November 18, 2015
Co-Worker Not Liable for Malicious Prosecution
The Tennessee Court of Appeals has issued an opinion which will give a degree of protection for co-workers who participate or cooperate in an employer's investigation of a discrimination charge against another co-worker. In Thompson v. Hamm, decided November 17, 2015, the Court considered whether an employee against whom a discrimination charge was lodged, and who lost his job but was eventually exonerated and reinstated, could pursue a claim for "malicious prosecution" against the co-worker who allegedly provided false information in the employer's investigation. The Court held that the claim must fail, because "merely providing information" used by the employer in its investigation (regardless whether that information was true or false) was insufficient to satisfy the element of "bringing a judicial action without probable cause." The Court noted that it was the employer (the City of Memphis) which conducted the investigation and which ultimately decided to terminate Plaintiff's employment.
The Court specifically noted that a contrary holding might "chill" employees from reporting acts of discrimination by co-workers, because of the fear of being sued, and for policy reasons, that was another basis to refuse to recognize a claim for malicious prosecution in this case.
Notably, the Court did not say that such a claim could never be brought. The Court discussed the fact that, in this case, the Defendant did not "urge or encourage" the employer to take disciplinary action against the Plaintiff. The Court carefully said that "the mere provision of information... without more... is insufficient to render [Defendant] liable for malicious prosecution against [Plaintiff]." Therefore, if a co-worker goes beyond merely "providing information," and if the co-worker actively "urges or encourages" the employer to pursue disciplinary action (which is later overturned), then that co-worker may be subject to a malicious prosecution claim.