This opinion will be unpublished and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

C1-01-1012

 

George Kuhlmann,

Appellant,

 

vs.

 

Jennie-O Foods, Inc.,

Respondent.

 

Filed December 11, 2001

Affirmed
Klaphake, Judge

 

Stearns County District Court

File No. C5993137

 

Stephen D. Gabrielson, Gabrielson Law Offices, Ltd., Suite 220, 18 Riverside Avenue South, Sartell, MN  56377 (for appellant)

 

Larry Hanson, James E. Blaney, Moore, Costello & Hart, PLLP, 1400 Norwest Center, 55 East Fifth Street, St. Paul, MN  55101-1792 (for respondent)

 

            Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            George Kuhlmann appeals from the district court’s grant of summary judgment and dismissal of his defamation and wrongful termination claims against his former employer, respondent Jennie-O Foods, Inc. (Jennie-O).  On appeal, Kuhlmann focuses solely on the dismissal of his defamation claim.  Because the only statements arguably challenged by Kuhlmann were either true or were made by persons entitled to a qualified privilege, we affirm.

D E C I S I O N

            Summary judgment is appropriately granted when there are no genuine issues as to any material facts and either party is entitled to judgment as a matter of law.  Minn. R. Civ. P. 56.03.  When a party fails to establish an essential element of a claim, summary judgment is appropriate.  Bersch v. Rgnonti & Assocs., Inc., 584 N.W.2d 783, 786 (Minn. App. 1998) (granting summary judgment when employee failed to present sufficient evidence to prove essential elements of defamation claim), review denied (Minn. Dec. 15, 1998).

            To prove defamation, a party must show that false statements were made to someone else that harmed the party’s reputation.  Ferrell v. Cross, 557 N.W.2d 560, 565 (Minn. 1997).  Although Kuhlmann’s complaint alleges that Jennie-O defamed him by stating that he had sexually harassed female employees at its plant, Kuhlmann is not specific as to the exact content of the statements, when they were made, or who made them.  Our reading of the record leads us to conclude that Kuhlmann alleges two types of statements were made: the first by his immediate supervisor, Kurt Samuelson, to Kuhlmann; and the second by Dave Juhlke, the human resources director, to another Jennie-O employee.

            Kuhlmann characterized the first statement in his brief on appeal as follows:

Mr. Samuelson stated that Mr. Kuhlmann had engaged in a pattern of inappropriate conduct toward women at the Jennie-O plant that was so unacceptable that he could not be trusted around women in the plant, and that he had to be removed from the plant to protect the company and himself.

 

Kuhlmann argues that the district court erred by concluding that Samuelson’s statements regarding Kuhlmann’s conduct were true as a matter of law.[1]

            However, Samuelson’s statements were based on his personal observations of Kuhlmann rubbing one female employee’s neck and then touching the necks of two other female employees.  When Samuelson confronted Kuhlmann and warned him against continuing such conduct, Kuhlmann acknowledged his conduct, but claimed that the women did not object.  Kuhlmann further acknowledged that his conduct did not change in any way between Samuelson’s first warning and his eventual decision to transfer Kuhlmann out of the plant.

            A statement is true if it is substantially accurate.  True statements, however disparaging, will not support a claim of defamation.  Benson v. Northwest Airlines, Inc., 561 N.W.2d 530, 537 (Minn. App. 1997) (minor inaccuracies in allegedly defamatory statements will not satisfy plaintiff’s burden of proving falsity), review denied (Minn. June 11, 1997).  Because Samuelson’s statements are based on his own observations of Kuhlmann’s conduct and because Samuelson was merely expressing his opinion that Kuhlmann presented a risk to the company unless he was transferred out of the plant, his statements were either true or too imprecise to be actionable defamation.  See Geraci v. Eckankar, 526 N.W.2d 391, 397 (Minn. App. 1995), review denied (Minn. Mar. 14, 1995).

            The second statement challenged by Kuhlmann arose from comments by Dave Juhlke, the human resources director, to a female employee that “[t]his situation is not because of you alone” and that “[t]here is a history regarding [Kuhlmann] and this behavior does not involve you.”[2]  Juhlke made these comments while investigating a complaint that Kuhlmann had filed against Samuelson alleging harassment after Samuelson attempted to transfer Kuhlmann out of the plant.

            A publication may occur when defamatory statements are communicated to members of a corporation.  See Frankson v. Design Space Int’l, 394 N.W.2d 140, 144 (Minn. 1986) (publication occurred when termination letter received by plaintiff was also distributed to personnel file and two corporate officers).  Nevertheless, such communications are entitled to qualified privilege if made on a proper occasion, from a proper motive, and based on reasonable or probable cause.  Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 256-57 (Minn. 1980).  Statements made in good faith and communicated among an employer’s agents in the course of investigating employee conduct are privileged.  Ferrell, 557 N.W.2d at 566; see also Wirig v. Kinney Shoe Corp., 461 N.W.2d 374, 380-81 (Minn. 1990) (employer cannot rely on accusations made by other employees who may be biased or on second-hand hearsay with no identified source); Cox v. Crown CoCo, Inc., 544 N.W.2d 490, 498 (Minn. App. 1996) (“reasonable or probable grounds” for making potentially defamatory statement is typically found when employee has admitted some wrongdoing and the employer has investigated the allegations).

            Here, Juhlke’s comments were made on a proper occasion, while investigating a complaint initiated by Kuhlmann against Samuelson.  In addition, Juhlke’s comments were accurately based on Samuelson’s first-hand observation of Kuhlmann’s conduct.  Because Juhlke’s comments were made on proper motive and occasion and were based on reasonable grounds, they are entitled to a qualified privilege.

            The district court’s grant of summary judgment to Jennie-O and dismissal of Kuhlmann’s complaint is affirmed.

            Affirmed.

 

 



[1]  A statement must also be communicated to someone other than the plaintiff.  See Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980).  Kuhlmann attempts to avoid this requirement by claiming that he was compelled to repeat Samuelson’s statements to prospective employers.  Lewis v. Equitable Life Assurance Soc’y of the U.S., 389 N.W.2d 876, 888 (Minn. 1986) (generally, there is no publication when plaintiff communicates statement to third party).  Because Kuhlmann merely repeated Samuelson’s statements, which we conclude were true and not actionable, no defamation occurred.

 

[2]  The district court concluded that the publication of Samuelson’s accusations by Juhlke to the Minnesota Department of Economic Security was the subject of absolute privilege.  See Dorn v. Peterson, 512 N.W.2d 902, 906 (Minn. App. 1994) (holding that employer has absolute privilege to disclose reasons for employee’s discharge to department of economic security).  On appeal, Kuhlmann does not challenge the district court’s conclusion.  Rather, he argues that the statements made by Juhlke to the department “are significant * * * in that they provide corroboration that Mr. Samuelson published his accusations regarding Mr. Kuhlmann to the human resources director and others in the company.”  Because Kuhlmann does not present any evidence that Juhlke, Samuelson, or others within the company repeated any defamatory statements to persons other than those in the department of economic security, we decline to speculate on whether any other communications occurred.