Revis v. McClean

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

FILED

March 13, 2000

WILLIAM J. REVIS, ) Cecil Crowson, Jr.

) Appellate Court Clerk

Plaintiff/Appellant, )

) Appeal No.

) M1999-00658-COA-R3-CV

VS. )

) Dickson Circuit

) No. CV-677

GRAHAM J. MCCLEAN, )

QUEBECOR PRINTING (USA) )

CORP., BILL MAHONEY and )

QUEBECOR PRINTING )

DICKSON, INC., )

)

Defendants/Appellees. )

APPEALED FROM THE CIRCUIT COURT OF DICKSON COUNTY

AT CHARLOTTE, TENNESSEE

THE HONORABLE ROBERT E. BURCH, JUDGE

ANN BUNTIN STEINER

214 Second Avenue North

Nashville, Tennessee 37201-1644

Attorney for Plaintiff/Appellant

W. STEPHEN GARDNER

HEATHER R. GUNN

One Commerce Square, Suite 2380

Memphis, Tennessee 38103

Attorneys for Defendants/Appellees

AFFIRMED AND REMANDED

BEN H. CANTRELL,

PRESIDING JUDGE, M.S.

CONCUR:

KOCH, J.

CAIN, J.

OPINION

In this defamation action, the appellant filed suit against Quebecor

Printing (USA) Corporation, Graham McClean, the President and Chief

Operating Officer of the corporation, Quebecor Printing Dickson, Incorporated,

and Bill Mahoney, the General Manager of Quebecor Dickson, for alleged

defamatory statements made by Mr. McClean at a company meeting and in a

letter posted in the Dickson plant. In granting the appellee’s motion for summary

judgment, the trial court found that the statements were not defamatory as a

matter of law and that there was no publication of such statements under the law

of defamation. For the reasons stated, we find the statements were not

defamatory and affirm the judgment of the trial court.

I.

William J. Revis worked at the Dickson, Tennessee plant for

Quebecor Printing. In 1994, he was one of several employees who helped

organize an unsuccessful effort to elect a union at the Dickson plant. In 1995,

Mr. Revis was involved in another effort to unionize the plant. During the

campaign, McClean organized company meetings with various employees to

discuss the issues regarding unionization of the plant and plant productivity.

Some of these meetings were one-on-one with employees and some were team

meetings attended by large groups of employees. Pamela Brown, a Quebecor

employee, testified that at a one-on-one meeting with McClean, McClean stated

that there was no room at the plant for someone like Revis. In addition, Robert

Brown, another Quebecor employee, testified that at one of the team meetings,

McClean stated that there was no room in the plant for Revis’attitude. Witnesses

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that attended other team meetings denied that any reference was made to the

appellant.

On November 7, 1995, the National Labor Relations Board held the

election. As the vote count progressed, it became clear to McClean that the

union would lose. As he related the story later to several plant supervisors,

McClean looked around the room and made eye contact with Revis. McClean

described Revis’ facial expression as demeaning, insubordinate, and hostile.

Later, McClean composed a letter and allegedly posted it in an area of the plant

where it would likely be seen. The letter in relevant part states:

On Tuesday, November 7, 1995, at approximately

7:30 a.m. to 8:00 a.m., I was in the cafeteria observing

the counting of the ballots in the NLRB election. I

estimate that thirty to forty employees were present in

the cafeteria at this time. I was standing toward the

front of the group of employees on the left side of the

room (facing the voting area). My attention primarily

was focused on the vote count. At one point, I

happened to glance around the room at the crowd. My

thoughts were on the vote count, but I happened to

catch the eye of Mr. Revis. He was staring intently at

me with a stern, determined, and angry expression on

his face. As soon as he saw that he had made eye

contact with me, Mr. Revis proceeded to make an

overt, dramatized, facial expression towards me. Mr.

Revis made no attempt to hide his facial gesture from

the other employees present.

The facial expression Mr. Revis made at me is difficult

to describe in words. However, in an effort to

communicate what this expression looked like to me,

I would describe it as being of a menacing,

threatening, denigrating, contemptuous and

insubordinate nature. Knowing of Mr. Revis’ recent

suspension for displaying a “temper” and making

abusive and intimidating comments to others, his

facial expression immediately caused me to feel

concern for my safety, as well as the safety of the

others in the room. Moreover, I felt insulted and

offended by Mr. Revis’ conduct.

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After the events described in the letter, the company fired Revis, but

the NLRB ordered his reinstatement. Subsequently, he filed this action for

defamation.

II.

Upon review of a grant of summary judgment, this Court must

determine whether the requirements of Tenn. R. Civ. P. 56 have been satisfied.

See Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997). As this inquiry

involves purely a question of law, our review is de novo without a presumption

of correctness. Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997); McClung

v. Delta Square Ltd. Partnership, 937 S.W.2d 891, 894 (Tenn. 1996). Summary

judgments are appropriate only where there is no genuine issue of material fact

relevant to the claim or defense contained in the motion and the moving party is

entitled to a judgment as a matter of law on the undisputed facts. See Tenn. R.

Civ. P. 56.03; Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997); Carvell v.

Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995). Courts reviewing summary

judgments must view the evidence in the light most favorable to the nonmoving

party and draw all reasonable inferences in the nonmoving party’s favor. Omer,

952 S.W.2d at 426; Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). In view of

these standards, we turn now to the legal principles involved in this appeal.

III.

With respect to defamatory statements, this Court has previously

held that

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For a communication to be libelous, it must constitute a

serious threat to the plaintiff’s reputation. A libel does

not occur simply because the subject of a publication

finds the publication annoying, offensive or embarrassing.

The words must reasonably be construable as holding the

plaintiff up to public hatred, contempt or ridicule. They

must carry with them an element “of disgrace.”

Stones River Motors, Inc. v. Mid-South Publishing Co., Inc., 651 S.W.2d 713,

719 (Tenn. Ct. App. 1983) (citations omitted). In addition, “the damaging words

must be factually false. If the words are true, or essentially true, they are not

actionable even though the statement contains other inaccuracies which are not

damaging.” Id. at 719.

Whether a communication is capable of conveying a defamatory

meaning is a question of law. Pate v. Service Merchandise Co., Inc., 959 S.W.2d

569 (Tenn. Ct. App. 1996). Review by the appellate court of the trial court’s

determination is de novo. Baner v. Murphy, 530 N.W.2d 1 (Wis. App. 1995).

Allegedly defamatory statements should be judged within the context in which

they are made. Norse v. Henry Holt & Co., 991 F.2d 563 (9th Cir. 1993). They

should be read as a person of ordinary intelligence would understand them in

light of the surrounding circumstances. Pate v. Service Merchandise Co., Inc.,

959 S.W.2d 569 (Tenn. Ct. App. 1996); McKethan v. Texas Farm Bureau, 996

F.2d 734 (5th Cir. 1993).

Opinions are not automatically protected by the United States

Constitution, Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), but some

states still hold that statements of opinion alone are not actionable. See 50 Am.

Jur. 2d Libel and Slander § 161. The Restatement (followed by the Supreme

Court in Milkovich) position is that an opinion may be actionable if the

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communicated opinion may reasonably be understood to imply the existence of

undisclosed defamatory facts justifying the opinion. Restatement (2d) of Torts

§ 566.

Using these principles, we will examine the statements made by

McClean. First, he allegedly told Revis’ fellow employees (in the presence of

supervisory employees) that there was no room at the plant for someone like

Revis or that there was no room at the plant for Revis’ attitude. In our opinion,

in the context of a union election at a manufacturing plant these words are not

actionable. They consist entirely of McClean’s opinion about Revis’ attitude,

and they do not hold Revis up to public hatred, contempt, or ridicule. The other

employees would probably applaud Revis’ anti-management attitude and rejoice

that it had had the desired effect.

Second, McClean allegedly posted the letter stating that Revis had

made a menacing, threatening, denigrating, contemptuous, and insubordinate

face at him, causing him to fear for his safety and the safety of others. The basis

for his concern was Revis’ recent suspension for having a temper and making

abusive and intimidating comments to others. The description of the look on

Revis’ face is nothing more than McClean’s opinion, and the effect it produced

on him is an opinion based on the disclosed non-defamatory fact that Revis had

been suspended for threatening and cursing another employee. We hold that as

a matter of law the statements in the letter did not seriously threaten Revis’

reputation or hold him up to public hatred, contempt, or ridicule.

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As we find the statements at issue were not defamatory, we find no

need to address the issue of the publication of such statements.

The judgment of the court below is affirmed and the cause remanded

to the Circuit Court of Dickson County for any further proceedings necessary.

Tax the costs on appeal to the appellant, William J. Revis.

______________________________

BEN H. CANTRELL,

PRESIDING JUDGE, M.S.

CONCUR:

WILLIAM C. KOCH, JR., JUDGE

WILLIAM B. CAIN, JUDGE