Larson v. Decatur Memorial Hosp.

• Decision Date: 29 October 1992
• Docket Number: No. 4-92-0319,4-92-0319
• Citation: 602 N.E.2d 864,236 Ill.App.3d 796,176 Ill.Dec. 918
• Parties: , 176 Ill.Dec. 918, 126 Lab.Cas. P 57,486, 8 IER Cases 213 Melody LARSON, Plaintiff-Appellant, v. DECATUR MEMORIAL HOSPITAL, a Corporation, and James Scherer, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 864

602 N.E.2d 864

236 Ill.App.3d 796, 176 Ill.Dec. 918,

126 Lab.Cas. P 57,486,

8 IER Cases 213

Melody LARSON, Plaintiff-Appellant, v. DECATUR MEMORIAL HOSPITAL, a Corporation, and James Scherer Defendants-Appellees.

No. 4-92-0319.

Appellate Court of Illinois,

Fourth District.

Oct. 29, 1992.

Gregory L. Barnes, Gregory L. Barnes, Ltd., Decatur, for plaintiff-appellant.

Ronald L. Lipinski, Elizabeth H. Skalitzky, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, for defendants-appellees.

Justice STEIGMANN delivered the opinion of the court:

Plaintiff, Melody Larson, an employee of Decatur Memorial Hospital (DMH), brought a defamation action against DMH and James Scherer, a vice-president at DMH. Defendants filed a motion for summary judgment, alleging that Scherer's statements were protected against a defamation action by a qualified privilege because he made them during an internal investigation of the conduct of one of DMH's employees. The trial court granted the motion, and plaintiff appeals.

We affirm.

I. BACKGROUND

On September 10, 1990, Linda Pieszala, assistant (and acting) director of personnel at DMH, told Scherer, the vice-president of nonclinical support services at DMH, that she had been informed of discussions involving DMH employees possibly using drugs in the engineering department of DMH. Scherer told Pieszala that she should obtain a signed statement from the employee she heard speaking before he would proceed with an investigation. Pieszala then did so, and the statement alleged that plaintiff, a secretary in the engineering department, sold marijuana to fellow DMH employees and that her husband grew it in their basement at home. The statement also named four DMH employees who "frequently buy pot from Melody." Pieszala also informed Scherer that she believed the allegations were true. Scherer subsequently conducted an internal investigation of the allegations by interviewing plaintiff as well as the four DMH employees named in the statement. Everyone interviewed denied the allegations.

Scherer interviewed plaintiff on September 11, 1990, when he summoned her to his office. Larry Harris, supervisor in the engineering department, escorted plaintiff to Scherer's office. When they arrived, Pieszala was already present. Scherer informed plaintiff that he had reason to believe that she was selling and using marijuana on hospital premises and that the hospital had a good rehabilitation program which plaintiff should use to seek professional help. Scherer explained that DMH had a duty to investigate these allegations and to provide rehabilitation for its employees. Plaintiff immediately denied the allegations and volunteered to take a urine test (which ultimately came back negative for marijuana).

Disgruntled with the way Scherer handled the investigation, plaintiff filed a grievance with DMH on September 12, 1990. A few days later, Scherer again called plaintiff to his office, this time to discuss the results of her urinalysis. Michael Jontry, director of the DMH engineering department in which plaintiff worked, accompanied her to Scherer's office. Plaintiff brought a tape recorder to the meeting and told Scherer that in order to protect her interests, she would not proceed with the meeting unless she could record the conversations. Scherer refused to be recorded because the matter was "still [an] internal" concern. They said nothing further and the meeting ended.

On October 5, 1990, Scherer sent plaintiff a memorandum in response to her grievance, which stated that the investigation into plaintiff had been completed and no disciplinary action would be taken. Plaintiff has since retained her position with DMH, and no entry was made on her personnel file regarding the marijuana allegations or the subsequent investigation.

II. PLEADINGS

In October 1990, plaintiff filed a four-count complaint against Scherer and DMH. Counts I and II accused Scherer and DMH, through its employee Scherer, of maliciously defaming plaintiff by publishing a knowingly false statement about plaintiff. Counts III and IV accused Scherer and DMH, again through Scherer, of maliciously defaming plaintiff by publicizing a statement about her with reckless disregard for its truth.

A. Defamation

Plaintiff based her complaint of defamation on Scherer's statements to her in the presence of Pieszala and Harris. A statement is defamatory per se, allowing damages to be presumed, if it "impute[s] the commission of a criminal offense." (Mittelman v. Witous (1989), 135 Ill.2d 220, 238, 142 Ill.Dec. 232, 241, 552 N.E.2d 973, 982.) Scherer's statements to plaintiff in fact accuse her of selling and using marijuana, both criminal acts under Illinois law. (See Ill.Rev.Stat.1989, ch. 56 1/2, pars. 704, 705.) Further, because he made his statements in front of two other DMH employees, Scherer "published" them to someone other than plaintiff and himself. (Ely v. National Super Markets, Inc. (1986), 149 Ill.App.3d 752, 102 Ill.Dec. 498, 500 N.E.2d 120.) Therefore, his statements are defamatory per se unless some privilege applies to them.

B. Defendants' Claim of Qualified Privilege

In December 1991, defendants moved for summary judgment on all counts, claiming that they acted within a qualified privilege when Scherer made the statements in question. An otherwise defamatory statement is not actionable if made under a qualified privilege. Statements made within a legitimate business context may be protected by a qualified privilege, including a statement made from employer to employee. (Miller v. Danville Elks Lodge 332 (1991), 211 Ill.App.3d 145, 153-54, 155 Ill.Dec. 549, 554, 569 N.E.2d 1160, 1165; Krasinski v. United Parcel Service, Inc. (1988), 124 Ill.2d 483, 490, 125 Ill.Dec. 310, 313, 530 N.E.2d 468, 471.) A statement is conditionally privileged when the defendant makes it (1) in good faith; (2) with an interest or duty to be upheld; (3) limited in scope to that purpose; (4) on a proper occasion; and (5) published in a proper manner and only to proper parties. Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill.2d 345, 349, 243 N.E.2d 217, 221.

Defendants base their claim of a qualified privilege on testimony contained in the depositions of plaintiff, Scherer, Pieszala, and Harris filed in support of their motion. Defendants claim that those depositions establish that Scherer made the statements in question as part of an internal investigation of drug sales and use of drugs on DMH premises.

C. Plaintiff's Response

In response to defendants' motion for summary judgment, plaintiff primarily argued that Scherer lacked the requisite good faith for the privilege. In support of this argument, plaintiff presented a portion of Jontry's deposition in which he described the events when he accompanied plaintiff to Scherer's office. As previously noted, plaintiff left the office when Scherer would not permit her to record their conversation. Jontry remained behind, and Scherer asked him what kind of an employee plaintiff was. Jontry told Scherer that plaintiff was a good employee and did her job quite well. Plaintiff's counsel then asked the following questions and elicited the following answers from Jontry at his deposition:

"Q. [Counsel for plaintiff:] Did you believe that when he asked you about what type of employee that she was that he was searching for a reason to terminate her?

A. Yes.

Q. And why do you think that he was wanting to do that?

A. I have forgotten, obviously, some of the conversation that took place. It's been almost a year and a half now we've been into this, but that was a feeling I had at the time. He wanted some reason to get her out of here, out of the hospital.

Q. And this was a conversation that took place after she requested to tape the meeting?

A. Yes."

In March 1992, the trial court granted defendants' motion, finding no genuine issue of material fact present. Plaintiff argues on appeal that the court erred in doing so because a genuine issue of material fact exists regarding Scherer's good faith when making the statements in question to plaintiff. Alternatively, plaintiff contends that if defendants were acting within a qualified privilege, a genuine issue of material fact exists as to whether Scherer acted with malice when making the statements, so as to defeat defendants' claim of qualified privilege, and render erroneous the grant of summary judgment. Miller, 211 Ill.App.3d at 154, 155 Ill.Dec. at 555, 569 N.E.2d at 1166.

III. SUMMARY JUDGMENT

A. Summary Judgment in General

Summary judgment is properly granted when the pleadings, depositions, and the affidavits show that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Kuwik v. Starmark Star Marketing & Administration, Inc. (1992), 232 Ill.App.3d. 8, 12, 173 Ill.Dec. 543, 546, 597 N.E.2d 251, 254.) On review, this court must determine de novo if the trial court correctly decided that no genuine issue of material fact exists. (Wright v. St. John's Hospital of the Hospital Sisters of the Third Order of St. Francis (1992), 229 Ill.App.3d 680, 683, 171 Ill.Dec. 250, 252, 593 N.E.2d 1070, 1072; Ill.Rev.Stat.1991, ch. 110, par. 2-1005(c).) Because a trial court does not have any discretion in deciding whether to grant a motion for summary judgment, we will not employ the abuse-of-discretion standard on review of the granting of that motion. Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill.2d 263, 272, 166 Ill.Dec. 882, 886, 586 N.E.2d 1211, 1215; Shull v. Harristown Township (1992), 223 Ill.App.3d 819, 824, 166 Ill.Dec. 142, 145, 585 N.E.2d 1164, 1167.

When the party moving for summary judgment supplies facts in support of that motion that, if uncontradicted, would entitle that party to summary judgment as a matter of law, the opposing party cannot rely on the pleadings alone to raise issues of material fact. (Kuwik, 232 Ill.App.3d at 12, 173 Ill.Dec. at 546, 597 N.E.2d...