Dominguez v. Babcock
| Decision Date | 03 November 1986 |
| Docket Number | No. 84SC366,84SC366 |
| Parties | 35 Ed. Law Rep. 791 Richard F. DOMINGUEZ, Petitioner, v. Henry A. BABCOCK; Joan N. Brooks; C. Richard Groves; Scott J. Marshall; Deborah A. Carnell; Richard S. Culver; Robert R. Faddick; Richard D. Gauthier; Mark W. Ljungvall; Dale Foreman; Robert J. Taylor; Harry C. Peterson; Karl R. Nelson; Gabriel M. Neunzert; James W. Martin; James G. Johnstone; Fred R. Leffler; William Mueller; Harry W. Emrick; the Colorado School of Mines, Respondents. |
| Court | Colorado Supreme Court |
James E. Goldfarb, Greengard & Senter, Denver, for petitioner.
Daniel R. Satriana, Jr., Alan Epstein, Hall & Evans, Denver, for respondents.
We granted certiorari in Dominguez v. Babcock, 696 P.2d 338 (Colo.App.1984), to consider whether the Jefferson County District Court erred in granting summary judgment to the defendants because Dominguez, the plaintiff, consented to publication of allegedly defamatory material and because Dominguez failed to establish that the publication was made with malice. The court of appeals, holding that there was a genuine factual issue concerning whether Dominguez consented to the publication of the allegedly libelous material but that Dominguez had failed to show a genuine factual issue concerning the existence of actual malice, upheld the district court's entry of summary judgment for the defendants. We affirm the judgment of the court of appeals.
In June 1979, Dominguez entered into a contract with the Colorado School of Mines (CSM) for employment as a full professor and head of the Basic Engineering Department for the 1979-80 school year. Dominguez, a nontenured probationary employee, and CSM entered a similar contract for the 1980-81 school year. In a document dated August 25, 1980, submitted to defendant William Mueller, Vice-President of Academic Affairs, eighteen faculty members of the Basic Engineering Department, all named as defendants, stated that they had no confidence in the leadership of Dominguez and requested that Dominguez be assigned to other duties for his contract period and that an interim department head be appointed. In support of their request, the faculty members noted that Dominguez had appointed himself to the summer school staff but had spent no time performing his duties, that Dominguez had appropriated the use of department equipment, gifts, secretarial services, office space, computer time and the travel budget to himself, that he was unconcerned with undergraduate students, that his assignment of teaching schedules created hardships for both faculty and students, that he had failed to consult with faculty on textbook selection and teaching assignments and had failed to create a promotion review committee, that his classroom performance was poor, that he was uninvolved in department planning, that he had threatened staff members and had hired new staff at higher salaries than existing staff while requiring existing staff to complete duties assigned to new staff members, that he was focusing on new and unauthorized departmental programs to the detriment of existing programs, and that he had difficulties working with other faculty members.
On August 25 or 26, 1980, Mueller gave Dominguez a copy of the faculty members' August 25 demand for his removal as department head. Dominguez asserts that at that time he asked Mueller "for accountability of the faculty that made the statements." Mueller testified that when Dominguez received a copy of the August 25 memorandum Dominguez asked that those who had signed the memorandum "be required to substantiate in writing or otherwise the matters that were contained in [the August 25 memorandum]." In a memorandum dated September 4, 1980, also submitted to Mueller, the eighteen faculty members set forth a more detailed explanation of their position and made additional allegations that Dominguez abruptly canceled a thermodynamics course, assigned all student advising to one faculty member, denied requests for textbooks, failed to consider a request for promotion, and recommended a below average raise for a faculty member. Sometime between September 9 and 11, 1980, Dominguez resigned as department head but remained a faculty member in the department. On February 6, 1981, Mueller notified Dominguez that his contract would not be renewed for the following school year because of the existence of friction between Dominguez and other faculty members. After an administrative hearing on March 24, 1981, the Faculty Review Committee determined that Dominguez would not be entitled to further administrative appeal concerning nonrenewal of his contract.
On August 10, 1981, Dominguez filed a complaint in the District Court of Jefferson County, seeking damages for defamation, negligence, outrageous conduct, breach of contract, and violation of civil rights protected by 42 U.S.C. § 1983 (1982). The defendants requested summary judgment on all of Dominguez's claims, and Dominguez sought partial summary judgment on his claims for breach of contract and violation of civil rights. The district court granted the defendants summary judgment on all claims. The court found that Dominguez had consented to the publication of the September 4 memorandum. The court also ruled that Dominguez had failed to give the required notice under section 24-10-109, 10 C.R.S. (1982), with respect to the August 25 memorandum. Because of the defendants' qualified privilege with respect to the memoranda, the court held that the defendants could not be found liable for negligent action in publishing the memoranda but only for malice, which Dominguez had failed to prove, and that the defendants' behavior did not rise to the level of outrageous conduct. Finally, the court determined that Dominguez had no contractual or constitutionally protected interest in further employment and that therefore CSM's failure to follow specified procedures in not renewing the contract did not entitle Dominguez to damages. The court of appeals affirmed the district court's dismissal of Dominguez's claims, ruling that, although there was a genuine factual issue concerning whether Dominguez consented to publication of the September 4 memorandum, Dominguez failed to present sufficient evidence that the defendants acted with actual malice to survive a summary judgment motion.
Dominguez asserts that summary judgment on the defamation claim was improper because his request that the faculty be accountable for the August 25 memorandum was not consent to publication of the September 4 memorandum. Section 583 of the Restatement (Second) of Torts (1977) provides, "Except as stated in § 584, the consent of another to the publication of defamatory matter concerning him is a complete defense to his actions for defamation." See also Melcher v. Beeler, 48 Colo. 233, 110 P. 181 (1910). "Consent" as used in section 583 means "willingness in fact for conduct to occur." Restatement (Second) of Torts § 892(1) (1979). Apparent consent, or "words or conduct ... reasonably understood by another to be intended as consent," also bars recovery. See Restatement (Second) of Torts § 583 (1977), Restatement (Second) of Torts § 892(2) (1979). Section 584, an exception to section 583, provides that "[a]n honest inquiry or investigation by the person defamed to ascertain the existence, source, content or meaning of the defamatory publication is not a defense to an action for its republication by the defamer." Restatement (Second) of Torts (1977). A request for reasons for another's actions, however, is consent to publication of the reasons. Id. § 583 comment d, illustration 2. For example, a teacher whose contract is not being renewed may verify the existence and learn the content of defamatory statements but consents to publication of defamatory material if he asks for the reasons for dismissal. Lee v. Paulsen, 273 Or. 103, 539 P.2d 1079 (1975).
Although consent is a complete defense to an action for defamation, Melcher, 48 Colo. 233, 110 P. 181; Costa v. Smith, 43 Colo.App. 251, 601 P.2d 661 (1979), and the question of whether communication is privileged is one for the court, Abrahamsen v. Mountain States Telephone & Telegraph Co., 177 Colo. 422, at 427, 494 P.2d 1287, at 1289 (1972), see part III, infra, consent in this case is a factual question that makes summary judgment inappropriate. Summary judgment is proper only when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits fail to show that there is a genuine issue of material fact. Roderick v. City of Colorado Springs, 193 Colo. 104, 563 P.2d 3 (1977); C.R.C.P. 56(c). In addition, all doubts concerning summary judgment should be resolved against the moving party. Abrahamsen v. Mountain States Telephone & Telegraph Co., 177 Colo. 422, 494 P.2d 1287 (1972).
After receiving a copy of the August 25 memorandum, Dominguez testified that he asked Mueller "for accountability of the faculty that made the statements." In a written response to the August 25 memorandum, Dominguez stated that the faculty's statements were inaccurate and could not be substantiated and that the charge of appropriation of equipment, secretarial services, office space, computer time, and travel budget for personal use was a "libelous statement made without substantiation and requir[ing] either accountability by those who made it or retraction." Mueller testified that Dominguez asked for written substantiation of the matters contained in the August 25 memorandum.
Dominguez unquestionably asked for substantiation of the charge of appropriation of CSM property for personal use, but there is a genuine issue of material fact concerning whether Dominguez requested substantiation of the other statements in the August 25 memorandum, and, if so, whether such a request constituted consent to the September 4 memorandum. Moreover, the September 4 memorandum contained both substantiation for the ...
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