Eitler v. St. Joseph Regional Medical Center South-Bend Campus, Inc.

789 N.E.2d 497, 2003 Ind. App. LEXIS 907, 2003 WL 21267125
CourtIndiana Court of Appeals
DecidedJune 3, 2003
Docket71A04-0209-CV-464
StatusPublished
Cited by2 cases

This text of 789 N.E.2d 497 (Eitler v. St. Joseph Regional Medical Center South-Bend Campus, Inc.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eitler v. St. Joseph Regional Medical Center South-Bend Campus, Inc., 789 N.E.2d 497, 2003 Ind. App. LEXIS 907, 2003 WL 21267125 (Ind. Ct. App. 2003).

Opinions

OPINION

HOFFMAN, Senior Judge.

Plaintiff{/Appellant Christine Ann Eitler ("Eitler") appeals the trial court's grant of summary judgment in favor of Defendants/Appellees St. Joseph Regional Medical Center-South Bend Campus ("the Hospital") and Gina Webb ("Webb"). We affirm.

Eitler raises three issues for our review, which we renumber and restate as:

I. Whether the release signed by Eit-ler operated to bar recovery on her defamation claims against the Hospital and Webb.
II. Whether the absolute privilege expressed in the release violates public policy.
II. Whether Eitler's claim under the blacklisting statute was barred because she voluntarily left her employment with the Hospital.

On June 18, 2000, Eitler voluntarily left her employment as a registered nurse in the Hospital's neo-natal intensive care unit. At the time that Eitler resigned, Webb was her supervisor.

On June 28, 2000, Eitler applied for employment with Star Light Health Services ("Star Light"), an agency that provides health care workers to other health care entities. As part of her application, [499]*499Eitler was required to send a form entitled "Confidential Reference Check Report" (hereinafter, "form" or "evaluation form") to her former employer. The form, which was sent to Webb, required her to rate Eitler, by use of a check mark, as either "Above Average," "Average," or "Below Average" in the following eight categories: performance, adaptability, judgment, dependability, cooperation, initiative, personality, and health/attendance. The form also required Webb to indicate whether she would rehire Eitler by placing an "x" on the blank line next to the words "Yes," "No," or "Undecided." The form sent to Webb contained an "authorization" (hereinafter, "authorization/release") which stated that "I hereby authorize the addressed individual [Webb] ... to furnish an employment reference (verification/evaluation) to STAR LIGHT Health Services and do hereby release both parties from any and all liability for damages in the furnishing and receiving of this information." Appellant's App. at 92. The form, including the authorization/release, was signed by Eitler.

Webb rated Hitler, by use of check marks, as "Average" in the first three of the aforementioned categories and "Below Average" in the remaining categories. Webb indicated, by use of an "x," that she would not rehire Eitler.

Star Light received the completed form from Webb on or about July 28, 2000, approximately seven days after it made an offer of employment to Hitler. Star Light invited Eitler to an orientation session, and beginning on August 1, 2000, Eitler attended the four-day session. Star Light paid Eitler for her participation. Eitler, like the other nurses affiliated with Star Light, was hired on an "as needed" basis.

Star Light's "executive" told Hitler, however, that she needed to get another evaluation to balance the one received from Webb. After explaining to the Star Light executive that she had experienced difficulties with Webb during her employment at the Hospital and that she had received excellent evaluations from other supervisors, Eitler was requested to send an evaluation form to former supervisor, Kim Skupski ("Skupski"). Skupuski, who had supervised Eitler at the Hospital before Webb became supervisor, filled out the form and returned it to Star Light. Skupski rated Eitler as "Above Average" in all eight categories and indicated that she would rehire Eitler.

In the nine-month period from the date of the orientation until she filed her complaint against the Hospital and Webb, Eit-ler did not obtain any work assignments from Star Light.1 Eitler filed her complaint against the Hospital and Webb on the basis that Webb's evaluation was the cause of her lack of assignments. In her complaint, Eitler made claims based upon defamation, blacklisting, and intentional infliction of emotional distress.

The Hospital and Webb responded to the complaint by filing a motion for summary judgment. In its motion, the Hospital and Webb argued that in signing the release, Eitler consented to any defamation and/or blacklisting that might arise from Webb's completion of the evaluation form. It is from the trial court's grant of that summary judgment on the defamation [500]*500and blacklisting claims that Eitler now appeals.2

The purpose of summary judgment is to end litigation about which there can be no factual dispute and which may be determined as a matter of law. LeBrun v. Conner, 702 N.E.2d 754, 756 (Ind.Ct.App.1998). We must liberally construe all designated evidence in favor of the non-moving party and resolve any doubt against the moving party. Porter v. Irvin's Interstate Brick & Block Co., Inc., 691 N.E.2d 1363, 1364 (Ind.Ct.App.1998). We will sustain the grant of summary judgment on any theory or basis supported by the designated materials. Sharp v. Town of Highland, 665 N.E.2d 610, 613-14 (Ind.Ct.App.1996), trans. denied. Summary judgment "is appropriate only when the designated evidentiary matter demonstrates that there is no genuine issue regarding any material fact and that the moving party is entitled to judgment as a matter of law." Dietz v. Finlay Fine Jewelry Corp., 754 N.E.2d 958, 965-66 (Ind.Ct.App.2001).

Before we begin our discussion of Eitler's contentions, it is necessary to delineate the parameters of a defamation claim. Defamation is that which tends to "injure reputation or to diminish esteem, respect, good will, or confidence in the plaintiff, or to excite derogatory feelings or opinions about the plaintiff." McQueen v. Fayette County School Corp., 711 N.E.2d 62, 65 (Ind.Ct.App.1999), trans. denied. To recover in an action for defamation, "that which caused the alleged defamation must be both false and defamatory." Id. Moreover, a plaintiff must establish the basic elements of defamation: (1) a communication with a defamatory imputation; (2) malice; (8) publication; and (4) damages. Id. The determination of whether a communication is defamatory is a question of law for the court. Id.

L.

Eitler contends that the trial court erred in determining as a matter of law that by signing the authorization/release she consented to Webb's alleged defamation. Eitler argues that Webb's answers on the evaluation form were motivated by malice and that the trial court erred in determining as a matter of law that her consent created the defense of absolute privilege which barred her defamation action.

In Ernst v. Indiana Bell Telephone Co., 475 N.E.2d 351 (Ind.Ct.App.1985), this court held that an employee implicitly consented to the publication of defamatory matter by initiating union arbitration and unemployment compensation hearings. We also held that implicit consent to the publication of defamatory matter creates an absolute privilege. Id. at 355 (citing Restatement (Second) of Torts § 588, Comment (£).3

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789 N.E.2d 497, 2003 Ind. App. LEXIS 907, 2003 WL 21267125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eitler-v-st-joseph-regional-medical-center-south-bend-campus-inc-indctapp-2003.