This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-00-1133

 

Barbara DeLorme,

Appellant,

 

vs.

 

Lakeview Memorial Hospital Association, Inc.,

Respondent.

 

 

Filed March 20, 2001

Affirmed

Halbrooks, Judge

 

Washington County District Court

File No. C2986302

 

 

Judith K. Schermer, Schermer & Guy, PLLP, 950 Lumber Exchange Building, 10 South 5th Street, Minneapolis, MN 55402 (for appellant)

 

Lee A. Lastovich, Felhaber, Larson, Fenlon & Vogt, P.A., 601 2nd Avenue South, Suite 4200, Minneapolis, MN 55402 (for respondent)

 

 

 

            Considered and decided by Anderson, Presiding Judge, Halbrooks, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Respondent terminated appellant based on threats she allegedly made against her supervisor.  Appellant sued on theories of age discrimination, reprisal, breach of contract, and defamation.  The district court granted summary judgment on all grounds in respondent’s favor.  Appellant contends that there are genuine issues of material fact with respect to the claim of defamation as to whether respondent abused its qualified privilege.  Because we find that any publication made by respondent was privileged, we affirm.

FACTS

            In April 1985, respondent Lakeview Hospital hired appellant Barbara DeLorme as a pharmacist.  In 1992, appellant applied for the position of pharmacy director, but respondent hired Cynthia Appleseth, an outside candidate.  At the time Appleseth was hired, she was 37, and appellant was in her late 40s.  After the hiring, appellant requested a hearing with a hospital administrator to discuss why she was not selected.  The administrator explained that Appleseth’s qualifications, including her prior experience as a pharmacy director, more closely matched the position’s requirements.

            Unsatisfied, on October 19, 1992, appellant filed an “open door” complaint pursuant to respondent’s employee grievance procedure.  She did not include any allegations of age discrimination in her complaint.  On October 18, 1993, appellant filled out an intake questionnaire from the Minnesota Department of Human Rights and alleged she was the victim of age discrimination.  But appellant did not return the questionnaire to the agency and took no further action regarding her allegation.

            On June 16, 1995, Appleseth gave appellant her performance review, which appellant felt was unfairly harsh.  On June 30, 1995, appellant filed an “open door” complaint about the review.  She believed that the poor review was an act of reprisal for complaints appellant had made regarding technician staffing.

            On August 10, 1995, Appleseth gave appellant a verbal warning for poor work performance, including tardiness, insubordination, and inadequately performing her duties.  A formal written record of the reprimand was placed in appellant’s personnel file. 

In early 1996, appellant approached Appleseth with a concern about the number of hours worked by pharmacy technicians in the department.  Appleseth disagreed with appellant’s opinion and appellant filed another “open door” complaint with the Human Resources Director. 

On February 22, 1996, one of appellant’s co-workers, Pam Bailey, filed an “open door” complaint against appellant because of allegedly inappropriate behavior.  Because of these complaints, Human Resources Director Beverly Farr began investigating appellant’s behavior and interviewed several co-workers.

            On March 15, 1996, Farr wrote a letter terminating appellant that was also signed by Appleseth.  Based on the investigation, Farr stated that appellant had made threatening remarks about Appleseth, attempted to undermine her authority, been verbally hostile toward co-workers, misrepresented how many hours she had worked, and negatively affected the pharmacy department’s ability to provide patient care.  Sometime after appellant’s termination, respondent’s board of directors received an anonymous letter that argued appellant was unfairly dismissed.

            Appellant subsequently filed a civil complaint, alleging claims of age discrimination, reprisal, defamation, and breach of contract.  Appellant argued that Bailey’s complaint was fraudulently obtained and produced an affidavit from Bailey, in which Bailey stated that she never heard appellant make any threats against Appleseth and that she had been urged by Appleseth to file an open door report against appellant.  Bailey further stated she never would have filed the complaint but for Appleseth’s insistence, because the incident—a fight over using the telephone, for which appellant later apologized—was so minor.  Bailey did not deny that the incident happened. 

            Respondent moved for summary judgment and the district court granted the motion in favor of respondent on all claims.  In its order, the court rebuffed appellant for attempting to create “sham” issues of material fact by making several after-the-fact “corrections” to her deposition that resulted in substantive changes to her testimony.  With respect to the defamation claim, the district court held that respondent’s statements regarding the termination were made with a “proper purpose” and were, therefore, privileged.  This appeal, solely on the issue of defamation, follows.

D E C I S I O N

            In considering an appeal from summary judgment, we review the record to determine whether any genuine issues of material fact exist and whether the district court erred as a matter of law.  Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988).  The evidence will be considered in the light most favorable to the nonmoving party.  Id.

            A statement is defamatory if it is

                        communicated to someone other than the plaintiff, it [is] false, and it * * * tend[s] to harm the plaintiff’s reputation and to lower him in the estimation of the community.

 

Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980). 

            Appellant’s claim is based on her argument that the termination letter contained false statements about her that were published when (1) Farr questioned co-workers about allegations in the course of the investigation and (2) the hospital chief operating officer discussed with the hospital board members the basis for appellant’s termination after the board received an anonymous letter challenging appellant’s termination. 

            In employment disputes, an employer may be entitled to a privilege against a claim of defamation for publishing statements even if later proven to be false.  Lewis v. Equitable Life Assurance Soc’y, 389 N.W.2d 876, 889 (Minn. 1986).  For a communication to be privileged, it “must be made upon a proper occasion, from a proper motive, and must be based upon reasonable or probable cause.”  Stuempges, 297 N.W.2d at 256-57 (quotation omitted); see also Elstrom v. Independent Sch. Dist. No. 270, 533 N.W.2d 51, 55 (Minn. App. 1995) (whether reasonable grounds exist depends on whether a person has valid reasons for believing a statement, not whether the statement is true), review denied (Minn. July 27, 1995).  Thus, the privilege immunizes statements made “in the course of investigating or punishing employee misconduct” and recognizes an employer’s interest in protecting itself and the public against harmful employees.  McBride v. Sears, Roebuck & Co., 306 Minn. 93, 97, 235 N.W.2d 371, 374 (1975); see also Cox v. Crown CoCo, Inc., 544 N.W.2d 490, 498 (Minn. App. 1996) (finding employer not entitled to privilege where she “did not investigate her suspicions or confront [employee] with her accusations before she made the defamatory statements to the other employees”).

            An employee can only overcome such a privilege by proving the employer acted with actual malice.  Stuempges, 297 N.W.2d at 257.  Malice is “actual ill will, or a design causelessly and wantonly to injure plaintiff.”  McBride, 306 Minn. at 98, 235 N.W.2d at 375 (citations omitted).  Although the issue of malice is usually a jury question, in some circumstances, it may be subject to summary judgment.  E.g., Michaelson v. Minnesota Mining & Mfg. Co., 474 N.W.2d 174, 182 (Minn. App. 1991) (affirming summary judgment because employer’s letter to a plaintiff’s supervisors enumerating deficiencies in his job performance and discussing reassignment did not establish actual malice sufficient to create a cause of action), aff’d mem., 479 N.W.2d 58 (Minn. 1992); Hunt v. University of Minn., 465 N.W.2d 88, 93 (Minn. App. 1991) (affirming summary judgment where co-worker’s reference on appellant’s behalf was unflattering but not malicious because it was based on indirect investigation and personal knowledge).

            Here, we agree with the district court that, even if respondent’s statements were defamatory, respondent is protected by a qualified privilege.  Through Farr, respondent conducted an investigation that was prompted by employee complaints, interviewed and took statements from several employees, and talked to appellant herself.  See Wallin v. Minnesota Dep’t of Corrections, 598 N.W.2d 393, 403 (Minn. App. 1999) (finding similar investigation sufficient to warrant privilege), review denied (Minn. Oct. 21, 1999); cf. Wirig v. Kinney Shoe Corp., 461 N.W.2d 374, 380-81 (Minn. 1990) (finding no reasonable or probable cause where the employer failed to conduct any investigation into allegations of employee misconduct).  The district court’s conclusion that respondent had reasonable grounds for believing the probability of the statements contained in the termination letter is supported by the record.

            Moreover, appellant cannot overcome the privilege because she cannot demonstrate that there is a factual issue as to whether actual malice was present.  Appellant claims that malice can be inferred from “excessive publication” and respondent’s ill will toward her.  But these claims are mere averments.  Appellant fails to show that any statements against her were made for other than a proper purpose, from a proper motive, based upon reasonable cause.

            Affirmed.



*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.