IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JEFF KLIMASKI, :

:

PLAINTIFF, : CIVIL ACTION

:

v. : No. 05-cv-0298

:

PAREXEL INTERNATIONAL and BARNETT :

INTERNATIONAL, :

:

DEFENDANTS :

MEMORANDUM AND ORDER

Joyner, J. June 12, 2008

Presently before this Court is Defendant Parexel

International’s (“Parexel”) and Defendant Barnett International’s

(“Barnett”) (together “the Defendants”) Motion for Partial

Summary Judgment (“D. Mot.”) (Doc. No. 53), Plaintiff’s Response

(“P. Resp.”) (Doc. No. 73) and Defendants’ Reply (“D. Rep.”)

(Doc. No. 77). For the reasons set forth below, the Court DENIES

Defendants’ motion.

Background

In January of 2005, Plaintiff Jeff Klimaski brought this

action again Parexel for retaliatory discharge under the

Sarbanes-Oxley Act. He later added a claim for defamation. 

Plaintiff Klimaski worked as the Director of Business Planning

Case 2:05-cv-00298-JCJ Document 89 Filed 06/13/08 Page 1 of 12
Plaintiff was hired by Barnett, which, during the course of 1

Plaintiff’s employment became a division of a subsidiary of Defendant

Parexel International Corporation.

2

Operations for Barnett International. In August of 2003, 1

Plaintiff received a call from Barnett’s external auditors, Ernst

& Young LLP, informing him that a senior analyst had failed to

provide supporting documentation for two pre-paid invoices. In

investigating these two invoices, Klimaski found approximately

$300,000 in additional expenses that were missing documentation. 

Upon realizing that the Barnett account had been significantly

overstated, Klimaski contacted his colleague, James Collins to

inform him of his findings. Between August and October of 2003,

Klimaski discussed the account overstatements with Parexel

Controllers Larry Green and Rick Anderson, SEC Reporting Director

Barbara Chan, Vice President of Medical Marketing Services Jeff

Ammons, and President of Parexel Consulting Group Andrew Morffew. 

Klimaski was terminated on April 28, 2004. Defendants allege

that Klimaski was terminated for performance problems, including

his failure to properly review financial records, and his refusal

to respond to requests for information needed by Parexel to

complete its investigation into the account overstatements. 

Plaintiff claims that he was terminated because he joined his

colleague, Mr. Collins in a whistleblower complaint and was thus

retaliated against in violation of the Sarbanes-Oxley Act of

2002. In addition, Plaintiff claims that he was further

Case 2:05-cv-00298-JCJ Document 89 Filed 06/13/08 Page 2 of 12
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retaliated against when Parexel employees published defamatory

statements about him, thereby destroying his reputation within

the business community.

Standard for Summary Judgment

It is recognized that the underlying purpose of summary

judgment is to avoid a pointless trial in cases where it is

unnecessary and would only cause delay and expense. Goodman v.

Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976). Summary

judgment is proper “if there is no genuine issue as to any

material fact and the moving party is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c). An issue is genuine only

if there is sufficient evidentiary basis on which a reasonable

jury could find for the non-moving party, and a factual dispute

is material only if it might affect the outcome of the suit under

governing law. Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d

Cir. 2006), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). If the non-moving party bears the burden of

persuasion at trial, “the moving party may meet its burden on

summary judgment by showing that the nonmoving party’s evidence

is insufficient to carry that burden.” Id., quoting Wetzel v.

Tucker, 139 F.3d 380, 383 n. 2 (3d Cir. 1998). In conducting our

review, we view the record in the light most favorable to the

non-moving party and draw all reasonable inferences in that

party’s favor. See Nicini v. Morra, 212 F.3d 798, 806 (3d Cir.

Case 2:05-cv-00298-JCJ Document 89 Filed 06/13/08 Page 3 of 12
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2000). However, there must be more than a “mere scintilla” of

evidence in support of the non-moving party’s position to survive

the summary judgment stage. Anderson, 477 U.S. at 252.

Discussion

A. Defamation

Plaintiff alleges that in addition to his alleged unlawful

retaliatory termination by Parexel, his reputation was also

destroyed when several of the company’s employees, including

Steve Pugliese (a consulting manager), published defamatory

statements about him. (Pl. Resp. at 3.) Plaintiff also alleged

at the time of his deposition that several other employees made

defamatory statements about him including Nalia Ganatra, acting

Director of Barnett Educational Services and Shaun Moran,

Barnett’s marketing manager.

Under Pennsylvania law, in order to prove a claim for

defamation, Plaintiff must establish (1) the defamatory character

of the communication; (2) its publication by the defendant; (3)

its application to the plaintiff; (4) an understanding by the

reader or listener of its defamatory meaning; (5) an

understanding by the reader or listener of an intent by the

defendant that the statement refers to the plaintiff; (6) special

harm resulting to the plaintiff from its publication; and (7)

abuse of a conditionally privileged position. Clemente v.

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Espinosa, 749 F. Supp. 672, 677 (E.D. Pa. 1990) (citing 42 Pa.

Cons. Stat. § 8343(a) (1988)). A statement is defamatory “if it

tends so to harm the reputation of another as to lower him in the

estimation of the community or to deter third persons from

associating or dealing with him.” Id. at 676 (quoting Cosgrove

Studio and Camera Shop, Inc. v Pane, 182 A.2d 751, 753 (Pa. Sup.

Ct. 1962)). Under Pennsylvania law, it is for the court to

determine whether the statement at issue is capable of defamatory

meaning. Synygy, Inc. v. Scott-Levin, Inc., 51 F. Supp. 2d 570

(E.D. Pa. 1999), aff’d, 229 F.3d 1139 (2000).

Defendants contend that Plaintiff fails to provide

sufficient information to support his claims for defamation as

set forth in Count II of his Amended Complaint. We disagree.

Plaintiff describes several incidents where Parexel

representatives allegedly published defamatory statements about

him which have damaged his reputation within the business

community.

First, Plaintiff alleges that Lorie Ferraro, Director of

Human Resources at Parexel, admitted at her deposition that

defamatory statements were made by Steve Pugliese about Klimaski

concerning his mishandling of funds. Citing Ferraro’s December

2005 deposition, Plaintiff argues that “Pugliese told third

parties that Parexel fired Klimaski because he mismanaged money.”

(Pl. Resp. at 3). Upon review of the relevant portion of Ms.

Case 2:05-cv-00298-JCJ Document 89 Filed 06/13/08 Page 5 of 12
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Ferraro’s deposition, we find no support for such argument. 

Clearly, Ms. Ferraro does not admit, as Plaintiff suggests,

that Mr. Pugliese published defamatory statements about

Plaintiff. At no point did Ms. Ferraro admit at her deposition

that she heard any other employee make defamatory statements

about Plaintiff. As Defendant accurately points out in its

motion, Ms. Ferraro only stated that if Mr. Pugliese had told the

office that Plaintiff mismanaged money, she would not have been

surprised to hear that. We cannot construe Ms. Ferarro’s

response as an admission that she heard Mr. Pugliese disparage

Plaintiff and thus refuse to consider this evidence in our

analysis.

Plaintiff has alleged, however, that Mr. Pugliese, as well

as other Parexel employees, published comments alleging that

Plaintiff misappropriated funds in other settings. Plaintiff

testified that although he did not hear any comments directly, he

was informed about them by his co-workers. For example,

Plaintiff testified that Naila Ganatra, acting director of

Barnett Educational Services told his colleagues that Plaintiff

had been terminated for “mishandling almost two million dollars.” 

See Declaration of Oswaldo Feliciano; Pl. Mot. at Ex. 3., Pl.

Dep. at 281-91. Similarly, Plaintiff avers that Shaun Moran,

Barnett’s marketing manager, also defamed him when she made

statements alleging that he had mishandled funds. Id. Plaintiff

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additionally claimed at his deposition that a host of other

Parexel employees had publically made comments alleging his

involvement in illegal activity and that it was the reason for

his termination. Id.

While Defendants argue that such statements are inadmissable

hearsay, we agree with Plaintiffs that they are not hearsay as

they are admissions of a party-opponent. See FED. R. EVID.

801(d)(2)(D) (a statement is not hearsay if [it] is offered

against a party and is [made] by the party's agent or servant

concerning a matter within the scope of the agency or employment

... during the existence of the relationship.) 

Defendants nevertheless argue that Plaintiff fails to

provide evidence that these alleged defamatory statements harmed

his reputation in the business community and they are therefore

entitled to summary judgment on this claim. As stated earlier,

one of the requirements of a defamation claim is to show “special

harm” resulting to the plaintiff from its publication. Espinosa,

749 F. Supp. at 677. The term “special harm” is defined as

“actual damages which are economic or pecuniary losses.” Sprague

v. Am. Bar Ass’n, 276 F. Supp. 2d 365, 368-69 (E.D. Pa. 2003)

(quoting Restatement (Second) of Torts, § 575, cmt. b (1977)). 

However, Pennsylvania recognizes an exception to the “special

harm” requirement for slander actions. A plaintiff may succeed

in a claim for defamation absent proof of special harm where the

Case 2:05-cv-00298-JCJ Document 89 Filed 06/13/08 Page 7 of 12
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spoken words constitute slander per se. Espinosa, 749 F. Supp.

at 677. There are four categories of words that constitute

slander per se: words that impute (1) criminal offense, (2)

loathsome disease, (3) business misconduct, or (4) serious sexual

misconduct. Id. (citing Restatement (Second) of Torts § 570

(1977)).

Without using the slander per se standard, Plaintiff would

not have a sufficient defamation claim because he cannot

establish any “special” harm. He has not identified any economic

or pecuniary losses suffered as a direct result of the alleged

communications. However, Plaintiff has described “multiple

damages caused by the defamation, namely hindering [his] ability

to get a job...because of his reputation.” (Pl. Mot. at 8.)

In Pennsylvania, a defendant who publishes a statement which

can be considered slander per se is liable for the proven, actual

harm that the publication causes. Walker v. Grand Cent.

Sanitation, 634 A.2d 237, 244 (Pa. Super. Ct. 1993). To show

actual damages in a defamation claim, the plaintiff must show

competent proof. Sprague, 276 F. Supp. 2d at 368. Actual

damages are divided into two types: general and special. Id. 

“General” damages typically flow from defamation, such as

“impairment of reputation and standing in the community, personal

humiliation, and mental anguish and suffering.” Id. The

Restatement (Second) of Torts requires a victim of slander per se

Case 2:05-cv-00298-JCJ Document 89 Filed 06/13/08 Page 8 of 12
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to make some showing of general damage, although he need not

prove “special damage.” Walker, 634 A.2d at 241. Proof of

general damages is required, since it accommodates the Court’s

interest in maintaining some type of control over the amount that

a jury should be entitled to compensate an injured person. Id.

at 251. In determining if a plaintiff has demonstrated any loss

to reputation, it must be measured by the perception of others,

rather than that of the plaintiff himself because “reputation is

the estimation in which one’s character is held by his neighbors

or associates.” Sprague, 276 F. Supp. 2d at 370.

 Previous cases have made assessments of the evidence of such

actual harm. For example, in Marcone v. Penthouse International

Magazine, the plaintiff testified that he was “frustrated,

distraught, upset, and distressed,” and that he feared

“retribution against his family.” Marcone v. Penthouse

International Magazine, 754 F.2d 1072, 1080 (3rd Cir. 1985). 

Likewise, in Sprague, the plaintiff asserted that the defamatory

statements caused him “anger, humiliation, embarrassment, and

fear.” Sprague, 276 F. Supp. 2d at 371. He also alleged that

his fear was “constant and continuous.” Id. at 372. In these

cases, the court found that there was sufficient evidence of

actual harm for a jury to decide the issue. 

We find that under the slander per se standard, Plaintiff

has demonstrated damages sufficient to support his defamation

Case 2:05-cv-00298-JCJ Document 89 Filed 06/13/08 Page 9 of 12
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claim and thus survive summary judgment. As we have previously

found, where a “reasonable jury could find that Plaintiff has

suffered from some continuous fear, embarrassment, or humiliation

to his reputation within the community”, general damages may be

satisfied at the summary judgment phase. See Pennoyer v.

Marriott Hotel Servs., Inc., 324 F. Supp. 2d 614, 619 (E.D. Pa.

2004).

At his deposition, when asked what damages he has suffered,

Plaintiff expressed present concern that his reputation was

damaged as a result of these statements and that it would likely

impair his ability to obtain employment: 

Could be multiple damages. Hinder my ability to get a

job when I go get it down the road, because of my

reputation. Certainly, none of the people that I

worked with at Barnett after hearing that, would

probably hire me if they were in a position to hire me. 

Certainly, any of the people at Parexel down the road

if they were in a position to hire me, wouldn’t hire

me.

Pl. Dep. at 297.

While it is true that at the time of his deposition in February

2006, Plaintiff could only speculate about the impact that the

statements might have on future employment, he clearly elucidates

ongoing concern about his perceived standing within the community

and the correlation between the substance of the comments

(alleging mismanagement or misappropriation of money) and his

Case 2:05-cv-00298-JCJ Document 89 Filed 06/13/08 Page 10 of 12
We expect, at trial, that Plaintiff will present further 2

evidence of damage to his reputation. While we agree with Defendants

that Plaintiff’s current claim is somewhat speculative, at this phase

of summary judgment (drawing reasonable inferences in favor of the

non-moving party) we find sufficient evidence in the record to support

Plaintiff’s fear that his standing in the community has been

compromised.

11

current and future credibility as an accounting professional.2

Conclusion

For all of the reasons set forth above, Defendants

Motion for Partial Summary Judgment is DENIED pursuant to the

attached order.

Case 2:05-cv-00298-JCJ Document 89 Filed 06/13/08 Page 11 of 12
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JEFF KLIMASKI, :

:

PLAINTIFF, : CIVIL ACTION

:

v. : No. 05-cv-0298

:

PAREXEL INTERNATIONAL and BARNETT :

INTERNATIONAL, :

:

DEFENDANTS :

ORDER

AND NOW, this 12th day of June, 2008, upon

consideration of Defendants’ Motion for Partial Summary Judgment,

and the responses thereto, for the reasons stated in the

accompanying memorandum, it is hereby ORDERED that the Motion is

DENIED.

BY THE COURT:

s/J. Curtis Joyner 

J. CURTIS JOYNER, J.

Case 2:05-cv-00298-JCJ Document 89 Filed 06/13/08 Page 12 of 12