Opinion
NO. 2011-CA-001804-MR
03-01-2013
MELISSA DERMODY APPELLANT v. UNIVERSITY OF LOUISVILLE MEDICAL SCHOOL ASSOCIATION INC., D/B/A UNIVERSITY PHYSICIANS ASSOCIATES APPELLEE
BRIEFS FOR APPELLANT: Philip C. Kimball Louisville, Kentucky BRIEF FOR APPELLEE: Jeremy S. Rogers Donna King Perry Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MARY M. SHAW, JUDGE
ACTION NO. 10-CI-003822
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS AND THOMPSON, JUDGES. THOMPSON, JUDGE: Melissa Dermody appeals from a summary judgment of the Jefferson Circuit Court in favor of University Physicians Associates (UPA) in her action alleging that statements made in conjunction with a disciplinary action and her termination from employment were defamatory. The circuit court held that statements made by UPA were subject to a qualified privilege that was not abused. We affirm.
Dermody and Rose Croudep were employed as billing specialists at UPA and had a history of personal disputes. On the morning of April 7, 2010, the two had a verbal dispute that required Linda Marquis, who supervised both women, to intervene. The record contains statements by Dermody and Marquis regarding that confrontation, and a later confrontation that occurred at a meeting attended by them, Greg Collins, Director of UPA's business office, and Marquis.
According to Dermody's statement, on April 7, 2010, she approached Croudep to put something on her desk. After Croudep was rude, Dermody asked Croudep if she had a problem with her and Croudep responded that she did not want to talk about that issue and yelled, "Get out of my face." Dermody rolled her eyes at Croudep, who then said, "You don't roll your eyes at me. I don't know who you think you are." Dermody responded, "It's fine for you to be in my face, but I'm not supposed to be in your face. I'm not scared of you . . . [you] may have other people scared of [you], but I'm not and . . . I'm not backing down from you."
Hearing loud voices, Marquis approached Dermody and Croudep. Croudep complained that Dermody came to her desk, rolled her eyes, made a gesture with her head and asked her if she had a problem. Marquis recalled that at that point, Croudep moved toward Dermody and she moved between the women. She instructed Croudep to leave the office and Dermody to return to her desk.
Later that same morning, Collins and Marquis met with Croudep and Dermody and an additional confrontation occurred. Both women interrupted each other and yelled while telling their versions about the earlier confrontation and were instructed to calm down. Dermody explained in her statement that after she finished talking, Croudep confronted her saying, "you must have a guilty conscience if you think you did something wrong." In response, Dermody yelled, "I don't have a guilty conscience. I'm tired of you making me feel like I did something to you." Dermody and Marquis recalled that Dermody told Croudep that Croudep was a miserable person. Collins admonished Croudep and Dermody for their behavior and sent them home for the day. He told them that he and Marquis would meet with Shirley Younger, UPA's Human Resource Specialist, and Dr. Gary Lloyd, Chair of the University of Louisville Medical School's Department of Anesthesiology, regarding the women's behavior.
After Marquis informed Dr. Lloyd of the women's confrontations, UPA conducted an investigation during which Marquis, Collins and Younger interviewed Croudep and Dermody individually. On April 9, 2010, UPA suspended Dermody and Croudep for three days. On April 19, 2010, UPA terminated Croudep and Dermody. The corrective counseling records issued to support Dermody's suspension and termination stated that she made "threatening and harassing statements and engaged in extremely improper conduct." These corrective counseling records authored by Shirly Younger and shared with Collins, Marquis, John Morse, UPA's Chief Operating Officer, and Dr. Lloyd, all of whom were required to review an employee's corrective counseling notice prior to an employee's termination, are the basis for Dermody's libel suit.
The circuit court granted UPA's motion for summary judgment on the basis that the statements were protected by a qualified privilege because they were made in the context of an employee disciplinary action and there was no evidence that UPA published the statements with reckless disregard or for an improper purpose. Dermody appealed.
The elements of defamation are: "(a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication." Harstad v. Whiteman, 338 S.W.3d 804, 810 (Ky.App. 2011) (quoting Restatement (Second) of Torts § 558 (1977)). "When the communication concerns untrue allegations of criminal behavior or unfitness to perform a job, the communication is libelous per se or slanderous per se, and proof of context indicating malice is not required." Id. However, if the publication is made under circumstances to which a qualified privilege applies, there is no presumption and the plaintiff must prove actual malice. Id.
We note that Dermody's claim is nebulous that UPA's statements that she made harassing and threatening statements and that her conduct was improper as the basis for her defamation claim. UPA's words must be given their ordinary, natural meaning as defined by the average lay person. Sweeney & Co. v. Brown, 249 Ky. 116, 60 S.W.2d 381, 384 (1933). A strong argument can be made that Dermody's statements to Croudep were properly characterized as harassing and threatening and her conduct was improper. However, because the circuit court resolved the summary judgment motion on the issue of qualified privilege, we limit our discussion to that issue.
Statements made in context of the employment relationship are qualifiedly privileged. As pointed out in Landrum v. Braun, 978 S.W.2d 756, 757 (Ky.App. 1998), the privilege is necessary "so that every day business can be carried out without the threat of suit." (quoting, Wyant v. SCM Corporation, 692 S.W.2d 814 (Ky.App. 1985)). When a privilege has been asserted, it can be defeated only by showing that there was "no privilege under the circumstances or that it had been abused." Harstad, 338 S.W.3d at 811. "If the plaintiff fails to adduce some evidence sufficient to create a genuine issue of fact, qualified privilege remains purely a question of law under the summary judgment standard." Id.
We agree with the circuit court that the statements in the corrective counseling records concerning Dermody were qualifiedly privileged. The statements were made in the context of an employment disciplinary proceeding and shared only with those required to review the records. Therefore, to avoid summary judgment, Dermody had the burden to present evidence sufficient to create a genuine issue of material fact that the privilege had been abused or waived by actual malice. Id. "When a qualified privilege is established, the presumption of malice disappears, and thus false and defamatory statements will not give rise to a cause of action unless maliciously uttered." Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 797 (Ky. 2004) (internal footnotes and quotations omitted.))
As pointed out in Harstad, a privilege may be abused by: "[1] the publisher's knowledge or reckless disregard as to the falsity of the defamatory matter; [2] by the publication of the defamatory matter for some improper purpose; [3] by excessive publication; or [4] by the publication of defamatory matter not reasonably believed to be necessary to accomplish the purpose for which the occasion is privileged." Harstad, 338 S.W.3d at 812 (quoting Restatement (Second) of Torts § 596 cmt. a (1977) (citing §§ 600-605A)). We agree with the circuit court that there is no evidence that UPA abused its privilege.
The evidence establishes that the UPA's statements regarding Dermody were made for a proper purpose, not excessive, and needed in order to discipline Dermody and terminate her employment. UPA's actions were reasonable and necessary. Assuming the statements were false, we address whether there is any evidence they were made with knowledge or reckless disregard of their falsity.
Falsity alone is not enough if utterances are not malicious and instead stem from mistaken observations. Harstad, 338 S.W.3d at 813. In Harstad, a professor was terminated after the university received reports of an inappropriate relationship between him and a graduate student. During the disciplinary process, statements were made by the administration concerning his involvement with the student. Id. at 806-808. Harstad claimed that he could show malice because some of the reports of his behavior were false or inconsistent. The Court concluded that even if he could prove some statements were false, it could not be reasonably concluded that the statements were maliciously made because "not every erroneous statement is expressed with malice." Id. at 813.
In this case, Dermody does not dispute that she engaged in confrontations with Croudep and basis her claim for defamation on her assertion that her statements and conduct was mislabeled. UPA's alleged mistaken characterization of her behavior is insufficient to establish that UPA knew its statements were false or made with reckless disregard of whether they were false. UPA conducted a investigation into Dermody's conduct in the workplace and concluded that Dermody's conduct warranted termination. The corrective counseling reports were made in good faith in an attempt to demonstrate that Dermody's conduct merited her suspension and termination. In response to the summary judgment motion, Dermody presented no affirmative evidence to create a genuine issue of material fact that UPA knew the statements were false or made with reckless disregard.
Based on the forgoing, the summary judgment of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Philip C. Kimball
Louisville, Kentucky
BRIEF FOR APPELLEE: Jeremy S. Rogers
Donna King Perry
Louisville, Kentucky