being told that her job was assured or prove that there was a subsequent discovery of these violations. It could have such evidence but the company’s statement took a weak termination case and converted it into a viable defamation action.