Karen Sullivan v. Baptist Memorial Hospital ( 1997 )

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON
______________________________________________
KAREN SULLIVAN,
Plaintiff-Appellant,
Shelby Circuit No. 55553 T.D.
Vs. C.A. No. 02A01-9610-CV-00237
BAPTIST MEMORIAL HOSPITAL,
PATRICIA THOMAS, Individually
and as Assistant Director of Nursing at
Baptist Memorial Hospital East; and
SUSAN PARSONS, Individually and
FILED
in her Capacity as Respiratory Therapy
July 31, 1997
Manager,
Cecil Crowson, Jr.
Defendants-Appellees.
Appellate C ourt Clerk
____________________________________________________________________________
FROM THE CIRCUIT COURT OF TENNESESE FOR THE
THIRTIETH JUDICIAL DISTRICT AT MEMPHIS
THE HONORABLE KAREN R. WILLIAMS, JUDGE
Stephen H. Biller and Sara Hall; Baker, Donelson,
Bearman & Caldwell of Memphis
For Appellant
J. Edward Wise, Paul E Prather, Steven W. Likens;
Kiesewetter, Wise, Kaplan, Schwimmer & Prather of Memphis
For Appellees
REVERSED AND REMANDED
Opinion filed:
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
ALAN E. HIGHERS, JUDGE
DAVID R. FARMER, JUDGE
This is a defamation case. Plaintiff, Karen Sullivan, appeals from the order of the trial
court granting summary judgment to defendant, Baptist Memorial Hospital (BMH).1
Karen Sullivan was a full-time staff nurse in the neonatal intensive care unit (NICU) at
BMH for fourteen years. She also performed temporary nursing services at St. Francis Hospital
through a staffing agency known as CliniCall.
In the NICU, nurses used angiocaths to start IVS on infants in the unit. Susan Parsons,
a fellow BMH nurse, reported to BMH that Sullivan admitted taking angiocaths from BMH to
use at St. Francis. Sullivan denied making the statements to Parsons and denied that she had
stolen any angiocaths. After a meeting with Patricia Thomas, the Assistant Director of Nursing,
BMH terminated Sullivan on February 22, 1993 for the alleged misappropriation of hospital
property.
Sullivan experienced difficulty obtaining new employment because she was forced to
disclose the reason for her termination on job applications to prospective employers. She applied
for jobs at Methodist North and Jackson Madison County Hospital, but was not granted a
position.
On August 3, 1993, Sullivan filed a complaint against BMH, Patricia Thomas, and Susan
Parsons alleging, inter alia, defamation.2 In addition to the allegations against Thomas and
Parsons, the complaint alleges that BMH has disseminated defamatory, false, malicious, and
scandalous information about Sullivan to her potential employers, precluding her from becoming
gainfully employed.
On January 30, 1996, BMH, Thomas, and Parsons all filed motions for summary
judgment. After a hearing on April 19, 1996, the trial court granted summary judgment in favor
of all three defendants. Sullivan conceded that summary judgment was appropriate as to all
claims against Thomas and Parsons. Sullivan also conceded that summary judgment was
appropriate in favor of BMH for all claims except the defamation claim. However, the trial court
granted summary judgment for BMH on the defamation claim holding that “self-publication”
1
Summary judgment was also granted to defendants Patricia Thomas and Susan
Parsons with Sullivan’s consent. Thomas and Parsons are not parties to this appeal.
2
The complaint also alleges tortious interference with Sullivan’s employment,
outrageous conduct, intentional infliction of emotional distress, and a failure to provide
proper notice of her COBRA rights in violation of 29 U.S.C. § 1001 et seq. (1985) and
T.C.A. § 56-7-2312 et seq. (1994) that impermissibly denied her right to insurance benefits.
These claims were dismissed on summary judgment for the defendants, but these claims were
not raised as issues on appeal.
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of false information does not satisfy the publication element required to establish a claim for
defamation.
Sullivan appeals the trial court’s order granting summary judgment to BMH on the
defamation claim and presents one issue for review: whether the publication element of
defamation can be established by compelled self-publication in the employment context.
A trial court should grant a motion for summary judgment when the movant demonstrates
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. Civ. P. 56.03. The phrase “genuine issue” as stated in
Rule 56.03 refers to genuine factual issues and does not include issues involving legal
conclusions to be drawn from the facts. Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn. 1993).
Because the facts are undisputed in this case, we must decide whether the legal conclusions on
which the trial court’s grant of summary judgment was based are correct. Our review is de novo
on the record with no presumption of the correctness of the trial court’s conclusions of law.
Union Planters Nat’l Bank v. American Home Assurance Co., 865 S.W.2d 907, 912 (Tenn.
App. 1993).
Sullivan argues that she has experienced difficulty in obtaining employment because she
is forced to tell her prospective employers that she was terminated by BMH for misappropriating
hospital property. She claims that the publication element of defamation is met because she was
forced to publish BMH’s statements on subsequent job applications. BMH argues that
defamation by self-publication has been expressly rejected by the Tennessee Supreme Court and
by this Court.
In Press, Inc. v. Verran, 569 S.W.2d 435 (Tenn. 1978), our Supreme Court, inter alia,
adopted as law § 580B of the Restatement (Second) of Torts (1977):
§ 580B. Defamation of Private Person.
One who publishes a false and defamatory communication
concerning a private person . . . is subject to liability, if, but only
if, he
(a) knows that the statement is false and that it defames the other,
(b) acts in reckless disregard of these matters, or
(c) acts negligently in failing to ascertain them.
Press, 569 S.W.2d at 442. We must decide in this appeal whether the publication element of
defamation is met when an employee is compelled to publish on a job application a former
employer’s official reasons for the employee’s termination. “Publication” is a term of art
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meaning the communication of defamatory matter to a third person. Quality Auto Parts Co. v.
Bluff City Buick Co., 876 S.W.2d 818, 821 (Tenn. 1994).
BMH relies on an unpublished opinion of this Court, Raiteri v. RKO General, Inc.,
Shelby Law No. 56, 1989 WL 146743 (Tenn. App. Dec. 6, 1989). In Raiteri, Charles Raiteri,
a reporter for WHBQ AM-TV in Memphis, was terminated for alleged biased and unbalanced
reporting. Id. at *1-2. Raiteri filed a complaint for defamation against the TV station alleging
that the statements that caused him to be disciplined for biased and unbalanced reporting were
published to third parties. Id. at *2. The trial court granted summary judgment in favor of the
defendants, and this Court affirmed the trial court. Id. at *8. This Court held that “the statement
that Raiteri’s report was ‘biased and unbalanced’ is not a defamatory factual statement, but is
rather an opinion or characterization based upon the disclosed nondefamatory facts of Raiteri’s
report itself and is not actionable.” Id. at *4. This Court continued and addressed Raiteri’s
second argument:
Raiteri also argues that because he had to indicate on
employment application forms that he had been fired for
preparing a “biased and unbalanced report,” the defendants
should be liable for this republication. Where the statement is
opinion, publication is not material. However, assuming
arguendo that it is not opinion and it is defamatory, plaintiff’s
action would fail for want of publication. Although Raiteri cites
to cases in other jurisdictions which hold employers liable for
republication by the plaintiff under certain circumstances, Raiteri
fails to cite any cases in Tennessee on point. In Sylvis v. Miller,
96 Tenn. (12 Pickle) 94, 33 S.W. 921 (1896), the Tennessee
Supreme Court found there was no publication when the plaintiff
received a letter from the defendant and exhibited this letter to
relatives and friends. Therefore, the plaintiff cannot base his
cause of action upon his own republication. Furthermore, since
we have found the statement “biased and unbalanced report” to be
an opinion, Raiteri cannot maintain an action for republication of
a constitutionally-protected opinion.
Id. In this case, the trial court relied on Raiteri in its order granting summary judgment in favor
of BMH.
We do not believe that Raiteri should control on the issue of publication. First, the
alternative holding is dicta from an unpublished opinion. The Court stated that “publication is
not material.” Id. In the present case, publication is the central issue. Second, the Raiteri Court
considered republication of an opinion, while the present case involves republication of a factual
statement.
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BMH also cites Railroad v. Delaney, 102 Tenn. (18 Pickle) 289, 52 S.W. 151 (1899).
In Delaney, the plaintiff asked for and received a recommendation letter from his employer. 102
Tenn. at 291-92. Plaintiff’s declaration alleged that the letter contained false information and
“was made willfully and maliciously for the purpose of injuring plaintiff in his trade and
calling.” Id. at 290. Defendant filed a demurrer to the declaration on the ground that there was
no averment of special damages, which was necessary where the words are not libelous per se.
Id. at 290-91. The trial court overruled the demurrer, and subsequently judgment was entered
on a jury verdict for the plaintiff. Id. at 291.
On appeal, the Supreme Court, in discussing the evidence at the trial, noted that only the
plaintiff and the plaintiff’s agent acquired knowledge of the letter from defendant. Id. at 292.
The Court said:
There is no evidence of publication in this record. The proof is
undisputed that this letter was written by Sullivan at the request
of Mr. Speed, who was acting by authority of the plaintiff. Speed
accepted it and delivered it to plaintiff, who used it in seeking
employment. Under the authorities the company is not liable for
any of the consequences of the act of Delaney in making
publication of the letter containing libelous matter. If a person
receives a letter containing libelous matter, he will not be justified
in publishing it. Sylvis v. Miller, 96 Tenn. 94; Wilcox v. Moon,
24 Atlantic Reporter, 244.
Id. at 294.
The Supreme Court reversed the trial court, sustained the demurrer, and dismissed the
suit. Id. at 297.
We note a marked difference in Delany and the case at bar. We should first note,
however, that although the Court discussed the facts pertaining to publication of the alleged
defamation, the Court’s decision was based upon the allegations of the declaration, and the Court
sustained the demurrer originally filed by the defendant. Therefore, the Court’s comment
concerning publication of the alleged defamation was dicta. Moreover, the defamatory letter was
a letter of recommendation, which the plaintiff was free to use or not to use at his discretion, and
his use of the letter resulted in a voluntary publication of the alleged defamatory material.
In both Raiteri and Delaney, the Court cited Sylvis v. Miller, 96 Tenn. (12 Pickle) 94,
33 S.W. 921 (1896). In Sylvis, the plaintiff received a defamatory letter through the mail and
showed its contents to his relatives and friends. 96 Tenn. at 95. The Supreme Court stated,
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“[T]he defendant is not answerable for anything the plaintiff may choose to do with the letter
after it has once safely reached his hands. . . . If a person receives a letter containing libelous
matter, he will not be justified in publishing it.” Id. (citations omitted).
Sullivan argues that Sylvis is distinguishable because that case had nothing to do with
employment and because the self-publication was voluntary. BMH argues that no Tennessee
case, including Sylvis, has held that “compelled” as opposed to “voluntary” self-publication
satisfies the publication requirement for a defamation claim.
Other than Delany and Raiterri, which we have heretofore noted are distinguishable from
the case at bar, we can find no cases directly on point in Tennessee dealing with self-publication
of alleged defamatory matters in an employment setting. There are cases from other jurisdictions
dealing with this question and with differing results. It appears that the minority view is that
self-publication in the employment setting under certain circumstances satisfies the publication
requirement of defamation actions. In Lewis v. Equitable Life Assurance Society, 389 N.W.2d
876 (Minn. 1986), the Minnesota Supreme Court specifically considered self-publication of
defamatory matter to prospective employers:
The company presents two arguments against recognition
of the doctrine of compelled self-publication. It argues that such
recognition amounts to creating tort liability for wrongful
discharge which, it asserts, has been rejected by this court. . . . If
plaintiffs here can establish a cause of action for defamation, the
fact that the defamation occurred in the context of employment
discharge should not defeat recovery.
The company also argues that recognition of the doctrine
of self-publication would discourage plaintiffs from mitigating
damages. This concern does not appear to be a problem,
however, if liability for self-publication of defamatory statements
is imposed only where the plaintiff was in some significant way
compelled to repeat the defamatory statement and such
compulsion was, or should have been, foreseeable to the
defendant. Also, the duty to mitigate can be further protected by
requiring plaintiffs when they encounter a situation in which they
are compelled to repeat a defamatory statement to take all
reasonable steps to attempt to explain the true nature of the
situation and to contradict the defamatory statement. In such
circumstances, there would be no voluntary act on the part of the
plaintiff that would constitute a failure to mitigate. . . .
The trend of modern authority persuades us that
Minnesota law should recognize the doctrine of compelled self-
publication. We acknowledge that recognition of this doctrine
provides a significant new basis for maintaining a cause of action
for defamation and, as such, it should be cautiously applied.
However, when properly applied, it need not substantially
broaden the scope of liability for defamation. The concept of
compelled self-publication does no more than hold the originator
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of the defamatory statement liable for damages caused by the
statement where the originator knows, or should know, of
circumstances whereby the defamed person has no reasonable
means of avoiding publication of the statement or avoiding the
resulting damages; in other words, in cases where the defamed
person was compelled to publish the statement. In such
circumstances, the damages are fairly viewed as the direct result
of the originator’s actions.
Properly applied, the doctrine of self-publication does not
unduly burden the free communication of views or unreasonably
broaden the scope of defamation liability. Accordingly, we hold
that in an action for defamation, the publication requirement may
be satisfied where the plaintiff was compelled to publish a
defamatory statement to a third person if it was foreseeable to the
defendant that the plaintiff would be so compelled.
Id. at 887-88; see also Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo. 1988) (When the
originator of the defamatory statement has reason to believe that the person defamed will be
under a strong compulsion to disclose the contents of the defamatory statement to a third person,
the originator is responsible for that publication.); Belcher v. Little, 315 N.W.2d 734 (Iowa
1982) (The injured party cannot create his own cause of action by communicating the slanderous
statements to others unless under a strong compulsion to do so. What constitutes strong
compulsion must of necessity be decided by the finder of fact under the circumstances in each
case when substantial evidence of such compulsion is introduced.); McKinney v. County of
Santa Clara, 168 Cal. Rptr. 89 (Cal. Ct. App. 1980) (The rationale for making the originator of
a defamatory statement liable for its foreseeable republication is the strong causal link between
the actions of the originator and the damage caused by the republication. This causal link is no
less strong where the foreseeable republication is made by the person defamed operating under
a strong compulsion to republish the defamatory statement and the circumstances which create
the strong compulsion are known to the originator of the defamatory statement at the time he
communicates it to the person defamed.); Grist v. Upjohn Co., 168 N.W.2d 389 (Mich. Ct. App.
1969) (Where the conditions are such that the utterer of the defamatory matter intends or has
reason to suppose that in the ordinary course of events the matter will come to the knowledge
of some third person, a publication may be effected.); Colonial Stores, Inc. v. Barrett, 38 S.E.2d
306 (Ga. Ct. App. 1946) (Republication by plaintiff of defamatory matter to prospective
employer when defendant knew that plaintiff would have to republish it was publication for a
defamation claim.).
On the other hand, it appears that the majority view is that self-publication even in
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employment cases does not satisfy the publication requirement. See DeLeon v. Saint Joseph
Hospital, 871 F.2d 1229 (4th Cir. 1989) (rejecting the doctrine of self-publication because the
doctrine might visit liability for defamation on every employer each time a job applicant is
rejected); Strange v. Nationwide Mutual Ins. Co., 867 F. Supp. 1209 (E.D. Pa. 1994)
(Pennsylvania law does not recognize compelled self-publication as constituting publication for
defamation purposes when the initial communication is from an employer to an employee
regarding the reasons for the employee’s dismissal.); Gore v. Health-Tex, Inc., 567 So. 2d 1307
(Ala. 1990) (refusing to hold that a plaintiff’s own repetition of allegedly defamatory statements
can supply the element of publication essential in a slander action); Wieder v. Chemical Bank,
608 N.Y.S.2d 195 (N.Y. App. Div. 1994) (rejecting the tort of defamation by compelled self-
publication); Atkins v. Industrial Telecommunications Ass’n, 660 A.2d 885 (D.C. 1995)
(refusing to predict what Virginia law would be because the doctrine of compelled self-
publication has not been widely accepted).
Under the minority view, to allow self-publication to satisfy the publication requirements,
the courts generally have developed two approaches: “[T]he first approach imposes liability if
the defendant knew or could have foreseen that the plaintiff would be compelled to repeat the
defamatory statement; the second imposes liability if the defendant knew or could have foreseen
that the defendant was likely to repeat the statement.” Churchey v. Adolf Coors Co., 759 P.2d
1336, 1344 (Col. 1988)(emphasis in original).
There is a factual difference between a “voluntary” self-publication to relatives, friends,
or other third persons, and a necessary disclosure on an employment application of a former
employer’s stated reason for termination of one’s employment. In an “employment at will” state,
such as Tennessee, a terminated employee has very limited recourse upon termination of
employment. If an employer has stated a reason for discharge of the employee, it is reasonable
for the employer to expect that the employee seeking new employment will be required to
disclose the reason given for the termination of the prior employment. The employee has little
choice in applying for new employment and must disclose truthfully the information requested
or run the risk of being discovered as a liar at a later date.
By allowing “compelled” self-publication to satisfy the publication requirement, the
employer is not left naked. The employer has all the defenses available in any defamation
8
action, such as privilege, opinion, truth or lack of culpability or negligence.
We are persuaded by the reasoning of the Minnesota Supreme Court in Lewis v.
Equitable Life Assurance Society, 389 N.W.2d 876 (Minn. 1986), heretofore quoted. We
understand that recognition of the principle of compelled self-publication is the minority view,
but we believe that it is the more fair and more just view. The principle of compelled self-
publication in employment cases allows redress for injury where otherwise an employee is left
without a remedy.
We believe that the law in Tennessee should recognize the principle of compelled self-
publication. We hold that the publication element required for a defamation claim can be met
if 1) the republication of the defamatory statement is reasonably foreseeable to the defendant,
and 2) the plaintiff is compelled to republish the defamatory statement. The principle of
compelled self-publication should be limited to those cases in an employment setting in which
the plaintiff is forced to republish false and defamatory reasons for his or her termination on
subsequent job applications.
Accordingly, the order of the trial court granting summary judgment to BMH is reversed,
and this case is remanded to the trial court for such proceedings as may be necessary. Costs of
this appeal are assessed against the appellee.
_________________________________
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
____________________________________
ALAN E. HIGHERS, JUDGE
____________________________________
DAVID R. FARMER, JUDGE
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