IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

APRIL 2000 SESSION

GLENDA R. TATE v. BAPTIST MEMORIAL HOSPITAL

A Direct Appeal from the Circuit Court for Shelby County

No. 85694 The Honorable Kay S. Robilio, Judge

No. W1999-00553-COA-R3-CV - Decided July 28, 2000 

Hospital employee was accused of negotiating payroll checks of other employees and was

discharged. Employee filed defamation suit, and trial court granted summary judgment because the

pleadings and affidavits established that there was no publication of the alleged defamatory words

since all communication thereof was to hospital employees.

Tenn. R. App. P. 3, Appeal as of Right; Judgment of the Circuit Court is Affirmed.

CRAWFORD, P.J., W.S., delivered the opinion of the court, in which HIGHERS, J., and FARMER, J., joined.

Joanne M. Jenkins, Memphis, For Appellant

Paul E. Prather, Robert D. Meyers, Jason G. Wolfkill, Memphis, For Appellee

OPINION

This is a defamation case. Plaintiff, Glenda R. Tate, appeals from the order of the trial court

granting summary judgment to defendant, Baptist Memorial Hospital (hereinafter Hospital). The sole

issue is whether the trial court erred in granting summary judgment. 

Plaintiff filed this action after she was terminated from her position as a supply technician

in the Materials Management Department (hereinafter MMD) at Hospital. The complaint avers that

she was accused of negotiating ano ther employee’s payroll check, or, in other words, “was accused

of having obtained and cashed several checks which did not belong to her.” She alleges that the

accusation was false and was published to other employees of the hosp ital.

A review of the affidavits and p leadings in the case indicates that there is no real dispute of

material facts. 

On June 22, 1996, eight payroll checks for Hospital’s Central Supply Department (hereinafter

CSD), a subgroup of MMD, were reported missing. Dorothy Watts Crossman, Director of the MMD,

confirmed with the payroll department that the checks had been issued and were missing. She

requested replacemen t checks an d turned th e matter ove r to payroll and security to inve stigate. 
1

 The complaint also alleges that she was forced to self publish the defamation in attempting

to find other employment.

2

 The trial court reserved judgment on the issue of self publication pending the issuance of

an opinion on this issue in a case before the Tennessee Supreme Court. After the Supreme Court

denied the viability of compelled self publication in Sullivan v. Baptist Memorial Hospital, 995

S.W.2d 569, 571 (Tenn. 1999), the trial court followed suit and dismissed plaintiff’s claim on this

issue, making the order granting summary judgment a final judgment. 

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Hospital security, led by Lieutenant W.E. Richardson, investigated the missing checks.

Richardson interviewed Celia Easley, Crossman’s manager, regarding procedures followed for

distributing payroll checks. He also met with Carmen Patterson in Hospital payroll who showed him

copies of four checks that had not b een recovered and four checks that stop paymen t orders were

issued on after they were negotiated by persons other than the payee/employee.

Lieutenant Richardson also spoke with the owner of New Asian Food Store on 414 N.

Cleveland in Memphis, Tennessee, where several of the missing checks had been cashed. He then

obtained a list of names and photo identification of all CSD employees and showed the photos to the

owner of Person’s Big Star, Walter Person on 4001 Chelsea Extended in Memphis, Tennessee, where

someone attempted to negotiate the checks. Person and Diane Marcum, a store employee, identified

plaintiff as one of the individuals who had attempted to negotiate two of the missing checks.

On August 7, 1996, Richardson interviewed plaintiff concerning her involvement with the

missing payroll checks. Plaintiff denied cashing any checks at either location. Based on the

information gathered thorou gh the investigation, Ri chardson con cluded that plaintiff had attempted

to cash one of the missing payroll checks and one of the replacement checks at Person’s Big Star.

Crossman notified plaintiff by letter dated August 5, 1997, that she was suspended pending

investigation of the missing checks. After hospital conc luded its investigation, it discharged pla intiff

on September 5, 1997, for “wrongfully attempting to negotiate another emplo yee’s pay check.”

Plaintiff then pursued Hospital’s problem solving proc edure, a three step internal grievance

process. During the fina l step, a hearing was held before a hospital panel including employees and

management person nel. On No vember 1 , 1996, the p anel upheld plaintiff’s termination. 

Plaintiff’s complaint alleges that the Hospital negligently and maliciously investigated the

missing checks and that as a result a false communication harming her reputation was published to

other hospital employees.1

The trial court granted summa ry judgment in pa rt stating th at plaintiff failed to establish that

Hospital or its employees published any defamatory remarks about plain tiff or that Hospital or its

employees made any statement that was knowingly false or in reckless disregard of the truth.2
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Plaintiff has appealed, and the only issue for our review is whether the trial court co rrectly

granted the Hospital’s mo tion for summary judgment.

A motion for summary judgment should be granted when the movant demo nstrates that there

are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter

of law. Tenn. R. Civ. P. 56.03. The party moving for summary judgment bears the burden of

demonstrating that no genuine issu e of material fact ex ists. Bain v. Wells, 936 S.W.2d 618, 622

(Tenn. 1997). On a motion for summary judgment, the court must take the strongest legitimate view

of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that

party, and discard all countervailing evidence . Id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn. 199 3),

our Supreme Court stated:

Once it is shown by the moving party that there is no genuine issue of

material fact, the nonmoving party must then demonstrate, by

affidavits or discovery materials, that there is a genuine, material fact

dispute to warrant a trial. In this regard, Rule 56.05 provides that the

nonmoving party cannot simply rely upon his pleadings but must set

forth specific facts showing that th ere is a genuine iss ue of material

fact for trial.

Id. at 210-11 (citations omitted) (emphasis in original).

Summary judgment is only appropriate when the facts and the legal conclusions drawn from

the facts reasonab ly permit only one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.

1995). Since only questions of law are involved, there is no presumption of correctness regarding

a trial court's grant of summary judgment. Bain, 936 S.W.2d at 622. Therefore, our review of the

trial court’s grant of summary judgment is de novo on the record before this Co urt. Warren v. Estate

of Kirk, 954 S.W.2d 7 22, 723 (Tenn. 19 97).

To establish a prima facie case of defamation, the p laintiff must establish that: (1) a party

published a statement; (2) with knowledge that the statement is false and defaming to the other; or

(3) with reckless disregard for the truth of the statement or with negligence in failing to ascertain the

truth of the statemen t. Sullivan v. Baptist Memorial Hosp., 995 S.W.2d 5 69, 571 (Tenn. 19 99).

Hospital first asserts that the trial court correctly granted its motion because plaintiff failed

to prove there was a publication to anyone. Publication is an essential element of a defamation

action without which a complaint must be dismissed . Applewhite v. Memphis Sta te University, 495

S.W.2d 190, 192-93 (Te nn. 1973); Freeman v. Dayton Scale Co., 159 Tenn. 413, 19 S.W.2d 255,

256 (Tenn. 192 9); Woods v. Helmi, 758 S.W.2d 2 19, 222-23 (Ten n. Ct. App. 1988 ).

In Freeman, the plaintiff brought suit for libel based on the content of a letter sent by an

agent of defendant. The plaintiff contended that the libel was published b y dictation to a secretary

and transcribed. The Sup reme Court held that a communication o f a defamatory matter to a co-
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employee of a corporation is not a publication beca use the co-employee has no distinct third party

entity. Freeman, 19 S.W.2d at 258. The court, in addressing the issue of communications between

employees, quoted with approval from 18 A.L.R. 772, 778: 

The more liberal rule, and the one which seemingly has the support

of the weight of modern authority, is that, where the communication

is made to a servant or bu siness associate in the ordinary and natural

course of business, there is no actionable libel.

Freeman, 19 S.W.2d at 257.

In Woods v. Helmi, 758 S.W.2d 219 (Tenn. Ct. App. 1988), the plaintiff, a certified registered

nurse anesthetist, brought suit against her immediate supervisor and others seeking damages for

alleged defamation and wrongful interference with employment. Id. at 220. The plaintiff and her

supervisor were both employed by the Regional Medical Center in Memphis (The Med). Id. The

Med had a uniq ue arrangement for the operation of its anesthesiolo gy department in that it had its

own paid employees and also had physicians provided by the University of Tennessee employed as

part of the staff of The Med. Id. at 220-21. The plaintiff's supervisor issued a memo concerning

operating room behavior of the plaintiff that was sent to persons who "had managerial, supervisory

or administrative responsib ilities and oversight for [the] internal affairs of The Med's anesthesiology

department and were immediately interested in the information transmitted." Id. at 222. The Court

noted that communication of defamatory matters between the agents and officers of the corporation

in the ordinary course of business is not a publication. Id. (citing Freeman v. Dayton Scale Co.,

159 Tenn. 413, 19 S.W.2d 255 (Tenn.1929)). In this vein, the Court said:

We interpret Freeman and its progeny to mean that communication

among agents of the same corporation made within the scope and

course of their employment relative to duties performed for that

corporation are not to be considered as statements communicated or

publicized to third persons.

Id. at 223.

In Perry v. Fox, No. 01A01-9407-CV-00337, 1994 WL 715740, (Tenn. Ct. App. December

21, 1994), plaintiff was fired from his job at South Cen tral Bell Telephone Company ("SCB") after

being accused of work related misconduct including malicious destruction of property, impersonation

of another SCB employee, incorrectly documenting time, and making unauthorized representations

to a SCB customer. Plaintiff filed a defamation suit against Fox, an employee of SCB, and SCB

based upon a memo randum Fox prepared and distributed which stated that plaintiff had been

terminated for malicious destruction of property and that in the future plaintiff would not be welcome

on company property. Plaintiff further alleged that SCB failed to make a reasonable investigation

into the allegations against him before terminating his employment. In upholding the trial court's

grant of summary judgment in favor of the defendants, the court stated:
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It is an elementary rule in this state that publication is an essential

element of a libel action without which a complaint must be

dismissed. Applewhite v. Memphis Sta te University, 495 S.W.2d 190

(Tenn.1973); Woods v. Helmi, 758 S.W.2d 219 (Tenn. Ct.

App.1988 ). Taken in the light most favorable to the plaintiff, the

memorandum was disseminated to certain fellow employees of the

plaintiff. This action falls short of publication within the ambit of the

rule. As stated in Freeman v. Dayton Scale Co., 159 Tenn. 413, 19

S.W.2d 255 (Tenn. 192 9), "where communication is made to a

servant or business associate in the ordinary or natural course of

business there is no actionable libel." See also, Woods, supra. 

Perry, 1994 WL 715740, at * 2.

In the present case, plaintiff claims she was defamed by communications to others which

resulted in the firing being common knowledge in the hospital. However, plaintiff fails to establish

who made the communications which she believes to be defamatory. It appears that the

communications in the present case were made by the emplo yees in the scope and cou rse of their

employment relative to duties performed for that corporation. The statements made by security

personnel while questioning plain tiff and other hospital employees we re made during the course of

an investigation. Therefore, the required p ublication is not present.

The plaintiff argues that statements made by unidentified employees to other employees

regarding plaintiff’s termination constitute defamation for which Hospital should be liable.

However, plaintiff has not shown that Hospital authorized the statements. In Southern Ice Co. v.

Black, the Court held that a corporation is not held liable for the slanderous words spoken by an

employee unless the plaintiff shows that either the employer authorized the speaking of the

slanderous words, or that it would be necessary for an employee to speak them in the performance

of the duty assigned to the employee, or that the statements had b een ratified by the employer. Id.

at 398.

Furthermore, even if the statements made by Hospital are defamatory, we believe Hospital

is entitled to summary judgment because its statements are conditionally privileged under a common

interest privilege.

In Pate v. Service Merchandise Co., Inc., 959 S.W.2d 5 69 (Tenn. Ct. App. 1996) this co urt

discussed conditional privileges:

A conditional privilege is recognized where the interest which

the defendant is seeking to v indicate or furth er is regarded as

sufficiently important to justify some latitude for making mistakes.

W. Page Keeton e t al., Prosser and Keeton on the Law of Torts, §

115, at 825 (5th ed. 1988). The Tennessee Supreme Court authorized

conditional privileges in Southern Ice. Co. v. Black, 136 Tenn. 391,
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189 S.W. 86 1 (1916):

Qualified privilege extends to all communications

made in good faith upon any subject-matter in which

the party communicating has an interest, or in

reference to which he has a duty to a person hav ing a

corresponding interest or duty; and the privilege

embraces cases where the duty is not a legal one, but

where it is of a moral or social character of imperfect

obligation . . . The rule announced is nece ssary in

order that full and unrestricted communication

concerning a matter in which the parties have an

interest may be had. It is grounded in public policy as

well as reason.

Id. at 401, 189 S.W. 861 (citations omitted); see also Price v. Sale,

8 Tenn. C.C.A. 382, 392-3 (19 18). 

Conditional privileges may cover many different types of

interests including a common interest and a public intere st. Keeton

et al, supra, at 826-31. The common interest privilege has been

recognized in Tennessee to cover communications between

employees or agents of the same business or corporatio ns. See Woods

v. Helmi, 758 S.W.2d 219 (Tenn. Ct. App. 198 8); Southern Ice Co.,

136 Tenn. 391, 189 S.W.2d 861.

* * *

The privilege can be lost, however, if the defendant does not

act with good faith or acts with actual malice. When a statement is

conditionally privileged, it is not actionable unless actual or express

malice is shown by the pla intiff. Woods v. Helmi, 758 S.W.2d 219,

224 (Tenn. Ct. App. 1988); Southern Ice Co., 136 Tenn. at 401, 189

S.W.2d 861. Once privileged, the statement is presumed to have been

made without malice, and the burden is on the plaintiff to prove

express malice. Langford v. Vanderbilt University , 44 Tenn. App.

694, 318 S.W.2d 568, 576 (195 8). To prove actual malice, there must

be sufficient evidence to permit the conclusion that the defendant in

fact entertained serious doub ts as to the truth of his publication, and

that publishing, with such doub t, shows reckless disregard for truth

or falsity and demo nstrates actual malice. Moore v. Bailey, 628

S.W.2d 431 , 433-4 (Tenn. Ct. Ap p. 1981).
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Id. at 575-576, 577-578.

In Dickson v. Nissan Motor Mfg. Corp., No. 87-28 9-11, 198 8 WL 980 5, (Tenn. Ct. App.

Feb. 10, 1988), an employee, Dickson, filed suit against his employer for alleged slanderous

statements made by his superiors. Dickson was fired from the Defendant corporation for

insubordination and for speaking to his superior in an obscene and threatening manner. In holding

that the Defendants' statements were protected under a qualified privilege, this Court stated:

One is entitled to learn from his associates what is being done in a

matter in which h e has an inte rest in common with them. This

interest in their common affairs entitles him to information as to how

they are conducted, or to information that affects their common

interest, even though he is not personally concerned with the

information. Restatement of Torts 2d.1977--596, comment c.

* * *

This Court agrees with the argument of defendants that, where a plant

employee is discharged, the employer has a privileged right to state

and the other employees have a privileged right to hear that the

discharge has taken place and the groun ds therefor, stated in general

terms. 

Id. at *7-8.

The record does not show actual malice on the part of the Hospital, nor does the record

indicate that hospital acted negligently in investigating the missing checks. The statements by

Hospital to its employees regarding the reason for plaintiff’s termination are p rivileged under a

commo n interest priv ilege and, there fore, are not actio nable. 

Accordingly, for the reasons set out above, the order of the trial court granting summary

judgment to defendan t is affirmed. Costs of this appeal are assessed against the appellant, Glenda

R. Tate.

____________________________________

W. FRANK CRAWFORD, PRESIDING 

JUDGE, W.S.