The full case caption appears at the
end of this opinion. WATHEN, C.J. Plaintiff, Curtis Cole, appeals from a judgment entered in theSuperior Court (Oxford County, Warren, J.) granting defendants BrendaChandler’s and Pola Buckley’s motions for summary judgment in Cole’sactions for defamation, invasion of privacy, interference with advantageouseconomic relations, intentional infliction of emotional distress, and punitivedamages. Cole also appeals from a judgment entered in the court (Perkins,J.) granting defendant Mead Corporation’s motion for summary judgment inCole’s action for forced publication of libel and slander. Cole argues that thecourt erred in finding that Chandler and Buckley were immune under theexclusivity provision of the Workers’ Compensation Act. Cole also arguesthat the court erred in finding that, even if we recognize forced publicationas a theory of liability, defendant Mead Corporation was protected by eitherstatutory or common law immunity. We affirm in part and vacate in part. The facts, viewed in the light most favorable to Cole as thenonprevailing party, may be summarized as follows: Cole was the controllerof the Mead Corporation, Publishing Paper Division, Rumford, and the headof the financial department at the Rumford paper mill from April 1, 1997,until October 28, 1997, when his employment was terminated based on thefollowing series of events. Chandler and Buckley were supervised by Cole. In mid-October, 1997, Chandler’s husband reported to the human resourcesmanager that Cole had told a sexually explicit joke to Chandler that upsether. The manager confirmed with Chandler that the remark had been madeand then asked a representative of the human resources department toinvestigate. Without naming Cole, the investigator conducted interviews withthe persons whom Cole directly supervised. Two of those individuals wereChandler and Buckley. When interviewed, Chandler reported the joke andthe following incident: In September or October, 1997, when severalpersons were standing around discussing a seminar in Atlanta that they wereto attend and the cost of the accommodations, Cole suggested that theattendees, both male and female, could share rooms if their spouses did notmind. Buckley reported the following incidents: (1) Cole yelled from hiscorner office to her “hey, Pola, why don’t you come in here – we’ll close thedoor and have some fun!”; (2) Cole asked Buckley to go for a drink afterwork; (3) Cole asked Buckley for a back rub; and (4) Cole told aninappropriate sexual joke. On October 24, 1997, after the interviews, themanager and the investigator interviewed Cole. During that meeting, themanager advised Cole that he was suspended pending further investigation. On October 28, 1997, at the conclusion of Mead’s investigation, the managerinformed Cole that his employment was terminated. Cole brought separate complaints against Chandler and Buckleyalleging defamation; invasion of privacy by placing Cole in false light withMead, other potential employers and the general public; interference withadvantageous economic relations; intentional infliction of emotional distress;and punitive damages. The actions were consolidated, and Cole filed anamended complaint alleging an additional count of defamation againstBuckley. The amended complaint also added Mead Corporation as adefendant alleging forced publication of libel and slander, that is, that Meadtold him that his discharge from employment was for sexual harassment,that it should have known that Cole would be forced to reveal the reasons forhis termination in a search for new employment, and that he was forced torepublish the libelous and slanderous statements. Buckley, Chandler, andMead filed motions for summary judgment. The court granted Buckley’s andChandler’s motions on the basis that they were immune from suit by virtueof the exclusivity and immunity provisions of the Workers’ CompensationAct.{1} It granted Mead’s motion on the basis that, even if Maine lawrecognizes defamation by compelled self-publication as a theory of liability,Mead was entitled to immunity by statute or common law. Cole appeals bothjudgments. “‘We review the entry of summary judgment for errors of law,viewing the evidence in the light most favorable to the party against whomthe judgment was entered.’” Prescott v. State Tax Assessor, 1998 ME 250,� 4, 721 A.2d 169, 171 (citation omitted). Summary judgment will beupheld if the evidence produced demonstrates that no genuine issue as toany material fact exists and that the moving party is entitled to judgment asa matter of law. See id. I. Mead Corporation Cole’s only claim against Mead is for “forced publication oflibel 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 Meadcommunicated the reason for its termination of Cole to any third party andthus the allegedly defamatory statement was not published by Mead. Rather,Cole argues that he himself was forced to publish or communicate thereasons for his termination to prospective employers and that this shouldsatisfy the publication element of the tort of defamation. We need not reachthe issue of compelled self-publication, however, because a claim ofdefamation also requires that the publication be unprivileged, see id., and wefind that Mead, in any event, was protected by a conditional privilege undercommon law. Whether Mead is entitled to the common law privilege is aquestion of law. See Rippett v. Bemis, 672 A.2d 82, 87 (Me. 1996). “Aconditional privilege against liability for defamation arises in settings wheresociety 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 recipientof a defamatory statement will be advanced by frank communication.”Rippett v. Bemis, 672 A.2d 82, 87 (Me. 1996) (citing Lester v. Powers, 596A.2d at 70). In Lester, we held that a former student was entitled to aconditional privilege against libel for her letter to a college, as part of aprofessor’s tenure review process, stating her version of the professor’sconduct during a particular class. See Lester v. Powers, 596 A.2d at 70. InGautschi v. Maisel, 565 A.2d 1009 (Me. 1989), we held that a facultymember enjoyed a conditional privilege against a claim of slander whileserving on a tenure review committee and engaged in reviewing anotheremployee’s credentials to determine whether that employee should begranted permanent employment. See id. at 1011. Similarly, Mead wasentitled to a conditional privilege in this case against a claim of slanderbrought by one of its employees arising out of the termination of hisemployment relationship with Mead. Cole argues next that, even if Mead is entitled to a conditionalprivilege, he has raised a genuine issue of material fact whether Mead hasabused its privilege. The common law conditional privilege applies unlessthe originator of the statement abused the privilege. See Gautschi v. Maisel,565 A.2d 1009, 1011 (Me. 1989). Whether the defendant abused hisprivilege 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 couldgo to a jury that [the defendant] abused the privilege.” Gautschi, 565 A.2d at 1011. Abuse includes making the statement outside normal channels orwith 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)). Forpurposes of defamation claims, malice means when the originator of thestatement “knows his statement to be false, recklessly disregards its truthor 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 whichmeans “knowledge or disregard of falsity”). Reckless disregard for the truthcan be proved by evidence that “establishes that the maker of a statementhad ‘a high degree of awareness of probable falsity or serious doubt as to thetruth of the statement.’” Rippett, 672 A.2d at 87 (quoting Onat v. PenobscotBay Med. Ctr., 574 A.2d 872, 874 (Me. 1990)). Cole argues that Mead abused its discretion because Buckley’sand Chandler’s statements were false, because Buckley and Chandler did notfollow proper company procedure for reporting a harassment claim, andbecause Mead did not thoroughly investigate the claim before terminatinghim. Cole, however, does not deny that, even if the additional investigationhad been conducted, it would not have rebutted any of the allegations madeby his subordinates. Further, he concedes that Chandler’s statements thathe told the joke and that he made a comment about sharing rooms if thespouses did not mind were true, and only argues that Chandler was notoffended and that he did not believe the comment about sharing rooms hadsexual overtones or referred to any specific individuals. Therefore, even ifCole raises an issue of fact as to whether Mead thoroughly investigated, hefailed to show a reckless disregard for the truth. He did not establish a highdegree of awareness of probable falsity or serious doubt as to the truth of thestatement. See Rippett v. Bemis, 672 A.2d 82, 87 (Me. 1996) (citationomitted); see also Restatement (Second) of Torts � 580B cmt. i (1977)(defamation of private person citing � 580A cmt. d for knowledge orreckless disregard of falsity); � 580A cmt. d (1977) (stating that “[r]ecklessdisregard is held not to be measured by whether a reasonable, prudentperson 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 toshow actual malice). Nor did he show spite or ill will. Even when the factsare viewed in the light most favorable to him, they do not present a genuineissue of material fact whether Mead abused the privilege. Therefore, we findthat the court did not err in granting summary judgment in favor of Mead onthe basis that Mead enjoyed a conditional privilege and did not abuse thatprivilege. II. Chandler and Buckley A. Exclusivity Provision of Workers’ Compensation Act As against Chandler and Buckley, Cole argues that, one, theexclusivity provision of the Workers’ Compensation Act was not intended toapply to injury to reputation because such a claim would not be compensableunder the Act and, two, even if the exclusivity provision would otherwiseapply, it does not apply in this case because Cole’s injuries did not occur “inthe course of” employment. Under Maine’s Workers’ Compensation Act, inorder for an injury to be compensable, the employee must “1) suffer apersonal 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} Theexclusivity provision is found in 39-A M.R.S.A. � 104, and provides inpertinent 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). Although this is a case of first impression, we are guided byour developing case law. We have consistently applied a broad andencompassing 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 thepurpose of the Workers’ Compensation Act as follows: “The ‘legislativeintendment in enacting the comprehensive scheme for worker’scompensation’ was to ‘giv[e] effect to the underlying policy of providingcertainty of remedy to the injured employee and absolute but limited anddeterminate liability for the employer.’” Id. at 489 (citation omitted).{3} Wefurther noted that “[i]f few occasions remain for employees to bring civilactions in tort against employers, such is merely the inevitable consequenceof the legislature’s extension of the coverage of workers’ compensation.” Id. We have refused to carve out an exception for intentionaltorts. See Li v. C.N. Brown Co., 645 A.2d 606 (Me. 1994). In Li the employeeof defendant was killed when a former employee robbed the store andstabbed the employee; the employer allegedly knew of the intended armedrobbery but did not close the store where the employee was working alone. See id. at 607. The plaintiff argued that the exclusivity and immunityprovisions should not apply to injuries to employees caused by intentionaltorts. We found, however, that the Act applied “to all work-related injuriesand deaths, however caused, not just accidental injuries and deaths.” Id. at608. We “decline[d] to create a judicial exception to the exclusivity andimmunity provisions for employers’ intentional torts,” noting that if theLegislature intended to exclude intentional acts, it could have created theexception. Id. We also have not required that the excluded claims becompensable. See Knox v. Combined Ins. Co. of America, 542 A.2d 363 (Me.1988). In Knox, the plaintiff brought a civil action alleging assault andbattery, intentional and negligent infliction of emotional distress, andnegligent supervision of her supervisor by the employer. She soughtcompensatory and punitive damages, including mental injuries, caused bysexual assaults and harassments committed upon her by her supervisor. Seeid. at 364. We determined that, because injuries arising from assaults havebeen held compensable under the Workers’ Compensation Act, no reasonexists to distinguish between sexual assaults and non-sexual assaults forpurposes of coverage under the Act. See id. at 365. We noted that under theright set of facts, mental or physical injuries from sexual assault could becompensable injuries under the Act. See id. We also noted that “[l]ikewise,injuries resulting from acts of sexual harassment are not excluded from theAct’s coverage solely because of the sexual nature of the harassment.” Id. at365-66. We do not rely on labels or the formal designation of a tortaction to determine whether a claim is barred by the exclusivity provision ofthe Workers’ Compensation Act. Rather, we look to the gist of the actionand the nature of the damages sought to determine whether the claim forinjury is excluded. See 6 Arthur Larson, Larson’s Workers’ CompensationLaw, � 104.05[1], at 18 (1999). The coverage and exclusivity provisionsbegin with a focus on personal injuries. Cole’s claim for intentional infliction of emotional distress seeks a recovery only for mental injuries. As we haveheld in the past, mental injuries constitute personal injuries within themeaning of the exclusivity provision of the Workers’ Compensation Act andthus an independent claim is barred. See Knox v. Combined Ins. Co. ofAmerica, 542 A.2d 363 (Me. 1988). Cole’s claims for defamation, invasion ofprivacy and interference with advantageous economic relations, however,are broad enough to include recovery for economic injuries, as well asmental or physical injuries. As with the claim for intentional infliction ofemotional distress, any mental or physical injuries included within theseclaims are personal injuries and thus recovery is barred by the exclusivityprovision. On the other hand, the economic or reputational injuries, if any,do not constitute personal injuries, as they are not physical or mentalinjuries. Therefore, the recovery of such damages is not precluded by theexclusivity provision. Concerning those claims that constitute personal injuriesunder the Act, Cole argues that, even if the exclusivity provision applies ingeneral, it would not apply in this case because the injuries did not occur”in the course of” employment. The purpose the coverage formula seeks toeffectuate is “‘to compensate employees for injuries suffered while andbecause they were at work.’” Comeau v. Maine Coastal Servs., 449 A.2d 362,366 (Me. 1982) (citations omitted). The determination turns on an issue offact. 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 ofemployment at a place where the employee reasonably may be in theperformance of his duties and while he is fulfilling those duties or engagedin 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). Cole argues that his injuries occurred at the time he wasterminated while he was at home and compares himself to the defendant inHebert. In Hebert, however, the plaintiff had been home for a month as aresult of falling down stairs at the plant when his brother brought to hishouse a sign that allegedly had been posted at the mill questioning thesincerity of his fall and resultant back injury. See id. at 1161-62. It was theposting of the sign that caused him the emotional distress and not the injuryat work. Therefore, we found that because he was at home at the time, itdid not occur “in the course of” employment. See id. at 1162-63. The evidence, viewed in the light most favorable to Cole,however, reveals that in this case the allegedly defamatory statements weremade by Chandler and Buckley during the preliminary investigation of Colefor inappropriate behavior in the workplace while Cole was employed atMead and while he was in his office performing his functions as controllerand head of the financial department. As a result of these interviews, thehuman resources person at Mead met with Cole in Cole’s office, explainedthe concerns raised by the investigation, including the specific allegations,and placed Cole on suspension pending further investigation. After furtherinvestigation, while Cole was at home on suspension, Mead terminated Coleby phone. Thus, the alleged slander and the damage would necessarily haveoccurred at the place of employment while he was still in the performanceof his duties before he was suspended. Therefore, his personal injuries, ifany, arose out of and in the course of his employment and are precluded bythe exclusivity provision of the Workers’ Compensation Act. B. Remaining Claims Notwithstanding that Cole’s claim for invasion of privacy is notprecluded by the exclusivity provision to the extent of any economicdamages incurred, it fails nonetheless. The claim is based on publicitywhich places the plaintiff in a false light in the public eye. See Estate ofBerthiaume v. Pratt, 365 A.2d 792, 795 (Me. 1976). Cole alleges in hiscomplaint that Chandler’s and Buckley’s statements put him in a false lightwith Mead, other potential employers, and the general public. Liability forpublicity 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 asfollows:
“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). Cole failed to generate any genuine issue through hisstatement of material facts that either Chandler or Buckley communicatedtheir comments to the public or to so many persons that it would be certainto become public knowledge. Therefore, his claims for invasion of privacyagainst both Chandler and Buckley fail. Moreover, to the extent that the claims of defamation andinterference with economic relations include economic injuries, Chandler isentitled to a conditional privilege similar to Mead Corporation. See Gautschiv. Maisel, 565 A.2d 1009 (Me. 1989). Because Cole conceded that thestatements made by Chandler were substantially true, he failed todemonstrate that Chandler acted with any malice and accordingly failed todemonstrate that she abused her privilege. As to Buckley, however, becauseCole denied making the statements attributed to him, he produced evidencefor purposes of summary judgment that she knew her statements to be false.Thus, we find for purposes of summary judgment that Cole raised a genuineissue of material fact that Buckley abused her conditional privilege. For thesame reasons, we find that he raised a genuine issue of material fact forpurposes of summary judgment as to his claims for defamation andinterference with economic relations against Buckley to the extent that suchclaims 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.
Cole v. Chandler Maine Supreme Judicial Court Curtis Cole v. Brenda Chandler Curtis Cole v. Pola Buckley and The Mead Corporation No. Oxf-99-683 Appeal from a judgment entered in the Superior Court of Oxford County. Warren, J.) Argued: April 3, 2000 Decided: May 26, 2000 Before: WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.
