Theisen v. COVENANT MEDICAL CENTER, INC, No. 99-0533.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: NEUMAN, Justice.
• Citation: 636 N.W.2d 74
• Parties: Steven John THEISEN, Appellant, v. COVENANT MEDICAL CENTER, INC., Appellee.
• Docket Number: No. 99-0533.
• Decision Date: 15 November 2001

636 N.W.2d 74

Steven John THEISEN, Appellant,
v.
COVENANT MEDICAL CENTER, INC., Appellee

No. 99-0533.

Supreme Court of Iowa.

November 15, 2001.

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Jeffrey L. Goodman and Robert K. DuPuy of Pingel & Templer, P.C., West Des Moines, for appellant

Iris E. Muchmore and Leonard T. Strand of Simmons, Perrine, Albright & Ellwood, P.L.C., Cedar Rapids, for appellee.

NEUMAN, Justice.

Steven Theisen was fired from his job as security manager for Covenant Medical Center because, after he was suspected of making an obscene phone call to another employee, he refused to submit to voice print analysis to confirm or refute the accusation. Theisen sued Covenant for wrongful discharge. On Theisen's appeal from the district court's summary judgment for Covenant, the principal question is whether requiring an employee to submit to voice print analysis violates the letter or spirit of Iowa Code section 730.4 (1995). By its terms, section 730.4 prohibits an employer from requiring an employee to submit to a polygraph examination as a condition or pre-condition of employment.

We are convinced, as was the district court, that section 730.4 has no application to voice print analysis. Because Covenant's conduct violated neither statute nor public policy, all of Theisen's wrongful-discharge claims premised on that theory must fail. As will be explained further, Theisen's related employment claims are equally unavailing, as are his claims for defamation by compelled self-publication and dramatic pantomime. We therefore affirm the judgment of the district court,

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which preserved for trial only Theisen's claim for direct defamation.¹

I. Background Facts.

On the evening of May 22, 1995, someone left an obscene message on the voice mail of Bobbie Hartwig, a nurse at Covenant Medical Center in Waterloo. Hartwig discovered the message when she arrived at work the next morning. She contacted her supervisor, Nancy Schuler, about the call. Schuler, who is also the head of the Quality Services department, advised Hartwig that nothing further needed to be done unless Hartwig received additional calls or messages. Hartwig also called Steve Theisen, Covenant's security manager, to report the call. Theisen never returned her call.

Although Hartwig had not immediately mentioned it to Schuler or Theisen, upon hearing the first words of the obscene message she recognized the voice as Steve Theisen's. In her words, she "just knew the minute [she] heard his voice that it was him." She thought the whole thing must be a joke but was troubled by the idea that it might be more than that. Hartwig replayed the message for her husband, Gary. Based on his own interaction with Theisen in the small town where they lived, he also believed the voice was Theisen's. Several days later, Bobbie Hartwig played the message for Schuler, who was also Theisen's supervisor. Schuler also identified the voice as Theisen's. Both Gary Hartwig and Schuler identified the voice as Theisen's before Bobbie Hartwig revealed her own belief.

Schuler and Ray Fusco, Covenant's vice president for employee resources, began a sexual harassment investigation. The investigation included making a tape of the obscene call and submitting it for voice print analysis or spectrography along with comparison voice mail messages known to have been left by Theisen. Covenant's voice analyst, Mindy Wilson, ultimately concluded that she could not arrive at a "solid" identification because the obscene message was too brief to provide a good comparison with the known samples of Theisen's voice. But she concluded Theisen could not be eliminated as a suspect and recommended that he furnish an exemplar of the obscene message for analysis.

Approximately one month after the initial incident, Theisen met with Schuler and Fusco. Theisen was told about the phone call and that four persons had identified the voice as his.² After listening to the message, Theisen denied he was the speaker. Schuler and Fusco then asked Theisen to submit to voice print analysis. Theisen said he would have to think about it. Schuler and Fusco then suspended Theisen for two weeks to allow him to consider his decision. After the meeting, Theisen returned to his office to retrieve personal items before security officer Roger Shook escorted him out of the building.

Theisen consulted with an attorney and thereafter refused to submit an exemplar of his voice for analysis. His counsel advised Covenant by letter that Theisen's refusal rested on their belief that Iowa Code section 730.4 "strictly prohibited"

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such testing. Covenant responded by firing Theisen

Theisen then initiated a review of his termination in accordance with the "Fair Treatment" provisions of Covenant's employee handbook. Several meetings took place between Theisen, his employee representative, Schuler and Fusco. Repeated requests that Theisen submit to voice analysis were rejected. He ultimately submitted an exemplar to his own expert, however. The expert reported "no similarities" between the voice sample submitted by Covenant and the voice sample furnished by Theisen. Thereafter, Theisen submitted his report to a nine-member employee committee who, after interviewing all the pertinent players, unanimously recommended Theisen's reinstatement.

Covenant's president, Raymond Burfeind, ultimately reviewed the actions of his staff, along with all the material collected during the Fair Treatment process. Based on his review, Burfeind upheld the termination. He advised Theisen by letter that his decision was based on Theisen's refusal to comply "with reasonable requests which could have determined with more certainty the facts that were present."

II. Legal Proceedings.

Theisen sued Covenant for damages stemming from wrongful termination and defamation. The wrongful termination count rested on the theory that Covenant's request for voice print analysis violated Theisen's rights as an employee under Iowa Code section 730.4. As later amended, the petition also alleged damages arising from retaliatory discharge, negligent investigation, breach of contract and/or promissory estoppel, and intentional infliction of emotional distress.

Covenant moved for summary judgment. On Theisen's claim of wrongful discharge, the court acknowledged that voice print analysis "may be used as evidence to help prove a person lied," but concluded that this did not make the procedure a prohibited polygraph examination governed by section 730.4. Because Covenant's request for voice print analysis did not violate section 730.4, the court ruled Covenant's decision to fire Theisen breached no public policy preventing termination of his at-will employment status.

The court likewise rejected Theisen's negligent investigation claim, noting that such a cause of action has not been recognized in this context and likely would not be inasmuch as an at-will employee could be terminated with no investigation at all. Also rejected was Theisen's claim that he was defamed through compelled self-publication to potential employers, family, friends and other community members. The court reasoned that, while Iowa does recognize defamation by compelled self-publication, Covenant's statements were protected by a qualified immunity which was not lost by Theisen's later repetition. Finally, the court found no factual or legal support in the summary judgment record for recovery under theories of breach of contract, promissory estoppel, or intentional infliction of emotional distress. This appeal by Theisen followed.

III. Scope of Review.

We review a district court's ruling on summary judgment for the correction of errors at law. Teague v. Mosley, 552 N.W.2d 646, 648 (Iowa 1996). Summary judgment is appropriate only if the entire record, viewed as a whole, reveals no genuine issues of material fact and establishes that the district court correctly applied the law. Id. In making this determination, we rely on the pleadings, depositions, answers to interrogatories, admissions and any affidavits submitted as part of the summary

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judgment record. Iowa R. Civ. P. 237(c). We must view the record made in the light most favorable to the nonmoving party. Schoff v. Combined Ins. Co. of Am., 604 N.W.2d 43, 45 (Iowa 1999)

IV. Issues on Appeal.

A. Voice print analysis and Iowa Code section 730.4. Theisen argued in the district court, and urges on appeal, that Iowa Code section 730.4 prohibited Covenant from requesting that he submit to voice print analysis as a condition of keeping his job. Because Covenant's conduct violated public policy, Theisen contends, the fact that he was an employee-at-will presents no obstacle to the prosecution of his claim. Thus, before turning to the statute, we review briefly the employment-at-will doctrine.

Employment-at-will. The doctrine of employment-at-will, well-established in Iowa law, permits an employer or employee who is not under contract to terminate employment at any time for any lawful reason. Phipps v. IASD Health Servs. Corp., 558 N.W.2d 198, 202 (Iowa 1997); Fogel v. Trustees of Iowa Coll., 446 N.W.2d 451, 455 (Iowa 1989). This court has recognized only two exceptions to the doctrine. First, an employee handbook that specifically limits termination of employment except under certain conditions or for cause may create a contract of employment. Phipps, 558 N.W.2d at 202; Fogel, 446 N.W.2d at 455. Second, we have held that an employer may not terminate an employee for a reason that violates public policy. Springer v. Weeks & Leo Co., 429 N.W.2d 558, 560 (Iowa 1988); accord Phipps, 558 N.W.2d at 202; Fogel, 446 N.W.2d at 455. To defeat the presumption of at-will employment, such policy must be well-recognized and defined, generally by state constitution or statute. Phipps, 558 N.W.2d at 203; Springer, 429 N.W.2d at 560.

Theisen contends, and for purposes of summary judgment we find, that Covenant fired him because he...