Petyan v. Ellis

Decision Date17 June 1986
CourtConnecticut Supreme Court
Parties, 1 IER Cases 665 Barrie J. PETYAN v. Grace ELLIS.

Thomas B. Wilson, New London, for appellant (plaintiff).

James D. Reardon, Essex, for appellee (defendant).


CALLAHAN, Associate Justice.

The plaintiff, Barrie J. Petyan, brought suit against the defendant, Grace Ellis, a family practice physician, for (1) libel and (2) intentional infliction of emotional distress. After the plaintiff rested her case, the trial court granted the defendant's motion for a directed verdict on both counts and rendered judgment for the defendant. From this judgment, the plaintiff appeals, claiming that the trial court erred in finding that (1) the defendant had an absolute privilege to publish an allegedly defamatory statement; (2) the publication was not libelous per se; (3) there was no evidence of malice; and (4) there was no evidence of the type of outrageous conduct necessary to sustain an action for the intentional infliction of emotional distress.

Directed verdicts are not favored. Puro v. Henry, 188 Conn. 301, 303, 449 A.2d 176 (1982). A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion. Sestito v. Groton, 178 Conn. 520, 522, 423 A.2d 165 (1979). In reviewing the trial court's decision to direct a verdict in favor of a defendant we must consider the evidence in the light most favorable to the plaintiff. Pinto v. Spigner, 163 Conn. 191, 192-93, 302 A.2d 266 (1972).

In May, 1980, the defendant placed an advertisement in a local newspaper for a "Medical Assistant-Certified." The plaintiff applied for the position and was hired after she was interviewed by the defendant. Although the plaintiff was not a certified medical assistant at that time, she had completed a two-year associate degree course in that discipline at a junior college. Also prior to being hired by the defendant, she had worked for a four-doctor practice as a medical assistant. During the defendant's interview of the plaintiff, the general duties of the position were discussed. Typing, while mentioned, was not emphasized. The plaintiff told the defendant that she could type but said that she was not "top-notch" and was not a "speed typist." Approximately two weeks after the plaintiff began work, the defendant indicated she was dissatisfied with the plaintiff's performance, particularly her typing ability. At the end of the third week, the defendant discharged the plaintiff and gave her an "unemployment notice" stating the reason for her termination to be "personal." Shortly thereafter the defendant received a "fact-finding supplement" form from the employment security division of the state labor department which included the following language: "If you are unable to attend the scheduled hearing, please enter all pertinent information regarding the reason the above named claimant separated from your employ on 6-27-80." The form contained no date for a scheduled hearing nor was the defendant notified of one. The defendant filled out the form stating that the plaintiff "was released from this employment for reasons of unsatisfactory performance and, mainly for fraud and lying," and returned it to the employment security division.

At the unemployment compensation eligibility hearing, which the defendant did not attend, the plaintiff was shown the "fact-finding supplement" form that had been filled out by the defendant. She testified that she became "quite shook and extremely embarrassed." She also said that for a year and one-half after this occurred "[she] felt betrayed, outraged, extremely upset, began to feel that I didn't have any confidence left. I was afraid to go out and find another job. I thought that this had ruined my reputation forever, and I just couldn't bring myself to answer another ad. I was just so terribly shook."

The plaintiff's first claim is that the trial court erred in finding that the defendant had an absolute privilege to publish the allegedly defamatory statement in the "fact-finding supplement" form. It has long been established that there is an absolute privilege for statements made in judicial proceedings. Briscoe v. LaHue, 460 U.S. 325, 331-32, 103 S.Ct. 1108, 1113-14, 75 L.Ed.2d 96 (1983); Blakeslee & Sons v. Carroll, 64 Conn. 223, 232, 29 A. 473 (1894). There is a "long-standing common law rule that communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy." Circus Circus Hotels, Inc. v. Witherspoon, 99 Nev. 56, 60, 657 P.2d 101 (1983). The effect of an absolute privilege is that damages cannot be recovered for a defamatory statement even if it is published falsely and maliciously. Hassett v. Carroll, 85 Conn. 23, 35, 81 A. 1013 (1911); Magnan v. Anaconda Industries, Inc., 37 Conn.Sup. 38, 43, 429 A.2d 492 (1980), rev'd on other grounds, 193 Conn. 558, 479 A.2d 781 (1984). "The policy underlying the privilege is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements." Circus Circus Hotels, Inc. v. Witherspoon, supra, 99 Nev. 61, 657 P.2d 101. Butz v. Economou, 438 U.S. 478, 512-13, 98 S.Ct. 2894, 2913-14, 57 L.Ed.2d 895 (1978).

"The 'judicial proceeding' to which the immunity attaches has not been defined very exactly. It includes any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not. It includes for example, lunacy, bankruptcy, or naturalization proceedings, and an election contest. It extends also to the proceedings of many administrative officers, such as boards and commissions, so far as they have powers of discretion in applying the law to the facts which are regarded as judicial or 'quasi-judicial,' in character." Prosser & Keeton, Torts (5th Ed.) § 114, pp. 818-19. This privilege extends to every step of the proceeding until final disposition. Id. "[L]ike the privilege which is generally applied to pertinent statements made in formal judicial proceedings, an absolute privilege also attaches to relevant statements made during administrative proceedings which are 'quasi-judicial' in nature." Mock v. Chicago, Rock Island & Pacific R.R. Co., 454 F.2d 131, 133 (8th Cir.1972). Thomas v. Petrulis, 125 Ill.App.3d 415, 419, 465 N.E.2d 1059 (1984); Richardson v. Dunbar, 95 Ill.App.3d 254, 256, 419 N.E.2d 1205 (1981); Circus Circus Hotels, Inc. v. Witherspoon, supra, 99 Nev. 61, 657 P.2d 101.

In Magnan v. Anaconda Industries, Inc., supra, the Superior Court, Berdon, J., held that an employer who discharges an employee has an absolute privilege when supplying the information necessary for the "unemployment notice" required by regulation. 1 Id., 37 Conn.Sup. 42, 429 A.2d 492. The court based its decision on the conclusion that the information is furnished in connection with a quasi-judicial function of an administrative board. That court found that in unemployment compensation proceedings "[t]he administrator, the referee and the review board, including witnesses in proceedings before them, are absolutely privileged to publish defamatory matters provided such statements have some relation to the quasi-judicial proceeding. Other jurisdictions have reached this same conclusion. White v. United Mills Co., 240 Mo.App. 443, 451, 208 S.W.2d 803 (1948); Kitchner v. State, 82 Misc.2d 858, 860, 371 N.Y.S.2d 91 (1975); annot., 'Defamation-Administrative Proceeding,' 45 A.L.R.2d 1296, 1303." Id., 37 Conn.Sup. 45, 429 A.2d 492.

We agree with the conclusion of the court in Magnan and extend its reasoning to include the information supplied by an employer on the "fact-finding supplement" form of the employment security division of the state labor department. In the processing of unemployment compensation claims, the administrator, the referee and the employment security board of review decide the facts and then apply the appropriate law. General Statutes §§ 31-241, 2 31-242 3 and 31-249. 4 The employment security division of the labor department, therefore, acts in a quasi-judicial capacity when it acts upon claims for unemployment compensation.

The statement at issue in the present case was made at the behest of the employment security division on a form it sent to the defendant. The form indicated that, if the defendant was unable to attend the plaintiff's unemployment compensation hearing, the defendant should "enter all pertinent information regarding the reason" the plaintiff was separated from the defendant's employ. The form also contained language that the defendant certified the statement to be true and correct. Although there was no evidence that the "fact-finding supplement" form was required by statute or regulation, that is immaterial. The information that the employment security division requested was solicited by the administrative agency for its official use and the defendant was admonished that it need be "true and correct." There is no reason to believe that the defendant thought this statement would be used for other than administrative purposes. General Statutes § 31-254 specifically states that "[t]he administrator may require from an employer ... any sworn or unsworn reports with respect to persons employed by him which are necessary for the effective administration of this chapter. Information thus obtained shall not be published or be open to public inspection ... but any claimant at a hearing before a commissioner shall be supplied with information from such records to the extent necessary for the proper presentation of his claim."

In the instant case the defendant's statement concerning her reasons for discharging the plaintiff...

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