Is a Slur Just an Insult, or (in Context) a Slanderous Implication of Incompetence?

From Fagan v. Faulkner, decided Thursday by the Mississippi Supreme Court, in an opinion by Justice Josiah Coleman, joined by Justices James Maxwell, Dawn Beam, Robert Chamberlin, and Kenneth Griffis:

The issues before the Court arose from a dispute between [Judy] Faulkner and [Dr. Bryan] Fagan at North Mississippi Surgery Center in Tupelo, Mississippi. The two parties worked together for fourteen years. Fagan has an individual ownership interest in the center and has conducted orthopedic surgeries there since 2010. Faulkner works at the center as a clinical manager, a role she has held for approximately twenty years. As clinical manager, Faulkner is tasked with scheduling surgeries and assigning operating rooms for various surgeons affiliated with the center, including Fagan.

The matter in question occurred on February 16, 2016, when Fagan had two surgeries scheduled, first a knee reconstruction surgery and then a shoulder surgery that typically involves the use of a piece of equipment called a “Spider.” Since that particular knee reconstruction surgery was estimated to take significantly longer than the shoulder surgery, and the shoulder surgery patient had already arrived, Fagan approached Faulkner, seeking to swap the surgeries for efficiency. Faulkner informed Fagan that the surgeries could be swapped but that he could not use the Spider because it was scheduled for another surgeon at that time.

Fagan did not wish to perform the surgery without the Spider, and he became upset when he realized that he would not be able to switch the surgeries and have the use of it. Fagan then repeatedly told Faulkner that she should be the one to inform the patient and the patient’s family that they would have to wait until after the knee surgery. Faulkner refused, and Fagan demanded that she call her boss and discuss the matter with him. Importantly, Faulkner did not put on any evidence at trial that the persons present in the operating room later had any knowledge of the above-described events leading up to the subject utterance.

Evidently still upset with the situation, according to his own testimony, Fagan called Faulkner a “f*****g c**t” during a surgery later on in the day in the presence of four or five staff members. No witnesses other than Fagan himself testified regarding events in the operating room, and no witness, including Fagan, offered any other testimony quoting any other statements made by him in the operating room….

Faulkner’s claim fails at the threshold because name-calling is simply not actionable in Mississippi, and Faulkner’s proof fell short of a prima facie case of defamation per se. While Fagan voiced complaints about Faulkner’s job performance on the morning in question, the record contains no evidence that he made statements rising to the level required to prove slander per se by imputing to Faulkner “a want of integrity or capacity … in the conduct of [her] profession, trade or business ….” …

We hold that, as a matter of law, the vulgarity Fagan employed against Faulkner did not impute to her a want of professional capacity; it did not concern her ability to do her job…. [V]iewing Fagan’s statement in a light most favorable to Faulkner, it can only be construed as declaring, in the most vulgar and offensive fashion, that he loathed, despised, or held Faulkner in contempt….

[The lower courts] erroneously relied on Fagan’s intent behind making the statement to conclude that it referred to Faulkner’s professional ability. “[W]hen a statement is reasonably capable of several meanings, some of which would be defamatory and some would not, the burden is on the plaintiff to prove that it was reasonably and properly understood by the person or persons to whom it was published as having the defamatory meaning.” Thus, regardless of Fagan’s intent behind the statement, none of the staff members who witnessed it testified….

[A witness at trial asserted that] Fagan expressed dissatisfaction with Faulkner’s job performance “that day.” As a matter of law, however, in order for Fagan’s words to rise to the level of defamation per se, they must impute to Faulkner want of capacity in the conduct of her business…. [Even if] Fagan, along with the vulgarity, complained about Faulkner’s performance of her job that morning, neither his complaint nor any reasonable inference that can be drawn from it amounts to a general disparagement of Faulkner’s capacity to do her job scheduling surgeries….

“[D]efamatory words, to be libelous per se, must be of such a nature that the court can presume as a matter of law that they do tend to disgrace and degrade the person, or to hold him up to public hatred, contempt or ridicule, or to cause him to be shunned and avoided….” … [T]he words must be susceptible of one meaning only, and that meaning must be opprobrious.

In other words, in order to be actionable as defamation per se on the ground chosen by Faulkner, i.e., a slander of her professional capacity, the words must convey outrageous disgrace or shame. As a matter of law, any statement by Fagan expressing dissatisfaction with Faulkner’s job performance on one specific morning falls far short of the mark…. If, indeed, Fagan expressed unhappiness with how Faulkner scheduled the surgeries “that day,” and, again, the record contains no evidence of what words he used to do so, an expression of unhappiness with a coworker’s performance on one morning does not rise to the level of slander….

As atrocious as Fagan’s use of the vulgarity was, as to the audience to which it was published, it amounted to name-calling—not defamation. Even if we draw the favorable inference from Fagan’s answers during cross-examination that he expressed unhappiness with Fagan’s performance of her duties that day, such expressed dissatisfaction falls far short of expressing “a want of integrity or capacity … in the conduct of [her] profession, trade or business ….”

The dissenters (Chief Justice Michael Randolph, joined by Justices James Kitchens, Leslie King, and David Ishee) disagreed:

Dr. Fagan twice admitted making a statement that Judy was unable to perform her job. First, Dr. Fagan answered Judy’s complaint as follows: “Defendant admits that he made comments concerning how Plaintiff performed her job and called her a name [(‘fucking cunt’)].” Rule 11(d) of the Mississippi Rules of Civil Procedure prescribes: “Averments in a pleading to which a responsive pleading is required … are admitted when not denied in the responsive pleading.”

Second, at trial, Dr. Fagan admitted making statements disparaging Judy’s ability to perform her job:

[Q.] But you stated that you were unhappy with the way she was performing her job that day in front of multiple people. Would that be accurate?

[A.] Yes.

[Q.] And I’m not dwelling so much on the use of that [cunt] word right now so much as I am that you were unsatisfied with her ability to do her job that day and you’re mad about it?

[A.] Correct.

[Q.] And that opinion was voiced to several people as we’ve covered, correct?

[A.] It was a statement that was said in the operating room in front of those people, yes.

All witnesses testified that Judy was able to perform her job. Even Dr. Fagan begrudgingly admitted she “does an okay job.” The testimony provides record evidence showing that, when Dr. Fagan stated Judy was unable to perform her job, that statement was false. A false statement was intentionally communicated by Dr. Fagan to third parties that Judy was unable to perform her job. All of the elements of slander per se were met….

This Court must not be swayed by focusing only on the despicable vulgarity “fucking cunt.” It was only part of what Dr. Fagan said in the operating room that day. Additionally, Judy never “alleg[ed] that the vulgarity constitute[d] an attack on her professional abilities,” as the majority opines. A careful review of the record reveals extensive evidence that his outburst included more than just “fucking cunt.”

Judy Faulkner did not deserve Dr. Fagan’s untruthful tirade or to have her livelihood threatened. Our laws exist to protect against such damaging statements. Considering the evidence in the light most favorable to Judy and following the law compels affirming the verdict of the trial court.

For more, including the majority’s response to the dissent, and some further discussion of the procedure in this case and the precedents, see here.

Mark Nolan Halbert and Brandi Elizabeth Soper represent Fagan.

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