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A reasonable jury could conclude Bank of America N.A. acted with malice when, without a thorough investigation, it reported to a third-party data base monitoring fired bank employees that it had evidence of a former employee’s criminal wrongdoing, says a federal appeals court, in reversing a lower court ruling.
Salma Aghmane, a former vice president of Charlotte, North Carolina-based Bank of America who was terminated by the bank in January, 2013, charged the bank falsely reported it had conclusive evidence of her criminal wrongdoing to Scottsdale, Arizona-based Early Warning Services L.L.C., according to Wednesday’s ruling by the 9th U.S. Circuit Court of Appeals in San Francisco in Selma Aghmane, v. Bank of America N.A.
Early Warning maintains a database of financial institution members’ former employees terminated for knowingly causing or attempting to cause financial loss.
Ms. Aghmane filed suit against the bank in U.S. District Court in Oakland, California, on charges including blacklisting and defamation for reporting her to Early Warning because of a “she said-she said” conflict with a cousin who had claimed Ms. Aghmane allegedly withdrew funds from her account without permission, according to the ruling.
Another bank subsequently withdrew a job offer after learning about the report from Early Warning, according to court papers.
The District Court granted Bank of America partial summary judgment and Ms. Aghmane appealed.
The cousin who made the charge declined to seek prosecution or to identify Ms. Aghmane in writing, while Ms. Aghmane told the bank orally and in writing that the cousin had authorized the transactions and provided documents showing the cousin owed her money, said the ruling. But the bank did not contact the cousin again after Ms. Aghmane told her side of the story, the ruling said.
Under California’s “interested persons privilege,” a former employer is immunized from tort liability when it communicates information regarding a former employee’s job performance “without malice,” said a unanimous three- judge panel.
But based on the facts of the case, “a reasonable jury could find (the bank) either knew or reasonably should have known it did not have ‘conclusive evidence’ that Aghmane had engaged in criminal wrongdoing,” said the ruling.
“A reasonable jury also could find (the bank) acted recklessly by not further investigating Aghmane’s story. While a negligent investigation alone cannot establish actual malice…evidence of (the bank’s) complete disregard of Agname’s ‘denials may, by accumulation and by appropriate inferences, show recklessness,’” said the ruling in quoting an earlier case. The case was remanded for further proceedings.