Melvin Carter, Jr. v. First National Bank of Central Texas, et al.--Appeal from 170th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-99-237-CV

MELVIN CARTER, JR.,

Appellant

v.

FIRST NATIONAL BANK OF

CENTRAL TEXAS, ET AL.,

Appellees

From the 170th District Court

McLennan County, Texas

Trial Court # 93-2359-4

O P I N I O N

Melvin Carter appeals from a summary judgment rendered in favor of First National Bank of Central Texas (the Bank) and several of its employees. Carter claims in two points that the trial court erred in granting summary judgment because genuine issues of material fact exist on the issues of: 1) qualified privilege to communicate personnel information within an organization; and 2) compelled self-defamation.

Carter was employed by the Bank in January 1986 as a mail room clerk. He worked in this capacity until he was terminated in June 1992 for alleged sexual misconduct toward female employees. Carter s request for unemployment benefits was denied based on the misconduct reported in his personnel file. He then brought suit alleging wrongful termination and defamation. The trial court granted summary judgment in favor of the Bank and defendant employees in all respects. Carter s appeal concerns only the defamation cause of action.

Standard of Review

The standards for reviewing a summary judgment are well established. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). The movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to the summary judgment as a matter of law. Id. at 548-49. The reviewing court must accept all evidence favorable to the non-movant as true. Id. at 549. Every reasonable inference must be indulged in favor of the non-movant and all doubts resolved in its favor. Id. A defendant may establish an affirmative defense by proving all of the elements of the affirmative defense as a matter of law, demonstrating that there is no genuine issue of material fact. See Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984). The review standard is the same for defamation cases as other summary judgment cases. See Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989).

Defamation

Carter argues in his first point that the summary judgment evidence does not conclusively prove that defamatory statements made by Bank employees were subject to a qualified privilege. He argues that on several occasions Bank employees made defamatory statements to third parties that were not covered by a qualified privilege. Although the burden at trial is on Carter to prove that defamatory statements were made, in the summary judgment proceeding it was the Bank s burden, as movant, to negate an essential element of Carter s case or conclusively establish that a privilege exists. See Hardwick v. Houston Lighting & Power Co., 881 S.W.2d 195, 199 (Tex. App. Corpus Christi 1994, writ dism d. w.o.j).

A communication subject to an absolute privilege is not actionable regardless of its falsity or actual malice in publication. See Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 768 (Tex. 1987). Statements made in the course of judicial or quasi-judicial proceedings are absolutely privileged. See Bird v. W.C.W., 868 S.W.2d 797, 771 (Tex. 1994); Rose v. First Am. Title Ins. Co., 907 S.W.2d 639, 642 (Tex. App. Corpus Christi 1995, no writ); Village of Bayou Vista v. Glaskox, 899 S.W.2d 826, 829-30 (Tex. App. Houston [14th Dist.] 1995, no writ). Further, Texas law provides that statements made to the Texas Employment Commission (TEC) in connection with its investigation of a claim for unemployment benefits are absolutely privileged and may not serve as the basis for a defamation action. See Tex. Lab. Code Ann. 301.074 (Vernon 1996); Hardwick, 881 S.W.2d at 198.

A qualified or conditional privilege attaches to communications, oral or written, which are made on subjects in which the author has an interest, or in which he has a duty to perform to another having a corresponding interest or duty. See Dixon v. Southwestern Bell Tel. Co., 607 S.W.2d 240, 242 (Tex. 1980). When a statement is conditionally privileged, Texas law requires a showing of actual malice or abuse of the privilege before the statement is actionable. Id. Actual malice or abuse of the privilege means that the statement was made with knowledge of falsity or not made for the purpose of protecting the interest for which the privilege exists. See Hurlbut, 749 S.W.2d at 768. A communication also loses its privileged character when made outside the interest group to which the conditional privilege applies. See Calhoun v. Chase Manhattan Bank, 911 S.W.2d 403, 408 (Tex. App. Houston [1st Dist.] 1995, no writ.). The record reflects that all communications regarding Carter s alleged sexual harassment were made by employees of the Bank to other employees within their scope of employment, except those made to the TEC. The statements by Bank employees were made at the request of a Bank supervisor in order to provide a written record with regard to Carter s alleged inappropriate behavior at work. Bank supervisors are required to respond to all allegations of sexual harassment and investigate them. All statements made with regard to Carter were made in this investigatory capacity. Carter states in his deposition that he cannot name any third parties to which the alleged defamatory matter was communicated. We find that the alleged defamatory statements are conditionally privileged and that all statements made by Bank employees during the TEC hearings are absolutely privileged. Accordingly, we overrule point one.

Self-Defamation

Carter argues in his second point that he was compelled to communicate the alleged defamatory material contained in his personnel file in order to obtain employment. He cites First State Bank of Corpus Christi v. Ake for the proposition if the circumstances indicated that communication to a third party is likely, however, a publication may properly be held to have occurred. 606 S.W.2d 696, 701 (Tex. App. Corpus Christi 1980, writ ref d n.r.e.); see also Chasewood Constr. Co. v. Rico, 696 S.W.2d 439, 446 (Tex. App. San Antonio 1985, writ ref d n.r.e.).

The above quote generated from the Restatement (Second) of Torts section 577, comment m, stands for the amplification that where the defamed person communicates the defamatory material to a third person there is no publication unless: 1) the defamed person s transmission to the third party was made without an awareness of the defamatory nature of the matter and 2) the circumstances indicated that communication to a third party would be likely. See Restatement (Second) of Torts 577 cmt. m (1977).; Accubanc Mortgage Corp. v. Drummonds, 938 S.W.2d 135, 148 (Tex. App. Fort Worth 1996, pet. denied); Doe v. Smithkline Beecham, 855 S.W.2d 248, 259 (Tex. App. Austin 1993, aff d as modified, 903 S.W.2d 347 (Tex. 1995).

Example eleven under comment m is illustrative of the type of communications covered under section 577. Example eleven states that where A writes a letter in Latin that accuses B of sexual misconduct and B takes it to a translator, A has published a libel. See Restatement (Second) of Torts 577 cmt. m, illus. 11 (1977). Comment m covers situations where the defamed person unwittingly communicates defamatory statements which he does not realize are defamatory.

This is not the situation in this case. Carter contacted a friend, T.W. Goodlow, with regard to employment as a substitute teacher in the Houston Independent School District (HISD). Goodlow worked previously for HISD and offered to help Carter gain employment. Carter communicated to Goodlow that he was terminated for sexual harassment and stated in his deposition that he thought Goodlow told HISD about his being terminated for sexual harassment but cannot be sure. The record is clear that Carter knew the nature of the allegations against him when he communicated with Goodlow in 1992. Thus, the summary judgment proof establishes as a matter of law that Carter was aware of the defamatory nature of the statements at issue when he made them to Goodlow. The Restatement provision does not apply. Accordingly, we overrule point two.

The judgment of the trial court is affirmed.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis

Justice Vance and

Justice Gray

Affirmed

Opinion delivered and filed February 14, 2001

Do not publish