Cua v. Ramos

Decision Date01 April 1982
Docket NumberNo. 482S128,482S128
Citation433 N.E.2d 745
PartiesRosita L. CUA, Appellant, v. Virginia G. RAMOS, Blas Davila, Appellees.
CourtIndiana Supreme Court

Donald A. Schabel, Indianapolis, Stephen H. Free, Christian, Waltz, White, Klotz & Free, Noblesville, for appellant.

Linley E. Pearson, Atty. Gen., Robert S. Spear, Robert F. Hassett, Deputy Attys. Gen., Indianapolis, for appellees.

PIVARNIK, Justice.

This cause comes to us on a petition to transfer from the Second District Court of Appeals. Plaintiff-appellant, Rosita L. Cua, brought an action against Defendants-Appellees, Virginia G. Ramos and Blas Davila, for compensatory and punitive damages on account of an allegedly false performance report that Defendants submitted to the State Personnel Division, in which they assigned Cua an unsatisfactory rating. A Hamilton Circuit Court jury found in favor of Ramos and Davila. The Court of Appeals, Second District, reversed the decision of the trial court. Cua v. Ramos, (1981) Ind.App., 418 N.E.2d 1163.

The question presented for review is whether the Court of Appeals erred in holding that the trial court, in refusing to give Cua's instruction No. 5, committed prejudicial error. We find the Court of Appeals to be in error on this issue and accordingly vacate its opinion. In addition, we will also decide other issues that were presented below.

On February 15, 1976, Cua was appointed to the position of psychiatrist at Central State Hospital. At the time, Ramos also was a psychiatrist at Central State Hospital and Senior Physician in the Bolton Building, where Cua was assigned. Davila was chief of services at the Bolton Building. Both Ramos and Davila were charged with the supervision of Cua and evaluation of her performance. In December, 1976, Ramos and Davila submitted a performance report to the Indiana State Personnel Division pursuant to a statutory duty imposed upon them as the appointing authority under Ind.Code § 4-15-2-21 (Burns 1982 Repl.) which reads in relevant part:

"... At such times during the working test period and in such manner as the director may require, the appointing authority shall report to the director his observation of the employee's work, and his judgment as to the employee's willingness and ability to perform his duties satisfactorily, and as to his habits and dependability ...."

(Acts 1941, ch. 139, § 22, p. 387.)

The report read as follows:

                                   CATEGORY                     RATING
                                   --------                     ------
                Planning--Sets realistic goals and objectives
                --------
                anticipates and prepares for future
                requirements; establishes logical priorities:   NEEDS IMPROVEMENT
                Leadership--Sets high standards; provides a
                ----------
                good managerial example; delegates authority
                and responsibility effectively:                 NOT SATISFACTORY
                Subordinate Development--Helps
                -----------------------
                subordinates in job development; gives
                guidance and counseling:                        NOT SATISFACTORY
                Human Relations--Establishes and maintains
                ---------------
                cordial work climate; promotes harmony
                displays sincere interest in assisting
                employees:                                      NOT SATISFACTORY
                Quantity of Work--Consider amount of work
                ----------------
                generated to amount of work expected for
                current job or position:                        NOT SATISFACTORY
                Quality of Work--Consider overall knowledge
                ---------------
                of duties and responsibilities and
                completeness and accuracy of work:              MEETS REQUIREMENTS
                Use of Time--Consider attendance; is punctual
                -----------
                reporting to work; accomplishes
                required work on or ahead of schedule:          NOT SATISFACTORY
                Initiative--Consider amount of direction or
                ----------
                supervision required and concern for
                consistency in trying to do better:             NOT SATISFACTORY
                

The possible ratings were "SUPERIOR, HIGHLY SATISFACTORY, MEETS REQUIREMENTS, NEEDS IMPROVEMENT," and "NOT SATISFACTORY." Ratings which were less than "MEETS REQUIREMENTS" were explained:

1) Quanity (sic) of Work-Substandard for position. More concerned with who is doing less than she, rather than her own output.

3) Use of time-Poor. Spends much time in closed office and out of building. Often cannot be found when needed. Ward visits brief and not frequent enough.

4) Initiative-Requires frequent supervision and direction. Must be asked to do routine duties.

5) Planning-Generally waits till last minute to inform team of plans, especially absences.

6) Leadership-Rejects leadership role. Provides poor managerial example. Makes demands of others without willing to do own share.

7) Subordinate Development-Does nothing to enhance growth of her subordinates.

8) Human Relations-Very poor interpersonnal (sic) relationship with staff and peers. Has interest only in own personal concerns.

Record at 511.

The Superintendent at Central State Hospital, Eric Helmer, testified that it was standard operating procedure to delegate Cua's rating to her supervisors and that it was standard operating procedure for the explanations to be included in substandard ratings as was done in this report. On January 14, 1977, Ramos and Davila sent a memorandum to Superintendent Helmer recommending that Cua not be granted permanent status as provided for in the State Personnel Act, and that her employment be terminated. On January 20, 1977, Superintendent Helmer sent a letter of notification to Cua stating that she would be dismissed on January 31, 1977, because of unsatisfactory work performance.

I.

One of the specifications of error assigned by Cua was the refusal of the trial court to give to the jury Cua's tendered instruction No. 5. The Court of Appeals found that the refusal of instruction No. 5 was prejudicial error requiring the granting of a new trial to plaintiff. Cua's tendered instruction No. 5 provided as follows:

"The explanation given by the defendants for the non-satisfactory performance rating that they assigned to plaintiff is plain, unambiguous, and susceptible of but one interpretation. Therefore, whether the explanation was defamatory or not is a question of law, and it is the duty of the court to instruct the jury as to whether or not the explanation can constitute a libel. Since the tenor of the language is to charge plaintiff with being a wholly unfit, incompetent and undesirable state employee, the imputation was such as to injure plaintiff in her employment at Central State Hospital and in her profession as a physician and psychiatrist. Accordingly, I instruct you that the explanation that defendants attached to the performance report on plaintiff can constitute a libel as that term is defined in these instructions."

The Court of Appeals held that the tendered instruction would have informed the jury that the report filed by defendants constituted libel per se as a matter of law and the jury did not have the right to determine whether or not it was libel. The Court of Appeals did, however, indicate in their opinion that the instruction would need to be modified on retrial since it was overbroad in its statement as to the extent of defamation. We note the instruction states that the tenor of the language is to charge plaintiff with being wholly unfit, incompetent, and undesirable as a State employee. These are qualifications that are themselves subject to determination of the trier of fact and should not be imposed on the jury as acceptable characterizations as a matter of law. Judge Sullivan pointed out in his dissent that our holding in Van Sickle v. Kokomo Water Works Company, (1959) 239 Ind. 612, 158 N.E.2d 460, provided that, "the question upon appellate review is whether the court had the duty to give the instruction precisely as presented." Cua, supra, at 418 N.E.2d at 1171. A trial court does not have a duty to modify a defective instruction. Ricketts v. Harvey, (1886) 106 Ind. 564, 6 N.E. 325:

"It is settled law that a court is not bound to remodel an instruction, by remedying its defects or removing its infirmities; unless the party is entitled to have it given in terms as prayed, the court may properly refuse it. Goodwin v. State, 96 Ind. 550, and authorities cited, p. 566."

This rule has been followed by this Court in Van Sickle, supra, and by the Court of Appeals in State Highway Comm., v. Jones, (1977) 173 Ind.App. 243, 363 N.E.2d 1018; Northern Indiana Public Service Co., v. Otis, (1969) 145 Ind.App. 159, 250 N.E.2d 378.

The court did instruct the jury that libel is defined as a malicious publication expressed either in writing or printing, of a false statement to blacken the reputation of one who is alive and expose him or her to public hatred, contempt or ridicule. The jury was also instructed that truth was a defense to libel in that the defendants must prove by a preponderance of the evidence that the written reasons in the report were true. The evidence showed that these reports were considered confidential and were not exposed to the general public. Furthermore the language implied in them is not inflammatory or expressed in terms that would connote maliciousness unless, of course, they were totally unfounded and untrue. There was a great deal of evidence, from staff members in the hospital and from patients, that supported the report made against Cua, although there was conflicting testimony which tended to refute the statements made concerning Cua's performance in the various categories. Testimony from other doctors, nurses, social workers, and other staff personnel indicated that Cua would fail to have the required regular sessions with her patients and that she would refuse to talk to them and order them to "go away" when they came to see her. Nurse Kennedy testified that on occasion she would knock on Dr. Cua's door and after having received no response, open the door to find Cua inside with a book or magazine on her desk. Doug Davis, a social worker, had the same trouble finding Dr. Cua when she...

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