Wynn v. Cole

• Decision Date: 06 August 1979
• Docket Number: Docket No. 77-4320
• Citation: 91 Mich.App. 517,284 N.W.2d 144
• Parties: Edward G. WYNN and Victoria M. Wynn, his wife, Plaintiffs-Appellants, v. Verna COLE, Individually and as agent for the City of Flint and the Department of Public Health, City of Flint, Defendant-Appellee. 91 Mich.App. 517, 284 N.W.2d 144
• Court: Court of Appeal of Michigan — District of US

Page 144

284 N.W.2d 144

Edward G. WYNN and Victoria M. Wynn, his wife, Plaintiffs-Appellants, v. Verna COLE, Individually and as agent for the City of Flint and the Department of Public Health, City of

Flint, Defendant-Appellee.

Docket No. 77-4320.

91 Mich.App. 517, 284 N.W.2d 144

Court of Appeals of Michigan.

Aug. 6, 1979.

Released for Publication Oct. 10, 1979.

[91 MICHAPP 518] Neal L. Grossman, Southfield, for plaintiffs-appellants.

Sander H. Simen, Flint, for defendant-appellee.

Before CYNAR, P. J., and HOLBROOK, Jr., and RILEY, JJ.

CYNAR, Presiding Judge.

Plaintiffs appeal as of right from a directed verdict entered against them at the close of their proofs.

Plaintiffs filed this action in 1973 alleging several causes of action against various defendants. Various parties and claims were subsequently dropped and, after one appeal to this Court, Wynn v. Cole, 68 Mich.App. 706, 243 N.W.2d 923 (1976), [91 MICHAPP 519] the case was remanded for trial on plaintiffs' defamation claim against defendant. The substance of this claim was that Victoria Wynn's prospective employer, the Red Cross, had requested information concerning her abilities as a nurse from previous employers, including the Flint Department of Public Health (hereinafter FDPH). Plaintiffs alleged that defendant, in her capacity as Director of the FDPH, had maliciously published to the Red Cross false and defamatory statements regarding plaintiff's previous employment with the FDPH (references to "plaintiff" hereinafter refer to plaintiff Victoria Wynn). The allegedly libelous publication consisted of a form sent out by the Red Cross requesting evaluation of various qualities and abilities of plaintiff. This form also indicated the information would be held in strict confidence. The form was completed and returned to the Red Cross under the names of S. Collins, Supervisor, and M. Cole, Director, FDPH. Although the form does not indicate who filled it out, other than being sent out under both names, the answers were formulated by either Shirley Collins or Verna Cole. The evaluation of ability as fair was made by Shirley Collins. Ability to work in a group was evaluated by Shirley Collins as fair. Intelligence and ability to grasp ideas was evaluated as fair by Shirley Collins. Personality was evaluated by Verna Cole as poor. Stability and dependability was evaluated as fair by Shirley Collins. Character, integrity and honesty was marked fair. Personal appearance was marked average. Under personal handicaps, Shirley Collins wrote "disgruntled about something most of the time". Attendance record is indicated as good. Under the item "would you hire this person into your organization", is "no", and Shirley Collins would not give this evaluation. The reason for [91 MICHAPP 520] leaving was "resignation sick" and may have been written by Shirley Collins. The additional words "Felt Vicki did not really apply herself to the best of her ability. Eager to get on the bandwagon if trouble existed" were the observations of Shirley Collins.

Plaintiff testified that after finishing her nurses training in June 1968, she was employed by the Flint Visiting Nurses Association (hereinafter FVNA) for about 19 months. Her immediate supervisor was Betty Anderson. Plaintiff first met the defendant when the defendant came to the FVNA on a social visit. Plaintiff had a feeling defendant did not like her because she did not speak to her at that time. At a point when she was with the FVNA for about a year, defendant came to work at the FVNA as a director of nursing. Sometime between the fall of 1969 and February 1970, after defendant would come in to speak to different employees but not to plaintiff, the plaintiff asked the defendant what she had done or if there was something she wasn't doing that was upsetting her. Defendant told her, "I just don't like you". The plaintiff also indicated the defendant contended plaintiff talked too much and wasted time coming back to the office when house calls were over. During a conference between plaintiff and defendant, the defendant gave to the plaintiff some literature to read to enable her to have a better insight about herself. A few days after receiving the literature, she was called into the defendant's office and, without being given a reason, was presented with a choice either to quit or be fired. Plaintiff resigned from the FVNA on the promise she would have a better evaluation for another job.

In the spring, sometime in March or April, 1970, plaintiff took a civil service test to work as a [91 MICHAPP 521] junior public health nurse with the FDPH. The director of nursing was Helen Bruening and her immediate supervisor was Shirley Collins. Plaintiff's work was reviewed regularly, and, at one time, she was told she talked too much. After plaintiff had worked for about six months, defendant was hired as a director of the FDPH, replacing Mrs. Bruening. Plaintiff had limited personal contact with the defendant. During the 13-month period while plaintiff worked at the FDPH, two specific incidents took place. Once, after helping to locate a lost chart, plaintiff took the chart to the defendant, put her hand on her shoulder and asked her if that is what she was looking for. Defendant shook plaintiff's hand off her shoulder, said "Don't ever touch me", turned around, went to her office and slammed the door. On another day after she was fired she took her written resignation in and was stopped by the defendant, who asked, "What did you do to Mrs. So-and so. We are getting phone calls what you said to her and what she said to you." "I said, well I didn't do anything to her." After the defendant was there 2 to 3 months, plaintiff went to her and asked if she could be put to work where she could have easy access to the bathroom until the time she was going to have surgery performed or take personal leave, since she did not have sufficient sick leave accumulated. The reason given by defendant for not granting leave was that the City of Flint was having a financial crisis, and the job would not be filled if she left. She was told to resign or be fired, and she resigned. The plaintiff submitted a letter of resignation but denied the choice of words were hers. Although this was a civil service position, she did not become aware of a grievance procedure until 3 to 4 years after she left.

[91 MICHAPP 522] Plaintiff was working in a private nursing home in Flint when she applied for a position as a nurse with the Red Cross and had an interview about the first week of February, 1973. Plaintiff left the interview with a feeling she was hired subject to work recommendations being received from past employers. She submitted her resignation to the nursing home. One day before her last day at the nursing home, plaintiff received a call from the director of nursing at the Red Cross, stating she was not fit for work with the Red Cross because she received an unsatisfactory work rating from an undisclosed party.

Defendant testified she was the director of nursing at the FDPH when she received a reference form from the Flint Red Cross regarding the plaintiff. After a discussion, the form was filled out by Shirley Collins with her approval. The completed form contained the combined opinion of Shirley Collins and defendant, and Shirley Collins signed the completed form with her approval. Opinions of Verna Cole were based on what she learned herself and from various people, including Mrs. Collins.

Defendant was hired on December 1, 1970. Plaintiff called in sick on December 16, 1970, and did not return until early February when she said she had to have surgery and inquired about sick leave. She was told she could have sick leave. She was on sick leave until she wrote a letter of resignation sometime later in February.

According to Carol Krumbach, who was a director at the American National Red Cross at the time plaintiff sought employment as a nurse, it was standard procedure to send out reference forms to former employers. A response was received from the FDPH and it was a factor in the [91 MICHAPP 523] decision not to employ the plaintiff. While not knowing how to describe it, the reference form played a part in not employing the plaintiff.

...