KENDALL K.W. FELLS, APPELLANT, v. SERVICE EMPLOYEES INTERNATIONAL UNION and DISTRICT OF COLUMBIA, APPELLEES.
Nos. 19-CV-1246 & 20-CV-0387
DISTRICT OF COLUMBIA COURT OF APPEALS
September 1, 2022
Appeal from the Superior Court of the District of Columbia (CAB3079-19) (Hon. Florence Pan, Trial Judge) (Argued February 3, 2022)
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Erik S. Jaffe, with whom Raymond J. Sterling and Brian J. Farrar were on the brief, for appellant.
Kathleen M. Keller, with whom Devki K. Virk and April H. Pullman, were on the brief, for appellee Service Employees International Union.
Norah E. Rast, Special Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General at the time, Caroline S. Van Zile, Principal Deputy Solicitоr General at the time, Carl J. Schifferle, Deputy Solicitor General, and Mark S. Wigley, Assistant Attorney General, were on the brief, for appellee District of Columbia.
Before BECKWITH and DEAHL, Associate Judges, and FISHER, Senior Judge.
SEIU filed a special motion to dismiss under the District of Columbia‘s Anti-Strategic Lawsuits Against Public Participation, or “Anti-SLAPP,” Act.
I.
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 relаtionships
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 instаnce, expressly attributing Fells’ ouster to sexual misconduct allegations.2 In fact, as SEIU concedes, Fells’ departure was not related to any claims of sexual misconduct.
Fells sued SEIU for (1) defamation, (2) false light invasion of privacy, (3) public disclosure of private information, and (4) intentional infliction of emotional distress. SEIU filed a special motion to dismiss under the District‘s Anti-SLAPP Act, asserting that its statements were made “in furtherance of the right of advocacy on issues of public interest.”
At the hearing‘s conclusion, the trial court found that SEIU made a “prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest,” satisfying its initial burden under thе Act.
The court concluded that Fells had not met that burden. There was no express defamation, the court reasoned, because SEIU‘s press statemеnt did not expressly state that Fells had engaged in any sexual misconduct. As for implied defamation, the court opined that a BuzzFeed article about the series of firings and resignations, supra note 2, was the strongest basis for an implied defamation claim. After scrutinizing that article, however, the court concluded that Fells was not likely to succeed on the merits because a reader would not “reasonably understand” from the article “that Mr. Fells was being investigated for sexual misconduct.”
The court dismissed all of Fells’ claims with prejudice and later awarded SEIU $98,025.68 in attorneys’ fees and costs pursuant to the Anti-SLAPP Act‘s fee-shifting provision. Fells now appeals.
II.
At the outset, we note that Fells’ only preserved challenge is to the dismissal of his defamation claim. His opening brief did not challenge the dismissals of his other claims, as SEIU correctly points out, and so we affirm those dismissals.3 Our focus is thus exclusively on the propriety of the dismissal of his defamation claim under the Anti-SLAPP Act.
The District‘s Anti-SLAPP Act protects the free exercise of political rights by allowing defendants to quickly dispense with suits “filed by one side of a political or public policy debate aimed to punish or prevent the expression of opposing points of view.” Competitive Enter. Inst. v. Mann, 150 A.3d 1213, 1226 (D.C. 2016) (quoting Report on Bill 18-893, at 1). The Act permits a defendant to file a “special motion to dismiss” in which they “must first show entitlement to the protections of the Act by ‘mak[ing] a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest.‘” Id. at 1227 (quoting
The “likely to succeed on the merits” standard in the Anti-SLAPP context does not require a plaintiff to show that it is more likely than not that they will succeed, as the statutory language seems to say. Imposing that high of a bar for a suit to survive a motion to dismiss would raise “serious constitutional concerns.” Mann, 150 A.3d at 1235. To avoid
We review the Superior Court‘s application of the Anti-SLAPP Act de novo. Saudi Am. Pub. Rels. Affs. Comm. v. Inst. for Gulf Affs. (SAPRAC), 242 A.3d 602, 610-11 (D.C. 2020). For the reasons that follow, we agree with the trial court that SEIU made out a prima facie case “that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest.”
A. SEIU‘s Prima Facie Case that Anti-SLAPP Act Applies
In filing a special motion to dismiss under the Anti-SLAPP Act, SEIU had the initial burden of providing “a prima facie showing” that Fells’ defamation claim “arises from an act [1] in furtherance of the right of advocacy [2] on issues of public interest.”
1. “In Furtherance of the Right of Advocacy”
Fells first argues that SEIU‘s statement did “not even remotely constitute ‘advocacy,‘” as contemplated by the Anti-SLAPP Act, because it “advocated nothing.” It was instead an announcement “of a private employment action terminating the employment relationship between SEIU and Fells,” in his view. His argument does not withstand scrutiny.
The Anti-SLAPP Act defines advocacy very broadly. In defining what constitutes an “[a]ct in furtherance of the right of advocacy on issues of public interest,” it includes “[a]ny . . . expression or expressive conduct . . . communicating views to members of the public in connection with an issue of public interest.”
Fells persists that his lawsuit differs substantially from those targeted by the “central purpose of the Act” because he “has no intention of intimidating SEIU into silence on the issue of workplace sexual harassment.” Maybe so, but even if we accept Fells’ description of the Act‘s central
Fells also contends that the press statement was more a statement of fact than of any particular opinion, so that it did not express “views” as that term is used in the statutory definition above. That is wrong for two reasons. First, as a descriptive matter, the statement went beyond recounting facts to expressing opinions, such as describing workplace abuse as a “serious problem[]” that it is “important” to take steps to root out, and that Fells’ ouster constituted “progress.” Second, even recounting facts can constitute expressing views if the surrounding context makes it clear that the speaker has some opinion about those facts, as here. In Fridman v. Orbis Bus. Intel. Ltd., for instance, we held that purely factual assertions in the now-infamous Steele Dossier regarding the nature of the plaintiffs’ relationship with Russian President Vladimir Putin “communicate[d] the view that [plaintiffs] are powerful figures who can affect relations between Russia and the United States.” 229 A.3d 494, 504 (D.C. 2020). In finding those defendants had made a prima facie case under the Anti-SLAPP Act, we rejected the plaintiffs’ argument that “the phrase ‘communicating views’ applies only to beliefs or opinions and cannot be ‘stretched to encompass the compiling and conveyance of raw intelligence.‘” Id. at 503. Much like the “raw intelligence” in Fridman, even the factual portion of the statement with which Fells takes issue communicated views about the circumstances surrounding Fells’ termination to the press. Id. at 504. It conveyed that workplace abuse was conduct worthy of termination and should not be tolerated.
2. Related to an “Issue of Public Interest”
We now turn to whether SEIU made out a prima facie case that the statement was related to an “issue of public interest.” The Act defines “[i]ssue of public interest” as “an issue related to health or safety; environmental, economic, or community well-being; the District government; a public figure; or a good, product, or service in the market place.”
The trial court was correct that a high-level employee‘s misconduct-related separation from the second-largest labor union in the country is of public interest. How workers are treated at one of our nation‘s largest labor unions undoubtedly relates to community well-being, so much so that the proposition approaches the self-evident.5 The public generally has an interest in the standards to which various organizations hold their high-level employees. That is particularly true when the organization is a labor union that bills itself as fighting against the very type of abuses that several of its leaders were accused of committing.
Fells counters by pointing to a carve-out in the Act, which states that an “issue of public interest . . . shall not be construed to include private interests, such as statements directed primarily toward protecting the speaker‘s commercial interests rather than toward commenting on or sharing information about a matter of public significance.”
First, both the statutory text and our precedents make clear that statements “intermixing public and private interests” fall within the scope of the Anti-SLAPP Act. SAPRAC, 242 A.3d at 611. The fact that SEIU‘s statement partially concerned a private matter does not bring it outside of the Act, “so long as it [was] not ‘directed primarily’ at a private interest.” Id. (quoting
Second, SEIU used Fells’ separation as a moment to reassure the broader community of its values regarding the appropriate treatment of workers. That is undoubtedly an issue of public concern, on which SEIU holds itself out as a standard-bearer. We have previously held that statements that on their face are “mostly” about a single individual, even one who was deemed not to be a public figure, may nonetheless relate to “larger concern[s] . . . of community well-being.” Id. at 612-613 & n.13. The same is true here. SEIU‘s statement described the organization‘s views that: abusive behavior toward staff was a “serious problem“; that “progress does not stop with these personnel actions“; and that it would continue to take “important steps toward ensuring that our workplace environment reflects our values.” Placed in the context of the #MeToo movement and SEIU‘s ongoing investigation into the misconduct of its own higher-ups, this was another of its entries into the public debates about worker‘s rights and workplace abuse.
Third, while Fells speculates about the self-interested reasons SEIU had for disseminating this press statement—including what he describes as SEIU‘s desire to pander to its mostly female base with “virtue-signaling” around the #MeToo movement—that is of no moment. Even if there was some commercial motivation behind SEIU‘s statement, that would not mean that the statement pertained
ii. There Was a Prima Facie Case that Fells Was a Limited-Purpose Public Figure
Having already conсluded that SEIU made out a prima facie case under the Anti-SLAPP Act—that its statement was “[1] in furtherance of the right of advocacy [2] on issues of public interest“—we might bypass the question of whether SEIU presented a prima facie case that Fells was a public figure. We nonetheless think it prudent to address the public figure question, in the interests of judicial efficiency, because it affects the showing Fells will ultimately need to make to sustain a defamation claim on remand. See Mann, 150 A.3d at 1251 (there is a “heightened showing of fault—actual malice—that must be proved in defamation cases that rely on statements made about public figures concerning matters of public concern“) (citing N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964)). We agree with the trial court that SEIU presented a prima facie case that Fells was a limited-purpose public figure.
Section 16-5501(3) defines an “issue of public interest” to include “an issue related to . . . a public figure.” The Act does not define public figure, however, so we have imported the relevant standards applied in defamation law. Burke I, 91 A.3d at 1041. Those standards instruct that there are both “general public figures,” and “limited-purpose public figures.” No one contends that Fells is a general public figure, which is somebody who has “achieve[d] such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974). SEIU contends only that he is a limited-purpose public figure, a label that applies to those who “assume roles ‘in the forefront of particular public controversies in order to influence the resоlution of the issues involved,’ and who are deemed public figures only for purposes of the controversy in which they are influential.” Moss v. Stockard, 580 A.2d 1011, 1030-31 (D.C. 1990) (quoting Gertz, 418 U.S. at 345).
We apply a three-part test when determining whether somebody is a limited-purpose public figure: (1) “whether the controversy to which the defamation relates was the subject of public discussion prior to the defamation“; (2) whether the subject of the alleged defamation “achieved a special prominence in the debate,” either by “purposely trying to influence the outcome” or because the plaintiff “could realistically have been expected, because of his position in the controversy, to have an impact on its resolution“; and (3) if the first two elements are satisfied, whether the alleged defamation was germane to the role the subject played in the public controversy. Id. An allegedly defamatory statement is germane unless it is “wholly unrelated to the controversy” for which the plaintiff is a limited-purpose public figure. Id. at 1031. There is sufficient evidence
As to the first prong, it is uncontested that the controversy relates to a subject of public discussion. The only disagreement between the parties is what that relevant controversy is, and how one frames it could affect the second and third parts of the test considered below. SEIU seeks to frame it broadly as a controversy about “the treatment of workers.” If that is the correct framing, then the second and third steps of this test become quite easy, as Fells does not dispute that he attained a special prominence in that discussiоn and that SEIU‘s statement pertained to it. Fells therefore seeks to frame the relevant controversy more narrowly, as one about “sexual harassment and abuse,” as “brought to prominence by the #MeToo movement,” a subcategory where his prominence was at the very least diminished. We will assume, without deciding, that Fells’ framing of the relevant controversy is the better one, because even under that framing he satisfies the limited-purpose public figure test.
As to the second prong, there is substantial evidence that Fells achieved “special prominence” in the debate, even when narrowly framed as one about sexual harassment and abuse. Despite Fells’ attempts to describe himself as simply an advocate for fair wages, he was much morе than that as interim President of the National Fast Food Workers’ Union. By its nature, his role as a high-level union representative who frequently spoke in the press suggests an intent and capacity to influence the outcome of the debate surrounding all manner of labor concerns. See Cox v. Galazin, 460 F. Supp. 2d 380, 389-90 (D. Conn. 2006) (collecting cases and endorsing view that “[u]nion officers are generally held to be public figures for purposes of union business where their activities place them in a controversy which invites scrutiny of their integrity, character, and professional ability“). In fact, contrary to Fells’ assertions, there is substantial support for the proposition that Fells “voluntarily thrust” himself into the debate on sexual harassment in the workplace in particular. Burke I, 91 A.3d at 1042-43.6
As to the third prong, the alleged defamаtion was germane to the role Fells played in the public controversy. Fells’ alleged employee mistreatment cannot be considered “wholly unrelated” to the controversy for which he was a public figure: proselytizing about unionizing as a means of tamping down on workplace misconduct. It is, in fact, a very tight fit. We thus agree with the trial court that SEIU made out a prima facie case that its speech related to issues of public interest. SEIU did so in two ways: (1) it demonstrated that the statement was related to health or safety, or community well-being, and (2) it presented substantial evidence that the statement pertained to a limited-purpose public figure.
Because SEIU made a prima facie showing in support of its special motion to dismiss under the Anti-SLAPP Act, the burdеn shifts to Fells to show that his defamation claim was “likely to succeed on the merits.”
1. The “Likely to Succeed on the Merits” Standard
In order to rebut a defendant‘s prima facie case that the Anti-SLAPP Act applies, the plaintiff must “demonstrate[ ] that the claim is likely to succeed on the merits.”
It is not clear that the trial court applied this more relaxed standard, rather than the “more likely than not to succeed” standard we rejected in Mann. The trial court did not reference Mann, or otherwise demonstrate an understanding that Fells’ burden was more akin to the burden on a party seeking to avoid summary judgment, namely, to show that material facts were in genuine dispute. Id. at 1237. Instead, the trial court appears to have inserted its own assessment of the merits without any recognition that the phrase “likely to succeed on the merits,” as it appears in the Anti-SLAPP statute, should not be given its most literal interрretation. Because our review is de novo, any potential misstep about the applicable standard does not affect our analysis. But the possible confusion compels us to reiterate that the likelihood of success standard in the Anti-SLAPP
2. Did SEIU‘s Statement Imply that Fells Was Ousted for Sexual Misconduct?
When properly understood, the question at this stage is whether Fells presented evidence from which a reasonable jury might conclude that he was defamed. Id. at 1262. Fells has no viable claim for express defamation—SEIU‘s statement did not expressly state he was terminated for sexual misconduct8—leaving him to resort to a theory of implied defamation.
Defamation by implication concerns not what somebody literally stated, but what their statеment implies. Guilford Transp. Indus., Inc. v. Wilner, 760 A.2d 580, 597 (D.C. 2000); see also White v. Fraternal Ord. of Police, 909 F.2d 512, 518 (D.C. Cir. 1990). To sustain a defamation-by-implication claim, Fells had to demonstrate that SEIU‘s statement, viewed in its entire context: (1) “was capable of bearing a defamatory meaning“; and (2) “that it contained or implied provably false statements of fact.” Guilford, 760 A.2d at 597. Because no one contends that Fells was ousted for sexual misconduct, there is no dispute that he has satisfied the second part of that test if SEIU‘s statement “was capable of bearing” the meaning that Fells was forced to resign because of sexual misconduct. As to the first and only disputed part of the above test, we have explained that it is not enough that a statement can “be reasonably read to impart the false innuendo, but it must also affirmatively suggest that the author intends or endorses that inference.” Id. at 596 (quoting Chapin v. Knight-Ridder, 993 F.2d 1087, 1092-93 (4th Cir. 1993)). Evidence that supports such a finding includes “suggestive juxtapositions, turns of phrase, or incendiary headlines.” White, 909 F.2d at 526.
The SEIU statement at issue provided that Fells’ termination was ”the culmination of this stage of the investigation, which brought to light the serious problems related to abusive behavior towards staff, predominantly female staff.”9 (emphases added). Recall that “the investigation” referenced was triggered by allegations that another recently ousted executive, Scott Courtney, was having inappropriate sexual relationships with subordinates. Fells argues that tethering his departure to the same internal investigation that led to Courtney‘s ouster days earlier indicated that he, too, had engaged in sexuаl misconduct, at least absent any indication to the contrary. See Toney v. WCCO Television, Midwest Cable & Satellite, Inc., 85 F.3d 383, 387 (8th Cir. 1996) (“[A] defendant does not avoid liability [for implied defamation] by simply establishing the truth of the individual statement(s); rather, the defendant must also defend the juxtaposition of” its statements). We agree that a jury could reach that conclusion.
SEIU counters that the internal investigation was not exclusively about sexual misconduct. It highlights that, upon Courtney‘s resignation, SEIU‘s spokesperson described the investigation as one “look[ing] into questions about [1] potential violations of our union‘s anti-nepotism policy, [2] efforts to evade our Code of Ethics and [3] subsequent complaints related to sexual misconduct and abusive behavior towards union staff.”10 It is hard to see how that changes the calculus. Sexual misconduct, neрotism, and ethical breaches may all be of a piece, and in the context of the investigation prompting Courtney‘s resignation, it appeared that they were.11 In light of that context, the most natural reading is that the investigation was into higher-ups giving preferential treatment to subordinates who acquiesced to their sexual advances—or disfavoring those who did not—checking each box of sexual misconduct, nepotism, and ethical breaches.
But even if that were not enough, there is a second problematic juxtaposition in SEIU‘s statement suggesting that Fells engaged in sexual misconduct. It says that his ouster stemmed from “abusive behavior towards staff, predominantly female staff.” (emphasis added). When coupled with the earlier reference to an investigation that resulted in another high-level executive‘s departure for sexual misconduct—and especially in the midst of the roiling #MeToo movement—a reasonable jury could conclude that this statement indicated Fells’ misconduct was sexual in nature, and that SEIU intended to so imply. Indeed, a Breitbart article drew that exact inference, with a headline positing: Four SEIU Officials Out of a Job Because of Sexual Misconduct Charges.12
The Supreme Court of Minnesota found a similar juxtaposition potentially defamatory in Phipps v. Clark Oil & Refining Corp., 408 N.W.2d 569 (Minn. 1987). In that case, a gas station attendant alleged that he was fired for refusing the request of a customer—who happened to be “handicapped“—to put leaded gasoline into a vehicle designed for unleaded gasoline. Id. 570. Gas station representatives then made factually accurate statements indicating that he had been fired “for failing to provide . . . service to a handicapped customer.” Id. While technically true, the customer‘s handicap had nothing to do with the employee‘s refusal to assist them, and Phipps held that there was a triable question of fact as to whether the inclusion of the word “handicapped” gave rise to a false inference that the attendant refused to help the customer because of their handicap. Id. at 573. Similarly here, it is not obvious why SEIU mentioned that the abuse was predominantly of women, and came to light as part of the investigation into Courtney‘s sexual misconduct, if not to imply that Fells had engaged in conduct of the same nature. A jury could reasonably adopt Fells’ position that doing so amounted to defamatiоn.
Finally, SEIU contends that we might nonetheless affirm on the basis that
In sum, we conclude that a reasonable jury might conclude that SEIU‘s statement included the false implication that Fells was ousted for sexual misconduct. We therefore reverse the trial court‘s dismissal of Fells’ defamation claim and vacate its award of attorney‘s fees and costs.13
III.
We reverse the trial court‘s dismissal of Fells’ defamation claim, vacate its award of attorney‘s fees and costs, and affirm the court‘s dismissal of Fells’ remaining claims.
So ordered.