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Fire Fighter Can Sue Over Rude, Unflattering Memo

SAN DIEGO (CN) - A fire fighter criticized in a department memo of being illiterate, racist, sexist, narcissistic, unskilled and suicidal has a good case for libel, a federal judge ruled.

Rob Dunham, an official with the Oceanside Fire Department, wrote the unflattering remarks in 2006 about Hugh Fleming, who had applied to be a battalion chief.

The fire chief had solicited recommendations about the candidates, whom he did not know personally, and the department tried to dismiss Fleming's lawsuit under Anti-Strategic Lawsuit Against Public Participation (Anti-SLAPP) grounds.

U.S. District Judge Alan Burns upheld the libel charge on Jan. 19, ruling that Fleming was likely to prevail on the merits. Dunham's comments may be protected through free speech in connection to a public issue, but Burns found that Fleming's evidence suggests "Dunham's memo is so wildly off-base that is open to the charge that he drafted it in reckless disregard of the truth."

"Dunham testifies in his declaration that his memo contained his 'honest opinions and evaluation,' but the court finds it significant that his declaration fails to lend any support to some of his most condescending remarks - that Fleming cannot speak or write, that he twice attempted suicide, that he 'has few skills,' that Fleming 'must be the strangest duck this organization has ever employed,'" Burns wrote. "Dunham's declaration, at best suggests it was his genuine opinion that Fleming had racist and sexist attitudes, that he was reckless and insubordinate on the job, and that he was emotionally unstable. But even as to these allegations, Fleming's declaration, coupled with his complaint, delivers a sufficient amount of facts to support the claim that Dunham authored his memo with a reckless disregard for the truth. Not only does Fleming categorically deny almost all of Dunham's allegations, but Dunham himself concedes the list of Fleming's alleged transgressions is 'completely undocumented.'"

While Burns did not take a position as to whether Fleming proved his case, he added that he "cannot imagine granting summary judgment to Dunham."


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