this coworker has been trashing me to others for years and I think i want to sue her directly but don't know how to go about it. She is in management but is not my direct manager.
First and foremost you should report the incident to your superior (direct manager) and the Human Resources Department and request the person be admonished/punished and instructed to stop the behavior immediately. If it continues or there are any reprisals by the co-worker or employer, get yourself an attorney that is experienced in this area of law. Defamation, which consists of both libel and slander, is defined by case law and statute in California. See Cal. Civ. Code §§ 44, 45a, and 46.
The elements of a defamation claim are:
1. Publication of a statement of fact
2. that is false,
4. has a natural tendency to injure or which causes "special damage," and
5. the defendant's fault in publishing the statement amounted to at least negligence.
Publication, which may be written or oral, means communication to a third person who understands the defamatory meaning of the statement and its application to the person to whom reference is made. Publication need not be to the “public” at large; communication to a single individual other than the plaintiff is sufficient. Republishing a defamatory statement made by another is generally not protected.
As a matter of law, in cases involving public figures or matters of public concern, the burden is on the plaintiff to prove falsity in a defamation action. Nizam-Aldine v. City of Oakland, 47 Cal. App. 4th 364 (Cal. Ct. App. 1996). In cases involving matters of purely private concern, the burden of proving truth is on the defendant. Smith v. Maldonado, 72 Cal.App.4th 637, 646 & n.5 (Cal. Ct. App. 1999). Even when the burden is technically on the plaintiff to prove falsity, the plaintiff can easily shift the burden to the defendant simply by testifying that the statements at issue are false.
Defamation Per Se
A In California, a private figure plaintiff bringing a defamation lawsuit must prove that the defendant was at least negligent with respect to the truth or falsity of the allegedly defamatory statements.plaintiff need not show special damages (e.g., damages to the plaintiff's property, business, trade, profession or occupation, including expenditures that resulted from the defamation) if the statement is defamation per se. A statement is defamation per se if it defames the plaintiff on its face, that is, without the need for extrinsic evidence to explain the statement's defamatory nature. See Cal. Civ. Code § 45a; Yow v. National Enquirer, Inc. 550 F.Supp.2d 1179, 1183 (E.D. Cal. 2008).
For example, an allegation that the plaintiff is guilty of a crime is defamatory on its face pursuant to Cal. Civil Code § 45a. In one case, a non-profit organization (NPO) that advocates for the rights of low-income migrant workers posted flyers claiming a national retailer of women's clothing engaged in illegal business practices by contracting with manufacturers that did not pay minimum wage or overtime. The retailer brought a defamation suit against the NPO. Although the statements would have qualified as defamation per se, the court concluded the retailer failed to establish the statements in the flyers were false, and therefore the statements could not be considered defamatory. See Fashion 21 v. Coal. for Humane Immigrant Rights of L.A., 12 Cal.Rptr.3d 493 (Cal. Ct. App. 2004).
If you have evidence of the defamation and are at a point where you want to proceed, then retain a lawyer right away and get the proper legal advice. Everyone has the right to a hostile-free work place and if one of your superiors is defaming you by slander (spoken vs. libel which is written), then let the experienced lawyer advise you accordingly on whether you have a good case or not, and whether there are sufficient damages justifying proceeding with a case/claim against the employee and/or company?
I agree with other attorneys who have suggested you go to HR. Lawsuits are not always the answer. In some cases, a plaintiff who hires a lawyer who is unfamiliar with the anti-SLAPP defense could end up with a judicial order to pay the attorney fees of the trash-talking defendant.
Sorry to hear about your situation.
Here is a practical idea: ask the employer to help you and the manager clear the air, with the help of a neutral third party who acts as a mediator.
Unfortunately, if the manager is trashing your work performance, the manager has a qualified legal privilege to do that and you will lose a lawsuit unless you can show malice. You would have an extremely difficult burden of proof. Moreover, the employer would probably have a legal obligation to defend the manager.
Think of lawsuit as a high-risk, last possible resort when all else fails. Think of practical solutions to your problem, and propose those solutions to company management. Portray yourself as a "team player" who wants to resolve these issues for the good of the company. You need to do everything you can to defuse the probable company reaction that you are a "whiner" and a "troublemaker."
If your job and your reputation are that important, you may also want to consider investing in a good lawyer to help ghostwrite a letter to your employer -- a letter that you would sign in your own name. A good lawyer can also give you peace of mind and a "reality-check."
David A. Mallen
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