Cole v. Chandler

• Court: Supreme Judicial Court of Maine (US)
• Writing for the Court: WATHEN, C.J.
• Citation: 752 A.2d 1189,2000 ME 104
• Decision Date: 26 May 2000
• Parties: Curtis COLE v. Brenda CHANDLER. Curtis Cole v. Pola Buckley and the Mead Corporation.

752 A.2d 1189
2000 ME 104

Curtis COLE
v.
Brenda CHANDLER.
Curtis Cole
v.
Pola Buckley and the Mead Corporation

Supreme Judicial Court of Maine.

Argued April 3, 2000.

Decided May 26, 2000.

752 A.2d 1191

Thomas S. Carey (orally), Joseph R. Saunders, Carey & Assoc., Rumford, for plaintiff

Peter J. DeTroy (orally), Russell B. Pierce Jr., Norman, Hanson & DeTroy, LLC, Portland, for Pola Buckley.

John S. Whitman (orally), Richardson, Whitman, Large & Badger, P.C., Portland, for Brenda Chandler.

752 A.2d 1192

James R. Erwin (orally), Nathan V. Gemmiti, Pierce Atwood, Portland, for Mead Corp

Before WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.

WATHEN, C.J.

[¶ 1] Plaintiff, Curtis Cole, appeals from a judgment entered in the Superior Court (Oxford County, Warren, J.) granting defendants Brenda Chandler's and Pola Buckley's motions for summary judgment in Cole's actions for defamation, invasion of privacy, interference with advantageous economic relations, intentional infliction of emotional distress, and punitive damages. Cole also appeals from a judgment entered in the court (Perkins, J.) granting defendant Mead Corporation's motion for summary judgment in Cole's action for forced publication of libel and slander. Cole argues that the court erred in finding that Chandler and Buckley were immune under the exclusivity provision of the Workers' Compensation Act. Cole also argues that the court erred in finding that, even if we recognize forced publication as a theory of liability, defendant Mead Corporation was protected by either statutory or common law immunity. We affirm in part and vacate in part.

[¶ 2] The facts, viewed in the light most favorable to Cole as the nonprevailing party, may be summarized as follows: Cole was the controller of the Mead Corporation, Publishing Paper Division, Rumford, and the head of the financial department at the Rumford paper mill from April 1, 1997, until October 28, 1997, when his employment was terminated based on the following series of events. Chandler and Buckley were supervised by Cole. In mid-October, 1997, Chandler's husband reported to the human resources manager that Cole had told a sexually explicit joke to Chandler that upset her. The manager confirmed with Chandler that the remark had been made and then asked a representative of the human resources department to investigate. Without naming Cole, the investigator conducted interviews with the persons whom Cole directly supervised. Two of those individuals were Chandler and Buckley. When interviewed Chandler reported the joke and the following incident: In September or October, 1997, when several persons were standing around discussing a seminar in Atlanta that they were to attend and the cost of the accommodations, Cole suggested that the attendees, both male and female, could share rooms if their spouses did not mind. Buckley reported the following incidents: (1) Cole yelled from his corner office to her "hey, Pola, why don't you come in here— we'll close the door and have some fun!"; (2) Cole asked Buckley to go for a drink after work; (3) Cole asked Buckley for a back rub; and (4) Cole told an inappropriate sexual joke. On October 24, 1997, after the interviews, the manager and the investigator interviewed Cole. During that meeting, the manager advised Cole that he was suspended pending further investigation. On October 28, 1997, at the conclusion of Mead's investigation, the manager informed Cole that his employment was terminated.

[¶ 3] Cole brought separate complaints against Chandler and Buckley alleging defamation; invasion of privacy by placing Cole in false light with Mead, other potential employers and the general public; interference with advantageous economic relations; intentional infliction of emotional distress; and punitive damages. The actions were consolidated, and Cole filed an amended complaint alleging an additional count of defamation against Buckley. The amended complaint also added Mead Corporation as a defendant alleging forced publication of libel and slander, that is, that Mead told him that his discharge from employment was for sexual harassment, that it should have known that Cole would be forced to reveal the reasons for his termination in a search for new employment, and that he was forced to republish the libelous and slanderous statements.

752 A.2d 1193

Buckley, Chandler, and Mead filed motions for summary judgment. The court granted Buckley's and Chandler's motions on the basis that they were immune from suit by virtue of the exclusivity and immunity provisions of the Workers' Compensation Act.¹ It granted Mead's motion on the basis that, even if Maine law recognizes defamation by compelled self-publication as a theory of liability, Mead was entitled to immunity by statute or common law. Cole appeals both judgments

[¶ 4] "`We review the entry of summary judgment for errors of law, viewing the evidence in the light most favorable to the party against whom the judgment was entered.'" Prescott v. State Tax Assessor, 1998 ME 250, ¶ 4, 721 A.2d 169, 171 (citation omitted). Summary judgment will be upheld if the evidence produced demonstrates that no genuine issue as to any material fact exists and that the moving party is entitled to judgment as a matter of law. See id.

I. Mead Corporation

[¶ 5] Cole's only claim against Mead is for "forced publication of libel and slander." The elements of defamation are as follows:

(a) a false and defamatory statement concerning another;

(b) an unprivileged publication to a third party;

(c) fault amounting at least to negligence on the part of the publisher; and

(d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.

See Lester v. Powers, 596 A.2d 65, 69 (Me.1991) (citing RESTATEMENT (SECOND) OF TORTS § 558 (1977)). Cole does not allege that Mead communicated the reason for its termination of Cole to any third party and thus the allegedly defamatory statement was not published by Mead. Rather, Cole argues that he himself was forced to publish or communicate the reasons for his termination to prospective employers and that this should satisfy the publication element of the tort of defamation. We need not reach the issue of compelled self-publication, however, because a claim of defamation also requires that the publication be unprivileged, see id., and we find that Mead, in any event, was protected by a conditional privilege under common law.

[¶ 6] Whether Mead is entitled to the common law privilege is a question of law. See Rippett v. Bemis, 672 A.2d 82, 87 (Me.1996). "A conditional privilege against liability for defamation arises in settings where society has an interest in promoting free, but not absolutely unfettered, speech." Lester v. Powers, 596 A.2d 65, 69 (Me.1991) (citations omitted). It may arise "in any situation in which an important interest of the recipient of a defamatory statement will be advanced by frank communication." Rippett v. Bemis, 672 A.2d 82, 87 (Me.1996) (citing Lester v. Powers, 596 A.2d at 70). In Lester, we held that a former student was entitled to a conditional privilege against libel for her letter to a college, as part of a professor's tenure review process, stating her version of the professor's conduct during a particular class. See Lester v. Powers, 596 A.2d at 70. In Gautschi v. Maisel, 565 A.2d 1009 (Me.1989), we held that a faculty member enjoyed a conditional privilege against a claim of slander while serving on a tenure review committee and engaged in reviewing another employee's credentials to determine whether that employee should be granted permanent employment. See id. at 1011. Similarly, Mead was entitled to a conditional privilege in this case against a claim of slander brought by one of its employees arising out of the termination

752 A.2d 1194

of his employment relationship with Mead.

[¶ 7] Cole argues next that, even if Mead is entitled to a conditional privilege, he has raised a genuine issue of material fact whether Mead has abused its privilege. The common law conditional privilege applies unless the originator of the statement abused the privilege. See Gautschi v. Maisel, 565 A.2d 1009, 1011 (Me.1989). Whether the defendant abused his privilege is a question of fact. See Rippett v. Bemis, 672 A.2d 82, 87 (Me. 1996). Once it is determined that the defendant is entitled to the privilege, the burden shifts to the plaintiff "to come forward with evidence that could go to a jury that [the defendant] abused the privilege." Gautschi, 565 A.2d at 1011. Abuse includes making the statement outside normal channels or with malicious intent. See id. (citing Saunders v. VanPelt, 497...