Glenda Tate v. Baptist Memorial

IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON APRIL 2000 SESSION

GLENDA R. TATE v. BAPTIST MEMORIAL HOSPITAL

A Direct Appeal from the Circuit Court for Shelby County No. 85694 The Honorable Kay S. Robilio, Judge

No. W1999-00553-COA-R3-CV - Decided July 28, 2000

Hospital employee was accused of negotiating payroll checks of other employees and was discharged. Employee filed defamation suit, and trial court granted summary judgment because the pleadings and affidavits established that there was no publication of the alleged defamatory words since all communication thereof was to hospital employees.

Tenn. R. App. P. 3, Appeal as of Right; Judgment of the Circuit Court is Affirmed. C RAWFORD , P.J., W.S., delivered the opinion of the court, in which HIGHERS, J., and FARMER , J., joined. Joanne M. Jenkins, Memphis, For Appellant Paul E. Prather, Robert D. Meyers, Jason G. Wolfkill, Memphis, For Appellee

OPINION

This is a defamation case. Plaintiff, Glenda R. Tate, appeals from the order of the trial court granting summary judgment to defendant, Baptist Memorial Hospital (hereinafter Hospital). The sole issue is wh ether the trial co urt erred in gran ting summ ary judgment.

Plaintiff filed this action after she was terminated from her position as a supply technician in the Materials Management Department (hereinafter MMD) at Hospital. The complaint avers that she was accused of negotiating ano ther employee’s payroll check, or, in other words, “was accused of having obtained and cashed several checks which did not belong to her.” She alleges that the accusation was false and was published to other employees of the hosp ital.

A review of the affidavits and p leadings in the case indicates that there is no real dispute of material facts.

On June 22, 1996, eight payroll checks for Hospital’s Central Supply Department (hereinafter CSD), a subgroup of MMD, were reported missing. Dorothy Watts Crossman, Director of the MMD, confirmed with the payroll department that the checks had been issued and were missing. She requested replacemen t checks an d turned th e matter ove r to payroll and security to inve stigate.

Hospital security, led by Lieutenant W.E. Richardson, investigated the missing checks. Richardson interviewed Celia Easley, Crossman’s manager, regarding procedures followed for distributing payroll checks. He also met with C armen Patterson in Hospital payroll who showed him copies of four checks that had not b een recovered and four checks that stop paymen t orders were issued on after they were negotiated by persons other than the payee/employee.

Lieutenant Richardson also spoke with the owner of New Asian Food Store on 414 N. Cleveland in Memphis, Tennessee, where several of the missing checks had been cashed. He then obtained a list of names and photo identification of all CSD employees and showed the photos to the owner of Person’s Big Star, Walter Person on 4001 C helsea Extended in Memph is, Tennessee, where someone attempted to negotiate the checks . Person and Diane Marcum, a store employee, identified plaintiff as one of the individuals who had attempted to negotiate two of the missing checks.

On Augus t 7, 199 6, Rich ardson intervie wed p laintiff concerning her involvement with the missing payroll checks. Plaintiff denied cashing any checks at either location. Based on the information gathered thorou gh the in vestigat ion, Ri chards on con cluded that plai ntiff had attempted to cash one of the missing payroll checks and one of the replacement checks at Person’s Big Star.

Crossman notified plaintiff by letter dated August 5, 1997, that she was suspended pending investigation of the missing checks. After hospi tal conc luded its inves tigation , it disch arged pla intiff on Septem ber 5, 199 7, for “wrongfu lly attempting to n egotiate anot her emplo yee’s pay check.”

Plaintiff then pursued Hospital’s problem s olving proc edure, a three step internal grievance process. During the fina l step, a hearing was held before a hospital panel including employees and managem ent person nel. On No vember 1 , 1996, the p anel uph eld plaintiff’s term ination.

Plaintiff’s complaint alleges that the Hospital negligently and maliciously investigated the missing checks and that as a result a false communication harming her reputation was published to other hospital employees.1

The trial court granted s umma ry judgme nt in pa rt stating th at plain tiff failed to establish that Hospital or its employees published any defa matory remarks about plain tiff or that Hospital or its employees made any statement that was knowingly false or in reckless disregard of the truth.2

1 The complaint also alleges that she was forced to self publish the defamation in attempting to find other employment. 2 The trial court reserved judgment on the issue of self publication pending the issuance of an opinion on this issue in a case before the Tennessee Supreme Court. After the Supreme Court denied the viability of compelled self publication in Sullivan v. Baptist Memorial Hospital, 995 S.W.2d 569, 571 (Tenn. 1999), the trial court followed suit and dismissed plaintiff’s claim on this issue, making the order granting summary judgment a final judgment.

-2-

Plaintiff has appealed, and the only issue for our review is whether the trial court co rrectly granted the Hospital’s mo tion for summary judgment.

A motion for summary judgment should be granted when the movant demo nstrates that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. Tenn. R. C iv. P. 56.03. The party moving for summary judgment bears the burden of demonstrating that no genuine issu e of material fact ex ists. Bain v. Wells , 936 S.W.2d 618, 622 (Tenn. 1997). On a mo tion for summary judgment, the court must take the strongest legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that party, and discard all countervailing evidence . Id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn. 199 3), our Supreme Court stated:

Once it is shown by the mo ving party that there is no genuine issue of material fact, the nonmoving party must then demonstrate, by affidavits or discovery materials, that there is a genuine, material fact dispute to warr ant a trial. In this regard, Rule 56.05 provides that the nonmoving party cannot simply rely upon his pleadings but must set forth specific facts show ing that th ere is a gen uine iss ue of material fact for trial.

Id. at 210-11 (citations om itted) (emphasis in original).

Summary judgment is only appropriate when the facts and the legal conclusions drawn from the facts reasonab ly permit only on e conclus ion. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995). Since only questions of law are involved, there is no presumption of correctness regarding a trial court's grant of su mmary judgm ent. Bain, 936 S.W.2d at 622. Therefore, our review of the trial court’s grant of summary judgment is de novo on the record before this Co urt. Warren v. Es tate of Kirk, 954 S.W.2d 7 22, 723 (Tenn. 19 97).

To establish a prima facie case of defamation, the p laintiff must establish that: (1) a party published a statement; (2) with knowledge that the statement is false and defaming to the other; or (3) with reckless disregard for the truth of the statement or with negligence in failing to ascertain the truth of the statemen t. Sullivan v. Baptist Memorial Hosp., 995 S.W.2d 5 69, 571 (Tenn. 19 99).

Hospital first asserts that the trial court correctly granted its motion because plaintiff failed to prove there was a publication to anyone. Publication is an essential element of a defamation action without which a complaint must be dismissed . Applewhite v. M emphis Sta te University, 495 S.W.2d 190, 192-93 (Te nn. 1973); Freeman v. Dayton Scale Co., 159 Tenn. 413, 19 S.W.2d 255, 256 (Tenn. 192 9); Woods v. Helmi, 758 S.W.2d 2 19, 222-23 (Ten n. Ct. App. 1988 ).

In Freeman, the plaintiff brought suit for libel based on the content of a letter sent by an agent of defendant. The plaintiff contended that the libel was published b y dictation to a secretary and transcribed. The Sup reme Court held that a co mmunication o f a defamatory matter to a co-

-3-

employee of a corporation is not a publication beca use the co-employee has no distinct third party entity. Freeman, 19 S.W.2d at 258. The court, in addressing the issue of communications between employees, quoted w ith approval from 18 A .L.R. 772, 778:

The more liberal rule, and the one which seem ingly has the support of the weight of modern authority, is that, where the communication is made to a servant or bu siness associate in the ordinary and natural course of business, there is no actionable libel.

Freeman, 19 S.W.2d at 257.

In Woods v. Helmi, 758 S.W.2d 219 (Tenn. Ct. App. 1988), the plaintiff, a certified registered nurse anesthetist, brought suit against her immediate supervisor and others seeking damages for alleged defamation and wrongful interference w ith employm ent. Id. at 220. The plaintiff and her supervisor were both employed by the Regional Medical Center in Mem phis (The Med). Id. The Med had a uniq ue arrangem ent for the op eration of its an esthesiolo gy department in that it had its own paid employees and also had physicians provided by the University of Tennessee employed as part of the staff of The Med. Id. at 220-21. The plaintiff's supervisor issued a memo concerning operating room behavior of the plaintiff that was sent to persons who "had managerial, supervisory or administrative responsib ilities and oversight for [the] internal affairs of The Me d's anesthesi ology department and were immediately interested in the information transmitted." Id. at 222. The Court noted that communication of defamatory matters between the agents and officers of the corporation in the ordinary course of business is not a publication. Id. (citing Freeman v. Dayton Scale Co., 159 Tenn. 413, 19 S.W.2d 255 (Tenn.1929)). In this vein, the Court said:

We interpret Freeman and its progeny to mean that communication among agents of the same corporation made within the scope and course of their employment relative to duties performed for that corporation are not to be considered as statements communicated or publicized to third persons.

Id. at 223.

In Perry v. Fox, No. 01A01-9407-CV-00337, 1994 WL 715740, (Tenn. Ct. App. December 21, 1994), plaintiff was fired from his job at South Cen tral Bell Telephone Co mpany ("SCB") after being accused of work related misconduct including malicious destruction of prop erty, impersonation of another SCB employee, incorrectly documenting time, and making unauthorized representations to a SCB customer. Plaintiff filed a defamation suit against Fox, an employee of SCB, and SCB based upon a memo randum Fox prepared and distributed which stated that plaintiff had been terminated for malicious destruction of property and that in the future plaintiff would not be welcome on company property. Plaintiff further alleged that SCB failed to make a reasonable investigation into the allegations against him before terminating his em ployment. In uph oldi ng th e tria l cou rt's grant of summary judgment in favor of the defendants, the court stated:

-4-

It is an elementary rule in this state that publication is an essential element of a libel action without which a complaint must be dismissed. Applewhite v. M emphis Sta te University, 495 S.W .2d 190 (Tenn.1973); Woods v. Helmi, 758 S.W.2d 219 (Tenn. C t. App.1988 ). Taken in the light most favorable to the plaintiff, the memorandum was disseminated to certain fellow employees of the plaintiff. This action falls short of publication w ithin the ambit of the rule. As stated in Freema n v. Dayton Scale Co., 159 Tenn. 413, 19 S.W.2d 255 (Tenn. 192 9), "where communication is made to a servant or business associate in the ordinary or natural course of business there is no act ionable lib el." See also, Woods, supra.

Perry, 1994 WL 715740, at * 2.

In the present case, plaintiff claims she was defamed by communications to others which resulted in the firing being common knowledge in the hospital. However, plaintiff fails to establish who made the communications which she believes to be defamatory. It appears that the communications in the present case were made by the emplo yees in the scope and cou rse of their employment relative to duties performed for that corporation. The stateme nts made by security personnel while questioning plain tiff and other hospital employees we re made during the course of an investigation. Therefore, the required p ublication is not present.

The plaintiff argues that statements made by unidentified employees to other employees regarding plaintiff’s termination constitute defamation for which Hospital should be liable. However, plaintiff has not shown that H ospital authorized the statements. In Southern Ice Co. v. Black, the Court held that a corporation is not held liable for the slanderous words spoken by an employee unless the plaintiff shows that either the employer authorized the speaking of the slanderous words, or that it would be necessary for an employee to speak them in the performance of the duty assigned to the employee, or that the statem ents had b een ratified by the e mployer. Id. at 398.

Furthermore, even if the statements made by Hospital are defamatory, we believe Hospital is entitled to summary judgment because its statements are conditionally privileged under a common interest privilege. In Pate v. Service Merchandise Co., Inc., 959 S.W.2d 5 69 (Tenn. Ct. App. 1996) this co urt discussed conditional privileges:

A conditional privilege is recognized w here the interest which the defendant is seeking to v indicate or furth er is regarded as sufficiently important to justify some latitude for making mistakes. W. Page Keeton e t al., Prosser and Keeton on the Law of Tort s, § 115, at 825 (5 th ed. 1988). The Tennessee Supreme Court authorized conditional privileges in Southern Ice. Co. v. Black, 136 Tenn. 391,

-5-189 S.W. 86 1 (1916):

Qualified privilege extends to all communications made in good faith upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty to a p erson hav ing a corresponding interest or duty; and the privilege embraces cases where the duty is not a legal one, but where it is of a moral or social character of imperfect obligation . . . The rule announced is nece ssary in order that full and unrestricted communication concerning a matter in which the parties have an interest may be had. It is grounded in public policy as well as reason.

Id. at 401, 189 S.W . 861 (citations omitted); see also Price v. Sale, 8 Tenn. C .C.A. 382 , 392-3 (19 18).

Conditional privileges may cover many different types of interests including a c ommon interest and a public intere st. Keeton et al, supra, at 826-31. The common interest privilege has been recognized in Tennessee to cover communications between employees or agents of the same business or corporatio ns. See Woods v. Helmi, 758 S.W.2d 219 (Tenn. Ct. App. 198 8); Southern Ice Co., 136 Tenn. 391, 189 S.W.2d 861.

• • * *

The privilege can be lost, however, if the defendant does not act with good faith or acts with actual malice. W hen a statement is conditionally privileged, it is not actionable unless actual or express malice is sho wn by the pla intiff. Woods v. Helmi, 758 S.W.2d 219, 224 (Tenn. Ct. App. 1988); Southern Ice Co., 136 Tenn. at 401, 189 S.W.2d 861. Once privileged, the statement is presumed to have been made without malice, and the burden is on the plaintiff to prove express malice. Langford v. Vanderbilt University , 44 Tenn. App. 694, 318 S.W.2d 568, 576 (195 8). To prove actual malice, there must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doub ts as to the truth of his publication, and that publishing, with such doub t, shows reckless disregard for truth or falsity and demo nstrates actu al malice. Moore v. Bailey, 628 S.W.2d 431 , 433-4 (Tenn. Ct. Ap p. 1981).

-6-Id. at 575-576, 577-578.

In Dickson v. Nissan Motor Mfg. Corp., No. 87-28 9-11, 198 8 WL 980 5, (Tenn. C t. App. Feb. 10, 1988), an employee, Dickson, filed suit against his employer for alleged slanderous statements made by his superiors. Dickson was fired from the Defendant corp oration for insubordination and for sp eaki ng to his s upe rior i n an obs cene and threaten ing m ann er. In holding that the Defendants' statements were protected under a qualified privilege, this Court stated:

One is entitled to learn from his associates what is being done in a matter in which h e has an inte rest in comm on with th em. This interest in their common affairs entitles him to information as to how they are conducted, or to information that affects their common interest, even though he is not personally concerned with the information. Restatement of Torts 2d.1977--596, comment c.

***

This Court agrees with the argument of defendants that, where a plant employee is discharged, the employer has a privileged right to state and the other employees have a privileged right to hear that the discharge has taken place and the groun ds therefor, stated in general terms.

Id. at *7-8.

The record does not show actual malice on the part of the Hospital, nor does the record indicate that hospital acted negligently in investigating the missing checks. The statements by Hospital to its employees regarding the reason for plaintiff’s termination are p rivileged under a commo n interest priv ilege and, there fore, are not actio nable.

Acco rding ly, for the reasons set out abov e, the order of the trial court granting summary judgment to defendan t is affirmed. Costs of this appeal are assessed against the appellant, Glenda R. Tate.

____________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.

-7-