### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON APRIL 2 000 SES SION GLENDA R. TAT E v. BAPT IST MEMORIAL HOS PITAL 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 payr oll checks of other employees and was discharg ed. Employee filed defamation suit,and trial court granted summary judgment because the pleadings and affidavits establi shed that there was no publication of the alleged defamat ory words since all communication thereof was to hospital employees. Tenn. R. App.

P. 3, Appe

al as of Right; J

udgment of t

he Circuit

Court is Affirmed. C RAWFORD , P.J., W.S. , delivered the opinion of the court, in which H IGHERS , J., and F ARMER , 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. Plainti ff, Glenda R. Ta

te, appe als fr

om the order of the trial court granti ng summary judgment to defendant, Baptist Memorial Ho spital (hereinafter Hospital). The sole issue is wh ether the trial co urt erred in gran ting summ ary judgment. Plaintiff f

iled this action after she was terminated f rom her position as a supply technician in the Materials Manageme nt 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 hav ing obta

ined and cas

hed severa

l checks whi

ch did not be

long to he

r.” She alleg es that t

he accusation was false and was published to other employees of the hosp ital. A review of the affidavits and p leadings in thecase indi cates t hat ther e is no re al disput

e of material facts. On Jun e 22, 1996, eigh t payroll checks for Hospital’ s Central Supply Department (hereinafter CSD), a subgroup of MMD, were reported missing. Dor othy Wat ts Cros sman, Di

recto r of t he MMD, confirmed with the payroll department that the checks had been iss ue d and were mi ssing. 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 shewas forced to self publish the defamation in attempting

to find other emplo

yment.
2 

### The trial court reserved judgment on the issue of self publicationpending the issuance of an opinion on this issue in a case before the Tennessee Supreme Court. A fter t he Supreme Court deniedthe viability of com pelle d 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. -2- Hospital security, led by Lieutenant W.E. Richar ds on, investigated the missing checks. Richardson

int erv iewed Celi a Easley , Crossman’ s manager, rega rding pr ocedures f

ollowed f

or distri butingpayroll checks. He also met with C armen 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 negoti ated by persons other than the payee/employee. Lieutenan t Richar

dson als o spoke wi

th the owner of

New Asian

Food Stor

e on 414 N. Cleveland

in Memphis, Tennessee, where several of the mi ssingchecks had been cashed. He then obtained a list

of names a

nd photo identification of all CSD employees and showed the photos to t

he owner o f P erson’s Big Star, Walter Person on 4001 C helsea Extended in Memph is, Tennessee, where someone attempted to negotiate the checks

. Person and Diane Marcum, a store employee, identified plaintiff as one of t

he individuals who had attempted to negotiate two of the missing checks. On Augus t 7, 199 6, Rich ardson intervie wed p laintiff concerning her involvement with the missing payroll c hecks. Plainti ff deni ed cashing

any chec

ks at eit her locat ion. Base

d on the informat ion gathered thorou gh the in vestigat ion, Ri chards on con cluded that plai ntiff had attempted to cash one

of the missing pay

roll checks and one of

the re placeme nt chec ks at Pe rson’s Bi g Star

. Crossman notifi

ed plaint iff by let ter dat ed August 5,

1997, that

she was suspended pending investi gation

of the missing checks. After hospi tal conc luded its inves tigation , it disch arged pla intiff on Septem ber 5, 199 7, for “wrongfu lly attempting to n egotiate anot her emplo yee’s pay check.” Plaintiff then pursued Hospital’s problem s olving proc edure, a three step internal gri evance process. During the fina l step, a hearing was held bef

ore a hospi

tal panel including

employee s and managem ent person nel. On No vember 1 , 1996, the p anel uph eld plaintiff’s term ination. Plaintiff’s complaint alleges that the Hospital neglig ently and malici

ously i nvestig ated the missing checks and that as a result a false c ommunication harming her reputation was published to other hospital employees. 1
The trial court granted s umma ry judgme nt in pa rt stating th at plain tiff failed to establish that Hospital or its e

mployees

publishe d any defa matory remarks about plain tiff or that Hospital or its employee s made any

stateme nt that was knowingly

false or in re ckless di sregar

d of the t ruth. 2

### -3-

Plainti ff has appealed,

and the only

issuefor our review is whether the trial court co rrectly granted the Hospital’s mo tion for summary judgment. A motion for

summary j udgment

should be g

ranted when the movant demo nstrates that there are no genuine

issues of materia l fact and that the

moving par

ty is entitl ed to a judg

ment as a matter of law. Tenn. R. C iv. P. 56.03. The party moving f

or summary

judgment bears the

burden of demonstrat

ing that no genuine issu e of material fact ex ists. Bain v. Wells , 936 S.W.2d 618 , 622 (Tenn. 1997). On a mo tion for summary judgment, the court must take the strongest legiti mate view of the evide

nce in f avor of t he nonm ov ing party, all ow all reasonable inferences in favor of that party, and discar

d all count

ervail ing evidence

. Id. In Byrd v. Hall , 847 S.W.2d 208 (Tenn. 199 3), our Supreme Cour

t stat ed: Once it is shown by the mo ving party that there is no genu ine issue of material fact,

the nonmoving

part y must t

hen demonstr

ate, by affidavits or discovery materials, t hat there is a genuine, material fact dispute to warr ant a trial. In this re gard, Rule 56.05 pr

ovides tha

t the nonmoving party cannot simply rely upon his pleadings but must set for th specific facts show ing that th ere is a gen uine iss ue of materia l fact for trial. Id. at 210-11 (citations om itted) (emphasis in original). Summary judgment is only appropriate when the fac ts and the

legal conclusi ons drawn f

rom the facts reasonab ly permit only on e conclus ion. Carvell v. Bot to ms , 900 S.W.2d 23, 26 (Tenn. 1995). Si

nce only questions

of law ar

e involved,

there i s no presumpt

ion of cor

rectnes s regar

ding a trial court's grant of su mmary judgm ent. Bain , 936 S.W.2d a t 622. Theref

ore, our review of

the trial court’s

grant of summary judgment is de novo on the record before this Co urt. Warren v. Es tate of Kirk , 954 S.W.2d 7 22, 723 (Tenn. 19 97). To establish a prima facie case of defamation, the p lainti ff m ust establish that: (1) a party published a stateme

nt; (2)with knowledg

e that t he state ment is fal se and def

aming to t

he other;or (3) with rec

kless dis regar d for th e truth of the stat ement or with negl

igence i n fail ing to a scerta

in the truth of the statemen t. Sullivan v. Baptis t Memorial Hosp. , 995 S.W.2d 5 69, 571 (Tenn. 19 99). Hospital first asserts that the trial court corr ectly granted it

s motion because plaintiff fai led to prove there was a publicat io n to anyone . Public ation is an essent

ial element of a

defamat ion action without which a complai nt must be

dismissed

. Applewhite v. M emphis Sta te University , 495 S.W.2d 190, 192-93 (Te nn. 1973); Freeman v. Dayton S cale Co. , 159 Tenn. 413, 19 S.W.2d 255, 256 (Tenn. 192 9); Woo ds v. Hel mi , 758 S.W.2d 2 19, 222-23 (Ten n. Ct. App. 1988 ). In Freema n , the pl aintiff brought suit for libel based on the content of a lett er sent by an agent of defe ndant. The

plainti ff cont ended that

the libel was published b y dictation to a secretary and tr anscribed. The Sup reme Court held that a co mmunication o f a defamatory matte r to a co

-

### -4-

employee

of a cor poration is not a publication beca use the co-employee has no distinct third party entity. Freeman , 19 S.W.2d a t 258. The

court, in addressing the issue of communications between employees, quoted w ith approval from 18 A .L.R. 772, 778:

The more liberal rule , and the one which seem ingly has the support of the weight of modern authorit y, is that, where the

communicati

on 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 a t 257.
In Woo ds v. Hel

mi , 758 S.W.2d 219

(Tenn. Ct. App. 1988), the plaintiff, a ce rtified regi stered nurse anesthetist, brought suit ag ainst her immediate supervisor and other s seek ing damages for alleg ed defamat

ion and wrong

ful interference w ith employm ent. Id. at 220. The plaintiff and her supervisor

were bot

h employ

ed by t he Regional Medical Center in Mem phis (The Med). Id. The Med had a uniq ue arrangem ent for the op eration of its an esthesiolo gy department in that it had its own paid employ

ees and al so had phys icians pr ovided by

the University of Tennessee employed as part of the staff

of The Med. Id. at 220-21. Th e plaint iff' s supervi sor issue

d a memo concer

ning operati ng room behavior

of the plaintiff t

hat was sent to persons who "had managerial, supervisory or administrative responsib ilities and oversight for [the] internal affairs of The Me d's anesthesi ology department

and were immediately interested in the information transmitted." Id. at 222. The Court noted that communi

cation of defamat ory mat ters bet ween the agents and of

ficer s of the corporat ion in the ordi

nary co urse of business i s not a publ ication

. Id. (citi

ng Freeman v. Dayton Scale Co. , 159 Tenn. 413,19 S.W.2d 255 (T enn.1929)) . In t

his vein, the Court said: We interpret Freeman and its pr ogeny t o mean that

communicati

on among agents of the s ame corpora tion made wi

thin the scope and course of the

ir empl oyme nt relative to duties performed f or that corporat ion are not

to be consider

ed as sta tements c ommunicated or publicized to third persons. Id. at 223. In Perry v. Fox , No. 01A01-94 07-CV-00337, 1994 WL 715740, (Tenn. Ct. App. December 21, 1994), pla

intif f was f ired f rom his job at South Cen tral Bell Telephone Co mpany ("SCB") after bein g accused of work related misconduct including malicious des tructi on of prop erty, impersonatio n of another SCB e

mployee, incorre ctly documenting

time, and making u

nauthorized repres entations to a SCB custo mer. P

laint iff filed a def

amation suit

agai nst Fox,an employee of SCB, and S CB based upon a memo randum Fox prepared and distributed which sta ted th at plaintiff had been terminated for

malicio us destruction of

property and that i

n the futur

e plai ntif f would not be we

lcome on company property. Plaintif f further alleg

ed that SCB failed to make a reasonabl e investi gation into the allegations against him before terminating his em ployment. In uph oldi ng th e tria l cou rt's grant of summary j udgment in favor of the def endants, the court

stated:

### -5- It is an elementary rule in t his state that publication is a n es sential element of a libel action without which a compla i nt must be dismiss ed. Applewhite v. M emphis Sta te University , 495 S.W .2d 19 0 (Tenn.1973); Woo ds v. Hel mi , 758 S.W .2d 219 (Tenn. C t. App.1988 ). Taken in t he light most favor

able to t he plaint iff, th e memorandumwas dissemi nated to c ertain

f e llow employ

ees of t he plaintiff. This action falls short of publication w ithin the ambit of the rule. As state

d in Freema n v. Dayton Scale Co. , 159 Tenn. 413, 19 S.W.2d 255 (Tenn. 192 9), "w here c ommunication is made t o a servant or busi nes s associa

te in the ordinary

or natur

al course

of business there is no act ionable lib el." See also , Woods , supra . Perry , 1994 WL 715740, at * 2. In the present case, plaintiff clai ms she was defamed by communications to others which resulted in the firing being common knowledge in the hospital. However, plaintiff fails t o establish who made the communications which she believes to be d efamatory. It appears that the communications in the pre sent case were made by the emplo yees in the scope and cou rse of their employment

relat ive to dut

ies perf ormed for

tha t corporation. The stateme nts 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 arg

ues that sta tements made by unidentified employees to other employees regar ding plainti

ff’s termina tion const

itute de famation for which Hospital should be liable. However, plaintiff has not shown that H ospital authori zed th e state ments. I n Southern Ice Co. v. Black, the Court held that a c orpora tion is not held liable for the sl anderous words spoken by an e mployee unless t

he plaint

iff s hows that ei

ther the employer

authoriz

ed the spea

king of th e slanderous

words, or that it would be necessary for an employee to speak them in the performance of the duty assigned to the employ ee, or that the statem ents had b een ratified by the e mployer. Id. at 398. Furthermore, even if the stat ements made by

Hospit al ar e defa matory , we believe Hospital is entitled to summary j udgment bec ause its stateme nts are c onditional

ly pri vileged 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 w here the interest which the defendant is seeking to v indicate or furth er is rega rde d as sufficiently important to justify some latitude for making mistakes. W. Pa ge Keeton e t al., Prosser and Keeton on the Law of Tort s , § 115, at 825 (5 th ed. 1988). The Tennessee Supreme Court authorized conditional privileges in Southern Ice. Co. v. Black , 136 Tenn. 391,

### -6- 189 S.W. 86 1 (1916): Qu a lifiedprivilege exten ds to all communicati

ons made in good

fait h upon anysubject-matter in which the party

communicati

ng has an i

nt erest , or in reference to which he has a duty to a p erson hav ing a correspond

ing interest or duty; and the pri vi lege embraces cases where the duty is not a legal one, but where it is of

a moral or

social c haracte r of imperfect obliga t ion . . . The rule announced is nece ssary in order that f

ull and unr

estric ted communi cati on concerning

a matter in which the parties have an interestmay be had.It is gr ounded in public policy as well as r eason. 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 privi leges ma y cover many dif

ferent types of interests including a c ommon interest and a public intere st. K eet on et al, supra , at 8 26-31. The commo n interest privilege has been recognized in Tennessee to cover communications between employees or agent

s of the same business or corporatio ns. See Woods v. Hel mi , 758 S.W.2d 219 (Tenn. Ct. App. 198 8); Southern Ic e Co. , 136 Tenn. 391,189 S.W.2d 861.

* * * The privilege can be lost, however, if the defendant does not a ct wi th good faith or acts with actual malice. W hen a statement is conditionally privileged, it is not actionable unless actual or express malice is sho wn by the pla intiff. Woo ds v. Hel mi , 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 mal

ice, and the burden is on the pl aintif f to prov e express malice. Langfor d v. V anderbilt University , 44 Tenn. App. 694, 318 S.W.2d 568, 576 (195 8). To prove actual malice, there must be sufficient evidence to permit t he conclusi

on that the defendant in fact entertained serious doub ts as to the trut h of his pu

blicati on, and that pub lishi ng, with such doub t, shows reckless disregard for truth or falsity and demo nstrates actu al malice. Moore v. Bailey , 628 S.W.2d 431 , 433-4 (Tenn. Ct. Ap p. 1981).

### -7-

Id. at 575-576,

577-578.
In D ickson v. Nissan Motor Mfg. Corp. , No. 87-28 9-11, 198 8 WL 980 5, (Tenn. C t. App

. Feb. 10, 1988),an employee, Dicks on, fil ed suit a

gainst his employ

er for alleg ed slander

ous statements made by his superiors. Dickson was fired from the Def endant corp oration f

or insubordin ationand for sp eaki ng to his s upe rior i n an obs cene and thre aten ing m ann er. In holding that the Defendants' st

atements were prot

ected under

a qualif ied privi lege, this Court

stated: One is enti

tled to l earn from his as sociate s what is b eing done i n a mat ter in which h e has an inte rest in comm on with th em. Thi s interestin their common affairs entitl es him to information as to how they are co nducted, or to info rmation t

hat aff ects the ir common interest, even thoug

h he is not personally concerned wi th the information. Restatement of Torts 2d.1977--596, comment c. * * * This Court agr ees with t

he argumen

t of def endants t hat, wher e a plant employee is disch arg ed, the employer has a privileged right to state and the other employees have a privileged right t o 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 , nordoes the record indicate that hospi

tal act ed negligently in in vestig ating t he missing

checks. The state

ments 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. Acco rding ly, for the reasons set out abov e, the order of the trial court granting summary judgment to defendan t is affi rmed. Costs of this appe al are assessed a gainst the appel

lant, Gl enda R. Tate.

__________________________________ __ W. FRANK CRAWFORD, PRES IDI NG JUDGE, W.S.