Gernander v. Winona State University, C5-88-500

Citation428 N.W.2d 473
Decision Date30 August 1988
Docket NumberNo. C5-88-500,C5-88-500
Parties48 Ed. Law Rep. 1273 Judy GERNANDER, Appellant, v. WINONA STATE UNIVERSITY, et al., Respondents.
CourtCourt of Appeals of Minnesota

Syllabus by the Court

Respondent's statements in his memorandum to appellant, copies of which were distributed to officers of the University, were mere opinions under the analysis adopted in Capan v. Daugherty, 402 N.W.2d 561 (Minn.Ct.App.1987) and are therefore protected by the first amendment.

Laura J. Seaton, Kellum & Seaton, Judy A. Gernander, Winona, for appellant.

Merwin Peterson, St. Paul, for respondents.

Heard, considered and decided by NIERENGARTEN, P.J., and FOLEY and SCHUMACHER, JJ.



Appellant seeks relief from a summary judgment order dismissing her defamation claim. Appellant argues that the trial court erred in finding that statements in respondent Gieske's memorandum were factual under the four-factor test adopted by this court in Capan v. Daugherty, 402 N.W.2d 561 (Minn.Ct.App.1987).


Appellant Judy Gernander joined the instructional staff at Winona State University in 1970 and served as an assistant professor in the Department of Business Administration and Economics. Five years later appellant's rank was raised to the position of associate professor and in October 1983 appellant applied for a promotion to the rank of full professor.

The promotion application procedure was governed by an agreement between the State University Board (SUB) and the Inter-Faculty Organization/Minnesota Education Association (IFO/MEA). Pursuant to that agreement, appellant's application was considered and voted upon by the faculty of her department. Fourteen members supported appellant's promotion, nine members opposed promotion and eight abstained.

Respondent Michael Gieske, the chair for the Department of Business Administration and Economics, submitted appellant's application to the dean with a statement supporting appellant's promotion. However, the dean disagreed and on March 19, 1984 he recommended to the Vice-President of Academic Affairs that appellant not be promoted.

Appellant was notified of the dean's decision two days later. On March 22, 1984, appellant sent a memo to respondent Gieske requesting a copy of the University's statement of mission and a statement as to how the University contributed toward faculty efforts to meet their obligations in furtherance of that mission.

Respondent Gieske replied on March 23 by sending appellant a memo which read:

                Judy Gernander                             President Stark
                Michael Gieske                             Dr. DuFresne
                Your Memo of March 22                      Dean Gorman

March 23, 1984

A) You may obtain a statement of the Mission of Winona State University

at the President's Office and on page 12 of the current University

catalog which you use for student advising.

B) It is not proper for me to interpret and fully define for the

President how the University contributes toward faculty members

efforts to meet their obligations in furtherance of that mission as

I do not represent the President's Office. Therefore, I am

forwarding your request to that office. While this may not be sufficient help; so that I can be of more help in arguing

your case for promotion, please furnish me with

a) the number of students who enrolled in your special

offering. What To Do [Un]til (sic) the Lawyer Comes,

last Summer (1983) for which Dean Tanner obtained

special funding.

b) your assessment of the value of that offering.
c) a statement defining the difference between a skit and a

play as the word is used in your promotion materials.

d) the appropriate average hours per week you have spent on

campus over the last ten years.

e) the average number of minutes per 50 minute class period

you spent in class over the last several years.

The above information, hopefully, may positively [a]ffect (sic) the

interpretation of the materials you selected to present in support of your

application for promotion. As I am not searching for negative material,

please ignore any particular area which you feel would not reflect


Given more time, I might be able to find more areas that could be strengthened

but I do want to honor your request for a response in one day (by 3/23/84).

I do wish you success in your continued endeavors along this line in so far as

it contributes to the chances of promotion to all of our seven department

members who are also applying for promotion.

Also, in view of your March 30, 1984 deadline, could I please have your

response by March 27, 1984.

Respondent Gieske sent copies of his memo to appellant, the dean, vice-president and president of the University. Gieske also showed this memo to at least three faculty members. On May 10, 1984, appellant was formally denied promotion to full professor. During the following school year, appellant's second application for promotion was granted.

Appellant commenced this action in September, 1984. Her complaint contains four counts alleging among other things that Gieske's memo contained defamatory statements. In June 1985, respondents brought a motion for partial summary judgment on the appellant's defamation count which was denied by the trial court. Two years later respondents brought a motion for a rehearing on their earlier summary judgment. On October 1, 1987, the trial court granted respondents' motion and dismissed appellant's defamation claim, finding that the statements contained in the memorandum were Gieske's opinions and protected by the First Amendment.


Did the trial court err in concluding that respondent Gieske's alleged defamatory statements were opinions protected by the First Amendment?


If the statements in Gieske's memorandum are considered opinions, not facts, the statements are constitutionally protected. Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974). In an earlier case, this court adopted the rule that whether a statement is a fact or opinion is an issue for the court to decide. Erven v. Provost, 413 N.W.2d 861, 863 (Minn.Ct.App.1987) quoting Janklow v. Newsweek, Inc., 788 F.2d 1300, 1305 (8th Cir.1986), cert. denied --- U.S. ----, 107 S.Ct. 272, 93 L.Ed.2d 249 (1986). We adopt that rule in the present case also.

The Janklow four factor analysis is used in determining whether a statement is an opinion or a fact. The factors are:

(a) the precision and specificity of the disputed statement (the more imprecise, the more likely the statement is opinion);

(b) the statement's verifiability (the less verifiable, the more likely opinion);

(c) the literary and social context in which the statement was made (including the entire communication's tone, the use of cautionary language, the category of publication, its style of writing and intended audience); and

(d) the statement's public context (consideration of the public or political arena in which the statement was made)

Capan v. Daugherty, 402 N.W.2d 561, 563 (Minn.Ct.App.1987) quoting Janklow 788 F.2d at 1302-03.

Analysis of the allegedly defamatory memorandum under the four factor test shows that the statements were opinions and not facts.

(a) Precision and Specificity

Throughout the memorandum, Gieske makes statements implying appellant's work was deficient. It expresses no specific facts. An implication is far from a fact.

Appellant argues that two members of the faculty who read the memorandum inferred facts from the memo and used those facts in subsequent negative recommendations for appellant's promotion. However, faculty members judging a candidate's application for promotion would likely consider both facts and opinions of other faculty members. When it is probable a reader would use both statements of fact and opinion, the reader's mere use of a statement does not establish the statement's identity as a fact.

(b) Verifiability

Gieske's memorandum makes five requests for information and by their nature, inquiry...

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    ...The defendants contend that by telling others that Meyer had retired, they were merely stating an opinion. Gernander v. Winona State Univ., 428 N.W.2d 473, 475 (Minn.Ct.App.1988) (citing Janklow v. Newsweek, Inc., 788 F.2d 1300, 1305 (8th Cir.), cert. denied, 479 U.S. 883, 107 S.Ct. 272, 93......
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