Opinion
46871.
ARGUED JANUARY 31, 1972.
DECIDED FEBRUARY 9, 1972.
Action for libel. Fulton Superior Court. Before Judge Shaw.
Joseph U. McDow, for appellant.
Long, Weinberg, Ansley Wheeler, Ben L. Weinberg, Jr., J. Stephen Jenkins, for appellees.
1. A summary judgment granted in favor of one of several defendants is a final and appealable judgment under the provisions of Code Ann. § 81A-156 (h), and it is unnecessary to obtain a certificate from the trial judge that it should be reviewed.
2. (a) There is no publication giving rise to a claim for libel when a report written by the immediate supervisor evaluating the performance of her duties by a corporate employee, being critical of the employee and her performance, is sent to the employee herself, to the director of the division of the corporation in which the employee works, to members of the office personnel committee, whose duties include the evaluating of the performance of employees on the job for retention on the job, transfer, promotion or discharge, this being done largely through the use of personnel files maintained on the employees, and to the secretary of the committee, who is in charge of the maintenance of the files.
(b) Where there has been no publication of the report, it is immaterial, as against the corporation, that the author or writer may have entertained malice against the employee and may have known that some statements in it were not true.
ARGUED JANUARY 31, 1972 — DECIDED FEBRUARY 9, 1972.
Mrs. Mildred LuAllen was employed by the Home Mission Board of the Southern Baptist Convention in its Atlanta offices, being assigned to the shipping and mailing department, where her duties consisted, inter alia, of typing index cards, preparing labels for shipping, removing staples, collecting and packaging materials to be shipped or mailed, and the like.
Her immediate supervisor was Miss Selma Dunagan, who worked under and was supervised by Mr. Dan C. McQueen, the Director of the Division of Business Services.
There was an office personnel committee, composed of Mr. Meeler Markham, Dr. Rutledge and Dr. Moseley, Mr. Markham serving as chairman. This committee had general supervision of the employment and discharge of office personnel. It was a part of the committee's duties to review the progress, or lack of it, made by employees, their efficiency in the performance of work, their work attitudes, punctuality in performance, records of attendance upon the job, and the like. Based upon these matters employees were retained in their positions, promoted, demoted, transferred or discharged.
For the use of the committee in doing its work personnel files were kept on each of the employees, and from time to time the immediate supervisor placed written reports and evaluations of the employee and his work, performance, etc., into each of these files.
On February 27, 1970, Miss Dunagan prepared a written report and evaluation of the performance of Mrs. LuAllen on her job and sent it to Mr. McQueen, to all members of the office personnel committee, and to the secretary of the committee, whose duty it was to maintain the personnel files.
The report indicated that Mrs. LuAllen had not performed well or efficiently in her job, that she appeared to have been unhappy with the work, regarding it as being of a "lowly" type, that her addressing of labels, etc., had not been dependable, that she had been moved from one duty routine to another in an effort to improve the situation, but that Mrs. LuAllen had "deliberately gotten behind" so that she would be moved. In the report Miss Dunagan stated: "I have asked (over a year ago) that Mrs. LuAllen be transferred and have at each time since told why. For some reason it seems that we are stuck with her." Continuing, the report indicated that Mrs. LuAllen had taken 30 minutes instead of 15 minutes for a coffee break, and had not offered to give up the break when business was behind and extra effort was needed, and finally, informed the director and the personnel committee that if she were to return "beginning Monday, she will need to bring her a book and read it. Because I will not have anything for her to do. We cannot afford to be put behind in any other areas."
Mrs. LuAllen was given a copy of the report, and she employed counsel who threatened suit against the board for libel, after which her position with the board was terminated. She then brought this action for damages against the Home Mission Board and Miss Dunagan, alleging that she has suffered public hatred, shame, obloquy, ridicule, etc., in the eyes and minds of right-thinking people, deprived of the confidence of her fellow workers, and that prior to publication of the report she had enjoyed a good reputation as being a person of honesty, integrity and virtue.
The Home Mission Board moved for summary judgment on the ground that there had been no publication of the report or memorandum, presenting in support thereof the deposition of Miss Dunagan and affidavits of Mr. McQueen and Miss Dunagan. From a grant of the summary judgment plaintiff appeals.
1. The grant of a summary judgment as to one of several defendants is an appealable order. Code Ann. § 81A-156 (h); Whisenhunt v. Allen Parker Co., 119 Ga. App. 813 (1) ( 168 S.E.2d 827).
2. The undisputed evidence shows that the report or memorandum written as an evaluation of Mrs. LuAllen as an employee was written by her immediate supervisor, both being employees of the Home Mission Board of the Southern Baptist Convention, a corporation, and that it went only to Mrs. LuAllen herself, to Mr. Dan McQueen, who was the director of the Business Services Division of the Home Mission Board, that being the division in which Mrs. LuAllen was employed, and to the members of the office personnel committee, whose duties consisted of reviewing the performance of employees and making determinations as to whether they would be retained in the job, transferred to some other, promoted, or discharged, and to the secretary of the committee who maintained the personnel files. This did not amount to a proscribed publication of the report, and it can not support an action against the corporation for libel. Sheftall v. Central of Ga. R. Co., 123 Ga. 589 (1) ( 51 S.E. 646); Central of Ga. R. Co. v. Jones, 18 Ga. App. 414 ( 89 S.E. 429); George v. Ga. Power Co., 43 Ga. App. 596 ( 159 S.E. 756). Whether the report was written maliciously and with knowledge of falsity is immaterial when there has been no publication. Beck v. Oden, 64 Ga. App. 407 ( 13 S.E.2d 468); McCravy v. Schneer's, 47 Ga. App. 703 ( 171 S.E. 391).
We do not reach or decide the issues as to whether the report, if published, would have amounted to libel, and, if so, whether it was a privileged communication and for that reason would not support an action for libel.
Judgment affirmed. Jordan, P. J., and Evans, J., concur.