Poyser v. Peerless

BAKER, J.,

concurring.

While I concur in my colleagues’ conclusion that Poyser failed to raise a genuine issue of material fact regarding actual malice,3 I believe Judge Reed was correct that *1110the statements were true and protected by the common interest privilege.

I.True Statements

Poyser contends that five statements in Dorfinan’s letter “were not true and therefore defamatory.” Appellant’s Br. p. 16 (emphasis added). First, it should be noted that a false statement is not necessarily defamatory. If a journalist, under severe and protracted hallucination, reported that I led the Indiana Hoosiers to the final game of the 2002 NCAA tournament as the team’s star forward, my reputation would not suffer. Aside from Poyser’s erroneous conclusion about defamation law, the five statements were accurate and protected by the common interest privilege.

In her appellate brief, Poyser complains of the five following statements:

1. “The incidents surrounding Mrs. Poyser’s departure were instigated by her and not her supervisor, Mrs. Hilligoss”;
2. “The Administration attempted to address Mrs. Poyser’s concerns within the School published guidelines and policies”;
3. “... Mrs. Poyser ignored School policies and Administration directives”;
4. Mrs. Poyser “refused to meet with the Administration to resolve her concerns”; and
5. “... the School decided to terminate her contract.”

Appellant’s Br. p. 22 (omissions in original).

A Instigation

Poyser argues that Hilligoss’s failure “to include [her] in the selection of new lower school faculty and the implementation of new educational materials” instigated her departure. Appellant’s Br. p. 24. While Poyser may have felt her exclusion from administrative decisionmaking insufferable, her own acts prompted her departure, namely the meeting she herself requested with Peerless and her subsequent insubordination. She refused to meet with Peerless and Hilligoss when asked to do so. Poyser’s self-determined act prompted her own departure. Thus, one may safely say that Poyser instigated her own departure. The statement was accurate.

B. Attempt to Address Concerns

Poyser next complains that the School failed to abide by published guidelines and policies because Peerless at first directed her to meet with Hilligoss before meeting with him. Poyser relies on a contract provision requiring a meeting with Peerless in the event a faculty member determines to breach the contract before the end of the contract term. Poyser herself stated: “I wanted to reserve the final decision to be dependent upon what Mr. Peerless said to me.” Appellant’s App. p. 180. That contract provision is not at issue because Poyser had not yet determined to leave.

Poyser further claims she was entitled to a one-on-one interview with Peerless because he had resolved faculty complaints about another administrator in such a manner. Poyser has not shown that any published policy required a one-on-one meeting with Peerless whenever a teacher had a complaint about an administrator. As a result, Poyser’s attempt to overturn the summary judgment on these grounds is unmerited.

*1111 C.Ignored School Policies and Administration Directives

It is undisputed that the School Handbook requires a teacher to follow the directives of her superior or be terminated for insubordination. Poyser refused to meet with Hilligoss and Peerless when asked to do so. The statement in Dorf-man’s letter was accurate.

D.Refused to Meet with Administration

It is undisputed that Poyser was directed to meet with Hilligoss at 2:30 p.m. on September 22, 1999. It is undisputed that Poyser knew of the scheduled meeting. It is undisputed that Poyser sent an e-mail to Hilligoss at 2:01 p.m. advising that she would not meet at that time. It is undisputed that Hilligoss responded with an email advising Poyser that a substitute teacher would cover her classroom for the scheduled meeting. It is undisputed that Poyser responded to the directive stating, “I repeat, I will not meet with you and David today.” Appellant’s App. p. 185. The complained-of statement was accurate.

E.The School Terminated Her Contract

At the September 24, 1999 meeting, the following exchange took place according to Poyser’s own account of the events:

[Peerless]: This is clearly insubordination and grounds for termination.
[Poyser]: David, you can’t terminate me. I am here to discuss my resignation, be it days or weeks, plus how can you terminate someone who does not have a contract.
[Peerless]: I was not aware you had not turned in your contract. So, are you resigning as of this moment?
[Poyser]: I will give you my letter of resignation after we have discussed issues in my letter.
[Peerless]: Since you did not sign the contract, I guess you are not an employee, would you agree?
[Poyser]: I really don’t know.
[Peerless]: Well, if that is the case, you do not need to give me a letter of resignation. Turn in your key.

Appellees’ App. p. 16. It is clear from Poyser’s own account of the events, that she had not resigned her post before being fired. She said that she wanted to discuss her resignation “be it days or weeks.” Ap-pellees’ App. p. 16. Shortly thereafter, Poyser stated that she wanted to discuss other issues before giving Peerless her resignation letter. Peerless then fired her. The statement was accurate. In sum, the trial court correctly ruled that there was no genuine issue of material fact with respect to the defense of truth and that the School was entitled to summary judgment on that basis as well.

II. Common Interest Privilege

Even if one assumed that the statements were defamatory, the statements were protected by a qualified privilege of common interest. The privilege applies to communications made in good faith on any subject matter in which the party making the communication has an interest or in reference to which he has a duty, either public or private, either legal, moral, or social, if made to a person having a corresponding interest or duty. Schrader v. Eli Lilly & Co., 639 N.E.2d 258, 262 (Ind.1994). The protection afforded a privilege may be lost upon a showing it was abused. Id. The privilege is abused when: (1) the communicator was primarily motivated by ill will in making the statement; (2) there was excessive publication of the defamatory statements; or (3) the statement was made without belief or grounds for belief in its truth. Id. Whether the qualified privilege protects a statement is a question of law. Bals v. Verduzco, 600 N.E.2d 1353, 1356 (Ind.1992).

*1112Poyser does not challenge the availability of the privilege to the School in general. Her claim is that the School abused its privilege in two ways. She first claims that the School abused its privilege because Dorfman had no grounds for believing the veracity of Peerless’s statements. The statements were accurate. Thus, her claim on this basis fails.

Poyser next contends that the statements of Dorfman’s October 5, 1999 letter were excessively published. On the day Peerless fired her, he sent a letter to the parents of Poyser’s students stating simply, “It is with great regret that I have to announce that Karen Poyser is no longer teaching at St. Richard’s School.... As it was an internal personnel issue we do not feel at liberty to share the details.” Appellant’s App. p. 265. A similar letter was sent to all St. Richard’s parents noting, “We are sorry to advise you that Karen Poyser, teacher for Grade Two, is no longer with St. Richard’s School. This decision was the conclusion of a normal personnel process for these matters.” Appellant’s App. p. 266. These letters were followed by Dorfman’s letter sent October 5, 1999.

Poyser believes that only the parents of her second-grade students should have received Dorfman’s letter. This may have been the case had Poyser restrained herself from discussing the matter with the parents of her students, faculty members, all the members of the board, and various custodial employees. Appellant’s App. p. 188-89. According to Poyser’s own complaint, there was “controversy surrounding [her] resignation.” Appellant’s App. p. 15. To clarify the situation, Dorfinan sent the letter to St. Richard’s parents.

Our supreme court held that Eli Lilly did not excessively publish information to 1,500 of its employees concerning the termination of six other employees for theft. Schrader, 639 N.E.2d at 263. Publication was not excessive because the information suppressed “rumors and speculation” rampant in one of the company’s complexes. Id. Likewise, because St. Richard’s is a small, private K-8 school and parents pay tuition for their children to attend the school, St. Richard’s had an interest in quelling any adverse impact resulting from the “controversy.” Therefore, Poyser’s claim of abuse of privilege fails on this basis as well.

In sum, I vote to affirm the trial court’s summary judgment, because there was no actual malice, the statements were true, and St. Richard’s did not abuse its common interest privilege.

ORDER

This Court heretofore handed down its opinion in this appeal marked Memorandum Decision, Not for Publication;

Come now the Appellants, by counsel, and file herein their Motion to Publish Decision, alleging therein that said decision both clarifies existing law and is a matter of substantial public importance; that the same questions of law involved in this case are being presented to the trial, appellate and federal courts and therefore this case should be published so that it can be cited as precedent in the interests of judicial economy and consistency and the Appellees therefore pray that this Court publish its opinion heretofore hand down as a Memorandum Decision.

The Court having examined said Motion, having reviewed its opinion in this appeal and being duly advised, now finds that the Appellees’ Motion to Publish Decision should be granted.

IT IS THEREFORE ORDERED as follows:

1. The Appellees’ Motion to Publish Decision is granted and this Court’s opinion heretofore handed down in this case on August 15, 2002, marked Memorandum *1113Decision, Not for Publication, is now ordered published.

. It is not clear that actual malice with respect to the truth or falsity of Peerless's and Dorfman’s statements is the proper standard of fault in this defamation case. The 1999 decision Journal-Gazette Co. v. Bandidos, Inc. exhibited sharp disagreement over the standard of fault in a defamation action. 712 N.E.2d 446 (Ind. 1999) (2-1-2 opinion). The five justices of our supreme court fell into three main camps spread over four separate opinions. (Chief Justice Shepard and Justice Dickson each signed the other's dissent.)

First, the lead opinion (Justices Sullivan and Selby) expressed the view that actual malice is the standard of fault "in matters of public or general concern for private individual plaintiffs.” Id. at 452 (Sullivan and Selby, JJ.). Although the lead opinion considered Bandidos a limited-purpose public figure, it believed it appropriate to discuss “the future of defamation law in Indiana” as it related to private-figure plaintiffs. Id. at 452 n. 7. According to the lead opinion, in defamation suits involving matters of public or general concern, private-figure plaintiffs must prove actual malice by clear and convincing evidence. Id. at 456, 469. "Actual malice exists when the defendant publishes a defamatory statement 'with knowledge that it was false or with reckless disregard of whether it was false or not.' ” Id. at 456 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)).

Second, Justice Boehm, in a concurring opinion, agreed that the actual malice standard should be applied to matters of public concern. Id. at 469 (Boehm, J., concurring). Justice Boehm believed, however, that characterizing a plaintiff as a public or private figure is really a surrogate for deciding whether the matter is one of public concern. Id. For this reason, he would do away with the analysis of whether a particular plaintiff is a public official, public figure, limited-purpose public figure (with its three subcategories), or private figure. See id. "Restricting the actual malice requirement to publications on subjects of public concern,” according to Justice Boehm, "will leave the vast majority of the six million Hoosiers for whom Chief Justice Shepard expresses concern subject to a simple negligence standard for defamation.” Id. at 471.

Finally, writing in dissent, Chief Justice Shepard and Justice Dickson contend that negligence is the standard of fault applicable to suits involving private-figure plaintiffs whether the matter is of public or private concern. Id. at 489 (Dickson, J., and Shepard, C.J., dissenting). However, if the private-figure plaintiff sues a nonmedia defendant, it appears Chief Justice Shepard and Justice Dickson would apply a strict liability standard:

If somebody posts scandalous and defamatory material about a Hoosier on the internet, sending it all over the world, the victim may gain redress simply by showing that the defamation occurred (and, most likely, by responding effectively to the defense of truth). If a newspaper spreads exactly the same defamatory material, we know from Gertz v. Welch [418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974)] that the victim will have to show negligence.

Id. at 471-72 (Shepard, C.J., and Dickson, J., dissenting).

Bandidos did not address the situation where a private-figure plaintiff sues a nonme-dia defendant for defamation involving matters of nonpublic concern. In such a case, it appears at least three members of our supreme court would apply a negligence standard of fault — if not strict liability — rather than actual malice. Because Poyser chose to *1110argue her defamation action according to an actual malice standard, the fault standard is appropriately resolved on that basis.