Defamation by Retroactive Scrubbing of Coach from Roster?

From Monday’s decision by Judge Samantha Elliott (D.N.H.) in Wood v. Dartmouth College:

Plaintiff Justin Wood was Dartmouth University’s Men’s Cross-Country coach for nearly two years, until August 2022. He alleges that Porscha Dobson Harnden, who served as the Director of Dartmouth Track & Field and Cross Country during his tenure and for roughly two years thereafter, made defamatory remarks about him to third parties after he left….

Consistent with this standard of review, the court assumes that the following facts taken from the amended complaint are true. Dartmouth hired Wood as the Head Coach of its Men’s Cross-Country Team on November 16, 2020. In her capacity as the Marjorie & Herbert Chase ’30 Director of Dartmouth Track & Field and Cross Country, Harnden was Wood’s supervisor. During his employment, Wood reported and objected to certain of Harnden’s practices, including allegedly falsifying COVID-19 testing documentation to allow sick athletes to practice and compete, and potential admissions fraud. On August 19, 2022, Wood and Dartmouth entered into a separation agreement and a general release agreement (separation agreement)….

The court, among other things, allowed Wood’s defamation claims to go forward as to the retroactive removal of his name from past online rosters:

At some point in 2024, Dartmouth removed Wood’s name from the online rosters for the 2021 Men’s Cross-Country team (for which he was the head coach), and the 2020-2021 and 2021-2022 Men’s Track & Field Team (for which he was the assistant coach). During an interview with Tufts University, Wood’s interviewer had printed the relevant pages from Dartmouth’s website. His missing name became an issue because Wood’s wife, who was a volunteer, had a profile while Wood did not. Dartmouth’s website continues to list coaching positions for other former employees Dartmouth terminated….

Dartmouth … argues that it cannot be liable for defamation because it did not publish information, and instead solely removed it. But both the New Hampshire Supreme Court and this court have recognized a claim for defamation by implication. Such a claim occurs when a “defendant juxtaposes a series of facts so as to imply a defamatory connection between them, or creates a defamatory implication by omitting facts.”

Dartmouth’s public roster presents information about the members of its team each year. Wood’s absence from the roster plausibly implies that he is lying about his employment or that he left on bad terms, either of which could lower him in the esteem of the cross-country community, or in the community of his prospective employers. Taken in the context of the publication as a whole, in which even volunteers and individuals who were terminated by Dartmouth remain listed on the online roster, Wood’s removal creates a defamatory implication. Thus, his amended complaint presents sufficient facts to assert a plausible claim for relief based on Dartmouth’s website.

The court also allowed Wood’s defamation claims to go forward as to a reference check:

After his employment with Dartmouth ended, Wood became aware of an opening for a track and field coaching position at New York University. NYU had previously offered Wood the head coaching position in 2014. In September 2022, he met with NYU’s athletic director and submitted a formal application, which required a reference check. The “individual at NYU who was managing the background check” called Dartmouth to verify Wood’s employment. Wood learned on December 7, 2022, that Harnden (or someone at her direction) responded that Wood had been “blacklisted.” …

While “blacklisted” alone may be opinion-based or hyperbolic, crediting as true Wood’s allegations and giving him every reasonable inference, the statement is both defamatory and false when viewed in context. In these circumstances, the statement that Wood had been “blacklisted” would be reasonably understood by the person seeking the reference check to declare or imply a provable assertion of fact that Dartmouth had terminated Wood and determined that it would not rehire him, and not merely a matter of Harnden’s opinion…. Further, giving Wood every reasonable inference and in the context of a reference check, declaring that Dartmouth had “blacklisted” Wood holds him up to contempt or ridicule and lowers his esteem in the running community and the community of potential employers, specifically at NYU….