Opinion

Carey v. Siepmann

  • 316 Or. App. 470
  • 502 P.3d 757
Court
Court of Appeals of Oregon
Filed
Dec 15, 2021
Status
Published
Cited by
0 cases
Authority
More cited than 30.7%

affirming grant of summary judgment to the defendant, where the plaintiff argued that a jury could find that the defendant abused the qualified privilege, but the evidence was insufficient to create a triable fact issue

How later courts described this case

  • affirming grant of summary judgment to the defendant, where the plaintiff argued that a jury could find that the defendant abused the qualified privilege, but the evidence was insufficient to create a triable fact issue
  • stating that, “[w]hen a defendant properly raises a qualified privilege, the plain- tiff has the burden of proving that the defendant lost that privilege,” and describing how the privilege may be lost
  • summarizing when and how we consider alternative bases to affirm
  • explain- ing that statements made in quasi-judicial proceedings are absolutely privileged, so as to ensure that people may speak freely

Written by the judges who cited it.

The opinion

470

Argued and submitted March 8, affirmed December 15, 2021

Kathleen CAREY

and Corey Goldberg,

Plaintiffs-Appellants,

v.

David SIEPMANN,

an individual;

McMinnville Imaging Associates, LLC,

an Oregon limited liability company;

and McMinnville Imaging Associates, LLP,

an Oregon limited liability partnership,

Defendants-Respondents.

Yamhill County Circuit Court

18CV53480; A172446

502 P3d 757

Cynthia L. Easterday, Judge.

James Mills argued the cause and filed the briefs for

appellants.

Matthew J. Kalmanson argued the cause for respondents.

Also on the brief was Hart Wagner LLP.

Before Armstrong, Presiding Judge, and Tookey, Judge,

and Aoyagi, Judge.

PER CURIAM

Affirmed.

Cite as 316 Or App 470 (2021) 471

PER CURIAM

Plaintiffs appeal a judgment dismissing their

claims for defamation, intentional infliction of emotional

distress (IIED), and loss of consortium, arising out of an

employment-related dispute with defendants. For the fol-

lowing reasons, we affirm.

The following is a summary of the historical facts

alleged in plaintiffs’ complaint. Plaintiff Carey received her

Oregon medical license in 2016. In March 2017, she began

working at McMinnville Imaging Associates, LLP (MIA)—

initially part-time and later full-time—which was her first

job as a radiologist. On September 15, 2017, Carey had a neg-

ative interaction with her supervisor, Siepmann, who was

dissatisfied with her work. Siepmann berated Carey about

errors in her work to the point that she cried, and he sent her

home early. Later that day, Carey voluntarily resigned her

privileges at a nearby hospital.1 Carey’s employment agree-

ment with MIA provided that the employment relationship

would “terminate immediately” in a number of events, one

of which was her losing privileges to practice at the nearby

hospital. On September 19, 2017, Siepmann sent an email to

Carey, in which he acknowledged her resignation of hospital

privileges and told her that he had “officially terminated”

her employment with MIA as of September 16, 2017.

In October 2017, Carey obtained new employment

with a hospital system in Arizona, with an expected start

date in 2018. Carey sought to obtain a temporary job for the

interim, applying first for a job in South Dakota and later

for a job in Astoria. In connection with the South Dakota

application, Siepmann completed an employment verifica-

tion form, answering “no” to a yes/no question as to whether

Carey’s job performance had been satisfactory and stating,

in response to a request for explanation, “Employment ter-

minated because of quality concerns and report accuracy

issues.” Two weeks later, Siepmann sent a letter detailing

the circumstances of Carey’s termination, which plaintiffs

describe as “a belated attempt to correct his false statement

1

According to the complaint, Carey resigned her privileges “due to her

dissatisfaction with the abusive working environment created by [Siepmann].”

There is no allegation that she communicated that reason to Siepmann or MIA.

472 Carey v. Siepmann

on the employment verification form, by acknowledging

the true circumstances of [Carey’s] separation from MIA.”

Carey did not get the South Dakota job. As for the Astoria

job, Siepmann submitted an employment verification form

that stated that there were quality concerns regarding

Carey’s work. Carey nonetheless got that job. Carey worked

in Astoria for a month, before starting her permanent job in

Arizona in April 2018.

Carey and her husband, Goldberg, filed this action

against defendants. In the operative complaint, Carey

asserted claims for defamation and IIED, and Goldberg

asserted a claim for loss of consortium. Defendants moved to

dismiss all claims under ORCP 21 A(8), for “failure to state

ultimate facts sufficient to constitute a claim.” The trial

court granted the motion and dismissed all three claims

with prejudice.

Plaintiffs appeal, raising three assignments of error,

one as to each claim. We review the dismissal of a claim

under ORCP 21 A(8) for legal error. Chang v. Chun, 305 Or

App 144, 147, 470 P3d 410 (2020). The question is whether

the allegations in the complaint are legally sufficient to give

rise to the stated claim, when those allegations are viewed

in the light most favorable to plaintiffs, including any rea-

sonable inferences, and accepted as true. Id.

Defamation claim. The trial court dismissed Carey’s

defamation claim on the ground that Siepmann’s statements

on the employment verification forms (the alleged defama-

tion) were protected by “absolute privilege.” See Ramstead

v. Morgan, 219 Or 383, 387-88, 347 P2d 594 (1959) (explain-

ing that statements made in quasi-judicial proceedings are

absolutely privileged, so as to ensure that people may speak

freely). Carey contests the applicability of that doctrine in

these circumstances. Defendants defend the court’s ruling

on absolute privilege, while also asserting “qualified privi-

lege” as an alternative basis to affirm. See Lewis v. Carson

Oil Company, 204 Or App 99, 103, 127 P3d 1207, rev den,

341 Or 245 (2006) (“A qualified privilege to make a defama-

tory statement arises when the statement is made to protect

the interests of the plaintiff’s employer or it is on a subject

of mutual concern to the defendant and those to whom it

Cite as 316 Or App 470 (2021) 473

is made.” (Internal quotation marks omitted.)); ORS 30.178

(regarding qualified privilege for employers to disclose

information about a former employee’s job performance to

a prospective new employer). Defendants argued qualified

privilege in their motion to dismiss, but the trial court did

not rule on it.

Carey acknowledges that Siepmann’s statements are

subject to qualified privilege, but she contends that the facts

contained in the complaint, if proved, would allow a jury

to find that Siepmann “lied” on the employment verification

forms, thereby abusing the privilege and losing its protec-

tion. See Lewis, 204 Or App at 104 (stating that, “[w]hen

a defendant properly raises a qualified privilege, the plain-

tiff has the burden of proving that the defendant lost that

privilege,” and describing how the privilege may be lost).

“ ‘Unless only one conclusion can be drawn from the evi-

dence, the determination of the question whether the privi-

lege has been abused is for the jury.’ ” Murphy v. Harty, 238

Or 228, 248, 393 P2d 206 (1964) (quoting Prosser on Torts

(2d ed) 629 § 95).2

We need not decide the correctness of the trial

court’s ruling on absolute privilege. At the least, Siepmann’s

statements on the employment verification forms were

protected by qualified privilege, and we agree with defen-

dants that the facts contained in the complaint would be

insufficient, if proved, to establish abuse of the privilege.

The trial court did not err in dismissing the defamation

claim.3

2

Because of the burden shifting involved, qualified-privilege issues are often

decided on summary judgment, rather than a motion to dismiss. See, e.g., Lewis,

204 Or App at 104 (affirming grant of summary judgment to the defendant,

where the plaintiff argued that a jury could find that the defendant abused the

qualified privilege, but the evidence was insufficient to create a triable fact issue).

In this case, the parties agree that the dispositive question is whether the factual

allegations in plaintiffs’ second amended complaint, if proved, would allow a jury

to find abuse. Because the parties agree on the framing of the issue, we address

the issue as framed. We need not consider and express no opinion on whether the

court’s ruling might be better characterized as a summary judgment ruling.

3

The qualified-privilege issue was argued below and is properly before us as

an alternative basis to affirm. See Sherertz v. Brownstein Rask, 314 Or App 331,

341, 498 P3d 850 (2021) (summarizing when and how we consider alternative

bases to affirm). In other circumstances, we might affirm the dismissal of the def-

amation claim but remand for the trial court to consider allowing leave to amend

474 Carey v. Siepmann

IIED claim. The trial court dismissed Carey’s IIED

claim for failure to allege facts sufficient to state a claim.

Carey argues that her allegations were legally sufficient. We

agree with the trial court that they were not. The trial court

did not err in dismissing Carey’s IIED claim.

Loss-of-consortium claim. The trial court dismissed

Goldberg’s loss-of-consortium claim for failure to allege

facts sufficient to state a claim. Goldberg makes a mini-

mally developed argument that his allegations were legally

sufficient. We agree with the trial court that they were not.

The trial court did not err in dismissing Goldberg’s loss-of-

consortium claim.

Affirmed.

the complaint. Here, however, plaintiffs were already given the opportunity to

amend after their first amended complaint was dismissed on immunity grounds,

the trial court expressly denied further leave to amend because plaintiffs “had

three opportunities to allege facts in their complaint sufficient to establish a

claim but were unable to do so,” and plaintiffs have not assigned error to that

ruling.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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