FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and REESE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
March 11, 2019
In the Court of Appeals of Georgia
A18A2059. BOYD v. DISABLED AMERICAN VETERANS et al.
REESE, Judge.
Thasha Boyd, proceeding pro se, filed a defamation action against the
Appellees, Matthew Jahn and his employer, Disabled American Veterans (“DAV”),
alleging that Jahn had falsely accused her of sexual harassment, which resulted in the
termination of her employment with the Department of Veterans Affairs
(“Department”). The Superior Court of DeKalb County dismissed the complaint for
failure to state a claim upon which relief could be granted.1 Boyd appeals, contending
that the trial court improperly considered evidence outside the pleadings and erred in
determining that the intracorporate privilege applied. For the reasons set forth, infra,
we reverse and remand the case for further proceedings.
1
See OCGA § 9-11-12 (b) (6).
Construed in favor of Boyd, as the non-moving party,2 the complaint alleges
the following facts. Boyd and Jahn “were employees who worked within the Atlanta
Veterans Benefits Administration (VBA) offices [in] Decatur[.] However, [Boyd] was
employed by the [Department]; and . . . Jahn is/was employed by the . . . DAV[.]” In
2016, Jahn made false statements to his fellow employees, and, in December 2016,
he filed a written complaint with the Department, alleging that Boyd had sexually
harassed him.3
According to the complaint, Jahn also “coached” a coworker to make false
statements about Boyd to the Department. Based on these reports, the Department
terminated Boyd’s employment. Boyd alleged that the “defamatory statement(s)”
made by Jahn and the DAV “were intentional and malicious” and that the Appellees
“conspired with the Department . . . for personal and financial gain in exchange for
assisting the [Department] in its retaliation against [Boyd] for her protected activity
against the [Department].”
2
See Southstar Energy Svcs. v. Ellison, 286 Ga. 709, 710 (1) (691 SE2d 203)
(2010).
3
During the Department’s ensuing investigation, Boyd learned that, several
months prior to December 2016, Jahn had told other DAV employees that Boyd “was
committing debasing acts against . . . Jahn.”
2
Although Boyd alleged in her complaint that she sent a demand letter to Jahn
and the DAV in January 2017, requesting that they “withdraw these false allegations
and/or reach out to her employer to mediate the matter[,]” neither Jahn nor the DAV
responded to the letter or took any corrective action. Thus, according to the
complaint, the DAV “failed to exercise proper care in vetting the truth” of the
allegations, and, instead “cover[ed] up” the false statements of Jahn and his coworker.
Specifically, the complaint alleged that a DAV “legal counsel/representative” told
Boyd “that he would not cooperate with [Boyd’s] subpoena/discovery to a third-party
(in her administrative appeal of her termination).”
In its order granting the Appellees’ motion to dismiss, the trial court found that
Boyd’s complaint “allege[d] that she and . . . Jahn were coworkers, both working
within the Atlanta Veterans Benefits Administration, though in different
departments.” The court concluded that, as a result, the alleged communications were
all “intracorporate,” and thus privileged, so the face of Boyd’s complaint
demonstrated that she could prove no set of facts amounting to defamation.
Under current Georgia law, it is not necessary for a complaint to
set forth all of the elements of a cause of action in order to survive a
motion to dismiss for failure to state a claim. Rather, the Georgia Civil
Practice Act requires only notice pleading and, under the Act, pleadings
3
are to be construed liberally and reasonably to achieve substantial justice
consistent with the statutory requirements of the Act. Thus, a motion to
dismiss for failure to state a claim should not be granted unless the
allegations of the complaint disclose with certainty that the claimant
would not be entitled to relief under any state of provable facts asserted
in support thereof.4
We review de novo a trial court’s determination that a pleading
fails to state a claim upon which relief can be granted, construing the
pleadings in the light most favorable to the plaintiff and with any doubts
resolved in the plaintiff’s favor. [T]he pleadings to be construed include
any exhibits attached to and incorporated into the complaint and the
answer.5
Moreover, “we are required to hold pro se pleadings to less stringent standards than
formal pleadings drafted by lawyers[.]”6 With these guiding principles in mind, we
turn now to Boyd’s specific claims of error.
4
Babalola v. HSBC Bank, USA, 324 Ga. App. 750, 752 (2) (751 SE2d 545)
(2013) (citations and punctuation omitted; emphasis supplied).
5
Babalola, 324 Ga. App. at 750 (citations and punctuation omitted).
6
Id. at 750, n. 2 (citation and punctuation omitted).
4
1. Boyd argues that the trial court improperly converted the motion to dismiss
into one for summary judgment, arguing that the trial court considered exhibits
attached to the motion to dismiss.7 This argument is without merit.
In its order, the court discussed the standard for deciding a motion under
OCGA § 9-11-12 (b) (6), and stated that it had considered only the pleadings and the
parties’ arguments at oral argument before granting the Appellees’ motion to dismiss.
According to the trial court, “the face of Boyd’s Complaint demonstrate[d] that she
[could] prove no set of facts amounting to defamation.” The trial court’s order also
did not refer to any evidence outside the pleadings. Because there is no transcript of
the motion hearing in the record, Boyd has failed to show that the Appellees
introduced evidence outside the pleadings.8 Thus, there is nothing in the record to
7
See OCGA § 9-11-12 (b) (“If, on a motion to dismiss for failure of the
pleading to state a claim upon which relief can be granted, matters outside the
pleading are presented to and not excluded by the court, the motion shall be treated
as one for summary judgment and disposed of as provided in Code Section 9-11-56,
and all parties shall be given reasonable opportunity to present all material made
pertinent to such a motion by Code Section 9-11-56.”).
8
See Famble v. State Farm Ins. Co., 204 Ga. App. 332, 336 (4) (419 SE2d 143)
(1992) (“Appellants have the burden of showing error affirmatively by the record. .
. . Where appellants choose to omit the transcript, and it is necessary for a review of
the claimed error, they have failed to meet their burden of showing error.”) (citations
and punctuation omitted).
5
support Boyd’s claim that the Appellees’ motion to dismiss was converted into a
motion for summary judgment.9
2. Boyd contends that the trial court erred in determining that the intracorporate
privilege applied to the Appellees’ defamatory statements. We agree.
“A cause of action for defamation consists of four elements: (1) a false and
defamatory statement concerning the plaintiff; (2) an unprivileged communication to
a third party; (3) fault by the defendant amounting at least to negligence; and (4)
special harm or the actionability of the statement irrespective of special harm.”10
Under the second element, “[t]he publication of the libelous matter is essential
to recovery.”11
Generally, publication is accomplished by communication of the slander
to anyone other than the person slandered. Over the years, however, an
exception to the broad definition of publication has evolved: when the
9
See Cooper v. Commercial Union Ins. Co., 192 Ga. App. 815, 815-816 (1)
(386 SE2d 551) (1989).
10
Infinite Energy v. Pardue, 310 Ga. App. 355, 356 (1) (713 SE2d 456) (2011)
(punctuation and footnote omitted); see OCGA § 51-5-1 (a) (“A libel is a false and
malicious defamation of another, expressed in print, writing, pictures, or signs,
tending to injure the reputation of the person and exposing him to public hatred,
contempt, or ridicule.”).
11
OCGA § 51-5-1 (b).
6
communication is intracorporate, or between members of unincorporated
groups or associations, and is heard by one who, because of his/her duty
or authority has reason to receive [the] information, there is no
publication of the allegedly slanderous material, and without
publication, there is no cause of action for slander.12
“Importantly, though, not all intracorporate statements come within the exception,
only those statements received by one who because of his duty or authority has
reason to receive the information.”13
The trial court found that the intracorporate exception applied because Boyd
and Jahn were “coworkers, both working within the Atlanta Veterans Benefits
Administration[.]” When considered in the light most favorable to Boyd,14 the
allegations of the complaint do not “disclose with certainty that [Boyd] would not be
entitled to relief under any state of provable facts asserted in support thereof.”15 The
facts could show that Boyd and Jahn worked for two separate and distinct entities that
12
Terrell v. Holmes, 226 Ga. App. 341, 342 (1) (487 SE2d 6) (1997) (citations
and punctuation omitted; emphasis supplied).
13
RCO Legal, P.S. v. Johnson, 347 Ga. App. 661, 673 (2) (c) (iii) (820 SE2d
491) (2018) (citation and punctuation omitted; emphasis supplied).
14
See Southstar Energy Svcs., 286 Ga. at 710 (1).
15
See Babalola, 324 Ga. App. at 752 (2).
7
were not engaged in a joint venture or undertaking at the time of the statements.16
Thus, any communication that Jahn made to the Department (which was Boyd’s
employer, but not Jahn’s) constituted a “publication.” Moreover, any communications
Jahn made to his coworkers at the DAV were “publications” unless the coworkers had
reason to receive the information because of their duty or authority.17 Under these
circumstances, “[i]t is possible that [Boyd] could introduce evidence within the
framework of the complaint establishing that defamatory statements were
disseminated to [Department and/or DAV] employees who had no duty or authority
giving them reason to receive the information.”18
16
See Saye v. Deloitte & Touche, LLP, 295 Ga. App. 128, 133-135 (1) (b) (670
SE2d 818) (2008) (declining to treat an accounting firm and its audit client as a single
entity for the purpose of a defamation claim filed by an employee of the client and
holding that, as a result, the trial court erred in granting the firm’s motion to dismiss);
cf. Galardi v. Steele-Inman, 266 Ga. App. 515, 519-520 (2) (597 SE2d 571) (2004)
(Where a promoter and an adult entertainment club, although separate corporations,
were engaged in a joint enterprise for the purpose of conducting a pageant, a club
employee’s communication to the promoter’s CEO about alleged violations of
pageant rules was privileged.).
17
See Terrell, 226 Ga. App. at 342 (1); see also Galardi, 266 Ga. App. at 519
(2).
18
See Scouten v. Amerisave Mortgage Corp., 283 Ga. 72, 73-74 (2) (656 SE2d
820) (2008) (citation omitted) (holding that a complaint sufficiently stated a claim for
relief based on defamation, including the required element of publication, and that
dismissal was therefore error).
8
For example, the complaint identifies two DAV employees to whom Jahn made
the allegedly defamatory statements, one of whom, according to the Appellees’
answer, was Jahn’s supervisor. Although Jahn’s supervisor may have had the duty or
authority to receive the information, the allegations of the complaint do not disclose
with certainty that the other employee (whom the complaint also alleges Jahn
“coached” to make false statements) had any such authority.
Alternatively, the Appellees contend that Boyd has failed to allege any
statement made by the DAV and, thus, failed to establish the first element of a claim
for defamation with respect to the DAV. Generally, an employer is not liable for the
slanderous utterances of its employees unless the employee had been directed or
authorized to slander the plaintiff.19 The allegations of the complaint against the
DAV, however, do not “disclose with certainty” that Jahn’s DAV supervisor had not
directed Jahn to file a false complaint with the Department.20 Because, “within the
framework of the complaint, evidence may be introduced which will sustain a grant
19
See Desmond v. Troncalli Mitsubishi, 243 Ga. App. 71, 75 (3) (532 SE2d
463) (2000) (“[T]he doctrine of respondeat superior does not apply in slander cases,
and a corporation is not liable for the slanderous utterances of an agent acting within
the scope of his employment, unless it affirmatively appears that the agent was
expressly directed or authorized to slander the plaintiff.”) (footnote omitted).
20
See Babalola, 324 Ga. App. at 752 (2).
9
of relief to [Boyd], the complaint is sufficient.”21 Therefore, the trial court erred in
granting the Appellees’ motion to dismiss.
Judgment reversed and case remanded. Barnes, P. J., and McMillian, J.,
concur.
21
See id. (citation and punctuation omitted).
10