# FILED July 31, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ KAREN SULLIVAN , Plaintiff -Appella nt, Shelby Circuit No. 55553 T.D. Vs. C.A. No. 02A01-9610-CV-00237 BAPTIST MEM ORIAL HOSPIT AL, PATRICIA THOMAS, Individua lly and as Assistant Director of Nursing at Baptist Memorial Hospital East; and SUSAN PARSONS, Individually and in her Capacity as Respiratory Therapy Manager, Defend ants-App ellees.

_______________________________________________________________________ _____ FROM THE CIRCUIT COURT OF TENNESESE FOR THE THIRTIETH JUDICIAL DISTRICT AT MEMPHIS THE HONORABLE KAREN R. WILLIAMS, JUDGE

Stephen H. Biller and Sara Hall; Baker, Donelson, Bearman & Caldwell

of Memphi s For Appellant J. Edwar d Wise, Pa

ul E Prathe

r, Steven W. Liken s; Kiesewe tter, Wis e, Kapla

n, Schwimme

r & Prathe

r of Memphis For Appellees

REVERSED AND REM ANDED Opinion fi led:

W. FRANK CRAWFORD,

PRESIDING J

UDGE, W.S.
CONCUR: ALAN E. HIGH

ERS, JUDGE DAVID R.FARMER,

JUDGE This is a defamation case. Plaintiff, Karen Sullivan, appeals from the order of the trial1 Summary judgment was also granted to defendants Patricia Thomas and Susan

Parsons w ith Sullivan ’s conse nt. Thomasand Parso ns are no t partiesto this app eal.

2 The comp laint also

alleges tortious in

terfer ence with Sullivan ’s employ ment, outrageous conduct, intentional infliction of emotional distress, and a failure to provide proper notice of her COBRA rights in violation of 29 U.S.C. § 1001 et seq. (1985) and T.C.A. § 56-7-2312 et seq. (1994) that impermissibly denied her right to insurance benefits. These claims were dismissed on summary judgment for the defendants, but these c laims were not raised as issues on appeal. 2 court granting summary judgment to defendant, Baptist Memorial Hospital (BMH). 1 KarenSullivan was a full-time staff nurse in the neonatal intensive care unit (NICU) at BMH for four

teen yea rs. She also performed temporary nursing services at St. Francis Hospital through a staffing agency known as C liniCall. In the NICU, nurses used angiocaths to start IVS on infants in the unit. Susan Parsons,

a fellow BMH nurse, reported to BMH that Sullivan admitted taking angioca ths from BM H to

use at St. Francis. Su llivan denied m aking the statements to Parsons and denied that she had stolen any angio caths. A

fter a meeting with

Patricia Thomas, the Assistant Director of Nursing, BMH terminat

ed Sulliva

n on Febru ary 22, 1 993 for th e allege d misappr

opriation of hosp ita l property. Sul livan experienced difficulty obtaining new employment because she was forced t o disclose the rea son for he

r termina tion on job a

pplic at ions to prospective employers. She applied for jobs at Metho d ist North and Jackson Madison County Hospital, but was not granted a position. On August 3, 1993, Sullivan filed a complaint against BMH, Patricia Thomas, and Susan Parsons alleging, inter alia , defamation. 2 In additio n to the al legation s against Thomas an d Parsons, the complaint allege s that BMH has disseminated defamatory, false, malicious, and scandalous information abou t Sullivan to her poten tial employers, precluding her from becoming gainfully employed. On January 30, 1996, BMH, Thomas, and Par son s all filed motions for summary judgment. After a

hearing on April 19 , 1996, the

trial cou rt grante d summary

judgment in

favor of all three defendants. Sullivan conceded that summary ju dgment wa s appropr iate as to all claims against T

homas a nd Parsons . Sullivan also conceded that summary judgment was appropr iatein favor of BMH for all claims except the defamation claim. However, the trial court gra nted summary judgment for BMH on the defamation claim holding that “self-publica tion ”3

of false information does not satisfy the publication element required to e stablish a cl aim for defamation. Sullivan appeals the trial court’s order granting summary judgm ent to BMH on the defamation claim and presents one issue for review: whether t he pu blication element of defama tion can b e established by c ompelled self-pu blication in the emp loyment c ontext. A trial cou

rt should g

rant a mo tion for su

mma ry judgment when

the movant demonstrates that there are no genuine issues of material fa ct and t hat the moving party is entitled to a judgmentas a matter of law. Tenn. R . Civ. P . 56.03. Th e phrase “genuine issue” a s stated in Rule 56.03 re fers to g enuine f actual is sues and d

oes not inc lude issue s in vol ving legal concl usions to be drawn from the facts. Byrd v. Ha ll , 847 S.W.2d 208, 211 (Tenn. 1993). Because the facts a

re undisputed in

this case, we must decide whether the legal conc lusions on which the trial

court’s grant of summary ju dgment wa s based a re corr ect. Our review i s de novo

on the rec ord with no

presumpt

io n of the co rrectness of the trial court’s conclusions of law. Union Planters Na t’l Ban k v. American Home Assurance Co. , 865 S.W.2d 907, 912 (Tenn. App. 1993). Sullivan argues that she has experienced difficulty in obtaining employment because she is forced to tell her prospective employers that she was terminated by BMH for misappropriating hospital property. She claims that the publication element of defamation is met because she was force d to publish BM H’s state ments on su

bsequen t job applic ations. BMH argues t ha t defamation by self- publicat ion has be en expre ssly rejected by the Tennessee Supreme Court and by this Court. In Press, Inc. v. Verran , 569 S.W.2d 435 (Tenn. 1978), our Supreme Court, inter alia , adopted as law § 580B of the Restatem ent (Sec ond) of Tort s (1977): § 580B. Defamation of Private Person. One who publishes a fals e and defamatory communication concerning a privat

e person . . . is subject to liability, if, but only if, he (a) knows tha

t the state ment is false and that it defames the other, (b) acts in reckless disregard of these matter s, or (c) ac ts neglige

ntly in fai ling to asc ertain th em. Pre ss, 569 S.W.2d at 442. We must decide in this appeal whether the publication elemen t o f defamation is met when an employee is compelled to publ ish on a job application a former employer’ s official reasons for the employee’s termination. “Publication” is a term of a rt4

meaning the communication of defamatory matter to a third person. Quality Auto Parts Co. v. Bluff City Buick Co. , 876 S.W.2d 818, 821 (Tenn. 1994). BMH relies on an unpublished opinion o f this Court, Raiteri v. RKO General, Inc. , Shelby Law No. 56, 1989 WL 146743 (Tenn. App. Dec. 6, 1989). In Raiteri , CharlesRaiteri, a reporter for WHBQ AM-TV in Memphis, was ter minated for

alleged biased

and unbalanced reporting. Id . at *1-2. Raiteri filed a complaint for defamation against the TV station alleging that the statements that

caused him to be disciplined for biased and unbalanced re porting were published to third parties. Id . at *2. The trial court granted summary judgment in favor of the defenda nts, and this Courtaffirmed the trial court. Id . at *8. This Court held that “the statement that Raite ri’s report was ‘biased and unbalance d’ is not a defamatory factual statement, bu t i s rather an opinion or characterization based upon the disclosed nondefamatory facts of Raiteri’s report itself and is not actionable.” Id . at *4. Th is Court co ntinued a

nd addre sse d Rait eri’s second a rgument: Raiteri also argues that because he had to indicate on employment

applicat ion f

orms that he had been fired for preparing a “biased

a nd unbala

nced re port,” the defen dants should be liable for

this r epublica

tion. Whe

re the sta tement is opinion, publication is not material. However, a ssumin g arguendo that it is not opinion and it is defamatory, plaintiff’s action would fail for want of publication. Although Raiteri cites to cases i n other jurisdictions which hold employers liable for republication by the plaintiff under certain circumstances, Raiteri fails to cite any cases in Tennessee on point. In Sylvis v. Miller , 96 Tenn. (12 Pickle) 94, 33 S.W. 921 (1896), the Tennessee Supreme Court found there was no publication when the plaintiff received a l etter fr

om the def

endant a nd exhibit

ed this let ter to relatives and friends. Therefore, the pl aintiff c annot bas e his cause of action upon his own republication. Furthermore, since we have found

the statement “biased

and unbalanced report” to be an opinion, Raiteri cannot maintain an action for republicationof a constitutionally-protected opinion. Id

. In this case, the trial court relied on Raiteri in its order granting summary judgment in favor of BMH. We do not believe that R aiteri should control on the issue of publication. First, the alternative holding is dicta from an unpublished opinion. The Court stated that “pub lication i s notmaterial.” Id. In the present case, publication is the central issue. Second, the Raiteri Court considered

republication of an opinion, while the present case involves republication of a factual statement.5 BMH also cite s Railroad v. Delaney , 1 02 Tenn. (18 Pickle) 289, 52 S.W. 151 (1899). In Delaney , the plaintiff asked for and received a recommendation letter from his employer. 102 Tenn. at 291-92 . Plaintif f’ s declaration alleged that the letter contained fa lse information and “was made willfully and maliciously for the pur pose of injuring plaintiff in his trade and calling.” Id. at 290. Defendant filed a demurrer to the declaration on the ground that there was

no averment

of special damages, which was necessary where the wor ds are not libelous per se. Id. at 290-91. The trial court overruled the demurre r, and subsequ ently judgment was entered on a jury verdict for the plaintiff. Id. at 291. On appeal, the Supreme Court, in discussing the evidence at the trial, noted that only the plaintiff and the plaintiff’s agent acquired knowledge of the letter from def endant. Id. at 292. The Court said:

There is no evide

nce of pu blication in this rec ord. The

proof is undisputed that this letter was written by Sullivan a t the req uest of Mr. Speed, who was acting by authority of the plaintiff. Speed accepted it and delivered it to plainti ff, who u se d it in seeking employme

nt. Under the authorities the company is not liable for any of the conseque nces of t he act of Delaney in making publication of the letter containing libelous matter. If a pers on receives a letter

containing libelous matter, he will not be justified in publishing it. Sylvis v. Miller , 96 Tenn. 94; Wilcox v. Moon , 24 Atlantic Reporter, 244. Id . at 294. T he Supreme C ourt rev ersed th e trial c ourt, sust

ained the demurre r, and dis misse d th e suit. Id. at 297. We note a marked difference in Delany and the case at bar. We should first note, however, that although the Court discussed the facts pertaining to p ublication of the alleged defamation, the Court’s decision was based upon the allegations of the declaration, and the Court sustained the demurrer originally filed by the defendant. Ther efore, the Court’s comment concerning publication of the alleged defamation was dicta. Moreover , the defamatory letter wa s
a letter of recommendation, which

the plaintiff was free to use or not to use at his discretion, and his use of the lette r resulte d in a volun

tary publ ication o f the alle ged defa matory ma

terial. In both Raiteri and Delaney , the Court cited Sylvis v . Mi ller , 96 Tenn. (12 Pickle) 94, 33 S.W. 921 (1896). In Sylvis , the plaintiff rece ived a defamatory letter through the mail and showed its contents to his relatives and friends. 96 Tenn. at 95. The Supreme Court stated,6

“[T]he defendant is not answerable for anything the plaintiff may c hoose to do with the let te r after it has once safely reached his hands. . . . If a person receives a letter containing libelous matter, he will not be justified in publishing it.” Id . (citations omitted). Sullivan argues t

hat Sylvis is dist

i nguishabl e becau se that c ase had n othing to do with employment

and because the self-publication was voluntary. BMH arg ue s that no Tennessee case, includin g Sylvis , has held that “compelled” as opposed to “voluntary” self-publica tion satisfie s the publi cation r

equirem ent for a defama tion claim

. Other than Del any and Raiterri , which we have heretofore noted a re distinguishable from the case at bar, we can find no ca ses directly on point in Tennessee dealing with self-publication of alleged defamatory matters in an employment setting. There ar e cases from other jurisdictions dealing with this question and with differing results. It appea rs that the minority view is that self-publication in the employment setting under certain circumstances satisfies the publication requirement

of defamation actions. In Lewis v. Equitable Life Assurance So ciety , 389 N.W.2d 876 (Minn . 1986), the Minnesota Supreme Court specifically considered self-publication of defama tory matte

r to prosp ective e

mployers : The company presents two argumen ts agains trecognition of the doctrine of compelled self-publication. It argues that such recognition amounts to

creating tort li abil ity for wrongful discharge which, it asserts, has been rejected by this court. .

. . If plaintiffs here ca

n establis h a cause of action for defamation, the fact that the defamation occ urr ed in the context of employment discharge should not defeat recovery. The company also argues that recognition of the doctrine of self-publication would disco urage plaintiffs from mitigating damages

. This concern does not appear to be a p rob lem, however, if

liability for self-publication of defamatory statemen ts is imposed onlywhere the plaintiff was in some significant way compell ed to repeat the defamatory statement and such compulsion was, or s h oul d have been, foreseeable to the defenda nt. Also, the d

uty to mitiga

te can be further protected by requiring plaintiffs when they encounter a situation in which they are compelled to repeat a defamatory statemen t to take a ll reasonab le steps to attempt to explain the true nature of the situation and to contradict the defamatory statement. In suc h circumst ances, there would be no voluntary act on the part of the plaintiff that would constitute a failure to mitigate. . . . T he trend of modern authority persuades us tha t Minnesota

law should recognize thedoctrine of compelledselfpublication. We acknowled ge that recognition of this doctrine provides a significant new basis for maintaining a cause of action for defamation and, as such, it should be cautiously applied. However, when properly app lie d, it need not substa

ntially broade n the scope

of liability for defamation . The concept o f compelled self-publication does no more than hold the originator7 of the defamatory statement liable for damages caused by the statement where th e originator knows, or should know, of circumstances whereb y the def amed per son has no

reasona ble mean s of avo iding publication of the statement or avoiding the resulting damages; in other words, in ca ses w here the defamed person was comp elled to p ublis h th e statement. In such circumst ances, the damages are fairly viewed as the direct

result of the or iginator’ s actions

. Properly applied, the doctrine of

self-publication does not undulyburden the free c ommunica tion of views or unr

easonab ly broaden the scope of defamation liability. Accordingly, we hold that in an action for defamation, the publication requirement may be sati sfied where the plaintiff was compelled to publish a defamatory statemen

t to a third person if it was fore seeable

to the defendant that the plaintiff would be so compelled. Id. at 887-88; see also Churchey v. Adolph Coors Co. , 759 P.2d 1336 (Colo. 1988) (When the originator of the def

amat ory statement has reason to believe that the person defa med will be under a strong c ompulsion to

disclose the conte nts of the defama tory state ment to a third person, the originato

r is respo nsible fo

r that pub lication. ); Belcher v . Little , 315 N.W.2d 734 (Iowa 1982) (The injured party cannot create his own cause of action by communicating the slanderous statemen ts to others unless under a strong compulsion to do s o. What constitutes strong compulsion must of

necessity be decided by the finder of fact under the circumstances in each

c ase when subs tantial e

vidence of such c ompulsion isintroduc ed.); McKinney v. County of Santa Clara , 168 Cal. Rptr. 89 (Ca l. Ct. App. 1 980) (The ration ale for making the originator of

a defamatory statement

liable for its foreseeable republication is the strong causal link between the actions of the originator and the damage caused by the republication. This causal link is no less strong where the foreseeable re publication is made by the person defamed operating under

a strong compulsion to republish the defamatory statement and the circumstances which create the strong compulsion are known to the originator of the defamatory s tatement at the time he communicates it to the pe

rson def amed.); Grist v. U

pjohn Co. , 168 N.W.2d 389 (Mich. Ct. App. 19 69) ( Where the conditions are such that the utterer of the defamatory matter intends or has

reason to suppose that in the ordinary course of e v ents the matter will come to the knowledge of some third person, a publication may be effected.); Colonial Store s, Inc. v. Barrett , 38 S.E.2d 306 (Ga. Ct. App. 1946) ( Republication by plaintiff of defamatory matter to prospective

e mpl oyer when defendant knew that plaintiff would have to republish it was publication for a defamation claim.). On the other

hand, it a

ppears t hat the ma

jority vie w i s that self

-publica tion even in8

employment

cases does not satisfy the publication requirement. S ee D eLeon v. Saint Joseph Hospital , 871 F.2d 1229 (4th Cir. 1989) (rejecting the doctrine of self-publication because the doctrine might visit li ability fo r defam ation on every emp loyer ea ch time a j ob applic ant is rejected); Strange v. Nationwide Mutual Ins. Co. , 867 F. Su pp. 1209 (E.D. Pa. 1994) (Pennsylv ania

law does not recognize compelled self-publication as constituting publication for defamation purposeswhen the initial co mmunic atio n is from an employer to an employee regarding the reasons for

the employee’s dismissal.); Gore v. Health-Tex, Inc. , 567 So. 2d 1307 (Ala. 1990) (refusing to hold that a plaintiff’s own repetition of allegedly defamatory statemen ts

can supply the element of publication essential in a slander action) ; Wieder v

. Chemical B

ank , 608 N.Y.S.2d 195 (N.Y. App. Div. 1994) (rejecting the tort of defamation by compelled selfpublication); Atkins v. I ndustr ial Telecommunications Ass’n , 660 A.2d 885 (D.C. 1995) (r efusing to predic t what Vir ginia law would be b ecause

the doctr

ine of co mpelle d self

publication has not been widely accepted). Under the minority view, to allow sel f-public ation to sa tisfy the p ublicatio n requir

eme nts , the courts ge

nerally have developed t

wo appro aches: “ [T]he f

irst appr oach impo ses liabil

ity if the defendant knew or could have fore seen that the plaintiff would be compelled to repeat t he defamatory statemen

t; the sec ond impose s liability i f the defendant knew or could have foreseen that the defe ndant wa s likely

to repeat the statement.” Churchey v. Adolf Coors Co. , 759 P.2d 1336, 1344 (Col. 1988)(emphasis in original). There is a factual difference betwe en a “volunta ry” self -publica tion to rel atives, f

riends,

or o ther third persons, and a necessary disclosure on a n employment application of a fo rme r employer’s stated reason for termination of one’s employment. In an “e mploym ent at will” state, such as Tenne ssee, a t

erminate d emp loyee has very limited recourse upon termination of employme

nt. If an em

ployer ha s stated a

reason f or discha rge of the employee, it is re asonable for the employer to expect that the employee seeking new e mployment will be r eq uired to disclose the reason given for the

termination of the prior

employme

nt. The e mployee h as little choice in applying for new employment and must disclose truthfully the information requested or run the risk of being discovered as a liar at a la ter date. By al lowing “c ompelled” self-p ublicatio n to satisf

y the publi cation r

equirem ent, th e employer is not left n aked. The employer has all the defenses a vailable in any defamation9

action, such as privilege, opinion, truth or lack of culpability or negligence. We ar e persuad ed by the reasoning of the Minnesota Supreme Court in Lewis v. Equitable Life Assura

nc e Soc iety , 389 N.W.2d 876 (Minn. 1986), heretofore quoted. We understandthat

recogni tion of the

principle of compelled self-publication is the minority view, butwe belie

ve that it is the more fair and more just view. The principle of compelled selfpublication in employment cases allows redress for injury where o therwise

an employee is left without a remedy. We believe that the law in Tennessee should recognize theprinciple of compelled selfpublication. We hold

that the publication element required for a defama tion claim can be met if 1 ) the republication of the defamatory statement is rea sonably foreseeable to the defend ant , and 2) the pla

intiff is c ompelled

to republ

ish the defamator

y sta tement. The principle of compelled self-pu

blication should be l

imited to th ose cases in an employment setting in which the plaintiff is forced to republ ish false a nd defamatory reasons for his or her termination on subseque nt job appl

ications. Accordingly, the order of the trial court granting summary judgment to BMH is reversed, and this case is remanded to the trial court for such proceedings as may be necessary. Costs of this appeal are assessed against the appellee.

_________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGH

ERS, JUDGE

____________________________________ DAVID R.FARMER,

JUDGE