Oetzman v. Ahrens

• Decision Date: 23 June 1988
• Docket Number: AFL-CIO,D,AFL-CI,No. 87-1748,87-1748
• Citation: 145 Wis.2d 560,427 N.W.2d 421
• Parties: Gary OETZMAN, Plaintiff-Respondent, v. David M. AHRENS, Wisconsin Council 40, AFSCME,, and Local 3148, AFSCME,, Defendants-Appellants.
• Court: Wisconsin Court of Appeals

Page 421

427 N.W.2d 421

145 Wis.2d 560

Gary OETZMAN, Plaintiff-Respondent, v. David M. AHRENS, Wisconsin Council 40, AFSCME, AFL-CIO, and Local 3148, AFSCME, AFL-CIO, Defendants-Appellants.

No. 87-1748.

Court of Appeals of Wisconsin.

Submitted on Briefs May 26, 1988.

Opinion Released June 23, 1988.

Opinion Filed June 23, 1988.

Review Denied.

Bruce M. Davey of Lawton & Cates, S.C., Madison, for defendants-appellants.

Robert M. Hesslink, Jr., and Rick Lance Packard of Hesslink Law Offices, S.C., Madison, for plaintiff-respondent.

Before DYKMAN, EICH, and SUNDBY, JJ.

EICH, Judge.

David M. Ahrens, Wisconsin Council 40 of the American Federation of State, County and Municipal Employees (AFSCME), and AFSCME Local 3148, AFL-CIO, appeal from an order denying their motion for summary judgment dismissing Gary Oetzman's defamation action against them, and from the final judgment on the jury's verdict awarding Oetzman compensatory damages.

Oetzman, the personnel manager of the Sauk County Health Care Center, brought the action after Ahrens, a "staff representative" employed by the Council, sent two letters to Oetzman's supervisor charging that Oetzman had sexually harassed L.B., a union member and center employee. Oetzman claimed that the letters libeled him. Ahrens, the Council and the local (hereafter "Ahrens") moved for summary judgment on grounds that Oetzman, in order to prevail in his action against a labor union representative, must establish that the letters were written and sent with "actual malice" as that term is defined in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and that they actually caused him harm. Ahrens maintains that the affidavits filed in connection with the motion established without dispute that Ahrens's actions were not motivated by actual malice and that Oetzman suffered no actual harm from them.

An additional issue raised on appeal is whether the truth of the letters' contents should have been included in a special verdict question and whether Oetzman must prove that the statements in the letters were false in order to prevail in the action. Because we resolve these questions against Ahrens, we affirm the judgment and order and deem it unnecessary to consider several collateral issues briefed by the parties.

Oetzman and the health center's director had met on at least one occasion to discuss L.B.'s failure to report to work when required. They eventually decided that her employment should be terminated unless she came forth with reasons for her absence. Oetzman then asked L.B. to come to his office for an interview. He stated in this affidavit that in their half-hour meeting they discussed L.B.'s "excuses," which he found to be inadequate. When the interview concluded, Oetzman told L.B. that her employment was being terminated and that, if she wished, she could discuss the matter further with the director.

L.B. stated in her affidavit that Oetzman's office door was closed during the interview and that he asked her questions such as: "What do you think I should do with you.... [W]hat kind of a break do you think I should give you?" She stated that there were long silences, and that when she told Oetzman that she felt like crying, he said: "Go ahead and cry. You've got every reason to cry." She stated that he then leaned over and put his hand on hers and said: "Or do you think I should rip these forms up?"

A union steward, Margaret Maggard, filed an affidavit in support of Ahrens's motion in which she stated that she saw L.B. after the interview and that L.B. told her she felt she had been sexually harassed. The next day, Maggard met with the president of the local union, Judy Horkan, and told Horkan of her discussion with L.B. Horkan then contacted Ahrens. She told him what Maggard had told her and stated that she thought L.B. had been sexually harassed during her interview with Oetzman.

Ahrens then talked to L.B. He stated in his affidavit that she told him she had felt a "tremendous sexual undertone" during her meeting with Oetzman. Ahrens's affidavit also states that a few weeks earlier someone, either Maggard or Horkan, had "expressed concern" about Oetzman's possible sexual harassment of other employees, such as offering to drive a female employee to work, and telling another that "he would kiss her" if she reported to work. Ahrens also claimed to have seen Oetzman put his arm around a female employee. As might be expected, Oetzman's own affidavit disputed Ahrens's "examples" of sexual harassment, whether of L.B. or any other employee.

Without investigating the matter further, Ahrens sent a letter to the health center's director stating, among other things, that:

It has come to my attention that your Personnel Director, Gary Oetzman, has, on a number of occasions, approached employees of the Health Care Center with implicit or explicit requests for sexual favors. In the last occasion of this kind of activity [Oetzman] discharged our member, [L.B.], following a closed door interview lasting more than one hour, during which she rejected such implicit overtures.

A copy of the letter was sent to Horkan, and one was also given to the county's personnel coordinator, who conducted her own investigation, including interviews with courthouse employees with whom Oetzman frequently came into contact.

The director met with Oetzman to "investigate" the matter. He eventually concluded that there was no evidence to support the allegations in Ahrens's letter. After a scheduling conflict prevented the director from meeting with Ahrens, Ahrens sent him a second letter charging that he had deliberately frustrated the scheduled meeting, and that such action "reveals in no uncertain terms, your refusal to deal with this most serious charge against Mr. Oetzman." Again, Ahrens sent a copy of the letter to Horkan, who posted it on the union's bulletin board at the center.

At some point, the union filed a grievance protesting L.B.'s termination. The center's board of governors, after hearing the grievance, changed the termination to a thirty-day suspension. The matter eventually went to arbitration, and the arbitrator ruled that L.B. had been suspended without just cause and ordered the suspension lifted, with back pay and benefits.

After the arbitration hearing, Oetzman, who had since left his employment at the center, wrote to the union requesting that a retraction of the letters be sent to the director for placement in his personnel file. The union refused, and Oetzman commenced this action.

The primary basis for Ahrens's motion for summary judgment was his claim that Oetzman was a "public official" and that because the letters were sent by a union representative during a "labor dispute," there could be no recovery in the absence of proof that Ahrens acted with actual malice and that his actions actually harmed Oetzman. The trial court denied the motion. However, it granted Oetzman's motion for partial summary judgment, ruling that the first letter was defamatory as a matter of law and that the union and the council were responsible for Ahrens's acts.

Just prior to trial, Ahrens requested a jury instruction on truth as a defense to the action, and the trial court denied the request. As indicated, the jury returned a verdict in Oetzman's favor, and Ahrens appealed.

New York Times, 376 U.S. at 279-80, 84 S.Ct. at 725-26, established the rule that a public official can recover damages for defamation by the press only upon a showing that the allegedly defamatory statement was made with "actual malice"--that is, "with knowledge that it was false or with reckless disregard of whether it was false or not." The rule is grounded in what the Supreme Court described as the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open...." Id. at 270, 84 S.Ct. at 721. Ahrens does not contend that Oetzman was a "public official" within the meaning of New York Times. Rather, he argues that the actual malice standard should apply in this case because his letters were written in the context of a "labor dispute" within the meaning of Linn v. United Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966). We disagree.

Ahrens cites Linn for the proposition that defamation actions arising out of labor disputes cannot be prosecuted in the absence of a showing that the statements were made with actual malice and that they caused "actual harm" to the plaintiff. First, it is questionable whether Linn may be said to stand for the adoption of any rule of substantive law. The issue before the court was whether the National Labor Relations Board had exclusive jurisdiction over allegations of defamation arising in a labor dispute, where the defamation " 'would arguably constitute an unfair labor practice' " under federal law. Id., 383 U.S. at 55, 86 S.Ct. at 659. Viewed in this context, Linn 's vitality as precedent is limited to issues of NLRB jurisdiction.

Even if Linn may be said to constitute authority for the proposition that the New York Times standards apply to defamatory statements made in the context of a labor dispute, we do not believe such a dispute existed in this case. In Linn, the allegedly defamatory statement was made in a union election campaign leaflet distributed during a union organizational campaign. The material challenged as defamatory was, in essence, campaign literature, and the court stated that proof of malice and harm should be required in such circumstances in furtherance of the policy of encouraging "wide latitude" in union elections and promoting "free debate on issues dividing labor and management." Id., 383 U.S. at 60, 62, 86 S.Ct. at 661, 663 (footnote omitted). The court, quoting New York Times, 376 U.S. at 270, 84 S.Ct. at 721, acknowledged that considerations of "uninhibited, robust and wide-open" debate, in the context of a union election, "weigh[ed] he...