Applebee's Cannot Sue over Internet Post Charging Harassment

A New Jersey judge has dismissed a defamation claim by an Applebee's restaurant franchisee against a man who wrote online of sexual harassment of female employees.

Essex County Superior Court Judge Donald Goldman rejected the claims, finding some of the allegedly defamatory statements were opinion
and others were protected because they touched on a matter of public concern.

All that remains of the litigation, Doherty Enterprises v. Murray, L-10079-08, is the defendant's counterclaim for abuse of process.

On Sept. 24, 2008, The Record of Hackensack ran an interview with Ed Doherty, president of Doherty Enterprises, which owns about 80 Applebee's restaurants in New Jersey, New York and Pennsylvania. It was posted on the paper's Web site, titled “Meet Ed Doherty, restaurant king.”

During the interview, Doherty said he treats employees “with dignity and respect” and provides “a great opportunity for them to have a good job.” He said his recipe for success was to “treat everybody the way you want to be treated.”

Michael Murray, a nonlawyer, had previously represented his daughter, Erin Duby, a former Applebee's employee, in arbitration against Doherty Enterprises concerning her claim that she was sexually harassed by managers and other employees. Murray was involved in discovery and settlement discussions and in December 2007 had rejected a settlement offer.

Murray saw the Doherty interview online and posted a comment saying the article was “disturbing,” Doherty was “repugnant” and his “rhetoric” flew “in the face of the facts.” He claimed he had arbitration transcripts showing that “women ' are routinely sexually harassed and that this behavior is condoned by high-level management at Doherty Enterprises right up to the top.” He also accused company managers of committing perjury and obstruction and ignoring harassment claims. He warned that other women working for Doherty “are more than likely being subjected to similar treatment.”

Doherty Enterprises sued over the posting, Murray counterclaimed and both sides moved for summary judgment.

Protected Opinion

In his May 8 ruling, Goldman found that Murray's comments about the article and about Doherty's rhetoric were protected as opinion. The same was true of his remark about the risk to female employees. Even though it was “grounded in the factual context presented to Murray through the course of arbitration proceedings,” it was a statement of Murray's belief that “other female employees have been or are potentially subject to sexual harassment,” Goldman wrote.

Neither Doherty nor his company was a public figure, Goldman also held. He noted that the federal courts are split on whether a corporation can be one.

Though Applebee's Restaurants, which total more than 2000 worldwide, are well-known and widely advertised, it was unclear whether it was franchisee Doherty Enterprises or the franchisor that paid for the TV ads seen in New Jersey, noted Goldman.

As for Doherty, being a successful restaurateur does not make one a public figure, said Goldman.

But Doherty, “by agreeing to the interview with the press (and perhaps even encouraging it or soliciting it), voluntarily and presumably knowingly, risked exposure on a subject-matter of legitimate public concern,” said Goldman.

The New Jersey Law Against Discrimination and the case law interpreting it show the strong public interest in eradicating sexual harassment, he wrote.

In finding Murray protected under the actual malice or recklessness standard, Goldman noted Murray's role in the arbitration and his possession of “documents and transcripts, provided to the court, supporting a credible claim for sexual harassment, hostile work environment.”

Testimony from Duby's arbitration also supported Murray's claim of perjury and obstruction by management, Goldman said.

Article Exposes Interviewee To Criticism

The context of Murray's comments also helped, with Goldman finding he was responding to “what was effectively a public appearance by the president of the Doherty Enterprises, who explicitly indicated he believed in the fair treatment of his employees.” Doherty, who knew his words would be published and distributed globally via the Internet, exposed himself to public scrutiny and criticism on a matter of public interest, wrote Goldman.

He also dismissed the company's claims for injurious falsehood because he found Murray's comments were not meant to harm Doherty Enterprise's business even though that might be a side effect.

In allowing Murray to go ahead with his abuse of process counterclaim, Goldman said an inference could be drawn that Doherty Enterprises had abused process by suing in response to a comment to an interview posted online. “Murray's assertion that Doherty Enterprises had an ulterior motive may be weak but one can hardly imagine Doherty Enterprises engaging in this litigation if they had no prior contact with Doherty in arbitration,” wrote Goldman.

Arthur Lash, who represents Doherty Enterprises, says, “we are vigorously pursuing the rights of our client” but there is no decision yet on whether to appeal. Duby's sexual harassment arbitration is still ongoing, adds Lash, of O'Toole Fernandez Weiner Van Lieu in Verona, NJ.

Murray, a retired postmaster who lives in West Long Branch, NJ, says he had prior experience with discrimination claims from helping co-workers with EEOC cases and also got some pointers from his brother, Brigantine, NJ, solo Joseph Murray. He plans to hire an attorney and proceed with his counterclaims and wants to add one for infliction of emotional distress.

He says his daughter's arbitration was delayed by a failed declaratory judgment action brought by Doherty Enterprises over a claimed but nonexistent settlement and that the arbitration is set to resume this month. He adds that he has spurned the company's settlement offers because he wants punitive damages, which he says might make the company change its ways and protect other female employees.

A New Jersey judge has dismissed a defamation claim by an Applebee's restaurant franchisee against a man who wrote online of sexual harassment of female employees.

Essex County Superior Court Judge Donald Goldman rejected the claims, finding some of the allegedly defamatory statements were opinion
and others were protected because they touched on a matter of public concern.

All that remains of the litigation, Doherty Enterprises v. Murray, L-10079-08, is the defendant's counterclaim for abuse of process.

On Sept. 24, 2008, The Record of Hackensack ran an interview with Ed Doherty, president of Doherty Enterprises, which owns about 80 Applebee's restaurants in New Jersey, New York and Pennsylvania. It was posted on the paper's Web site, titled “Meet Ed Doherty, restaurant king.”

During the interview, Doherty said he treats employees “with dignity and respect” and provides “a great opportunity for them to have a good job.” He said his recipe for success was to “treat everybody the way you want to be treated.”

Michael Murray, a nonlawyer, had previously represented his daughter, Erin Duby, a former Applebee's employee, in arbitration against Doherty Enterprises concerning her claim that she was sexually harassed by managers and other employees. Murray was involved in discovery and settlement discussions and in December 2007 had rejected a settlement offer.

Murray saw the Doherty interview online and posted a comment saying the article was “disturbing,” Doherty was “repugnant” and his “rhetoric” flew “in the face of the facts.” He claimed he had arbitration transcripts showing that “women ' are routinely sexually harassed and that this behavior is condoned by high-level management at Doherty Enterprises right up to the top.” He also accused company managers of committing perjury and obstruction and ignoring harassment claims. He warned that other women working for Doherty “are more than likely being subjected to similar treatment.”

Doherty Enterprises sued over the posting, Murray counterclaimed and both sides moved for summary judgment.

Protected Opinion

In his May 8 ruling, Goldman found that Murray's comments about the article and about Doherty's rhetoric were protected as opinion. The same was true of his remark about the risk to female employees. Even though it was “grounded in the factual context presented to Murray through the course of arbitration proceedings,” it was a statement of Murray's belief that “other female employees have been or are potentially subject to sexual harassment,” Goldman wrote.

Neither Doherty nor his company was a public figure, Goldman also held. He noted that the federal courts are split on whether a corporation can be one.

Though Applebee's Restaurants, which total more than 2000 worldwide, are well-known and widely advertised, it was unclear whether it was franchisee Doherty Enterprises or the franchisor that paid for the TV ads seen in New Jersey, noted Goldman.

As for Doherty, being a successful restaurateur does not make one a public figure, said Goldman.

But Doherty, “by agreeing to the interview with the press (and perhaps even encouraging it or soliciting it), voluntarily and presumably knowingly, risked exposure on a subject-matter of legitimate public concern,” said Goldman.

The New Jersey Law Against Discrimination and the case law interpreting it show the strong public interest in eradicating sexual harassment, he wrote.

In finding Murray protected under the actual malice or recklessness standard, Goldman noted Murray's role in the arbitration and his possession of “documents and transcripts, provided to the court, supporting a credible claim for sexual harassment, hostile work environment.”

Testimony from Duby's arbitration also supported Murray's claim of perjury and obstruction by management, Goldman said.

Article Exposes Interviewee To Criticism

The context of Murray's comments also helped, with Goldman finding he was responding to “what was effectively a public appearance by the president of the Doherty Enterprises, who explicitly indicated he believed in the fair treatment of his employees.” Doherty, who knew his words would be published and distributed globally via the Internet, exposed himself to public scrutiny and criticism on a matter of public interest, wrote Goldman.

He also dismissed the company's claims for injurious falsehood because he found Murray's comments were not meant to harm Doherty Enterprise's business even though that might be a side effect.

In allowing Murray to go ahead with his abuse of process counterclaim, Goldman said an inference could be drawn that Doherty Enterprises had abused process by suing in response to a comment to an interview posted online. “Murray's assertion that Doherty Enterprises had an ulterior motive may be weak but one can hardly imagine Doherty Enterprises engaging in this litigation if they had no prior contact with Doherty in arbitration,” wrote Goldman.

Arthur Lash, who represents Doherty Enterprises, says, “we are vigorously pursuing the rights of our client” but there is no decision yet on whether to appeal. Duby's sexual harassment arbitration is still ongoing, adds Lash, of O'Toole Fernandez Weiner Van Lieu in Verona, NJ.

Murray, a retired postmaster who lives in West Long Branch, NJ, says he had prior experience with discrimination claims from helping co-workers with EEOC cases and also got some pointers from his brother, Brigantine, NJ, solo Joseph Murray. He plans to hire an attorney and proceed with his counterclaims and wants to add one for infliction of emotional distress.

He says his daughter's arbitration was delayed by a failed declaratory judgment action brought by Doherty Enterprises over a claimed but nonexistent settlement and that the arbitration is set to resume this month. He adds that he has spurned the company's settlement offers because he wants punitive damages, which he says might make the company change its ways and protect other female employees.