Lloyd v. In Home Health, Inc., C0-94-915

• Decision Date: 18 October 1994
• Docket Number: No. C0-94-915,C0-94-915
• Citation: Lloyd v. In Home Health, Inc., 523 N.W.2d 2 (Minn. App. 1994)
• Parties: Joyce LLOYD, Appellant, v. IN HOME HEALTH, INC., Respondent.
• Court: Minnesota Court of Appeals

Page 2

523 N.W.2d 2

Joyce LLOYD, Appellant, v.IN HOME HEALTH, INC., Respondent.

No. C0-94-915.

Court of Appeals of Minnesota.

Oct. 18, 1994.

Syllabus by the Court

1.Summary judgment was appropriate against employee's defamation claim because employer complied with Minn.Stat. Sec. 181.962.

2.Because employee's defamation claim was properly dismissed, her claim for negligent infliction of emotional distress also fails.

Charles M. Goldstein, Gregory J. Reigel, Berg and Leaf, Hopkins, for appellant.

Robert Atmore, Timothy Wong, Lindquist and Vennum, Minneapolis, for respondent.

Considered and decided by HUSPENI, P.J., and LANSING and AMUNDSON, JJ.

OPINION

HUSPENI, Judge.

Following her termination by respondentIn Home Health, Inc.(IHH), appellantJoyce Lloyd brought suit alleging: violation of Minn.Stat. Sec. 181.932(1992)(the "whistleblower statute"), breach of contract, violation of Minn.Stat. Sec. 181.13(1992)(penalty for failure to pay wages promptly), defamation, and negligent infliction of emotional distress.The district court granted summary judgment on all counts and Lloyd appeals only the defamation and negligent infliction of emotional distress claims.Because we find no material fact issues and because IHH is entitled to summary judgment as a matter of law, we affirm.

FACTS

Lloyd worked for IHH as an administrative assistant from May 1991 to November 1992.On November 10, 1992, the day of her termination, Lloyd requested and received her personnel file.In her file were three notices of disciplinary action; two of these gave "unprofessional conduct" as the reason for the disciplinary action.In addition, Marilyn Matz, Lloyd's coworker, stated that a few days after Lloyd's November 10, 1992, termination, Harry Alcorn, Jr., Lloyd's supervisor at IHH, told Matz that Lloyd was "not professional."

Lloyd stated that she self-published the statement regarding her "unprofessional conduct" during a job interview on December 3, 1992.On December 8, 1992, Lloyd's attorney asked IHH to permit Lloyd to add her own position statement to her personnel file.It is undisputed that the attorney's request to include a position statement followed publication of the statement.IHH complied with the request and three days later Lloyd's statement was placed in her personnel file.

ISSUES

1.Did the district court err in granting summary judgment against Lloyd's claim of defamation?

2.Did the district court err in granting summary judgment against Lloyd's claim of negligent infliction of emotional distress?

ANALYSIS

On appeal from summary judgment, this court must determine (1) whether there are any genuine issues of material fact and (2) whether the lower court erred in the application of the law.State by Cooper v. French, 460 N.W.2d 2, 4(Minn.1990).Evidence must be viewed in the light most favorable to the nonmoving party, and any doubt as to whether there is a factual issue should be resolved in favor of that party.Wartnick v. Moss & Barnett, 490 N.W.2d 108, 112(Minn.1992).However, summary judgment on a claim is mandatory against a party who fails to establish an essential element of that claim, if that party has the burden of proof, because this failure renders all other facts immaterial.Carlisle v. City of Minneapolis, 437 N.W.2d 712, 715(Minn.App.1989)(citingCelotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265(1986)).

1.The district court concluded that even if an accusation of unprofessional conduct is deemed to be defamatory, Lloyd's claim is barred under Minn.Stat. Sec. 181.962.We agree with the district court's conclusion regarding the application of the statute and like the district court, we will assume that the accusation of unprofessional conduct is defamatory.

Subdivision 1 of section 181.962 provides that:

(a) If an employee disputes specific information contained in the employee's personnel record:

(1) the employer and the employee may agree to remove or revise the disputed information; and

(2) if an agreement is not reached, the employee may submit a written statement specifically identifying the disputed information and explaining the employee's position.

(b) The employee's position statement may not exceed five written pages.The position statement must be included along with the disputed information for as long as that information is maintained in the employee's personnel record.A copy of the position statement must also be provided to any other person who receives a copy of the disputed information from the employer after the position statement is submitted.

Subdivision 2 of the statute provides:

(a) No communication by an employee of information obtained through a review of the employee's personnel record may be made the subject of any action for libel, slander, or defamation, unless the employee requests that the employer comply with subdivision 1 and the employer fails to do so.

(b) No communication by an employer of information contained in an employee's personnel record after the employee has exercised the employee's right to review pursuant to section 181.961 may be made the subject of any common law civil action for libel, slander, or defamation unless:

(1) the employee has disputed specific information contained in the personnel record pursuant to subdivision 1;

(2) the employer has refused to agree to remove or revise the disputed information;

(3) the employee has submitted a written position statement as provided under subdivision 1; and

(4) the employer either (i) has refused or negligently failed to include the employee's position statement along with the disputed information or thereafter provide a copy of the statement to other persons as required under subdivision 1, or (ii) thereafter communicated the disputed information with knowledge of its falsity or in reckless disregard of its falsity.

(c) A common law civil action for libel, slander, or defamation based upon a communication of disputed information contained in an employee's personnel record is not prohibited if the communication is made after the employer and the employee reach an agreement to remove or revise disputed information and the communication is not consistent with the agreement.

Minn.Stat. Sec. 181.962, subd. 2(1992)(emphasis added).

Lloyd's defamation claim is based on two publications: her self-publication on December 3, 1992, and Alcorn's statement to Matz a few day after Lloyd's November 10, 1992, termination.Both of these publications occurred after Lloyd reviewed her file and before she submitted her written position statement.

On the basis of the undisputed...