Polson v. Davis

895 F.2d 705, 5 I.E.R. Cas. (BNA) 369, 1990 U.S. App. LEXIS 1474, 52 Fair Empl. Prac. Cas. (BNA) 44, 52 Empl. Prac. Dec. (CCH) 39,604, 1990 WL 8200
CourtCourt of Appeals for the Tenth Circuit
DecidedFebruary 6, 1990
DocketNo. 87-1114
StatusPublished
Cited by74 cases

This text of 895 F.2d 705 (Polson v. Davis) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Polson v. Davis, 895 F.2d 705, 5 I.E.R. Cas. (BNA) 369, 1990 U.S. App. LEXIS 1474, 52 Fair Empl. Prac. Cas. (BNA) 44, 52 Empl. Prac. Dec. (CCH) 39,604, 1990 WL 8200 (10th Cir. 1990).

Opinion

LOGAN, Circuit Judge.

In this appeal we must decide whether Kansas courts would recognize certain causes of action plaintiff Maureen Poison asserts in connection with her discharge from employment, whether the district court erred in jury instructions, whether Title VII claims can be enforced through 42 U.S.C. § 1983, and whether certain alleged misconduct at trial prejudiced plaintiff's § 1983 case which plaintiff lost before the jury. The facts of this case are set out in detail in the district court’s pretrial opinion, reported as Poison v. Davis, 635 F.Supp. 1130 (D.Kan.1986), and in the district court’s memorandum and order. II R. tab 119. We will recount only the most pertinent facts.

Plaintiff was hired as an “Employment Supervisor” by defendant Kansas City, Kansas. Her employment was confirmed in a letter from her immediate supervisor, defendant Jerry Davis. The district court concluded, and plaintiff does not challenge here, that the circumstances of her hiring reflected employment “at will.” Id. at 1140-41, 1149.

Plaintiff’s duties included reviewing employment applications and making recommendations to various city departments regarding which applicants were most suitable for their hiring needs. Throughout the term of her employment, plaintiff's relationship with defendant Davis gradually deteriorated. It is plaintiff’s contention that this deterioration was caused by her continuing objections to the defendants’ hiring policies, which she viewed as discriminatory. It is defendants’ contention that plaintiff was abrasive and insubordinate, which quickly soured her relationship with her supervisor.

Defendants terminated plaintiff’s employment, effective June 20, 1983. Davis had notified her, a month prior to that, that she was being terminated for “unprofessional conduct.” Since her termination, this information has been made public by defendant Davis, and by plaintiff herself in that she has informed potential employers of the reason cited for her termination. In addition, plaintiff authorized review of her personnel notebook by the press.

I Defamation

Poison claims that the defendants, in particular defendant Davis, defamed her [708]*708in publishing the reasons for her termination, and that the trial court erred in its jury instruction on this issue.1 Specifically, plaintiff argues that the trial court should have instructed the jury on the theory of defamation per se, which does not require proof of actual damages.

It is true that Kansas once followed the common law in dividing defamation into two types: defamation per se and defamation per quod. Gobin v. Globe Publishing Co., 232 Kan. 1, 649 P.2d 1239, 1242 (1982). Defamation per se, which included, inter alia, statements that impugned the defamee’s competence in her trade or profession, did not require proof of actual damages for a finding of liability. Instead, damage was presumed from the nature of the statement. Poison, 635 F.Supp. at 1147. On the other hand, defamation per quod required proof of actual damages for a finding of liability. The parties do not dispute, as a matter of law, that the statements at issue here fall into the traditional defamation per se category. So the issue that remains is whether Kansas still recognizes defamation per se as a separate type of defamation.

Plaintiff has failed to persuade us that the district court erred in its interpretation of Kansas law. In Gobin, the Kansas Supreme Court abolished the distinction between defamation per se and defamation per quod. Citing Gertz v. Robert Welch Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the court stated, “Damages recoverable for defamation may no longer be presumed; they must be established by proof, no matter what the character of the libel.” Gobin, 649 P.2d at 1242.

As the plaintiff correctly notes, the United States Supreme Court restricted the rule of Gertz after Gobin was decided. In Gertz, the Court held that, absent proof of malice, a defamation defendant cannot be held liable for presumed damages. 418 U.S. at 349, 94 S.Ct. at 3011. Later, however, the Court restricted the scope of Gertz to actions against media defendants and actions involving public issues. See Dun & Bradstreet v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985). In Dun & Bradstreet, the Court read Gertz’s requirement of actual damages narrowly and attributed the holding to the fact that the Court was forced to balance the defendant’s First Amendment freedoms and the benefits of discussion of public issues against a state’s right to regulate tort law. When the issues involved are not matters of public concern or the defendant is not a member of the media, the Court saw no constitutional reason to restrict plaintiff’s recovery under state defamation law. Id. at 757-61, 105 S.Ct. at 2944.

Plaintiff argues that because Dun & Bradstreet has revealed Gobin to be a needlessly overbroad reading of Gertz, this court should “correct” the law in Kansas to reflect the Supreme Court’s later decision. We disagree. The Supreme Court’s decision in Dun & Bradstreet is purely permissive — it holds only that it is not unconstitutional to use presumed damages against nonmedia defendants or in cases that do not involve issues of public concern. The decision does not require the presumption of damages in all such cases as a constitutional matter. And the Kansas Supreme Court, although recognizing the opportunity in Turner v. Halliburton, 240 Kan. 1, 722 P.2d 1106 (1986), has declined to reexamine the scope of its Gobin holding. Id. 722 P.2d at 1115. Consequently, we reject plaintiff’s contention that the jury instructions on the defamation claim were in error.

II Retaliatory Discharge

Plaintiff alleges that the trial court erred in granting summary judgment to defendants on her state law retaliatory discharge claim. The court based its ruling on the Kansas employment-at-will doctrine, [709]*709which it read to preclude tort damages for retaliatory discharge. Poison, 635 F.Supp. at 1149-50. Plaintiff argues that Murphy v. City of Topeka, 6 Kan.App.2d 488, 630 P.2d 186 (1981), created a public policy exception to the general rule that all employees are employed at will and may be discharged for no reason or for any reason whatsoever; and that this public policy exception is properly invoked in the instant case. We disagree, and hold that plaintiffs remedies under Kansas statutory law preclude recovery under the tort of wrongful discharge.

Murphy involved an employee who was fired because of his filing of a worker’s compensation claim.

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895 F.2d 705, 5 I.E.R. Cas. (BNA) 369, 1990 U.S. App. LEXIS 1474, 52 Fair Empl. Prac. Cas. (BNA) 44, 52 Empl. Prac. Dec. (CCH) 39,604, 1990 WL 8200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/polson-v-davis-ca10-1990.