IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
FILED
FOR PUBLICATION
July 12, 1999
Filed: July 12, 1999
Cecil Crowson, Jr.
KAREN SULLIVAN, ) Appellate Court Clerk
)
Appellee, )
) SHELBY CIRCUIT
)
)
Vs. ) HON. KAREN WILLIAMS,
) JUDGE
)
)
BAPTIST MEMORIAL HOSPITAL, )
)
Appellant. ) No. 02-S-01-9804-CV-00032
For the Appellant: For Appellee:
Paul E. Prather Stephen H. Biller
Steven W. Likens Memphis, Tennessee
KIESEWETTER WISE KAPLAN
SCHWIMMER & PRATHER, PLC Sara L. Hall
Memphis, Tennessee Memphis, Tennessee
OPINION
COURT OF APPEALS REVERSED;
TRIAL COURT JUDGMENT AFFIRMED. ANDERSON, C.J
We granted the appeal in this defamation case to determine whether the
element of publication is satisfied when an employee is compelled to disclose to a
prospective employer the reason given for termination by a former employer. The trial
court granted summary judgment to defendants, concluding that the plaintiff’s self-
published statements failed to satisfy the publication element of defamation. The Court
of Appeals reversed, adopting the minority view that self-publication satisfies the
publication element when 1) the defendant can reasonably foresee that the plaintiff will
be compelled to publish the defamatory statement and 2) the plaintiff is in fact
compelled to publish the defamatory statement on subsequent employment
applications.
After our review of the record and applicable law, we conclude that compelled
self-publication does not satisfy the publication element essential to a prima facie case
of defamation because it is contrary to the well-settled law of this State, which reflects
the majority view, and contrary to important policy principles. Accordingly, we reverse
the Court of Appeals’ judgment and reinstate the trial court’s grant of summary
judgment to the defendant.
BACKGROUND
Plaintiff Karen Sullivan (“Sullivan”) worked full-time for defendant Baptist
Memorial Hospital (“Baptist”) as a neonatal nurse in the neonatal intensive care unit.
While working for Baptist, Sullivan also performed temporary nursing services for St.
Francis Hospital (“St. Francis”) through a nursing service staffing agency. St. Francis
was in the process of setting up its own neonatal unit and employed several Baptist
nurses.
According to the record, Baptist grew suspicious that its nurses were taking
Baptist’s property, i.e. certain medical devices, in an effort to assist St. Francis in the
development of its neonatal unit. That suspicion focused on Sullivan.
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Thereafter, Susan Parsons (“Parsons”), a Baptist nurse, said she told Sullivan’s
supervisor that Sullivan took neonatal IV catheters from Baptist to use at St. Francis.1
Parsons also said she had a conversation with Sullivan in which Sullivan confided that
she had taken the angiocaths to St. Francis, about which Parsons testified as follows:
[Sullivan] preceded to tell me that [a St. Francis physician]
had even asked her opinion of pumps, what kind of pumps
to order for their unit. Then she went on to say that I even
took some angiocaths and covered her mouth, put her hand
over her mouth and started speaking quietly and softly and
looked around the room as if to see if there was anybody
around.
And at the same time she said, I guess I shouldn’t
say that too loudly. But I took those over there because the
old angiocaths they were using were the old type we used to
use here. And they didn’t work very well so I took them
some of our newer ones.
When Baptist confronted Sullivan with Parsons’ accusations, Sullivan denied the
conversation and denied taking Baptist’s property for use at St. Francis. Nonetheless,
Baptist terminated Sullivan for misappropriating its property.
After her termination, Sullivan applied for a neonatal nurse position at both
Methodist Hospital and Jackson Madison County Hospital. She says that she was
compelled to reveal the defamatory reason Baptist terminated her, and, as a result,
neither hospital hired her. Sullivan then filed suit in circuit court against Baptist alleging
defamation and other causes of action.2
Baptist filed a motion for summary judgment on the grounds that it did not
publish the defamatory information, which is an essential element of a defamation
action. Sullivan conceded that Baptist did not publish the information but contended
that the publication element of her defamation claim was satisfied because she was
1
According to the record, the IV catheters were .24 gauge angiocaths used to start IVs on
infants.
2
Sullivan also named Parsons and her supervisor, Pat Thomas, as defendants, but she
appeals only as to the claim against Baptist for defamation.
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compelled to publish Baptist’s defamatory statements on subsequent employment
applications.
The trial court granted Baptist’s motion for summary judgment, on the grounds
that self-published statements do not satisfy the publication element of a cause of
action for defamation and are not actionable under Tennessee law. The Court of
Appeals reversed. It reasoned that “the law in Tennessee should recognize the
principle of compelled self-publication,” and held that the publication element required
for a defamation claim can be met if 1) the publication of the defamatory statement is
reasonably foreseeable to the defendant, and 2) the plaintiff is compelled to republish
the defamatory statement. The Court of Appeals limited its holding to apply only “to
those cases in an employment setting in which the plaintiff is forced to republish false
and defamatory reasons for his or her termination on subsequent job applications.”
We granted the defendant’s application for permission to appeal.
ANALYSIS
We begin our analysis by noting the applicable standard of review. The trial
court’s grant of summary judgment is purely a question of law; accordingly, our review
is de novo, and no presumption of correctness attaches to the lower courts’ judgments.
E.g., City of Tullahoma v. Bedford County, 938 S.W.2d 408, 412 (Tenn. 1997).
To establish a prima facie case of defamation in Tennessee, the plaintiff must
establish that: 1) a party published a statement; 2) with knowledge that the statement is
false and defaming to the other; or 3) with reckless disregard for the truth of the
statement or with negligence in failing to ascertain the truth of the statement. See
Restatement (Second) of Torts § 580 B (1977); Press, Inc. v. Verran, 569 S.W.2d 435,
442 (Tenn. 1978). “Publication” is a term of art meaning the communication of
defamatory matter to a third person. Quality Auto Parts Co. v. Bluff City Buick Co., 876
S.W.2d 818, 821 (Tenn. 1994).
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The sole issue involved in this appeal is whether Sullivan’s “compelled” repeating
of Baptist’s defamatory reasons for termination satisfies the publication element of a
defamation action. Adopting the Court of Appeals’ reasoning, Sullivan argues that the
publication element is satisfied because: 1) Baptist could reasonably foresee that
Sullivan would have to communicate the defamatory reasons for her termination to a
third party; and 2) Sullivan was in fact compelled by prospective employers to reveal the
defamatory reasons for her termination.
Urging this Court to adopt the doctrine of self-publication and to affirm the Court
of Appeals, Sullivan insists that only “compelled” self-publication in an employment
setting, as opposed to voluntary self-publication, should be actionable. Baptist, on the
other hand, argues that the Court of Appeals’ decision is contrary to precedent, the
majority view, Tennessee’s employee-at-will doctrine, important jurisprudential
concerns, and other policy principles.
This Court first considered the doctrine of self-publication in a non-employment
context in Sylvis v. Miller, 96 Tenn. 94, 33 S.W. 921 (1896). In Sylvis, the plaintiff
received a defamatory letter through the mail which he opened and showed to several
friends and relatives. The trial court instructed the jury that the plaintiff’s publication of
defendant’s defamatory statements would not support a defamation action. On appeal,
this Court reasoned that the “defendant is not answerable for anything the plaintiff may
choose to do with the letter after it has once safely reached his hands,” and held that
“[i]f a person receives a letter containing libelous matter, he will not be justified in
publishing it.” Id. at 922. Accordingly, we affirmed the trial court.
Three years later, in Kansas City, M. & B. R. Co. v. Delaney, 102 Tenn. 289, 52
S.W. 151 (1899), this Court was again presented with an opportunity to adopt the
doctrine of self-publication, this time in an employment setting. In Delaney, the
plaintiff’s agent obtained a recommendation letter from plaintiff’s previous employer,
which alleged that plaintiff, a union member, had left his employment during a strike.
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Though the defendant showed the letter only to the plaintiff’s agent, the plaintiff showed
the letter to potential employers. This Court stated that “[u]nder the authorities, the
company is not liable for any of the consequences of the act of [plaintiff] in making
publication of the letter after it reached his hands.” Id. at 152. Applying Sylvis, this
Court held that the plaintiff was not justified in publishing the defamatory letter. Id. at
152-53.
Sullivan attempts to distinguish this early Tennessee precedent by arguing that
the self-publication in Sylvis was outside the employment context and the self-
publication in Delaney was voluntary. Sullivan contends that only “compelled” self-
publication in an employment context should be actionable.
As one commentator has observed, however, “compulsion” is present in every
defamation case involving self-publication of the reason for termination by a former
employer:
“Compulsion” within the meaning of the doctrine would
automatically occur when a prospective employer asks an
applicant for his or her employment history and reason(s) for
leaving the previous place of employment, and the applicant
repeats the termination reason given by the former
employer. All former employers will be held to have
foreseen or to have had an obligation to foresee that the
former employee would be asked to provide this information
and would thus be “compelled” to answer.
Ronald Turner, Compelled Self-Publication: How Discharge Begets Defamation, 14
Empl. Rel. L.J. 19, 27-28 (1988). Thus, we do not find persuasive Sullivan’s argument
that our prior decisions rejecting the doctrine of self-publication are distinguishable
because the self-publication in those cases was voluntary.
Other states are split on how to resolve the question of self-publication. The
minority view is that self-publication in the employment setting satisfies the publication
requirement of defamation because the plaintiff is effectively compelled to publish the
defamatory material to prospective employers. Thus, the self-publication is reasonably
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foreseeable to the former employer. See, e.g., McKinney v. County of Santa Clara, 110
Cal. App. 3d 787, 168 Cal. Rptr. 89 (Cal. Ct. App. 1980); Munsell v. Ideal Food Stores,
494 P.2d 1063 (Kan. 1972); Grist v. Upjohn Co., 168 N.W.2d 389 (Mich. Ct. App.
1969); Lewis v. Equitable Life Assurance Soc’y, 389 N.W.2d 876 (Minn. 1986).
The majority of states addressing the issue do not recognize self-publication as
constituting publication for defamation purposes, even when the publication is
compelled in the employment setting. See, e.g., Gore v. Health-Tex, Inc., 567 So. 2d
1307 (Ala. 1990); Layne v. Builders Plumbing Supply Co., 569 N.E.2d 1104 (Ill. App. Ct.
1991) Yetter v. Ward Trucking Corp., 585 A.2d 1022 (Pa. Super. Ct. 1991). 3 Rejection
of the doctrine of compelled self-publication is based on policy reasons, including the
public’s interest in open communication about employment information and limiting the
scope of defamation liability:
Both employers and employees have significant interest in
open communication about job-related problems. Further, it
is in the public interest that information regarding an
employee’s discharge be readily available to the discharged
employee and to prospective employers. In our opinion, the
doctrine of compelled self-defamation unduly burdens the
free communication of views and unreasonably broadens
the scope of defamation liability.
Layne, 569 N.E.2d at 1111 (citation omitted).
We agree that the potential for defamation liability every time an employee is
terminated would chill communications in the work place, preventing employers from
disclosing reasons for their business decisions, and would negatively affect grievance
3
Feder al courts a pplying state law also ha ve reco gnized the majo rity rule. De Leon v.
Saint Joseph Hosp., Inc., 871 F.2 d 1229 , 1237 (4 th Cir. 198 9) (applying M aryland law) ; Spratt v. Northern
Automotive Corp., 958 F. Supp. 456, 465 (D. Ariz. 1996) (reasoning that Arizona courts are not among
those tha t would rec ognize a to rt of com pelled se lf-publication ); Sarratore v. Longview Van Corp., 666 F.
Sup p. 12 57, 1 263 (N.D . Ind. 1 987 ) (rea son ing th at the doct rine o f self -pub licatio n is no t the la w in
Indiana); Hensley v. Armstrong World Indus., Inc., 798 F. Supp. 653, 657 (W.D. Okla. 1992) (stating that
Oklah oma would fo llow the “vas t majo rity of states” c onsider ing the theo ry of self-pu blication an d reject it).
In other jur isdictions, th e issue a ppears to be und ecided. W eintra ub v. P hillips, Nizer , Ben jam in, Krim &
Ballon, 568 N.Y.S.2d 84, 85 (N. Y. App. Div. 1991) (stating that New York law does not recognize a
defam ation claim where th e plaintiff volun tarily republishe d the allege d defam atory word s); Doe v.
Smithkline Beecham Corp., 855 S.W.2d 248 (Tex. App. 1993) (“While we are aware of non-Texas
authority allowing ‘self-defamation’ claims under only a foreseeability test, the Texas Supreme Court has
yet to adopt or approve such a broad cause of action. We decline to do so.”). For an overview of cases
conside ring the se lf-publication doctrine, s ee gen erally David P . Chapu s, Anno tation, Publication of
Allegedly Defamatory Matter by Plaintiff (“Self-Publication”) as Sufficient to Support Defamation Action, 62
A.L.R. 4th 616 (1988).
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procedures intended to benefit the discharged employee. As one commentator has
observed:
A shutdown of communication would hurt both
employees and employers. Employees falsely accused of
misconduct may be wrongfully terminated because they
would never have a chance to rebut the false accusations.
Employees who may be able to improve substandard job
performances may fail to do so because needed feedback is
withheld. . . . It seems that both employees and employers
stand to lose if employers adopt a policy of silence. . . .
Unfortunately, employees will bear the costs of such a policy
without a corresponding benefit.
Louis B. Eble, Self-Publication Defamation: Employee Right or Employee Burden?, 47
Baylor L. Rev. 745, 779-80 (1995). Moreover, recognition of the self-publication
doctrine may further harm employees who have been fired for discriminatory reasons.
“Normally, a factfinder would be justifiably suspicious if an employer fired an employee
in a protected group and refused to explain the reason for the termination at the time of
discharge.” Id. at 784. In light of the self-publication doctrine, however, an employer’s
silence could justifiably be viewed as savvy rather than suspicious. Id. at 784-85; see,
e.g., Layne, 569 N.E.2d at 1111 (“[T]he only way an employer could seemingly avoid
litigation and the possible liability for substantial damages in situations such as the
instant one would be to deter from communicating to an employee, as well as to a third
person, the reason the employer felt justified in terminating employment.”); see also
Lewis, 389 N.W.2d at 896 (Kelley, J., dissenting).
We conclude that important policy concerns weigh in favor of our adherence to
the majority view. For instance, plaintiffs allowed to avail themselves of the self-
publication doctrine would have less incentive to mitigate damages. Layne, 569 N.E.2d
at 1111. Because the statute of limitations in a defamation case begins to run from the
date of publication, Quality Auto Parts Co., 876 S.W.2d at 821-22, and since a new
cause of action arises with each publication, see id., a plaintiff relying on the doctrine of
self-publication would not only have the ability to control the statute of limitations but
also the number of causes of action which arise. In other words, a plaintiff need only
apply for a job in order to create or renew a claim for “compelled” self-publication.
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Consequently, the defendant employer could potentially be subject to liability
throughout the plaintiff’s lifetime.
Moreover, we conclude that the doctrine of compelled self-publication conflicts
with Tennessee’s employee-at-will doctrine. Although Sullivan contends that an
employer would be liable under the self-publication doctrine “only” for negligently
investigating and then stating a defamatory reason for termination when it is reasonably
foreseeably that the former employee will be compelled to repeat and “publish” this
defamatory reason to potential employers, an employer in Tennessee has no duty to
investigate before terminating an at-will employee. Cf. Stein v. Davidson Hotel Co., 945
S.W.2d 714, 717 (Tenn. 1997).
For over a century, Tennessee has recognized that, with limited exceptions not
applicable here, an employer may terminate an employment at-will relationship at any
time for good cause, bad cause, or no cause. E.g., Payne v. Western & Atl. R.R., 81
Tenn. 507, 518-20 (1884); Forrester v. Stockstill, 869 S.W.2d 328, 330 (Tenn. 1994).
To adopt the doctrine of compelled self-publication and to impose a duty on employers
to conduct a thorough investigation leading to accurate conclusions would significantly
compromise these well-settled principles encompassed by the at-will employment
doctrine in Tennessee. Cf. De Leon v. Saint Joseph Hosp., Inc., 871 F.2d 1229, 1237
(4th Cir. 1989) (“[T]he theory of self-publication might visit liability for defamation on
every . . . employer each time a job applicant is rejected.”).
In addition, we note that the legislature has spoken on the issue of the
employer’s liability incurred from communicating information about an employee. Tenn.
Code Ann. § 50-1-105 (Supp. 1998). This section provides that:
[a]ny employer that, upon request by a prospective employer
or a current or former employee, provides truthful, fair and
unbiased information about a current or former employee’s
job performance is presumed to be acting in good faith and
is granted a qualified immunity for the disclosure and the
consequences of the disclosure. The presumption of good
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faith is rebuttable upon a showing by a preponderance of the
evidence that the information disclosed was:
(1) Knowingly false;
(2) Deliberately misleading;
(3) Disclosed for a malicious purpose;
(4) Disclosed in reckless disregard for its falsity or defamatory
nature; or
(5) Violative of the current or former employee’s civil rights
pursuant to current employment discrimination laws.
Id. Under this statute, mere negligence is not enough to rebut the presumption in favor
of the employer’s good faith. Id. In contrast, defamation may be proven by establishing
that a party published a false and defaming statement with reckless disregard for the
truth or with negligence in failing to ascertain the truth. Verran, 569 S.W.2d at 442.
Thus, under the statute, an employer could not be held liable for disclosing allegedly
defamatory information about which it was only negligent in ascertaining the truth. It
follows, therefore, that an employer should not be held liable for disclosure of this same
information when it is self-published by a former employee.
Accordingly, after considering the arguments of both parties, the record, and
applicable law, we conclude that our holdings in Sylvis and Delaney are in accordance
with the well-reasoned majority rule in other jurisdictions and are controlling in this case.
We therefore decline to adopt the doctrine of compelled self-publication.
CONCLUSION
In our view, the doctrine of compelled self-publication is contrary not only to the
well-settled law of this state and the majority view but also important policy principles.
Accordingly, the Court of Appeals is reversed. We reinstate the judgment of the trial
court granting summary judgment to the defendant and remand to the trial court for
further necessary proceedings in accordance with this opinion. Costs of this appeal are
taxed against the plaintiff for which execution shall issue if necessary.
______________________________
RILEY ANDERSON, CHIEF JUSTICE
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CONCUR:
Drowota, Birch, Holder, and Barker, JJ.
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