Cweklinsky v. Mobil Chemical Co., (SC 16846).

• Court: Supreme Court of Connecticut
• Citation: 837 A.2d 759,267 Conn. 210
• Decision Date: 06 January 2004
• Docket Number: (SC 16846).
• Parties: VICTOR CWEKLINSKY v. MOBIL CHEMICAL COMPANY

267 Conn. 210

837 A.2d 759

VICTOR CWEKLINSKY v. MOBIL CHEMICAL COMPANY

(SC 16846).

Supreme Court of Connecticut.

Argued September 11, 2003.

Officially released January 6, 2004.

Sullivan, C.J., and Borden, Katz, Palmer and Vertefeuille, JS.

Jeffrey J. Tinley, with whom was Robert Nastri, Jr., for the appellant (defendant).

Victoria de Toledo, with whom, on the brief, was Rhonna W. Rogol, for the appellee (plaintiff).

Allison M. Bogosian and Robert B. Mitchell filed a brief for the Connecticut Business and Industry Association, Inc., as amicus curiae.

Opinion

VERTEFEUILLE, J.

The dispositive issue in this case, which comes to us upon acceptance of three certified questions from the United States Court of Appeals for the Second Circuit pursuant to General Statutes § 51-199b (d),¹ is whether Connecticut recognizes a cause of action for defamation based on a former employee's compelled self-publication of a former employer's defamatory statements made by the employer to only the employee.² We conclude that Connecticut does not recognize such a cause of action.

The plaintiff, Victor Cweklinsky, brought a multicount complaint against the defendant, Mobil Chemical Company, in the United States District Court for the District of Connecticut, asserting various claims arising out of the termination of his employment by the defendant.³ The plaintiff's common-law claims for defamation and breach of implied contract, and statutory claims for state and federal retaliatory discharge were tried to a jury, which found for the plaintiff and awarded damages on his defamation and breach of contract claims, but found for the defendant on both of the retaliation claims.⁴ The defendant subsequently appealed from the judgment of the District Court to the United States Court of Appeals for the Second Circuit.⁵ The Court of Appeals then certified to this court three questions of law, which we accepted. See footnote 2 of this opinion.

The following facts, certified by the Court of Appeals, are relevant to our resolution of the certified questions.⁶ "This case arises out of the plaintiff's termination from the defendant. The plaintiff, who had worked as a machinist at the defendant for twenty-five years, was given approximately six weeks of paid medical leave in November of 1998 to undergo carpal tunnel syndrome surgery on his wrist. In December of 1998, the plaintiff's treating physician, Dr. Gerald F. Cambria, gave the plaintiff a return-to-work letter that cleared him to return to full-time, full-duty work on Friday, December 11. On December 11, however, the plaintiff did not report to work. Instead, he went back to Dr. Cambria's office, and met with Carol Giacondino, Dr. Cambria's office manager. The plaintiff requested that Giacondino extend his return-to-work date from December 11 to December 14. He did not tell Giacondino that he already had been scheduled to work on Saturday, December 12 and Sunday, December 13.

"To accommodate the plaintiff, Giacondino altered the plaintiff's copy of Dr. Cambria's December 8 return-to-work letter to reflect that the plaintiff could resume working on December 14. Significantly, Giacondino did not amend the office copy of Dr. Cambria's December 8 letter, nor indicate the change in the plaintiff's file.

"When the plaintiff reported to work on December 14, he gave his (amended) copy of Dr. Cambria's December 8 return-to-work letter to his supervisor, Gerry Smerka. Smerka then consulted with the defendant's human resources manager, Therese Haberman, about the discrepancy in the plaintiff's return-to-work date. As part of her investigation of the issue, Haberman called Dr. Cambria's office and got access to Dr. Cambria's December 8 return-to-work letter from the plaintiff's medical file. The letters were identical with one salient exception: the return-to-work date on the plaintiff's copy was December 14, while Dr. Cambria's office copy had a December 11 return-to-work date.

"Confused by this discrepancy, Haberman made two more phone calls to Dr. Cambria's office, speaking with a different person each time. On both occasions, Dr. Cambria's people assured Haberman that the plaintiff's return-to-work date was December 11. Haberman also contacted . . . the administrator of the defendant's short-term disability plan, which confirmed that it was not aware of any change in the plaintiff's return-to-work date from December 11 to December 14. Concluding that the plaintiff himself must have altered Dr. Cambria's December 8 letter, the defendant decided to fire the plaintiff.

"On January 5, 1999, Smerka and Haberman met with the plaintiff. They told him that he was being terminated because of the obvious discrepancy between Dr. Cambria's office copy and the altered letter that the plaintiff gave the defendant. The plaintiff denied altering Dr. Cambria's letter, but did not inform Smerka or Haberman that it was actually Giacondino who had changed the note at the plaintiff's request." Cweklinsky v. Mobil Chemical Co., 297 F.3d 154, 156-57 (2d Cir. 2002).

After the plaintiff's denial, the defendant investigated further and determined that it was Giacondino, and not the plaintiff, who had altered the letter. Despite this finding, however, the defendant issued a final termination letter, concluding that although the plaintiff had not falsified his return-to-work letter, his employment should nonetheless be terminated because he had taken paid medical leave without a medical basis. Id., 157-58.

During the trial, the plaintiff provided evidence that the statements made by the defendant were defamatory. With regard to publication, counsel for the plaintiff asked him whether he had published the defamatory statements to prospective employers, and if so, whether he had felt "compelled" to do so. The plaintiff responded: "Over and over. And they asked why I was terminated. I told them. That's what they asked."

The question that we must answer is whether Connecticut recognizes a cause of action for defamation based on a former employee's compelled self-publication of a former employer's defamatory statement made only to the employee.⁷ We are mindful that the issue of whether to recognize a common-law cause of action in defamation "is a matter of policy for the court to determine" based upon competing concerns in society. Craig v. Driscoll, 262 Conn. 312, 339, 813 A.2d 1003 (2003). In making such a determination, we acknowledge that the law of torts generally, and the tort of defamation especially, involves competing public policy considerations that must be thoroughly evaluated. After completing our evaluation as set forth herein, we conclude that the public policy considerations that favor the rejection of the doctrine of compelled self-publication defamation outweigh the considerations supporting its recognition. Accordingly, we decline to recognize the doctrine of compelled self-publication defamation.

We begin our analysis with a brief review of the common-law tort of defamation. A defamatory statement is defined as a communication that tends to "harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . . ." (Internal quotation marks omitted.) QSP, Inc. v. Aetna Casualty & Surety Co., 256 Conn. 343, 356, 773 A.2d 906 (2001), quoting 3 Restatement (Second), Torts § 559, p. 156 (1977). To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement. See QSP, Inc. v. Aetna Casualty & Surety Co., supra, 356; 3 Restatement (Second), supra, §§ 558, 580B, pp. 155, 221-22; W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 113, p. 802. With each publication by the defendant, a new cause of action arises. See W. Prosser & W. Keeton, supra, § 113, pp. 799-800. As a general rule, however, no action for defamation exists if the defendant publishes the defamatory statements to only the plaintiff, and the plaintiff subsequently disseminates the statements to a third person. See 3 Restatement (Second), supra, § 577, comment (m), p. 206; W. Prosser & W. Keeton, supra, § 113, p. 802.

Several courts in other states, however, have carved out an exception to that rule in the context of employment.⁸ These courts have concluded that publication to the third party by the defamed former employee, or "self-publication," may satisfy the publication requirement because the person effectively is "compelled" to publish the defamatory statement to prospective employers when the person is asked why he or she left his or her former employment. See, e.g., Lewis v. Equitable Life Assurance Society of the United States, 389 N.W.2d 876, 886-87 (Minn. 1986). These courts reason that it is fair to hold an employer liable for compelled self-publication because it is reasonably foreseeable that the employee, in seeking new employment, will inevitably be asked why he or she left his or her former employment. See id.

The parties in the present case disagree on whether a majority of jurisdictions recognize the doctrine of compelled self-publication defamation. Our own jurisdictional survey leads us to agree with the Court of Appeals' assessment that "most jurisdictions have yet to recognize compelled self-publication defamation or have expressly rejected it."⁹Cweklinsky v. Mobil Chemical Co., supra, 297 F.3d 159. Furthermore, although as many as seven state appellate courts have adopted the doctrine; see footnote 8 of this opinion; the highest appellate courts of only two states, Colorado and Minnesota, have adopted it.¹⁰ Moreover, in both those states, the legislatures responded by eliminating or restricting the doctrine's application.¹¹ After a thorough review of...