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Cole v. Chandler, Buckley, & Mead Corp.

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 104
Docket:	Oxf-99-683	
Argued:	April 3, 2000	
Decided:	May 26, 2000	

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.




CURTIS COLE v. BRENDA CHANDLER CURTIS COLE v. POLA BUCKLEY and THE MEAD CORPORATION


WATHEN, C.J.

	[¶1]  Plaintiff, Curtis Cole, appeals from a judgment entered in the
Superior Court (Oxford County, Warren, J.) granting defendants Brenda
Chandler's and Pola Buckley's motions for summary judgment in Cole's
actions for defamation, invasion of privacy, interference with advantageous
economic relations, intentional infliction of emotional distress, and punitive
damages. Cole also appeals from a judgment entered in the court (Perkins,
J.) granting defendant Mead Corporation's motion for summary judgment in
Cole's action for forced publication of libel and slander.  Cole argues that the
court erred in finding that Chandler and Buckley were immune under the
exclusivity provision of the Workers' Compensation Act.  Cole also argues
that the court erred in finding that, even if we recognize forced publication
as a theory of liability, defendant Mead Corporation was protected by either
statutory or common law immunity.  We affirm in part and vacate in part.
	[¶2]  The facts, viewed in the light most favorable to Cole as the
nonprevailing party, may be summarized as follows: Cole was the controller
of the Mead Corporation, Publishing Paper Division, Rumford, and the head
of the financial department at the Rumford paper mill from April 1, 1997,
until October 28, 1997, when his employment was terminated based on the
following series of events.  Chandler and Buckley were supervised by Cole. 
In mid-October, 1997, Chandler's husband reported to the human resources
manager that Cole had told a sexually explicit joke to Chandler that upset
her.  The manager confirmed with Chandler that the remark had been made
and then asked a representative of the human resources department to
investigate. Without naming Cole, the investigator conducted interviews with
the persons whom Cole directly supervised. Two of those individuals were
Chandler and Buckley.  When interviewed, Chandler reported the joke and
the following incident:  In September or October, 1997, when several
persons were standing around discussing a seminar in Atlanta that they were
to attend and the cost of the accommodations, Cole suggested that the
attendees, both male and female, could share rooms if their spouses did not
mind.  Buckley reported the following incidents:  (1) Cole yelled from his
corner office to her "hey, Pola, why don't you come in here - we'll close the
door and have some fun!"; (2) Cole asked Buckley to go for a drink after
work; (3) Cole asked Buckley for a back rub; and (4) Cole told an
inappropriate sexual joke.  On October 24, 1997, after the interviews, the
manager and the investigator interviewed Cole.  During that meeting, the
manager advised Cole that he was suspended pending further investigation. 
On October 28, 1997, at the conclusion of Mead's investigation, the manager
informed Cole that his employment was terminated.
	[¶3]  Cole brought separate complaints against Chandler and Buckley
alleging defamation; invasion of privacy by placing Cole in false light with
Mead, other potential employers and the general public; interference with
advantageous economic relations; intentional infliction of emotional distress;
and punitive damages.  The actions were consolidated, and Cole filed an
amended complaint alleging an additional count of defamation against
Buckley. The amended complaint also added Mead Corporation as a
defendant alleging forced publication of libel and slander, that is, that Mead
told him that his discharge from employment was for sexual harassment,
that it should have known that Cole would be forced to reveal the reasons for
his termination in a search for new employment, and that he was forced to
republish the libelous and slanderous statements. Buckley, Chandler, and
Mead filed motions for summary judgment.  The court granted Buckley's and
Chandler's motions on the basis that they were immune from suit by virtue
of the exclusivity and immunity provisions of the Workers' Compensation
Act.{1}  It granted Mead's motion on the basis that, even if Maine law
recognizes defamation by compelled self-publication as a theory of liability,
Mead was entitled to immunity by statute or common law. Cole appeals both
judgments.
	[¶4]  "'We review the entry of summary judgment for errors of law,
viewing the evidence in the light most favorable to the party against whom
the judgment was entered.'" Prescott v. State Tax Assessor, 1998 ME 250,
¶ 4, 721 A.2d 169, 171 (citation omitted).  Summary judgment will be
upheld if the evidence produced demonstrates that no genuine issue as to
any material fact exists and that the moving party is entitled to judgment as
a matter of law.  See id.
I. Mead Corporation
	[¶5]    Cole's only claim against Mead is for "forced publication of
libel and slander." The elements of defamation are as follows: 
(a)  a false and defamatory statement concerning another;
(b)  an unprivileged publication to a third party;
(c) fault amounting at least to negligence on the part of the
publisher; and
(d) either actionability of the statement irrespective of
special harm or the existence of special harm caused by the
publication.
See Lester v. Powers, 596 A.2d 65, 69 (Me. 1991) (citing Restatement
(Second) of Torts § 558 (1977)). Cole does not allege that Mead
communicated the reason for its termination of Cole to any third party and
thus the allegedly defamatory statement was not published by Mead.  Rather,
Cole argues that he himself was forced to publish or communicate the
reasons for his termination to prospective employers and that this should
satisfy the publication element of the tort of defamation.  We need not reach
the issue of compelled self-publication, however, because a claim of
defamation also requires that the publication be unprivileged, see id., and we
find that Mead, in any event, was protected by a conditional privilege under
common law. 
	[¶6]  Whether Mead is entitled to the common law privilege is a
question of law.  See Rippett v. Bemis, 672 A.2d 82, 87 (Me. 1996).  "A
conditional privilege against liability for defamation arises in settings where
society has an interest in promoting free, but not absolutely unfettered,
speech."  Lester v. Powers, 596 A.2d 65, 69 (Me. 1991) (citations omitted). 
It may arise "in any situation in which an important interest of the recipient
of a defamatory statement will be advanced by frank communication."
Rippett v. Bemis, 672 A.2d 82, 87 (Me. 1996) (citing Lester v. Powers, 596
A.2d at 70).  In Lester, we held that a former student was entitled to a
conditional privilege against libel for her letter to a college, as part of a
professor's tenure review process, stating her version of the professor's
conduct during a particular class. See Lester v. Powers, 596 A.2d at 70.  In
Gautschi v. Maisel, 565 A.2d 1009 (Me. 1989), we held that a faculty
member enjoyed a conditional privilege against a claim of slander while
serving on a tenure review committee and engaged in reviewing another
employee's credentials to determine whether that employee should be
granted permanent employment.  See id. at 1011.  Similarly, Mead was
entitled to a conditional privilege in this case against a claim of slander
brought by one of its employees arising out of the termination of his
employment relationship with Mead.
	[¶7]  Cole argues next that, even if Mead is entitled to a conditional
privilege, he has raised a genuine issue of material fact whether Mead has
abused its privilege.  The common law conditional privilege applies unless
the originator of the statement abused the privilege.  See Gautschi v. Maisel,
565 A.2d 1009, 1011 (Me. 1989). Whether the defendant abused his
privilege is a question of fact. See Rippett v. Bemis, 672 A.2d 82, 87 (Me.
1996).  Once it is determined that the defendant is entitled to the privilege,
the burden shifts to the plaintiff "to come forward with evidence that could
go to a jury that [the defendant] abused the privilege."  Gautschi, 565 A.2d 
at 1011.  Abuse includes making the statement outside normal channels or
with malicious intent.  See id. (citing Saunders v. VanPelt, 497 A.2d 1121,
1125 (Me. 1985); Greenya v. George Washington Univ., 512 F.2d 556, 563
(D.C.Cir. 1975); Restatement (Second) of Torts § 599 cmt. a (1977)).  For
purposes of defamation claims, malice means when the originator of the
statement "knows his statement to be false, recklessly disregards its truth
or falsity, or acts with spite or ill will."  See Rippett v. Bemis, 672 A.2d 82,
87 (Me. 1996) (citing Lester v. Powers, 596 A.2d 65, 69 & n.7 (Me. 1991));
see also Lester, 596 A.2d at 69 & n.7 ("actual malice" is a term of art which
means "knowledge or disregard of falsity").  Reckless disregard for the truth
can be proved by evidence that "establishes that the maker of a statement
had 'a high degree of awareness of probable falsity or serious doubt as to the
truth of the statement.'" Rippett, 672 A.2d at 87 (quoting Onat v. Penobscot
Bay Med. Ctr., 574 A.2d 872, 874 (Me. 1990)). 
	[¶8]  Cole argues that Mead abused its discretion because Buckley's
and Chandler's statements were false, because Buckley and Chandler did not
follow proper company procedure for reporting a harassment claim, and
because Mead did not thoroughly investigate the claim before terminating
him.  Cole, however, does not deny that, even if the additional investigation
had been conducted, it would not have rebutted any of the allegations made
by his subordinates.  Further, he concedes that Chandler's statements that
he told the joke and that he made a comment about sharing rooms if the
spouses did not mind were true, and only argues that Chandler was not
offended and that he did not believe the comment about sharing rooms had
sexual overtones or referred to any specific individuals.  Therefore, even if
Cole raises an issue of fact as to whether Mead thoroughly investigated, he
failed to show a reckless disregard for the truth.  He did not establish a high
degree of awareness of probable falsity or serious doubt as to the truth of the
statement. See Rippett v. Bemis, 672 A.2d 82, 87 (Me. 1996) (citation
omitted); see also Restatement (Second) of Torts § 580B cmt. i (1977)
(defamation of private person citing § 580A cmt. d for knowledge or
reckless disregard of falsity); § 580A cmt. d (1977) (stating that "[r]eckless
disregard is held not to be measured by whether a reasonable, prudent
person would have published the statement without more investigation.");
Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 315 (5th Cir. 1995)
(noting that an inadequate investigation by itself was clearly not sufficient to
show actual malice).  Nor did he show spite or ill will.  Even when the facts
are viewed in the light most favorable to him, they do not present a genuine
issue of material fact whether Mead abused the privilege.  Therefore, we find
that the court did not err in granting summary judgment in favor of Mead on
the basis that Mead enjoyed a conditional privilege and did not abuse that
privilege.
II. Chandler and Buckley
A.  Exclusivity Provision of Workers' Compensation Act

	[¶9]  As against Chandler and Buckley, Cole argues that, one, the
exclusivity provision of the Workers' Compensation Act was not intended to
apply to injury to reputation because such a claim would not be compensable
under the Act and, two, even if the exclusivity provision would otherwise
apply, it does not apply in this case because Cole's injuries did not occur "in
the course of" employment.  Under Maine's Workers' Compensation Act, in
order for an injury to be compensable, the employee must "1) suffer a
personal injury, 2) that arises out of and 3) in the course of employment." 
Knox v. Combined Ins. Co. of America, 542 A.2d 363, 366 (Me. 1988).{2}  The
exclusivity provision is found in 39-A M.R.S.A. § 104, and provides in
pertinent part as follows:
	An employer who has secured the payment of
compensation . . . is exempt from civil actions, either at
common law . . . , involving personal injuries sustained by an
employee arising out of and in the course of employment . . . .
These exemptions from liability apply to all employees,
supervisors, officers and directors of the employer for any
personal injuries arising out of and in the course of
employment . . . . 
39-A M.R.S.A. § 104 (Supp. 1999).

	[¶10]  Although this is a case of first impression, we are guided by
our developing case law.  We have consistently applied a broad and
encompassing construction to the exclusivity provision.  See Beverage v.
Cumberland Farms Northern, Inc., 502 A.2d 486, 489 (Me. 1985); Li v. C.N.
Brown Co., 645 A.2d 606, 607 (Me. 1994). In Beverage we stated the
purpose of the Workers' Compensation Act as follows:  "The 'legislative
intendment in enacting the comprehensive scheme for worker's
compensation' was to 'giv[e] effect to the underlying policy of providing
certainty of remedy to the injured employee and absolute but limited and
determinate liability for the employer.'" Id. at 489 (citation omitted).{3}  We
further noted that "[i]f few occasions remain for employees to bring civil
actions in tort against employers, such is merely the inevitable consequence
of the legislature's extension of the coverage of workers' compensation." Id.
	[¶11]  We have refused to carve out an exception for intentional
torts. See Li v. C.N. Brown Co., 645 A.2d 606 (Me. 1994).  In Li the employee
of defendant was killed when a former employee robbed the store and
stabbed the employee; the employer allegedly knew of the intended armed
robbery but did not close the store where the employee was working alone. 
See id. at 607.  The plaintiff argued that the exclusivity and immunity
provisions should not apply to injuries to employees caused by intentional
torts.  We found, however, that the Act applied "to all work-related injuries
and deaths, however caused, not just accidental injuries and deaths." Id. at
608. We "decline[d] to create a judicial exception to the exclusivity and
immunity provisions for employers' intentional torts," noting that if the
Legislature intended to exclude intentional acts, it could have created the
exception. Id. 
	[¶12]  We also have not required that the excluded claims be
compensable.  See Knox v. Combined Ins. Co. of America, 542 A.2d 363 (Me.
1988).  In Knox, the plaintiff brought a civil action alleging assault and
battery, intentional and negligent infliction of emotional distress, and
negligent supervision of her supervisor by the employer.  She sought
compensatory and punitive damages, including mental injuries, caused by
sexual assaults and harassments committed upon her by her supervisor. See
id. at 364. We determined that, because injuries arising from assaults have
been held compensable under the Workers' Compensation Act, no reason
exists to distinguish between sexual assaults and non-sexual assaults for
purposes of coverage under the Act. See id. at 365.  We noted that under the
right set of facts, mental or physical injuries from sexual assault could be
compensable injuries under the Act. See id.  We also noted that "[l]ikewise,
injuries resulting from acts of sexual harassment are not excluded from the
Act's coverage solely because of the sexual nature of the harassment." Id. at
365-66. 
	[¶13]  We do not rely on labels or the formal designation of a tort
action to determine whether a claim is barred by the exclusivity provision of
the Workers' Compensation Act.  Rather, we look to the gist of the action
and the  nature of the damages sought to determine whether the claim for
injury is  excluded.  See 6 Arthur Larson, Larson's Workers' Compensation
Law, § 104.05[1], at 18 (1999).  The coverage and exclusivity provisions
begin with a focus on personal injuries.  Cole's claim for intentional infliction
of emotional distress seeks a recovery only for mental injuries.  As we have
held in the past, mental injuries constitute personal injuries within the
meaning of the exclusivity provision of the Workers' Compensation Act and
thus an independent claim is barred. See Knox v. Combined Ins. Co. of
America, 542 A.2d 363 (Me. 1988).  Cole's claims for defamation, invasion of
privacy and interference with advantageous economic relations, however,
are broad enough to include recovery for economic injuries, as well as
mental or physical injuries. As with the claim for intentional infliction of
emotional distress, any mental or physical injuries included within these
claims are personal injuries and thus recovery is barred by the exclusivity
provision. On the other hand, the economic or reputational injuries, if any,
do not constitute personal injuries, as they are not physical or mental
injuries.  Therefore, the recovery of such damages is not precluded by the
exclusivity provision. 
	[¶14]  Concerning those claims that constitute personal injuries
under the Act, Cole argues that, even if the exclusivity provision applies in
general, it would not apply in this case because the injuries did not occur
"in the course of" employment. The purpose the coverage formula seeks to
effectuate is "'to compensate employees for injuries suffered while and
because they were at work.'" Comeau v. Maine Coastal Servs., 449 A.2d 362,
366 (Me. 1982) (citations omitted).  The determination turns on an issue of
fact.  See Knox v. Combined Ins. Co. of America, 542 A.2d 363, 366 (Me.
1988).  The question is whether the injury "'occurs within the period of
employment at a place where the employee reasonably may be in the
performance of his duties and while he is fulfilling those duties or engaged
in doing something incidental thereto.'" Hebert v. International Paper Co.,
638 A.2d 1161, 1162 (Me. 1994) (citations omitted); see also Comeau v.
Maine Coastal Servs., 449 A.2d 362, 367 (Me. 1982).
	[¶15]  Cole argues that his injuries occurred at the time he was
terminated while he was at home and compares himself to the defendant in
Hebert.  In Hebert, however, the plaintiff had been home for a month as a
result of falling down stairs at the plant when his brother brought to his
house a sign that allegedly had been posted at the mill questioning the
sincerity of his fall and resultant back injury.  See id. at 1161-62.  It was the
posting of the sign that caused him the emotional distress and not the injury
at work.  Therefore, we found that because he was at home at the time, it
did not occur "in the course of" employment.  See id. at 1162-63.  
	[¶16]  The evidence, viewed in the light most favorable to Cole,
however, reveals that in this case the allegedly defamatory statements were
made by Chandler and Buckley during the preliminary investigation of Cole
for inappropriate behavior in the workplace while Cole was employed at
Mead and while he was in his office performing his functions as controller
and head of the financial department.  As a result of these interviews, the
human resources person at Mead met with Cole in Cole's office, explained
the concerns raised by the investigation, including the specific allegations,
and placed Cole on suspension pending further investigation. After further
investigation, while Cole was at home on suspension, Mead terminated Cole
by phone.  Thus, the alleged slander and the damage would necessarily have
occurred at the place of employment while he was still in the performance
of his duties before he was suspended.  Therefore, his personal injuries, if
any, arose out of and in the course of his employment and are precluded by
the exclusivity provision of the Workers' Compensation Act.
 
B.  Remaining Claims

	[¶17]  Notwithstanding that Cole's claim for invasion of privacy is not
precluded by the exclusivity provision to the extent of any economic
damages incurred, it fails nonetheless.  The claim is based on publicity
which places the plaintiff in a false light in the public eye.  See Estate of
Berthiaume v. Pratt, 365 A.2d 792, 795 (Me. 1976).  Cole alleges in his
complaint that Chandler's and Buckley's statements put him in a false light
with Mead, other potential employers, and the general public.  Liability for
publicity placing a person in a false light is defined as follows:
One who gives publicity to a matter concerning another that
places the other before the public in a false light is subject to
liability to the other for invasion of his privacy, if (a) the false
light in which the other was placed would be highly offensive
to a reasonable person, and (b) the actor had knowledge of or
acted in reckless disregard as to the falsity of the publicized
matter and the false light in which the other would be
placed.
Restatement (Second) of Torts § 652E (1977).  Publicity is defined as
follows:
"Publicity," as it is used in this Section, differs from
"publication," as that term is used in § 577 in connection
with liability for defamation.  "Publication," in that sense, is a
word of art, which includes any communication by the
defendant to a third person.  "Publicity," on the other hand,
means that the matter is made public, by communicating it
to the public at large, or to so many persons that the matter
must be regarded as substantially certain to become one of
public knowledge.
Restatement (Second) of Torts § 652D cmt. a (1977).  

	[¶18]  Cole failed to generate any genuine issue through his
statement of material facts that either Chandler or Buckley communicated
their comments to the public or to so many persons that it would be certain
to become public knowledge. Therefore, his claims for invasion of privacy
against both Chandler and Buckley fail.
	[¶19]  Moreover, to the extent that the claims of defamation and
interference with economic relations include economic injuries, Chandler is
entitled to a conditional privilege similar to Mead Corporation.  See Gautschi
v. Maisel, 565 A.2d 1009 (Me. 1989).  Because Cole conceded that the
statements made by Chandler were substantially true, he failed to
demonstrate that Chandler acted with any malice and accordingly failed to
demonstrate that she abused her privilege.  As to Buckley, however, because
Cole denied making the statements attributed to him, he produced evidence
for purposes of summary judgment that she knew her statements to be false.
Thus, we find for purposes of summary judgment that Cole raised a genuine
issue of material fact that Buckley abused her conditional privilege.  For the
same reasons, we find that he raised a genuine issue of material fact for
purposes of summary judgment as to his claims for defamation and
interference with economic relations against Buckley to the extent that such
claims seek recovery for injuries other than personal injuries.
	The entry is:
	
Judgments in favor of Mead Corporation and Brenda
Chandler affirmed; judgment in favor of Pola Buckley affirmed
as to claims for intentional infliction of emotional distress,
invasion of privacy and punitive damages and as to claims for
defamation and interference with economic relations to the
extent of any claims for personal injuries; judgment in favor
of Buckley vacated as to claims for defamation and
interference with economic relations to the extent of any
claim for injuries other than personal injuries.

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