Rambo v. Cohen

• Citation: 587 N.E.2d 140
• Decision Date: 26 February 1992
• Docket Number: No. 30A01-9106-CV-195,30A01-9106-CV-195
• Parties: George RAMBO, Appellant-Plaintiff, v. Edward L. COHEN 1 and State of Indiana, Appellees-Defendants.
• Court: Court of Appeals of Indiana

Page 140

587 N.E.2d 140

George RAMBO, Appellant-Plaintiff, v. Edward L. COHEN ¹ and State of Indiana Appellees-Defendants.

No. 30A01-9106-CV-195.

Court of Appeals of Indiana First District.

Feb. 26, 1992.

Rehearing Denied April 7, 1992.

Steven C. Smith, Anderson, for appellant-plaintiff.

Linley E. Pearson, Atty. Gen., Michael A. Schoening, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellees-defendants.

BAKER, Judge.

Plaintiff-appellant George Rambo, a water treatment technician at the Pendleton Reformatory, initiated this defamation action against then Pendleton Superintendent Edward Cohn and the State of Indiana. The trial court dismissed the action due to Rambo's failure to exhaust administrative remedies under the Administrative Adjudication Act ² (AAA) and then granted summary judgment to the defendants on the basis of immunity under the Indiana Tort Claims Act (ITCA). ³

We reverse the dismissal and affirm the summary judgment. ⁴

FACTS

Rambo has been an employee of the Indiana Department of Correction at the Pendleton Reformatory for over 30 years. Prior to 1989, he accumulated a large surplus of vacation days. In 1988, the Department of Correction instituted a policy requiring employees to reduce their accumulated vacation time to a maximum of 75 days.

Rambo was, and is, reluctant to take vacation days; he instituted an administrative review challenging the propriety of the vacation policy. Nonetheless, after a great deal of haranguing, Rambo agreed to take a 61 day vacation beginning January 3, 1989. The unusually long vacation required approval not only from Superintendent Cohn, but also from the Commissioner of the Department of Correction and the Director of State Personnel.

Instead of going to Florida as planned, however, Rambo appeared for work on January 3, 1989. He offered his daughter's changed wedding date and the pending status of his administrative challenge as justification. The record reveals Rambo had difficulty understanding the difference between changing his departure date for Florida, a matter solely of Rambo's concern, and changing the commencement date of his time away from work, a matter of demonstrated institutional interest. When Superintendent Cohn learned of Rambo's presence, he summoned Rambo to his office for a meeting. Four people attended the meeting: Pendleton's physical plant director, who is Rambo's immediate supervisor, Pendleton's personnel director, Rambo, and Cohn. The facts most favorable to Rambo reveal Cohn made three statements to which Rambo objects. First, Cohn told Rambo he was a "lazy," "trouble-causing," "stupid," and "arrogant" employee. Record at 93. Second, Cohn told Rambo to stop acting like a "horse's butt." Record at 93. Third, he said Rambo was "anti-Semitic." Record at 93.

The next day, Cohn memorialized the meeting in a letter to Rambo with copies to the other people at the meeting. The letter, however, contains none of the allegedly defamatory remarks made at the meeting. In the end, no disciplinary action was taken against Rambo for his failure to comply with the vacation policy, and he continues in his job as before.

Apparently, however, Rambo has become a depressed and nervous man in the wake of Cohn's remarks and has spent a great deal of time in professional counseling. He now seeks recovery for impotence, shingles, urinary difficulties, bills for medical and psychological assistance, and lost work stemming from emotional distress.

DISCUSSION AND DECISION

I. EXHAUSTION

Our initial task is to resolve the inconsistency between the trial court's dismissal of Rambo's complaint for failure to exhaust administrative remedies and the subsequent summary judgment entered for the defendants. Judicial review of agency actions is achieved exclusively through compliance with the procedures of the AAA. IND.CODE 4-21.5-5-1. Generally, the failure to exhaust administrative remedies waives the right to judicial review. IND.CODE 4-21.5-5-4. Indeed, until a party has exhausted available administrative remedies, the courts cannot exercise subject matter jurisdiction over the party's claim, and the action is subject to dismissal. United States Auto Club, Inc. v. Woodward (1984), Ind.App., 460 N.E.2d 1255, 1258, trans. denied; Bowen v. Sonnenburg (1980), Ind.App., 411 N.E.2d 390, 403. Thus, if a party wrongly fails to exhaust administrative remedies, the trial court's sole prerogative is to dismiss the complaint; it cannot enter summary judgment or take any other action. See Harlan Sprague Dawley, Inc. v. Indiana Dep't of Revenue (1991), Ind.Tax, 583 N.E.2d 214. If a State employee has a grievance concerning conditions of employment, IND.CODE 4-15-2-35 requires adherence to established administrative procedures under the State Personnel Administration Act ⁵ to obtain relief. Spencer v. State (1988), Ind.App., 520 N.E.2d 106, 108, trans. denied. There are exceptions to the general rule, however.

If administrative procedures are incapable of "answering the question presented" by a party's claim, exhaustion is not required. Indiana Dep't of Pub. Welfare v. Chair Lance Service, Inc. (1988), Ind., 523 N.E.2d 1373, 1379. In Shallenberger v. Scoggins-Tomlinson, Inc. (1982), Ind.App., 439 N.E.2d 699, the plaintiff realtor brought a defamation action against another realtor and the members of the local realtors' board. The board had an established grievance procedure, and although the plaintiff's failure to exhaust the administrative remedies afforded by the grievance procedure prevented him from attacking the board's decision making process, the failure to exhaust did not prevent him from proceeding with his defamation suit. The summary judgment in favor of the board members was affirmed, not because the plaintiff failed to exhaust his remedies, but because the board's written statements about the plaintiff were not defamatory. Id. at 705-06.

Similarly, Rambo's complaint in the present case alleges libel and slander; he does not seek relief from an unsatisfactory condition of employment or an involuntary change in his status of employment as contemplated by IND.CODE 4-15-2-35. Quite simply, the administrative review process is incapable of providing a remedy for Rambo's complaint. The State Employees Appeals Commission, the ultimate agency authority for state personnel grievances, is not empowered to award damages for defamation. See IND.CODE 4-15-1.5-6. When the character of the question presented is beyond the pale of the agency's competency, expertise, and authority, failure to exhaust will be excused. See Wilson v. Board of Indiana Employment Sec. Div. (1979), 270 Ind. 302, 385 N.E.2d 438, cert. denied (1979), 444 U.S. 874, 100 S.Ct. 155, 62 L.Ed.2d 101; Spencer, supra; Indiana Dep't of Welfare v. Stagner (1980), Ind.App., 410 N.E.2d 1348, 1351.

The trial court had subject matter jurisdiction over Rambo's claim and therefore erred in dismissing Rambo's complaint.

II. SUMMARY JUDGMENT

A. Standard of Review

After erroneously dismissing Rambo's complaint, the trial court granted summary judgment to the defendants. Summary judgment is appropriate only when no genuine issues of material fact exist. Moore v. Sitzmark Corp. (1990), Ind.App., 555 N.E.2d 1305. When reviewing the disposition of a summary judgment motion, we stand in the same position as the trial court, and review all evidence in the light most favorable to the non-movant. Forrest v. Gilley (1991), Ind.App., 570 N.E.2d 934, 935, trans. denied. Once the movant has demonstrated no genuine issue of material fact exists, the non-movant may not rest on pleadings, but must set forth specific facts showing a genuine issue does exist and that a trial is therefore warranted. Tucher v. Brothers Auto Salvage Yard, Inc. (1991), Ind.App., 564 N.E.2d 560, 563, trans. denied. When the defendant is the movant, the defendant must either show that the undisputed facts negate at least one element of the plaintiff's cause of action or that the defendant has a factually unchallenged affirmative defense which bars the plaintiff's claim. Moore, supra, at 1307. If no genuine issue of material fact exists, we will affirm a summary judgment on any legal theory supported by the record. Hupp v. Hill (1991), Ind.App., 576 N.E.2d 1320.

B. Defamation

To maintain an action for defamation, a plaintiff must show a communication with defamatory imputation, malice, publication, and damages. Shallenberger, supra, at 704. Defamatory communications are those which tend to harm a person's reputation by lowering the person in the community's estimation or deterring third persons from dealing or associating with the person. Chestnet v. K-Mart Corp. (1988), Ind.App., 529 N.E.2d 131, 135, trans. dismissed. Initially, the determination of whether a communication is defamatory is a question of law for the court; it is to be presented to the jury as a question of fact only if the communication is reasonably susceptible to either defamatory or non-defamatory interpretation. Id. In making the determination, the communication is to be viewed in context and given its plain and natural meaning, "according to the idea they are calculated to convey to whom [it is] addressed." Jacobs v. City of Columbus (1983), Ind.App., 454 N.E.2d 1253, 1264, trans, denied. See also Martin v. Indiana Bell Tel. Co., Inc. (1981), Ind.App., 415 N.E.2d 759. Accord, Rybas v. Wapner (1983), 311 Pa.Super. 50, 54-55, 457 A.2d 108, 110 ("The test is the effect the statement would fairly produce, or the impression it would naturally engender, 'in the minds of the average persons among whom it is intended to circulate.' "). Moreover, the allegedly defamatory words are to be construed in light of the circumstances of their utterance. Blickenstaff v. Perrin (1867), 27 Ind. 527.

A communication may be defamatory per se or per quod. In the case of slander, ⁶ a communication is defamatory per se under well-settled common law rulings if it imputes: 1)...