Chambers v. American Trans Air, Inc.

• Decision Date: 04 September 1991
• Docket Number: No. 49A02-9010-CV-585,49A02-9010-CV-585
• Citation: 577 N.E.2d 612
• Parties: 120 Lab.Cas. P 56,724 Becky CHAMBERS, Appellant-Plaintiff v. AMERICAN TRANS AIR, INC., Laura Knowles and John Piburn, Appellees-Defendants. 1
• Court: Indiana Appellate Court

Page 612

577 N.E.2d 612

120 Lab.Cas. P 56,724

Becky CHAMBERS, Appellant-Plaintiff v. AMERICAN TRANS AIR, INC., Laura Knowles and John Piburn,

Appellees-Defendants.

No. 49A02-9010-CV-585. ¹

Court of Appeals of Indiana,

Fifth District.

Sept. 4, 1991.

Gordon Dempsey, Indianapolis, for appellant-plaintiff.

Gregory J. Utken, Todd M. Nierman, Baker & Daniels, Indianapolis, for appellees-defendants.

RUCKER, Judge.

Becky Chambers filed suit for defamation against her former employer, American Trans Air, Inc., and two former supervisors, Laura Knowles and John Piburn. The trial court entered summary judgment against Chambers and she appeals. The sole issue presented for our review is whether the trial court erred in granting summary judgment in favor of American Trans Air, Inc., Laura Knowles and John Piburn. Finding no error, we affirm.

I.

Chambers was employed by American Trans Air, Inc. (ATA) from October 1982 to July 1987. During part of that time Knowles was Chambers' supervisor and Piburn was Knowles' supervisor.

Chambers resigned from ATA after a dispute over working conditions. She then sought new employment. When asked by prospective employers the names of her supervisors at ATA, Chambers named Knowles and Piburn as references. Chambers began experiencing difficulty in finding new employment and the pattern of responses Chambers was receiving from prospective employers led her to become suspicious of the ATA references.

In an effort to determine the nature of the references ATA was providing prospective employers, Chambers instructed her mother to call ATA, represent herself as a prospective employer and ask to speak with Chambers' supervisors. Chambers was aware of ATA policy that inquiries concerning former employees should be directed to the company's personnel department. However, Chambers' instructions to her mother were tailored to avoid having the inquiries forwarded to personnel.

Chambers' mother was able to speak with Knowles and to ask specific questions concerning Chambers. In response Knowles made the following statements: "could work without supervision on occasion," "did not get along well with other employees," and "was somewhat dependable."

At Chambers' request, Chambers' boyfriend also called ATA, represented himself as a prospective employer and spoke to Piburn. In response to specific questions posed to him Piburn replied that Chambers: "does not work good with other people," "is a trouble maker," "was not an accomplished planner," and "would not be a good person to rehire."

Chambers brought this action against ATA, Knowles and Piburn, alleging that the foregoing statements were defamatory. Chambers contends the defendants have similarly defamed her with prospective employers. However, there is no evidence indicating any prospective employers of Chambers spoke to Knowles or Piburn or contacted ATA for a reference.

ATA, Knowles, and Piburn moved for summary judgment advancing various theories including lack of publication, consent, and qualified privilege. The trial court determined that as a matter of law there was no publication of the statements of Knowles and Piburn and entered summary judgment against Chambers.

The purpose of summary judgment is to terminate litigation for which there can be no factual dispute and which can be determined as a matter of law. Bassett v. Glock (1977), 174 Ind.App. 439, 368 N.E.2d 18. On an appeal from a summary judgment, we must determine whether the record reveals a genuine issue of material fact and whether the trial court correctly applied the law. Any doubt as to a fact, or an inference to be drawn, is resolved in favor of the nonmoving party. Schrader v. Mississinewa Community School Corp. (1988), Ind.App., 521 N.E.2d 949. Summary judgment will be affirmed if it is sustainable upon any theory supported by the record. Aetna Ins. Co. of Midwest v. Rodriquez (1987), Ind.App., 504 N.E.2d 1030.

In order to determine whether a genuine issue of fact exists, we must accept as true all facts alleged by the nonmoving party and resolve any doubt as to the existence of a genuine issue of fact against the moving party. Olsson v. Indiana University Board of Trustees (1991), Ind.App., 571 N.E.2d 585. Even though conflicting facts on some elements of a claim exist, summary judgment may be proper when there is no dispute or conflict regarding a fact which is dispositive of the action. Woodward Ins. Inc. v. White (1982), Ind., 437 N.E.2d 59, reh. denied.

II.

The basic elements of an action in defamation are a defamatory imputation, malice, publication, and damages. Shallenberger v. Scoggins-Tomlinson, Inc. (1982), Ind.App., 439 N.E.2d 699. In granting summary judgment the trial court determined there was no publication of the alleged defamatory statements because Chambers' mother and boyfriend were acting as her agents.

In support of its ruling the trial court relied on Brockman v. Detroit Diesel Allison Div., Etc. (1977), 174 Ind.App. 240, 366 N.E.2d 1201, reh. denied. In Brockman the alleged defamatory statement occurred in a grievance meeting between the employee's union representative and the employer's management representative. We affirmed the trial court's judgment in favor of the employer, holding "publication to an agent of plaintiff who is acting at plaintiff's behest and on his behalf is tantamount to a publication to plaintiff himself, and as such does not fulfill the publication requirement." Id. at 1203.

Chambers cites various authorities which she contends are inconsistent with Brockman and argues that we should either reject its reasoning outright or refuse to apply it to the present facts. However, in this summary judgment action we are not bound by the trial court's rationale. Rather, we stand in the position of the trial court and consider the same matters; we may affirm the trial court's judgment if it is sustainable on any theory supported by the record. Havert v. Caldwell (1983), Ind., 452 N.E.2d 154 reh. denied; Moll v. South Central Solar Systems, Inc. (1981), Ind.App., 419 N.E.2d 154. We have no need to address Brockman here because the trial court's judgment can be readily sustained on the ground of qualified privilege.

III.

Qualified privilege is a defense to a defamation action and it applies to "communication made in good faith on any subject matter in which the party making the communication has an interest or in reference to which he has a duty, either public or private, either legal, moral, or social, if made to a person having a corresponding interest or duty." Elliott v. Roach (1980), Ind.App., 409 N.E.2d 661, 672, quoting 18 I.L.E. Libel and Slander Sec. 52 at 475 (1959). The privilege arises out of the necessity for full and unrestricted communication on matters in which the parties have a common interest or duty. Shallenberger, supra.

Whether a statement is protected by a qualified privilege is a matter of law, unless facts giving rise to the privilege are in dispute. Cross v. Fire Dept. Pension Fund (1989), Ind.App., 537 N.E.2d 544. This court has held that various communications are protected as privileged, including those between employers and employees, business partners, members of fraternal organizations, creditors and credit agencies. See Boydston v. Chrysler Credit Corp. (1987), Ind.App., 511 N.E.2d 318. We have not, however, had occasion to determine whether a qualified privilege exists regarding a former employer's statements given to a prospective employer concerning a former employee. We now hold that it does.

As a general rule an employee reference given by a former employer to a prospective employer is clothed with the mantle of a qualified privilege. See Prosser & Keaton, Torts, Ch. 19, Sec. 115, at 827 (5th ed. 1984); 50 Am.Jur.2d, Libel & Slander Sec. 273, at 791 (1970). A former employer has an interest in open communications with a prospective employer regarding a former employee's work characteristics. Swanson v. Speidel Corp. (1972), 110 R.I. 335, 293 A.2d 307, 310. Without the...