Summary
noting no evidence of bad faith or malice—"whether Duncan did or did not falsify her timesheets is not material"
Summary of this case from White v. Bourbon Cmty. Hosp., LLCOpinion
NO. 2012-CA-000061-MR
03-08-2013
BILLIE DUNCAN APPELLANT v. LIFELINE HEALTHCARE OF SOMERSET, LLC, D/B/A LIFELINE HEALTHCARE OF PULASKI APPELLEE
BRIEF FOR APPELLANT: James M. Frazer Monticello, Kentucky BRIEF FOR APPELLEE: Edward H. Stopher Thomas G. Goodwin Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM WAYNE CIRCUIT COURT
HONORABLE JAMES L. BOWLING, JR., JUDGE
ACTION NO. 08-CI-00406
OPINION
AFFIRMING
BEFORE: COMBS, KELLER, AND LAMBERT, JUDGES. KELLER, JUDGE: Billie Duncan (Duncan) filed a defamation action against Lifeline Healthcare of Somerset, LLC, d/b/a Lifeline Healthcare of Pulaski (Lifeline). The circuit court granted summary judgment in favor of Lifeline, and Duncan appeals from that judgment. On appeal, Duncan argues: (1) the judgment was improper because there are genuine issues of material fact; (2) Lifeline's employees are not entitled to any privilege; and (3) the judge who granted summary judgment improperly ignored a mediation order issued by a previous judge. Lifeline argues: (1) summary judgment was appropriate because Duncan failed to establish a prima facie case of defamation; and (2) the allegedly defamatory statements were privileged. Having reviewed the record and the arguments of the parties, we affirm.
FACTS
Duncan, a certified nurse's assistant, worked as a home health care aide for Lifeline and its predecessor company for more than seventeen years. Her job required her to visit Lifeline clients in their homes and to perform housecleaning and shopping, as well as to provide basic medical and personal care. As part of her job, Duncan was required to keep detailed timesheets, recording when she arrived at a client's home, when she left that home, and the time it took her to perform services for the client.
Sometime in late October or early November 2007, Sharon Hicks (Hicks), Lifeline's professional improvement coordinator, and Kristen Lyons (Lyons), Lifeline's branch manager, followed Duncan for several days. Hicks and Lyons wrote down the times they observed Duncan arriving at and leaving clients' homes as well as the time she spent performing tasks for clients outside their homes. When they compared their observations with Duncan's timesheets, Hicks and Lyons noticed several discrepancies. Lyons conferred with Marlene Falconberry (Falconberry), Lifeline statewide manager, Lolonda Brown (Brown), a Lifeline human resources manager in Louisiana, Karen Goodman (Goodman), Lifeline's office manager, and Beverly Wright (Wright), Lifeline's area manager.
On November 12, 2007, Duncan's supervisor called her into the office for a "patient teleconference." At that time, Brown was on the telephone and Lyons and Falconberry were present in person. Brown advised Duncan that she was being discharged due to discrepancies in her time sheets, but she did not provide Duncan with any details or specific information regarding those discrepancies.
On November 10, 2008, Duncan filed suit alleging that "agents, servants or employees of [Lifeline] made false statements" about her. Duncan further alleged that, as a result of these statements, she had been exposed "to public contempt and ridicule" and her reputation had been damaged.
The parties then undertook discovery, which consisted of Lifeline's request for admissions and interrogatories, Duncan's interrogatories and request for production of documents, and Duncan's deposition. In her response to the request for admissions, Duncan indicated that any statements by Lifeline that she had falsified her timesheets were false. In response to Lifeline's Interrogatories Duncan identified the following as having knowledge of this matter: Falconberry, Lyons, Brown, Linda Brummett, a co-worker, and patients or patients' relatives Anita Coomer, Ida Mae Jones, Brenda Moore, and Nell Stevens. Furthermore, she indicated that she believed the statement that she had falsified her timesheets had been published by Lyons, Falconberry, and Brown and others in Lifeline's office and other locations. Duncan reserved the right to supplement her responses but never did so.
In her deposition, Duncan testified that Lyons, Brown, Falconberry, Goodman, Hicks, and "the whole Lifeline office, you know, were - - were informed." However, she also testified that she did not "know that for sure" but she believed that to be the case. Furthermore, although Duncan testified that personnel from Lifeline had told some of her patients and/or their relatives that she had been terminated, she could not state that anyone from Lifeline had disclosed the reason for her termination. Finally, Duncan testified that, when asked, she had told former co-employees why she had been discharged.
On August 26, 2011, Lifeline filed a motion for summary judgment arguing, as it does here, that any false statements were not published and were privileged. In support of its motion, Lifeline referred to the transcript of Duncan's deposition as well as to her responses to written discovery. In her response, Duncan argued that the statements were published when Lifeline employees discussed the investigation and that the statements were not privileged.
On September 22, 2011, Duncan filed a motion asking the court to order mediation. The court granted that motion, ordering the parties to undertake mediation by January 4, 2012. While reviewing the file at the hearing on Duncan's motion, the judge (Judge Miniard) apparently noticed that one of his relatives was listed as a potential witness. Therefore, on October 5, 2011, Judge Miniard recused and this matter was re-assigned to a special judge (Judge Bowling). Thereafter, Lifeline filed a Notice of Submission of Case for Final Adjudication and a motion to modify the mediation order. At the hearing on those motions, Duncan asked Judge Bowling to hold the summary judgment motion in abeyance pending mediation. Judge Bowling indicated that he saw no reason to do so and, on December 12, 2011, he entered an order granting Lifeline's motion. It is from that order that Duncan appeals.
STANDARD OF REVIEW
"The standard of review on appeal of a summary judgment is whether the circuit judge correctly found that there were no issues as to any material fact and that the moving party was entitled to a judgment as a matter of law." Pearson ex rel. Trent v. Nat'l Feeding Systems, Inc., 90 S.W.3d 46, 49 (Ky. 2002). In ruling on a motion for summary judgment, the Court is required to construe the record "in a light most favorable to the party opposing the motion . . . and all doubts are to be resolved in [her] favor." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). The party opposing summary judgment must present affirmative evidence to defeat a properly supported motion for summary judgment. Id. at 481. She cannot rely on speculation and supposition to do so. See O'Bryan v. Cave, 202 S.W.3d 585 (Ky. 2006). With these standards in mind, we address the issues raised by Duncan on appeal.
ANALYSIS
As noted above, Duncan argues that an issue of material fact exists and that Lifeline's employees are not entitled to any privilege/immunity. Because these two arguments are inextricably intertwined, we analyze them together.
Duncan testified that she did not falsify her timesheets while Lifeline posits that she did. According to Duncan, this difference creates an issue of material fact. We agree that there is an issue of fact. However, the question is whether that issue of fact is material. We hold that it is not.
To prove defamation, Duncan must show that Lifeline used defamatory language about her; that it "published" the defamatory language; and that she suffered injury to her reputation as a result. Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 793 (Ky. 2004). We address each element below.
"'Defamatory language' is broadly construed as language that 'tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.'" Id. Setting aside issues regarding truth, accusing someone of falsifying timesheets, which amounts to accusing her of theft, is without doubt defamatory. Therefore, Duncan met the first element set forth above. Furthermore, accusations of theft are per se actionable, relieving Duncan from the burden of proving what, if any, special damages she suffered. Id. at 794. Therefore, she has met the third element set forth above.
However, the second element, publication, is Duncan's downfall. "The notion of 'publication' is a term of art, and defamatory language is 'published' when it is intentionally or negligently communicated to someone other than the party defamed." Id. Lifeline admits that employees who investigated Duncan (Lyons and Hicks), who were consulted about Duncan's employment status (Brown, Falconberry, and Wright), or who were present when Duncan was discharged (Brown, Falconberry, and Lyons) all discussed or had knowledge of the reason for Duncan's termination. Thus, it is clear that there was intentional communication of the allegedly false information to someone other than Duncan; therefore, "publication" occurred. However, our analysis cannot end there because we must determine if the publication was actionable.
The Supreme Court of Kentucky held in Stringer that a qualified or conditional privilege exists "where 'the communication is one in which the party has an interest and it is made to another having a corresponding interest . . . if made in good faith and without actual malice.'" 151 S.W.3d at 796 (footnotes omitted). The privilege extends to "defamatory statements relating to the conduct of employees." Id. (footnotes omitted). However, because the privilege is qualified, it "must be exercised in a reasonable manner and for a proper purpose" and the immunity afforded to the defendant "is forfeited if the defendant steps outside the scope of the privilege, or abuses the occasion." Id. at 797.
As noted above, all communication of the allegedly defamatory statement was made by and between Lifeline employees. They have a common interest in Lifeline and the communication related to Duncan's conduct. Furthermore, there is no evidence that the communication was made in bad faith, with malice, in an unreasonable manner, or to any non-Lifeline employees. Therefore, the Lifeline employees have qualified immunity. Whether Duncan did or did not falsify her timesheets is not material, and the trial court's judgment was appropriate.
We next address Duncan's argument that Judge Bowling should have waited until the parties completed mediation before ruling on Lifeline's summary judgment motion. According to Duncan, Judge Bowling should have waited because Lifeline did not object to mediation and Judge Miniard intended for the parties to go to mediation before any ruling on the motion for summary judgment. Neither argument is supported by the record.
On October 4, 2011, Judge Miniard held a hearing on Duncan's motion to require mediation. Lifeline's counsel did not specifically object to that motion; however, he did remind Judge Miniard that Lifeline had a motion for summary judgment pending. Furthermore, he asked the court to schedule the mediation deadline for a late date so that the court could rule on Lifeline's summary judgment motion before the parties were required to mediate. Judge Miniard granted Duncan's motion and set the mediation deadline for January 2012. Additionally, Judge Miniard stated that he would rule on the motion for summary judgment before the deadline for mediation. Thus, it appears from the record of that hearing that Judge Miniard intended to rule on the summary judgment motion before mediation, and Judge Bowling's ruling was consistent with that intent.
We note that Duncan cites to the docket entry for October 4, 2011, as support for her position. However, we do not believe that docket entry is inconsistent with Judge Bowling's decision to rule on Lifeline's motion when he did. In that entry, Judge Miniard wrote, "Court grants motion. Summary Judgment to be ruled on at a later date. Order of recusal to be entered." Judge Miniard then crossed through "Summary Judgment to be ruled on at a later date." Taken in the context of the hearing, it appears that Judge Miniard struck through that sentence because he did not believe ruling on Lifeline's motion would be appropriate after discovering he had a conflict. It does not appear the he believed that it would be appropriate to wait for mediation before ruling on that motion.
Finally on this issue, we note that Duncan has not cited to any statute, case, or civil rule requiring the court to delay ruling on a motion for summary judgment pending mediation. In fact, as Duncan admits, Rule 4 of the Model Mediation Rules specifically states that "[u]nless otherwise ordered by the Court, mediation shall not stay any other proceedings." There was no order staying Lifeline's motion for summary judgment; therefore, Judge Bowling did not abuse his discretion in granting Lifeline's motion prior to mediation.
Before we conclude, we must address Lifeline's citation to the unpublished opinion of this Court, Sams v. Wal-Mart Stores East LP, 2010 WL 4740330, 2010-CA-000007-MR (Ky. App. Nov. 24, 2010). First, we note that Sams is distinguishable because the discharged employees admitted that they had violated Wal-Mart's policy that led to their discharge. Duncan has never admitted that she falsified timesheets.
Second, citation to Sams was inappropriate under Kentucky Rule of Civil Procedure (CR) 76.28(4)(c). Pursuant to that rule, citation to unpublished opinions is only appropriate "if there is no published opinion that would adequately address the issue before the court." There is nothing in the holdings in Sams that is not adequately addressed in other opinions. In fact, the majority of Lifeline's citations to Sams are to this Court's quotations or citations to published opinions. We see such inappropriate citations to unpublished opinions frequently, and we take this opportunity to encourage counsel to review CR 76.28(4)(c) before making such citations in the future.
CONCLUSION
For the foregoing reasons, we affirm the circuit court's summary judgment.
ALL CONCUR. BRIEF FOR APPELLANT: James M. Frazer
Monticello, Kentucky
BRIEF FOR APPELLEE: Edward H. Stopher
Thomas G. Goodwin
Louisville, Kentucky