Churchey v. Adolph Coors Co.

ERICKSON, Justice,

concurring in part and dissenting in part:

Diana K. Churchey (Churchey), a former employee of the Coors Glass Plant of Coors Industries (Coors), was terminated for dishonesty arising from an abuse of company policies pertaining to medical leaves of absence. Thereafter, Churchey brought an action in the District Court of Jefferson County against Coors alleging: (1) wrongful discharge; (2) defamation; and (3) outrageous conduct. The district court, in resolving cross-motions for summary judgment, entered comprehensive orders granting Coors’ motion for summary judgment on all three claims, and denying Churchey’s motion for summary judgment. The court of appeals affirmed the district court. I agree with both the district court and the court of appeals, and would affirm the entry of summary judgment.

I.

The following facts are established by evidence outside the pleadings submitted by Coors in conjunction with its motion for summary judgment, and by documents supplied by Churchey in support of her motion for summary judgment. Coors has provided its employees with a statement of its company policies in an employment manual. On January 17, 1983, Churchey called her supervisor, Doug Greer, and requested a medical leave of absence for a work related illness. Pursuant to Coors’ policy, as set forth in the manual, Churchey was required to complete a Medical Treatment Request Form (MTR), and obtain approval at the Coors medical center (medical center), after a medical examination by Coors’ personnel.1 She was familiar with the pro*1352cedures for obtaining medical leave because she had previously taken a medical leave of absence from March 17 to 29, 1982. Personnel policies were also posted on a company bulletin board and Coors held group meetings, which Churchey and others attended, to explain the policies in the employee manual.

Churchey delayed reporting to the medical center until late Tuesday, January 18, 1983. She was examined and diagnosed as having conjunctivitis. She was released for work on January 19. On January 19, she did not report for work and called her supervisor to again request a medical leave of absence. She was told to report to the medical center to obtain approval of her request but she did not go to the medical center that day. During the day, she was examined by her personal physician and diagnosed as having “maxillary sinusitis.” Her physician released her from work until January 24, 1983.

On January 20, Churchey informed Greer of her physician’s recommendations and requested a medical leave of absence. Greer told her to obtain authorization for her request from the medical center. Later that day, Churchey gave Greer the MTR form dated January 18. Greer did not read the form and assumed that Churchey had an approved leave of absence for the week ending January 21. At Churchey’s request, Greer gave Churchey a second MTR form postdated to the following Monday, January 24,1983. By postdating the form, Greer did not approve Churchey’s prior absence from work. Greer informed her repeatedly in accordance with Coors’ policies that she had to work unless her request for a leave of absence was approved by the medical center. Churchey, and not the medical center, had the responsibility of informing Greer of the status of her request for a leave of absence. She never informed Greer that her request had only been approved for January 18.

Later that day, Churchey was examined by David Thekan, a nurse at the medical center, who told her she was released for work. Churchey became visibly angry and refused to sign the MTR form. Thekan subsequently changed the form to have her see the company doctor on January 21. The same day, Greer learned from Thekan that Churchey had not obtained approval for her absence on January 19 and 20. Greer immediately contacted an employee relations representative, Nancy Rees, and Rees’ supervisor, Nate Ledgerwood. They reviewed Churchey’s failure on both days to report her medical release for work and to report for work. Pending an investigation to determine whether her absence was excused by illness, they decided to suspend her pay as of Wednesday, January 19, the first day she had been released for work.

On the morning of January 21, 1983, Churchey was examined by the Coors company doctor, Steve George. She explained her symptoms and told George of her physician's diagnosis and recommendations. George released her to full duty that day and signed the MTR form dated January 24, 1983. Churchey told George that she had the week off and did not have to return to work until the following Tuesday, January 25. Churchey was in fact scheduled to work on January 21, 1983. George later called Greer and informed him that Chur-chey had been released to return to work that day but that she had informed him *1353that she was not scheduled to return to work until January 25.

Greer again requested a meeting with Rees and Ledgerwood. After reviewing Churchey’s behavior and Coors’ employment policies, they decided to suspend her employment and investigate the propriety of a possible termination action, if she failed to report for work on January 21. Churchey did not return to work until January 25. Greer, Ledgerwood, and Rees determined that Churchey’s conduct constituted “dishonesty” because she failed to inform her supervisor of her medical releases to return to work on January 19 and 21 and because she misrepresented her work schedule to George. Under Coors’ employment policies, employee “dishonesty” is subject to immediate dismissal. “Dishonesty” is defined in Coors’ manual as: “To cheat, deceive, embezzle or defraud the company, including making or supplying false statements or information.”

When Churchey returned to work on January 25, 1983, she was requested to meet with Greer and Ledgerwood to explain her medical releases and failure to return to work. Ledgerwood told Churchey that Coors’ concern was not with whether she was in fact ill the prior week but with her dishonesty in her dealings with Coors. He informed her that her pay was suspended beginning that day and the next day, he notified her that she was terminated for dishonesty.

Pursuant to Coors’ policies, Churchey appealed her dismissal to a five-member appeal board. The board consisted of two members chosen by Churchey and two by Coors, with the fifth selected by those four members. After considering evidence presented by both Churchey and Coors, the board unanimously upheld her termination for dishonesty.

Churchey subsequently filed a complaint in the District Court of Jefferson County alleging (1) that Coors defamed her by dismissing her for dishonesty; (2) that Coors’ conduct in dismissing her was extreme and outrageous and intended to cause her severe emotional distress; and (3) that her discharge violated the procedural safeguards for due process guaranteed by Coors’ personnel policies. On April 21, 1983, Coors filed a motion to dismiss for, inter alia, failure to state a claim upon which relief could be granted, C.R.C.P. 12(b)(5), and attached supporting affidavits and other documentation to the motion. Since Coors had attached matters outside the pleadings to its motion, the motion to dismiss for failure to state a claim was converted into a motion for summary judgment. See C.R.C.P. 12(b)(5); Alexander v. Morrison-Knudsen Co., 166 Colo. 118, 444 P.2d 397 (1968), cert. denied, 393 U.S. 1063, 89 S.Ct. 715, 21 L.Ed.2d 706 (1969). On May 24, 1983, Churchey moved for summary judgment, C.R.C.P. 56. In response to the cross-motions for summary judgment, the court issued an order dated October 3, 1983, granting Coors’ motion for summary judgment on Churchey’s claim for wrongful discharge.2 In the order, the court noted that the respondent, Adolph Coors Company (Coors), had moved to dismiss for failure to state a claim, C.R.C.P. 12(b)(5), and, because matters outside the pleadings were presented, the pleading would be treated as a motion for summary judgment, C.R.C.P. 56. In disposing of the claim for wrongful discharge, the court found that “there was no genuine issue of material fact and that the employment was terminable at will.” Because the court concluded that “[n]o action lies for wrongful discharge or breach of contract” for employment terminable at will, it granted Coors’ motion for summary judgment on the wrongful discharge claim. On April 2, 1984, Coors filed a second motion for summary judgment on the remaining claims. In an order dated May 31, 1984, the court granted Coors’ summary judgment motion with respect to Churchey’s claims for outrageous conduct and defamation. On ap*1354peal, the court of appeals affirmed the trial court. Churchey v. Adolph Coors Co., 725 P.2d 38 (Colo.App.1986).

II.

Churchey’s first claim for relief is based on defamation caused by her dismissal by Coors for "dishonesty.” Churchey maintains that she is unable to procure employment because she must disclose the grounds for her dismissal to prospective employers. She asserts that she committed no dishonest acts to justify her dismissal by Coors. In my view, the trial court properly granted Coors’ motion for summary judgment on Churchey’s defamation claim. Churchey’s dismissal was justified since, under Coors’ definition of “dishonesty,” she was dishonest in her dealings with Coors.3 Establishing that Churchey was dishonest bars recovery for her defamation claim. Walters v. Linkof, 559 F.Supp. 1231 (D.Colo.1983) (elements of defamation claim are: (1) a defamatory statement; (2) publication of the statement to a third party; (3) fault on the part of the publisher of the statement; and (4) actiona-bility of statement or special damages); Gomba v. McLaughlin, 180 Colo. 232, 504 P.2d 337 (1972) (truth is absolute defense to libel action); Restatement (Second) of Torts § 581A (1977) (no liability for defamation unless statement is defamatory and false). Since Churchey’s evidence did not establish that a genuine issue of fact exists concerning her dishonesty in her dealings with Coors, it is unnecessary to resolve whether publication occurred when Churchey was forced to repeat the reason for her discharge to third parties. See Restatement (Second) of Torts § 577 comments k and m (1977).4

*1355Under C.R.C.P. 56, a motion for summary judgment will be granted only where the pleadings, deposition, answers to interrogatories, and admissions show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Bailey v. Clausen, 192 Colo. 297, 557 P.2d 1207 (1976); O.C. Kinney, Inc. v. Paul Hardeman, Inc., 151 Colo. 571, 379 P.2d 628 (1963); C.R.C.P. 56(c). When a motion for summary judgment is made and supported by affidavits, which may be supplemented by depositions, answers to interrogatories, or further affidavits, an adverse party cannot rest upon the mere allegations or denials of his pleading. C.R.C.P. 56(e). The party must respond by affidavits or as otherwise provided by rule 56, and his response must set forth specific facts showing genuine issues of material fact. Id. If the party does not respond, summary judgment shall be entered against him. Id.; see Abrahamsen v. Mountain Tel. & Tel. Co., 177 Colo. 422, 494 P.2d 1287 (1972) (summary judgment eliminates the time and expense of trial when there is no material issue of fact and when judgment should be entered as matter of law).

The majority cites Abrahamsen v. Mountain States Telephone & Telegraph Company, 177 Colo. at 426, 494 P.2d at 1289, for the proposition that “for purposes of reviewing the summary judgment we accept as true Churchey’s allegation that the statement was false.” At 1343. The majority’s reliance is misplaced. In Abra-hamsen, the plaintiff challenged the trial court’s dismissal of his claims for libel and conspiracy. The claims alleged that the defendants had conspired to falsely charge and accuse the plaintiff in interoffice reports of the theft of daily addendum lists to the telephone directories of the corporate defendant. We reversed the trial court’s granting of the defendant’s motion for summary judgment, finding that a genuine issue of fact existed regarding the defamatory character of the inter-office reports. We declared that, on a motion for summary judgment, allegations in pleadings must be accepted as true even if denied by the moving party’s pleadings “unless the depositions and admissions on file, together with the affidavits, clearly disclose that there is no genuine issue as to any material fact, and that, as matter of law, summary judgment should be entered.” 177 Colo. at 426, 494 P.2d at 1289 (emphasis added). In reversing the district court, we concluded that the defendant had presented no evidence outside the pleadings establishing that the inter-office reports were not libelous. Accordingly, the allegations in the plaintiff’s pleadings that the reports were libelous, though denied in defendant’s pleadings, had to be taken as true. In this case, under C.R.C.P. 56, Churchey’s allegation that her dismissal for “dishonesty” was defamatory can only be taken as true if Coors presented no evidence outside the pleadings challenging the truthfulness of the allegedly defamatory statement of Coors.

In my view under C.R.C.P. 56, Coors has established as a matter of law, that Chur-chey was terminated for dishonesty stemming from her abuse of Coors’ policies pertaining to medical leaves of absence.5 Coors provided documentation apart from the pleadings establishing that Churchey abused Coors’ policies governing medical leaves of absence. She misrepresented her work schedule to Coors’ medical personnel and failed to discharge her responsibilities by informing her supervisors of her medical releases to return to work on January 19, 20, and 21 and by not reporting for work on those days. In her motion for *1356summary judgment, Churchey stated that the facts were essentially undisputed. She supplied additional material to support her motion for summary judgment. She submitted, inter alia, a memorandum written by Greer documenting Coors’ version of her dismissal; medical reports of private physicians establishing her illnesses from January 18,1983, to January 21,1983; and her affidavit stating that her absence from work had been caused by illness and that she could not understand why she needed approval of the medical center to excuse her absence from work. She presented no material evidence outside the pleadings contesting Coors’ account of her conduct. In view of the undisputed evidence in the record, there is no genuine issue of material fact that Churchey’s conduct constituted dishonesty under the policy manual. Her dishonest conduct is not excused by her alleged illnesses during the week of January 17.

The majority contends that a material issue of fact prevents summary judgment. According to the majority, under the evidence,

[t]he record [supports] at least three conclusions: (1) Churchey was instructed to return to work on January 21, but deliberately failed to follow those instructions; (2) Churchey was released from work until January 24 and violated no work rule by going home; and (3) Chur-chey was instructed to return to work but mistakenly thought she did not have to return to work until January 24.

At 1342. In my yiew, the fact that there are three possible1 conclusions based upon the record does not create an issue of fact that is material to the resolution of the case. Concerning the first and third conclusions, Coors’ definition of “dishonesty” does not require an intent to engage in dishonest conduct; it merely requires an employee to deceive Coors by supplying false information. In this case, Churchey did not refute Coors’ evidence that she had misrepresented her work schedule to George, Coors’ company doctor, before George signed her medical release form. Churchey informed him that she was released from work the entire week of January 18, despite the fact that she was scheduled to work on January 21. Although the dismissal of Churchey seems harsh in yiew of her conduct, Churchey has not asked us to determine whether the policy manual accurately defines “dishonesty.” See Knapp v. Post Printing & Publishing Co., 111 Colo. 492, 144 P.2d 981 (1943) (in determining if words are libelous, they are given their ordinary, popular meaning); Restatement (Second) of Torts § 563 (1977) (meaning of allegedly defamatory communication is “that which the recipient correctly, or mistakenly but reasonably, understands that it was intended to express”). Accordingly, we must use Coors’ definition in determining whether Churchey was properly dismissed for dishonesty.

The majority also states that a material issue of fact exists because

“the record contains contradictory statements and evidence regarding whether Churchey had an obligation to inform her supervisor of the medical center’s instructions.... One of the affidavits submitted by Coors indicates that it is the employee’s responsibility to inform the supervisor of a medical release, but another Coors’ affidavit states that it is standard procedure for the nurse practitioner to inform the supervisor.”

At 1341. In my view, the two statements are perfectly consistent and do not create a material issue of fact. Although personnel at the medical center typically report the condition of an employee, who is referred to the medical center, to the employee’s immediate supervisor, the employee has the ultimate responsibility of ensuring that the information is transmitted to her supervisor. Churchey’s failure to periodically report the status of her leave request to her supervisors ignored her responsibility and constituted deceitful conduct.

Accordingly, I would affirm the trial court’s granting of summary judgment on Churchey’s claim for defamation.

III.

Churchey’s third claim for relief is for wrongful discharge in violation of Coors’ *1357policies. The record establishes that Chur-chey was terminable at will. Accordingly, her wrongful discharge claim is dependent on our holding in Continental Air Lines, Inc. v. Keenan, 731 P.2d 708 (Colo.1987), which recognized, in the context of employment terminable at will, a claim based on an employer’s noncompliance with established employment policies governing employee termination. Churchey claims that under Coors’ policies she could not be dismissed because she was, at most, absent without leave, an offense that was not grounds for automatic dismissal. The offense is only grounds for dismissal if, after being warned, the employee commits the offense a second time. Churchey also argues that Coors lacked good cause to discharge her and by discharging her did not follow its policy governing medical leaves of absence.6 Coors claims that, even if Continental Air Lines applies in this case, Coors fully complied with its policies in dismissing Churchey. I agree with Coors.

Based on the parties’ evidence outside the pleadings, no genuine issue of material fact remains whether Coors complied with the provisions in the manual. Coors has established (1) that Churchey was dishonest in her dealings with Coors; (2) that, in accordance with Coors’ policies, she was automatically dismissed for her dishonesty; (3) that she requested a medical leave of absence requiring approval of Coors’ medical center; (4) that her supervisor complied with the requirement and sent Churchey to the medical center for approval of her request; (5) that an employee relations representative, Nancy Rees, pursuant to the provisions of the manual, met with Churchey’s supervisor on several occasions and, after some discussion, agreed to the dismissal of Churchey for dishonesty; (6) that Churchey was allowed, as set forth in Coors’ policies, to appeal her dismissal to a five-member board; and (7) that, after considering evidence presented by both Coors and Chur-chey, the board unanimously approved Churchey’s dismissal for dishonesty. In my view, Churchey has not established by evidence outside the pleadings that Coors did not adhere to its employment policies in dismissing her.7

Accordingly, I would affirm the court of appeals.

I am authorized to say that Justice RO-VIRA joins part II of this concurrence and dissent in part. I am also authorized to say that Justice VOLLACK joins this concurrence and dissent.

. Coors’ policy concerning leaves of absence provides:

PURPOSE:
Adolph Coors Company maintains the policy for granting leaves of absence to employees for unavoidable time off from work and where required by law. When leave of absence is granted, it will always be for the shortest time needed to accomplish the purpose of the leave.
DEFINITION:
A leave of absence covers authorized time off other than regular absence.
REQUESTING AND GRANTING LEAVES:
An approved leave of absence is all absences of more than ten consecutive calendar days off. All requests for leaves of absence are to be submitted in writing to the employee’s supervisor as far in advance as possible. If a *1352requested LOA is not granted, the employee must report for work as scheduled. Failure to do so may result in disciplinary action for insubordination. (Refer to Work Rules/Corrective Discipline Policy.)
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The initial request for a medical leave of absence is made through the supervisor (preferably in writing). The request is then documented on a Medical Treatment Request Form. The supervisor will have the employee take the request form and a personal physician’s recommendation to the Coors Medical Center (CMC), where the medical status will be evaluated. Coors Medical Center assumes the primary responsibility for approving medical leaves of absence. CMC will review the appropriateness and duration of the leave and may, when necessary, consult with the employee’s supervisor, the Medical LOA Coordinator, the Vocational Rehabilitation Specialist, and the attending physician. CMC will approve or deny the medical aspects of the leave of absence request and will note their decision on the Medical Treatment Request Form.

. In Morlan v. Durland Trust Co., 127 Colo. 5, 252 P.2d 98 (1952), we stated that ‘‘[t]he fact that both parties make motions for summary judgment, and each contends in support of his respective motion that no genuine issue of fact exists, does not require the Court to rule that no fact issue exists." Id. at 14, 252 P.2d at 102.

. Coors does not argue in its brief to this court that there was no defamation because Churchey was in fact terminated for dishonesty. Coors relies on the lack of publication of the alleged defamatory statement in support of the court’s granting of summary judgment. Coors does, however, in addressing the wrongful discharge claim, contend that Churchey was dishonest in her dealings with Coors and that she was terminated for that reason. Coors also argued before the trial court that the alleged defamatory statement was truthful. In my view, the truthfulness of the alleged defamatory statement is within the scope of our review.

. After reviewing comment k and the supporting illustrations, however, I believe that the comment was not intended to govern "compelled self-publication,” which the majority defines as compelled publication by the defamed party. Comment k provides:

There is an intent to publish defamatory matter when the actor does an act for the purpose of communicating it to a third person or with knowledge that it is substantially certain to be so communicated.
It is not necessary, however that the communication to a third person be intentional. If a reasonable person would recognize that an act creates an unreasonable risk that the defamatory matter will be communicated to a third person, the conduct becomes a negligent communication.

The unduly broad language of comment k is limited by the following illustrations:

4A and B engage in an altercation on the street where there are a number of pedestrians. During the course of the quarrel, A in a loud voice accuses B of larceny, the accusation being overheard by a number of passersby. A has published a slander.
5 A, a cartoonist, while working at his desk in an office building represents B, a member of the editorial staff, in a ludicrous attitude. A leaves the cartoon on his desk, where it can easily be seen by numerous people who pass by the desk. A stenographer subsequently sees the cartoon. A has published a libel.
6 A writes a defamatory letter to B and sends it to him through the mails in a sealed envelope. A knows that B is frequently absent and that in his absence his secretary opens and reads his mail. B is absent from his office and his secretary reads the letter. A has published a libel.

Based on the illustrations, comment k addresses negligent publication by the defamer and not voluntary publication by the defamed person. Comment m is the only comment in the Restatement (Second) of Torts dealing with voluntary publication by the defamed person. Comment m provides:

One who communicates defamatory matter directly to the defamed person, who himself communicates it to a third person, has not published the matter to the third person if there are no other circumstances. If the defamed person’s transmission of the communication to the third person was made, however, without an awareness of the defamatory nature of the matter and if the circumstances indicated that communication to a third party would be likely, a publication may properly be held to have occurred.

Comment m -observes that communication of defamatory matter by the defamed person does not generally constitute publication and discusses only one exception to the rule. The majority concedes, and I agree, that the exception con*1355tained in comment m does not apply in this case because Churchey was aware of die defamatory nature of the statement at the time she communicated it to third parties.

. The trial court did not grant summary judgment based on the truthfulness of the allegedly defamatory statement of Coors. A motion for summary judgment is only granted if there are no material factual issues and if a party is entitled to judgment as a matter of law. Since no factual findings are necessary in deciding a' summary judgment motion, this court is in the same position as the trial court in determining whether summary judgment should have been granted based on Churchey’s failure to establish the defamatory nature of her dismissal for "dishonesty."

. Churchey argues that the policy requirements governing leaves of absence are inapplicable in this case since her absence from work was for less than ten days; however, she conceded in her memorandum brief in opposition to defendant’s motion for summary judgment dated May 4,1984, that she specifically requested a leave of absence from her supervisor and thereby triggered the policy requirements governing leaves of absence.

. Since there is no genuine issue of fact concerning Coors’ compliance with the policies in its manual, it is unnecessary to decide if Continental Air Lines, Inc. v. Keenan, 731 P.2d 708 (Colo.1987), applies in this case.