Starr v. Pearle Vision, Inc., 93-5118
| Decision Date | 12 May 1995 |
| Docket Number | No. 93-5118,93-5118 |
| Citation | 54 F.3d 1548 |
| Parties | Jacqui STARR, Plaintiff-Appellant, v. PEARLE VISION, INC., doing business as Pearle Vision Express, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Thomas L. Bright, Tulsa, OK, for plaintiff-appellant.
Michael Clark Redman of Doerner, Stuart, Saunders, Daniel & Anderson, Tulsa, OK (Kathy R. Neal and Diana H. Clark, with him on the brief), for defendant-appellee.
Before BALDOCK and EBEL, Circuit Judges, and SHADUR, District Judge. *
Plaintiff-Appellant Jacqui Starr ("Starr") commenced this defamation and intentional infliction of emotional distress action against Defendant-Appellee Pearle Vision, Inc. ("Pearle Vision"), her former employer. Based on diversity, Pearle Vision removed the action from the Tulsa County District Court to the United States District Court for the Northern District of Oklahoma. 28 U.S.C. Secs. 1332, 1441. The district court granted summary judgment in favor of Pearle Vision on all claims and we exercise jurisdiction pursuant to 28 U.S.C. Sec. 1291 to consider Starr's appeal. We reverse the court's dismissal of Starr's claims that Pearle Vision employees defamed her during conversations with two individuals, and affirm in all other respects.
This action arose from Pearle Vision's investigation of a purported $4,000 shortfall in the petty cash account of the Pearle Vision retail optical store that Starr managed in Tulsa, Oklahoma. Initially hired by Pearle Vision in 1988 as an optician, Starr was ultimately promoted to general manager of the Eastland Mall retail store in Tulsa. In that capacity, Starr was responsible for daily operations and staff supervision.
On April 2, 1992, Pearle Vision dispatched three officials to Starr's store to investigate an alleged petty cash shortfall. Jay Bogie, who worked in Pearle Vision's Loss Prevention Division, was joined on this mission by Carla Tredway and Mike Hoglund, Regional Area Managers. During the April 2nd visit, Bogie and Tredway questioned Starr in her small office, situated just behind the retail floor of the Eastland Mall store. 1 Starr contends that Bogie accused her of theft and embezzlement, yelled at her, touched her on the arm, and once pushed her back down in her chair. Although Starr cannot remember the precise duration of the meeting, she stated that it "was not a long period of time." Bogie and Lola Ballard, who worked under Starr's supervision, estimated that the confrontation lasted approximately fifteen minutes.
At one point, Starr briefly interrupted the questioning to exit her office, but she returned shortly thereafter and resumed discussions with Bogie. Starr informed Bogie that she intended to obtain counsel, but nevertheless continued to answer questions. Ultimately, Starr ended the confrontation and exited the store for what proved to be the last time. Not long after departing, Starr telephoned Hoglund at the store to ask whether Pearle Vision had terminated her employment. Hoglund asked Starr to cooperate with Pearle Vision's investigation. When Starr rebuffed Hoglund's request to cooperate, Hoglund fired her. Starr's personnel file states that she was fired for "failing to cooperate with a company investigation."
Bogie and Tredway next questioned Lola Ballard, the lab manager and second-in-command at the store. Bogie informed Ballard of Starr's termination, but the parties dispute the level of specificity with which Bogie explained the surrounding circumstances.
Also on April 2nd, Bogie and Tredway interrogated a third Pearle Vision employee, Glenda Ross, who worked at a neighboring Pearle Vision retail store in Tulsa. According to Ross' deposition, Bogie advised her to confess to credit card fraud because Starr had already been arrested for stealing from the company. Ross explained that Bogie detained her for six hours of questioning and ultimately obtained a handwritten confession that he dictated. Bogie next requested the Tulsa police to arrest Ross and provided the police a copy of an investigative report about the alleged thievery. Starr, however, has never been charged with a crime and has since obtained a position with one of Pearle Vision's competitors in Tulsa.
Subsequent to her termination, Starr spoke with friends and former Pearle Vision colleagues, during which she learned that Pearle Vision employees allegedly defamed her in conversations with Paul Williams, Katherine Winn, and Bob Teagarden.
On May 7, 1992, just a few weeks after the April 2nd incident and her discussions with friends, Starr filed a complaint against Pearle Vision in Oklahoma state court, alleging defamation, intentional infliction of emotional distress, public policy tort, and retaliatory discharge. Pursuant to 28 U.S.C. Sec. 1332, Pearle Vision removed the case to the United States District Court for the Northern District of Oklahoma on May 27, 1992. 28 U.S.C. Sec. 1441.
On February 16, 1993, Pearle Vision filed a summary judgment motion on all claims. While this motion was pending, Starr voluntarily dismissed the public policy tort and retaliatory discharge claims. On May 3, 1993, the district court entered summary judgment in favor of Pearle Vision on the only two remaining claims--defamation and intentional infliction of emotional distress. With respect to the defamation claim, the court held that: (1) intracompany communications between Pearle Vision employees did not constitute actionable "publication" under Oklahoma defamation law; (2) Oklahoma does not recognize a cause of action for compelled self-publication of allegedly slanderous statements; and (3) Pearle Vision's statements to non-employees were not defamatory. The court rejected Starr's intentional infliction of emotional distress claim on the grounds that she failed to provide sufficient evidence to show that Pearle Vision's actions were either "extreme" or "outrageous." In this timely appeal, Starr challenges each ruling.
We review de novo the district court's summary judgment order in favor of Pearle and apply the same legal standard used by the district court. Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We view the record in a light most favorable to Starr, who opposed the summary judgment motion. Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). An issue of material fact is genuine if a "reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
Starr's defamation claim entails three questions: (1) whether intracompany communications constitute actionable "publication" under Oklahoma defamation law; (2) whether Oklahoma recognizes a cause of action for compelled self-publication; and (3) whether Pearle Vision employees made defamatory statements to third parties.
We first address whether Oklahoma defamation law recognizes a claim for slanderous statements uttered between employees of the same company. Starr alleges that Bogie made allegedly slanderous statements to Ross and Ballard.
Under Oklahoma law, slander "is a false and unprivileged publication, other than libel, which:
1. Charges any person with crime, or with having been indicted, convicted or punished for crime.
2. Imputes in him the present existence of an infectious, contagious or loathsome disease.
3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade or business that has a natural tendency to lessen its profit.
12 Okla.Stat.Ann. Sec. 1442. The first four provisions of Sec. 1442 constitute slander per se, whereas the fifth provision requires a showing of actual damages and thus states a slander per quod rule. Standifer v. Val Gene Management Servs., Inc., 527 P.2d 28, 30-31 (Okla.Ct.App.1974).
In Magnolia Petroleum Co. v. Davidson, 148 P.2d 468 (Okla.1944), the Oklahoma Supreme Court held that intracompany communications do not constitute actionable "publications" and dismissed an action for slander brought by a discharged employee against his employer and two of its employees for alleged defamatory statements made to a fellow employee. The court explained that "publication" is the communication of defamatory matter to a third person or persons, and that neither agents nor employees of a company are third persons in relation to the corporation because "they are a part and parcel of the corporation itself." Id. at 471. For a corporation, therefore, acting through one of its agents or representatives, to send a libelous communication to another of its agents or representatives, cannot be a publication or the libel on the part of the corporation. It is but communicating with itself.
Id. Sitting in diversity cases applying Oklahoma law, we have relied on Magnolia Petroleum to reject defamation claims arising from intracompany communications. Messina v. Kroblin Transp. Sys., Inc., 903 F.2d 1306, 1309 (10th Cir.1990); M.F. Patterson Dental Supply Co. v. Wadley, 401 F.2d 167, 171 (10th Cir.1968); see also Hensley v. Armstrong World Indus., Inc., 798 F.Supp. 653, 657 (W.D.Okla.1992).
Starr acknowledges that the Oklahoma Supreme Court has not abandoned Magnolia Petroleum over...
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