Wallulis v. Dymowski

• Decision Date: 20 June 1996
• Citation: 918 P.2d 755,323 Or. 337
• Parties: , 152 L.R.R.M. (BNA) 2854, 11 IER Cases 1512 Steven D. WALLULIS, Respondent on Review, v. Tom DYMOWSKI and Communications Workers of America, Local 7901, Defendants-Respondents/Cross-Appellants. Tom DYMOWSKI, Third-Party Plaintiff-Cross-Appellant, and Communications Workers of America, Local 7901, Respondent on Review, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, a New York corporation, Petitioner on Review. CC 9101-00424; CA A79806; SC S42604.
• Court: Oregon Supreme Court

Page 755

918 P.2d 755

323 Or. 337, 152 L.R.R.M. (BNA) 2854,

11 IER Cases 1512

Steven D. WALLULIS, Respondent on Review, v. Tom DYMOWSKI and Communications Workers of America, Local

7901, Defendants-Respondents/Cross-Appellants.

Tom DYMOWSKI, Third-Party Plaintiff-Cross-Appellant, and Communications Workers of America, Local 7901, Respondent on Review, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, a New York

corporation, Petitioner on Review.

CC 9101-00424; CA A79806; SC S42604.

Supreme Court of Oregon In Banc.

Argued and Submitted March 7, 1996.

Decided June 20, 1996.

Jeffrey M. Batchelor, of Lane Powell Spears Lubersky, Portland, argued the cause and filed the petition for petitioner on review.

Kevin Keaney, of Pozzi Wilson Atchison, Portland, argued the cause and filed the brief for respondent on review Communications Workers of America, Local 7901.

Richard C. Busse, Portland, argued the cause for respondent on review Steven D. Wallulis. With him on the brief was Scott N. Hunt.

GRABER, Justice.

In this case, we consider: (1) whether a defamatory statement concerning the work-related conduct of one employee, made by another employee of the same corporate employer to their mutual supervisor, may be actionable; and (2) whether, for the purposes of vicarious liability, an agent of a union simultaneously can be the agent of his or her employer. The Court of Appeals held that such a statement is actionable and that an agent of the union simultaneously can be the agent of the employer. Wallulis v. Dymowski, 134 Or.App. 219, 233, 895 P.2d 315 (1995). We affirm the decision of the Court of Appeals.

The trial court granted defendants' motion for summary judgment, ORCP 47, ¹ on plaintiff's defamation claims. ² In that procedural context, this court views the evidence that was before the trial court on summary judgment, and all reasonable inferences to be drawn from it, in the light most favorable to the nonmoving party. Fields v. Jantec, Inc., 317 Or. 432, 437, 857 P.2d 95 (1993).

In 1989, plaintiff, a supervisor with American Telephone and Telegraph Company (AT & T), began working at an AT & T facility in Beaverton. Defendant Dymowski was an employee of AT & T. Dymowski also was the union steward of the crew that plaintiff supervised and was a vice-president of Communications Workers of America, Local 7901 (CWA). CWA represented some of the employees at the Beaverton facility, including the crew that plaintiff supervised.

Plaintiff's supervisor at AT & T was Rick Potter. Potter's immediate supervisor was Bill Kastning.

A few months after plaintiff began working at the AT & T facility in Beaverton, Dymowski observed behavior that led him to believe that plaintiff abused alcohol. Dymowski noticed that plaintiff came to work late, was hard to contact during the day, and often looked as if he had a hangover. Also, other members of the work crew had complained to Dymowski about plaintiff's behavior.

Plaintiff and Dymowski did not have a congenial relationship. In February 1990, Dymowski filed a grievance against plaintiff. During that same month, Dymowski had an altercation with plaintiff concerning a matter unrelated to the grievance. Dymowski filed a second grievance against plaintiff. Management resolved both grievances.

Dymowski continued to receive complaints about plaintiff from members of plaintiff's crew. A crew member asked Dymowski to forward the crew's complaints about plaintiff's behavior to Potter. In addition, Booze, an employee whom plaintiff had supervised at another location, told Dymowski that plaintiff was a "substance abuser." Plaintiff presented evidence in the summary judgment record that he was not a substance or alcohol abuser.

In September 1990, AT & T required Dymowski to attend a two-day training seminar in Seattle. Potter and Kastning attended the seminar, too. Sometime during the seminar, Dymowski told Potter that he had been receiving complaints about plaintiff from members of plaintiff's crew. Dymowski told Potter that plaintiff was hard to contact during the work day and that plaintiff took long lunch hours or failed to show up at work until late in the afternoon. Dymowski also told Potter about his discussion with Booze, including Booze's assertion that plaintiff was a substance abuser.

Kastning was present during the conversation between Dymowski and Potter. Kastning overheard everything that Dymowski said to Potter.

After that conversation, Kastning and Potter questioned other crew members about plaintiff's work performance. In October 1990, AT & T removed plaintiff from his position at the Beaverton facility. AT & T offered plaintiff another position in California. Plaintiff did not accept that offer.

Plaintiff then brought this action against Dymowski and CWA, asserting claims for intentional interference with economic relations, defamation, and "defamation with actual malice." CWA brought a third-party action against AT & T for contribution and indemnity.

Dymowski and CWA moved for summary judgment against plaintiff. AT & T moved to dismiss CWA's third-party complaint for failure to state a claim, ORCP 21. The trial court granted both motions.

Plaintiff appealed, and CWA cross-appealed. The Court of Appeals held, as now pertinent, that the trial court erred when it dismissed plaintiff's claim against Dymowski and CWA for "defamation with actual malice" and that the trial court erred when it dismissed CWA's cross-complaint against AT & T for contribution. The court otherwise affirmed the judgment of the trial court. 134 Or.App. at 233, 895 P.2d 315.

AT & T petitioned this court for review, arguing that the trial court did not err when it granted Dymowski's and CWA's motion for summary judgment and AT & T's motion to dismiss. We allowed review. ³

We begin our analysis with plaintiff's claim for "defamation with actual malice" because, if the summary judgment in defendants' favor as to that claim was proper, then we need not reach the issue of AT & T's contribution.

To establish a claim for defamation, a plaintiff must show, first, that the defendant made a defamatory statement about the plaintiff. Andreason v. Guard Publishing Co., 260 Or. 308, 310-12, 489 P.2d 944 (1971); Farnsworth v. Hyde, 266 Or. 236, 238-39, 512 P.2d 1003 (1973). Second, "[p]ublication or communication of the defamatory statement is an essential element of an action for defamation." State ex rel Advanced Dictating v. Dale, 269 Or. 242, 247, 524 P.2d 1404 (1974). In general, a statement is published when it is communicated to a third party. See id. at 246-47, 524 P.2d 1404 (defamatory statement made over the telephone to a third party constituted publication); see also Restatement (Second) of Torts, § 577(1) (1977) ("[p]ublication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed"); W. Page Keeton, ed, Prosser and Keeton on the Law of Torts, § 113, at 797 (5th ed 1984) ("[I]t is essential to tort liability * * * that the defamation be communicated to someone other than the person defamed. This element of communication is given the technical name of 'publication.' " (footnote omitted)). In other words, if a person makes a defamatory statement about another person, but that statement is not conveyed to a third party, no publication has occurred.

AT & T, CWA, and Dymowski argue that the statements made by Dymowski to Potter were not "published" and, therefore, are not actionable. Defendants assert that "a statement is not published when an employee speaks or otherwise communicates the statement to the employer's managers or supervisors and the statement solely concerns the work behavior of another employee." Defendants argue that that rule--dubbed in other jurisdictions the "intracorporate nonpublication rule"--"is consistent with the logic that corporations do not publish communications to themselves." They ask us to adopt that rule in this jurisdiction.

Plaintiff counters that the intracorporate nonpublication rule is rooted in an untenable legal fiction that a corporation is a single person for purposes of the tort of defamation. Plaintiff proposes instead that a "communication made by one agent to another agent of the same principal" is published.

This court never before has addressed the specific question whether a defamatory, work-related statement by one corporate employee about another employee to those employees' supervisors is "published." See Rice v. Comtek Mfg. of Oregon, Inc., 766 F.Supp. 1550, 1551 (D.Or.1990) (noting that "there is no controlling Oregon case" addressing whether "statements made by one corporate employee during the performance of his duties within the hearing only of other corporate employees * * * constitute[s] publication" (internal quotation marks omitted)). Other jurisdictions have answered that question in different ways.

In some states, courts have adopted an intracorporate nonpublication rule. Those courts have concluded that, for the purpose of defamation law, agents of an employer cannot be considered third parties in relation to that employer. In Prins v. Holland-North America Mortgage Co., 107 Wash. 206, 181 P. 680, 681 (1919), the Supreme Court of Washington explained the logic behind that rule:

"Agents and employes of [the same principal] are not third persons in their relations to the corporation, within the meaning of the laws pertaining to the publication of libels. For the time being, they are a part and parcel of the corporation itself, so much so, indeed, that their acts within the limits of their employment are the acts of the corporation. 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 of the libel on the part of the corporation. It is but communicating with itself."

Nine states, including Washington, have adopted the...