*1 rаtionally perception is be based on the duced when the evidence shown to of the witness; (2) inflammatory helpful and where its or to the in material outweigh reaching understanding nature does not its prejudicial a clear of the wit- 609.347, testimony Minn.Stat. probative value. ness’ or the determination aof § 3(c) (1984). The defendant subd. must fact in 701. issue. Minn.R.Evid. We con- proof motion and an offer of of the complainant’s lay opinion make a clude of the proposed Minn. relevancy of the evidence. “fit” between Larson’s conduct and the 609.347, subd. 4 Larson did Stat. criminal sexual conduct statutes would not § trial not move the court admission helpful in have been determin- evidence, statute, required by as ing whether force or coercion existed or in instead told the trial court he was not but understanding testimony her factual about exploring in issue. We hold interested night. the events We affirm the prohibiting the trial court did not err holding appeals of the court of this complainant’s about the cross-examination properly evidence was excluded under the defendant, with the past sexual conduct standard set out Minn.R.Evid. 701. thereby of the affirm the decision Finding no basis on which to sustain the appeals court of on this issue. appeals, decision of the court of we reverse The last issue Larson raised judgment reinstate the conviction refusing claim that the trial court erred in degree. criminal sexual conduct in the third permit complainant to be cross-exam Reversed; conviction reinstated. ined on the letter she had sent to the coun attorney asking that ty before the trial
charges dropped. Larson contends the
complainant’s in the letter
she did not believe his conduct was so statutory
serious as to fall within the defi degree first criminal
nition of or third sexu proof
al conduct is relevant to of force or penetration coercion in the sexual to which LEWIS, al., Respondents, et Carole being she testified. Force or an coercion essential element of the crime with which charged, argues, he was Larson cross-ex EQUITABLE LIFE ASSURANCE amination on this matter should have been THE SOCIETY OF UNITED admissible. The trial court excluded the STATES, petitioner, Appellant. ground letter from on the that its evidence No. C8-84-1065. prejudicial outweighed probative effect its Supreme value. The court observed that the letter Court of Minnesota. legal contained conclusions rather than fac July information, pre tual and that it had been pared by defense counsel circumstances credibility voluntary
that marred its as a complainant.6 request
and informed presented
The issue thus is whether the
complainant’s scope view of the stat-
utory definition of sexual criminal conduct by lay opinion testimony
is admissible as lay may testify A
witness. witness (1) opinion
form of is: opinion when that questioning suffering physical psychological 6. The trial court did allow about harm complainant about one matter discussed in the result the March 26th incident. letter: whether she had evеr made a statement
cess, manager supervisor of the com- pany interviewed and assured hired, them would long production continue as as their re- satisfactory mained at a level. Plaintiffs did not execute written contracts of em- ployment. They employed for an in- were pursuant agreements, definite time to oral Kenefick, Berg, John R. Kevin A. St. copy company's and each received a Paul, Wattson, M. M. Robert Scott Jeffer- Among topics, handbook. other son, Horstman, Minneapolis, Andrew W. policies regarding the handbook discussed appellant. dismissals, job security, and severance pay.1 Kenney, Timothy Murphy, W. R. James Paul, respondents.
St. company’s Pittsburgh In fall requested
office assistance from its St. approvers Paul office. Claim from St. Paul Pittsburgh beginning Sep- were sent to October, plaintiffs, tember. who had AMDAHL, Chief Justice. never traveled on business be- fore, among groups two Plaintiffs, Lewis, Smith, Mary Mi- Carole *5 Pittsburgh sent to assist 2- office for Loizeaux, Rafferty, chelle and Suzanne for- periods. week defendant, Equitable mer Society Life Assurance of the United plaintiffs departed At the time for Pitts- indefinite, (company), States all hired for burgh, company policies had written terms, discharged were at-will for stat- concerning expenses. travel Guidelines “gross ed reason of insubordination.” company were set forth on the back оf They discharged in they claim that were management expense report forms and in contracts, breach of their as manuals, company’s and the St. Paul office handbook, employee determined and responsible manager instructing for they that were defamed the com- because prospective regarding compa- travelers they pany repeat knew that would have to ny's policies. he Because was out of the discharges prospec- the reason for their to group departed, time office the first employers. Ramsey county jury tive A manager delegated responsi- the office plaintiffs compensatory puni- awarded and bility secretary. supervisor to his A in the damages. Ap- tive The Minnesota Court of given responsibility St. Paul office was for peals affirmed the award but remanded on advising group. the second Neither the damages the issue for of contract future secretary supervisor performed nor the had harm. We affirm in full the award of prior instructing plaintiffs. such duties to compensatory damages reverse the but result, they As a did not review available punitive damages. award of guidelines, they give plain- did not written instructions, they tiffs written and did spring company plain- In hired plaintiffs expense reports tell approvers tiffs as dental claim in its St. During application pro- Paul office. would have to be filed. Plaintiffs were dismissals, respect pro- previous warning period 1. With to the handbook and a in which to bring performance up satisfactory vided: to a level. necessary When a dismissal is and the em- usually Dismissals come about because of an ployee company] has been [the with for six quality individual’s indifference to work longer, pay may months or severance Except attendance standards. for misconduct granted, depending on the reason for the dis- enough serious sal, to warrant immediate dismis- missal. discharged no will be without only orally given compa- information on upon submitted based they instructions daily ny’s prior allowances for meals and maid leaving had received to for Pitts- keep receipts were tips they burgh. told to company dispute did not addition, hotel bills and airfare. each expenses claims that these honestly were $1,400 which, received a travel advance incurred.
having contrary, no instruction to the they Nevertheless, January 1981, plaintiffs spent full. each received letter from the office man- plaintiffs Paul,
When returned to ager requesting again St. they revise personal each received letter expense reports. from their The letter set out management commending another, them on their still guidelines different set of to job performance in Pittsburgh. while Additionally, be followed. plaintiffs three return, Upon they spent their individually and after met manager with a advances, they their travel in- company’s Chicago were also office. At meet- they ings formed for the first time that would they again change were once asked to expense reports detailing expense have submit reports their compa- to conform to daily expenditures policies. They their while in Pitts- ny refused were told burgh. complied compa- Plaintiffs with the being put probation. were on request prepared expense reports They ny’s warned, time, were also for the first they attempted in which might reconstruct that termination be considered. At submission, trial, expenses. Upon their company managers how- testified that the ever, they change “probation” imposed were asked the re- plaintiffs on the three respect ports tips given maid because was not compa- reference to the ny’s policies, initial instructions had been primarily erroneous. dismissal but complied Plaintiffs with this second re- management, benefit However, quest. yet again provide time to decide whether to terminate change reports plaintiffs. told reflect lower Apparently,
overall totals.
later,
A week
the office manager re-
*6
sought
recoup
plaintiff ap-
from each
Chicago
orders from
ceived
to obtain from
proximately $200.2
plaintiffs
they
two
the
monies
plain-
Not until late
agreed
company
November
did
to refund to the
then
and
guidelines
complet-
tiffs receive
fire
manager
written
all four. The office
called
ing
expense reports.
guidelines
the
the two to his office and had them refund
prior
the
given
money, saying nothing
differed from
instructions
that
fact
point,
departures.
they
to their
At
com-
day.
this
were to be terminated later that
pany
plaintiffs
afternoon,
plain-
asked
to make additional Late
he
each
called
changes
reports.
expense
again
in their
Plain-
individually
tiff
his office
and
this
change
reports.,
tiffs
time refused
make further
asked them to
their
When
changes, maintaining
they
expenses
standing
that
they
stated that
were
original reports
reports,
shown on their
had been
he
their
terminated them for
honestly
reasonably
“gross
and
incurred
were
em-
and
insubordination.”3 Another
prior
expense report controversy
pursuant
Just
2.
Plaintiffs
to the
were terminated
manual,
company’s
employee
human
which
that
resources
was discovered
another
part:
$10,000
provides in relevant
compa-
office had embezzled
from the
ny. Although
Gross
that incident was a criminal act
misconduct
is a serious violation of
accepted
Exаmples
involving
standards of
money
behavior.
more than ten times as much
assaulting
employee,
are:
another
involve-
plaintiffs’ expense reports
was at stake in all
traffic,
drug
ment in
or destruction of
combined,
theft
company
prosecute
chose not to
Equitable’s
employee's property,
another
or
the case.
misusing
I.D.
card. Gross misconduct also
gross
includes
and
insubordination
falsifica-
she left
on the
expense-account dis- when
blank
ployee involved in the
requesting her reason for
application
she
form
pute
terminated because
employment;
leaving
to refund
her last
issue
change
report
her
agreed to
arose in her interview. The fourth
company.
never
$200
to find full-time
plaintiff has been unable
“gross in-
they
fired for
Because
were
plaintiffs
All
to suf-
employment.
testified
no
subordination,” plaintiffs received
sever-
fering
hardship as
emotional and financial
fired for other
they
pay.
ance
Had
been
compa-
being discharged by the
a result of
entitled to as
have been
reasons
would
ny.
pay.
severance
as one month’s
much
produc-
that the
company admitted
Breach
Contract Claim
plaintiffs
was at
performance
tion and
appeal,
company argues the fol-
On
satisfactory and even commend-
times
all
lowing concerning plaintiffs’ claims for
managers acknowledged
Company
able.
(1)
of contract:
given
have been
more
breach
plaintiffs should
company’s
did not affect the
con-
compa-
and that the
handbook
thorough instructions
(2)
relationship
plaintiffs;
tractual
with
guidelines should have been
ny’s written
if the handbook were found to
departures
to their
for Pitts-
that even
prior
reviewed
contract,
provisions
contain
enforceable
burgh. Management also admitted
breach;
company
commit a
did not
problems could have been avoided had
(3)
prejudicially
given
guidelines pri-
that the trial court
erred
plaintiffs
proper
been
its
instructions.
departures.
or to their
plaintiffs
seeking
employment,
new
employers
employee handbook become
requested by prospective
1. Did
were
plaintiffs’ employment con-
leaving
their reasons for
to disclose
company,
each indicated that she had
tracts?
plaintiffs
When
re-
been “terminated.”
undisputed
plaintiffs
It is
interviews, they were asked to ex-
ceived
terms, had no
hired for indefinite
written
plain
Each stated that
their terminations.
contracts, and could
left
employment
have
“gross
insub-
she had been terminated
any
at
attempted
explain
ordination” and
that,
rule,
general
We have held
as a
time.
published
neither
situation. The
employment relationships may be ter
employer that
any prospective
nor
stated
employer
time with
minated
gross
terminated for
had been
Independent
out cause. Thomsen v.
give
policy was to
insubordination.
Its
Minn.
District No.
School
employment and the final
only the dates of
*7
(1976);
N.W.2d 282
Cederstrand v. Lu
spe-
employee unless
job title of a former
Brotherhood,
520,
Minn.
117
theran
263
writing
to release
cifically authorized
(1962); Skagerberg
N.W.2d 213
v. Blandin
additional information.
291,
Co.,
Paper
197 Minn.
883
obligations
against
plainly
contractual
enforceable
states that
certain circumstances
employer.
Pine River
Bank
warning
an
State
v.
all
are entitled to a
Mettille,
(Minn.1983).
period
333
622
a probationary
prior
N.W.2d
to dismissal.
Further,
the handbook
only
states that
River,
person
In Pine
we held that
“serious misconduct” can constitute a
provisions,
nel handbook
meet the
ground for immediate dismissal. While the
requirements for formation of a unilateral
contemplate every pos-
handbook does not
contract,
part
as
may become enforceable
question regarding procedures
sible
for em-
employment
contract. 333
of
N.W.2d
dismissals,
ployee
the language is definite
binding
626-27.
create a
unilateral
at
To
enough
permit
a
to conclude that
contract,
promise
employment
par
a
on
certain
received
contractual
unspecified
terms
must
ticular
duration
rights.
precise
rights
nature of those
presented in the form
offer
of an
unclear,
is
but
where
terms
a con-
by
accepted
employee.
must be
Id. at
unclear,
tract are
it is
for a
to deter-
in form
626. The offer must be definite
parties.
mine the intent of the
See Diesel
employ
and must be communicated to the
School,
Truck
Training
Drivers
Inc. v.
Here,
ee.
Id.
definiteness is the
is Erickson,
642,
(Minn.1977).
645
acknowledges
because the
sue
juryA
verdict will not be
on
overturned
handbook was distributed and
appeal unless
manifestly
palpably
it is
plaintiff at
therefore communicated to each
contrary
evidence,
Stuempges
employment.
or near the time of her
Parke,
Co.,
Davis
297
&
N.W.2d
(Minn.1980);
and is
that no reasonable
proposal
Whether
constitutes an
jury.
mind could find
did the
Belden
for a
offer
unilateral contract is determined
Co.,
Porter Co. v. Kimball
303 Minn.
par
outward manifestations of
There
N.W.2d
is
ties,
subjective
their
intentions.
ample
support
jury’s
evidence here
Cederstrand,
532, 117
Minn. at
N.W.2d
decision.
employee
handbook sets forth
policies.
company’s
human resources
plaintiffs received hand
Because
Among
provisions
its
are sections on “Job
they began employment,
at the
books
time
Security” and “Dismissals.” The section
employment
dis
continued
until
job security appears
on
more
be no
than
s
charged
acceptance
constituted
offer
general
policy: “Equitable
provided
aof
unilateral contract and
job security
seeks to
of all sala
ensure the
necessary consideration for
the offer.
-
employees.”
ried
General statements of
River,
there-
Pine
The tion for “a in offers three which to bring performance up satisfactory to a lev- support position ments of its that a According to provisions, el.” no em- First, argues breach did not it that occur. ployee discharged can be without such the handbook’s on dismissals does section probationary period, except in cases of seri- apply plaintiffs’ company cases. The purpose ous misconduct. Because the relies on the first sentence of the section: period give op- is to this usually “Dismissals come about because of change portunity perform- to his or her quality to an individual’s indifference work ance, jury reasonably could have drawn argues or attendance standards.” It that company’s employ- the conclusion that the language application this limits to attend failing ees would be dismissed to performance problems, ance or neither of adequately improve or, performance their is, however, which are issues here. There words, in other for cause. explicit no the handbook that Finally, company argues per the section is limited to attendance or provisions fully apply, if the even dismissal jury reasonably formance. The could con complied it committed no breach because it clude that the first sentence is an informa requirements provisions. with the It tive statement of fact rather than a limita meetings contends held policy. tion on the dismissal This conclu management plaintiff with each from No supported by language sion is other refer through January vember 1980 1981 served ring directly company’s policy on warnings. argues It further that the misconduct,” “serious which indicates that plaintiffs placed probation fact on scope of the section includes more than prior their week terminations and were just problems productivi of attendance or discharge warned that would be cоnsidered ty. compliance indicates full with the hand ambiguous Contractual terms are record, however, clearly book. The reveals reasonably susceptible to more than purpose meetings that the between Corp. one construction. Telex v. Data management plaintiffs was not to warn 288, 291, Corp., Minn. Products 135 them The about “insubordination.” ambiguity 681 685 N.W.2d Where meetings purpose of the was to discuss the exists, depends upon and construction ex- types changes company wanted evidence, proper trinsic construction is expense reports. made in the The reason jury. of fact for the Turner v. meetings that there were numerous over a House, Alpha Sorority Phi period 2- to 3-month was because com (Minn.1979). The issue whether the changed pany continually position its about provisions binding handbook created a em- expense what it wanted included ployment fully litigated. Also, contract was The reports. prior actually being finding jury ap- placed probation, plaintiffs that the dismissal section on were never plied they might discharged. plaintiffs supported by the evi- told that Final ly, “probations” the record reveals that the dence.
given plaintiffs prior to their dismissals company argues, secondly, manage were for the benefit of apply ment, even if the dismissal section did provide time to decide whether to facts, plaintiffs, prohibit plaintiffs. did not terminate On these terminating noncompliance could found without cause have provisions dismissal and breach only required company provide but plaintiffs’ employment agreements. plaintiffs. warnings could that, reasonably concluded read as a have Jury Instructions whole, provisions limited the dismissal company's rights to terminate at-will em Regarding the breach of contract claim, ployees. warning, company lastly In addition to a the sec- asserts that the
885 prejudicially objection verdict jury’s affected because no during was made tri- Equitable al. Lewis v. from the erroneous instructions trial court. Assurance Life company argues that States, the The the instructions Society United 361 N.W.2d of compelled jury misled the and find 875, (Minn.App.1985). Objection, 880 how- proven if company that a contract was the ever, made in company’s the motion right freely forfeited its had terminate for a appeals new trial. The court of relied employees. jury The was instructed that Gibbons, Colby v. holding on our in 276 part provisions the handbook could become 170, (Minn.1979), N.W.2d 178 objec- that employment of contract com- tions jury prior instructions not made pany give up right “intended to its to termi- jury sequestration could not be heard on of employment employees nate its at Colby, however, review. objec- involved The will.” instructions are not a model of wording tions to the of instructions. The clarity. However, they must be reviewed objection the company that raises here in- whole, as a tak- not as isolated statements potentially volves a fundamental error of Sorlien, context. Peterson v. out of en law. Fundamental law in jury errors of (Minn.1980). 299 N.W.2d 130 When instructions are on appeal reviewable so whole, considered as a the instructions long have been assigned as errors clearly not prejudicial. were erroneous or in the motion for new trial. Minn.R.Civ.P. given The cited instructions were in v. Gryc Dayton-Hudson Corp., 51; context of other that numerous instructions (Minn.1980). N.W.2d 738-39 The com- adequately correctly nonper- dealt with pany has met this requirement. ju- formance and breach of contract. The compelled rors not to find either that Although compa error contract had been formed or that ny assigns jury to the instructions is re given up right its to termi- appeal, required viewable on reversal is not nate its will. unless the error the instructions was The that asserts the trial court See McDon prejudicial company. misstated its instructions with law Co., ough Brite Lite Electric respect good of faith fair covenants (Minn.1981). N.W.2d We conclude dealing employment in contracts. in the error instructions was not “In considering structions stated: prejudicial. The erroneous instruction did plaintiffs’ employment agree terms change against company. result company], you ments with also [the already We have concluded that there was employment agree instructed in all ample support jury’s evidence to find ments the employer duty has a to exercise ings provi-. the handbook’s dismissal dealing faith good and fair all relations part plaintiffs’ employ-¡ sions became We employee.” have never decid | ment contracts and that those contracts whether good ed such a condition of faith The jury were breached. instructions con- s v.Wild read into contracts. ceming not link breach contract did Rarig, 302 Minn. 419, 441, determination breach to the instruction duty good exercise faith.4 More - over, awarding appeals the instructions on dam- The court of refused to ages against address this error in the instructions for breach contract warned justification perform in instructions on breach of A contract failure without all ’ (cid:127) any promised or tract is a breach of that is such a which one for that breach is the amount which will rea- sonably of what is the con- stated: contract, and if there simply nonperform- A breach of contract is breach, damages' measure duty any ance of contractual of immediate party may recover another performance. may place A breach take perform promised, by preven- failure to acts ' fairly compensate hindrance, by repudiation. tion or or damages'which of them for the natu- *10 886 (1977). Company m essentially instruct- Torts comment
duplicative awards and
§
management
plaintiffs
they
told
that
damages for breach
ed the
insubordination,
engaged
gross
“out-of-pocket
losses” suf-
were
be
they
being discharged. This
which
wages.
by plaintiffs, including lost
fered
allegedly defamatory
com-
statement was
nothing in the record or in the
There is
employers of each
prospective
municated to
damages on
of
jury’s
of
the breach
award
however,
company,
never
plaintiff. The
suggests
that
that additional
contract claim
communicated the statement.
Plaintiffs
of a
damages were awarded for breach
prospective employers
themselves informed
sum,
good faith.
In
the instruction
duty of
gross
had been terminated for
duty
employment
contracts to
on the
pro-
They
insubordination.
did so because
good faith was erroneous and
exercise
employers inquired why they had
spective
however,
given;
since
should
have been
ques-
previous employment.
left their
evidence of breach of
there was substantial
tion
a defendant can ever
raised is whether
independent
employment agreements
for defamation when the
be held liable
faith,
duty
good
and
of
of a
of
breach
published
question
was
to a
statement
damages
no additional
since there were
person only by
plaintiff.
third
breach,
type
for the latter
of
we
awarded
previously
presented
We have not
been
prejudice
company.
can find no
question
of defamation means
-
“self-publication.”
of
Courts that have
Claim
Defamation
however,
question,
rec
considered the
have
regard
plaintiffs’ defamation
With
ognized
exception
general
a narrow
claims,
company argues
defamatory
that the trial
rule that communication of a
person by
person
to a third
liability
part
on the
statement
court’s conclusion
See, e.g.,
is not actionable.
(1) defamed
was erroneous because:
Clara, 110
McKinney County
v.
Santa
only publications
allegedly de-
(1980);
Cal.App.3d
Cal.Rptr.
168
89
famatory
by plain-
made
statement were
Stores,
Barrett, 73 Ga.
Colonial
Inc. v.
tiffs;
(2)
the statement
was
(1946);
306
v.
App.
38 S.E.2d
Belcher
true;
(3)
qualifiedly
was
Little,
(Iowa 1982);
734
Grist
privileged to make the statement.
Co.,
Mich.App.
Upjohn
v.
(1969);
Mayer,
v.
1 Ohio
N.W.2d 389
Bretz
1. Publication
(1963);
59,
The trend of
authority per
modern
recog
suades us that
Finding
Minnesota law should
publica
that there was a
tion,
nize
cоmpelled self-publica
the doctrine of
we next turn to the issue of truth.
tion.
acknowledge
recognition
statements,
We
of True
disparaging,
however
provides
this
significant
doctrine
new ba
Stuempges,
actionable.
297 N.W.2d at
sis
maintaining
cause
action for
plaintiffs
Since it is true that
and,
such,
defamation
gross insubordination,
it should be cau
fired for
compa
tiously applied. However,
properly
ny argues, they
when
cannot maintain an action
applied, it
substantially
need not
broaden
for defamation.
The
contends the
scope
liability
for defamation. The
relevant statement
to consider when ana
concept
compelled
self-publication
lyzing
does
the defense of truth is the one that
no more
originator
than hold the
plaintiffs
made
prospective
to their
employ
defamatory
damages
ers,
is,
liable for
had been fired for
caused
the statement
origina
gross
where the
insubordination. Plaintiffs counter
knows,
know,
tor
or should
falsity
circumstanc
that it is the truth or
underly
whereby
es
person
ing
the defamed
plaintiffs
has no
engaged
statement —that
avoiding publication
reasonable means of
gross insubordination —that is relevant.
itself,
relies for its authori
cation
inas
the ordinary case of
ty solely upon language of this court in
libel. Actual malice
proved,
must be
be-
Johnson
fоre there can
Dirkswager,
recovery,
be a
and in the
(Minn.1982),
proof
absence of
plaintiff
218-19
where we
raised the
can-
not recover.
goes
whether truth as a defense
accuracy
verbal
of the statement or Stuempges,
Plaintiffs tion case does not properly fit within the Qualified 3. Privilege qualified privilege doctrine. Two of the though Even an untrue defam cases which in support cite atory published, statement has been doctrine, self-publication however, appear originator of the statement will not held be agree employer’s qualified privi- published liable if the statement is under lege Stores, apply. does See Colonial Inc. circumstances that conditionally make it Barrett, Ga.App. 306; 73 38 S.E.2d privileged privilege and if is not abused. Co., Upjohn Mich.App. Grist v. 16 (Second) Restatement Torts § Also, N.W.2d logic imposing 389. The law in Minnesota is: liability upon employer a former in a self- communication, privileged, to be [A] publication appears recogni- case compel upon occasion, proper must be made a qualified tion of a privilege. A former motive, proper from a and must be based employer compelled in a self-publication probable or upon reasonable cause. may case be actually held liable as if it had faith, good made in published When so the law defamatory statement direct1 imply ly prospective malice from the employers. does communi- Where an em- course, ployer privilege would be entitled to a if it is on the [company]. defendant statement, actually published determining had company] it whether [the deny qualified privilege, entitled to the privilege makes little sense to you yourselves should ask where the identical communication is whether made agents company] parties only to identical reasonable third dif- [the grounds plain- to believe that the various being publication. ference the mode of Fi- displayed gross tiffs had insubordination nally, recognition qualified privilege of a light of all the circumstances known to be seems to effective means agents company] at the time every addressing [the the concern that time an agent agents and whether believed employer discharging states the reason for good that the statements were made in employee subject poten- itself to will faith. liability for Stuempges, tial defamation. public at 257. It is in the N.W.2d The court should not have submitted the regarding
interest that information an em- company’s issue of the entitlement to the ployee’s discharge readily available qualified privilege jury. to the Absent discharged employee prospective and to abuse, was entitled that, employers, and we are concerned un- privilege. significant privilege recognized by less error, however, preju This was not courts, employers will decline to inform dicial because the found that the com discharges. of reasons for Id. pany’s statements “actuated actu employer’s We conclude that an communi- qualified A privilege al malice.” is abused cation to an of the reason for plaintiff and therefore lost if the demon discharge may present proper occasion strates that the defendant acted with actu upon recognize qualified privi- which Stuempges, al malice. N.W.2d
lege.
placed
correctly
instructions
*14
demonstrating
of
burden
malice on the
This conclusion does not neces
plaintiff.
importantly,
jury’s spe
Most
sarily
company’s
determine that the
state
finding
cial verdict
on actual malice did not
privileged.
qualified privi
A
ments were
depend upon
finding
there was a
lege may
lost if it
is abused. The bur
qualified privilege.5
though
jury
Even
plaintiff
on the
den is
to show that
properly
quali
was not
instructed on the
privilege has been abused.
Id. While the
privilege,
fied
it nevertheless found the ac
initial determination of whether a commu
negates
company’s
tual malice which
privileged
question
nication is
is a
of law
Thus,
privilege.
entitlement
to the
decide,
for the court to
of
company
prejudiced.
was not
privilege
jury
whether the
was abused is a
(Second)
Torts,
question. Restatement
company
argues
The
also
that the
(1977).
company argues
619
The
§
incorrectly
court’s instructions
stated the
improperly
the trial court
its instructions
plaintiffs
standard of malice which
must
questions
jury
submitted both
to the
and
prove
qualified
if the
privi
existence of a
qualified
misconstrued the nature of the
lege
The
recognizes
is demonstrated.
law
privilege.
challenged
instruction stat
essentially two definitions of malice in def
ed:
cases:
amation
the “actual malice” defini
establishing
burden
that it was
tion as set forth in New York Times Co. v.
Sullivan,
qualified privilege,
254, 279-80,
entitled to such a
376 U.S.
84 S.Ct.
special
jury
5. The
verdict form submitted to the
(Yes No)
plaintiffs?
NO
or
part:
stated in relevant
18)
“gross
Was the use of the words
insubordina-
qualified privilege
17)
company] have a
[the
Did
(Yes
or
tion” actuated
actual malice?
"gross insubordination”
words
to have the
No)
YES
employers
prospective
communicated
726,
(1964),
verdict,
can eliminate on this fu work ture lives. We conclude that there Damages including damages no error in for fu Compensatory Damages plaintiffs’ harm in ture awards. The trial finding After liable on the compensatory damages court awards of claims, breach of contract and defamation evidence, supported by the and we there plaintiffs compensatory awarded appeals reverse the fore court directive punitive damages. The trial court in- remanding compensatory the issue of dam ' n determining structed that in com- ages. pensatory damages breach on the of con- *15 claim, tract harm to could consider Damages Punitive earning plain- the “future of each capacity” puni We also reverse award of trial, suggested Aftеr tiff. the court Al-j damages on the claim. tive defamation plaintiffs approved dismissal of claims though recognizes puni-; Minnesota law pleaded expungement for of the defam- imposed damages may in tive be certain company’s atory words records. n actions, (1984), see Minn.Stat. 549.20 § The court observed that verdict itself appropriate suit is not an in instant action plaintiffs injunctive vindicated so that re- legisla to do so. of which The concern court, however, unnecessary. lief was > enacting punitive damages in ture stat- modify the did not award to eliminate dam- ute, 549.20, section to limit the fre ages for future harm. punitive damage of quency amounts appeals
The court remanded of awards. Minnesota-Iowa Television Co. v. damages compensatory Improvement issue of trial T.V. Associa Watonwan 297, tion, (Minn.1980). 294 311 court to eliminate awards future N.W.2d harm, concluding essentially codify intent the awards must The by publi- existing punitive damages. losses case “exclude which are avoided law on 892
Thus,
may significantly
employer
section 549.20 should not be read to
tion
deter
com-
availability
punitive damages
extend the
discharge.
munication of the reason for
actions,
newly recognized
punitive damages
injected
causes of
“When
are
into a
upon compelled self-pub-
case,
anas
action based
reputation
the defendant’s
as
aswell
involved,
lication.
money
litiga-
its
become
and the
tion can assume a different dimension.”
availability
punitive damages
in
Lundgren,
Lundgren v. 370 N.W.2d agreed it would not dismiss for other mis- (Minn.1985). poor performance pri- conduct or without a warning opportunity and an afforded to Applying principles, deny these we bring perform- his or her *16 imposition punitive damages the of in def up ance satisfactory to a level. involving compelled amation actions self- In this case have an we unusual situa- publication. We are concerned that the tion. This was not a case where the em- availability punitive damages may tend ployee could encourage publication perform- be warned about her defamatory again. ance plaintiff, in and told not to do it The statements actions where the defendant, unlikely plain- situation If rather than the does the was re-occur. actual publication. again tiffs were importantly, More in the con asked to travel with ade- employee discharge, quate text of an the avail instructions about use of their ex- advances, ability punitive damages in pense presumably such an ac- would by fact”). question view, have abided instructions. into a my In past here was the made problem provision mistake the handbook by was intended by plaintiffs’ supervisor supervi- and the parties part to be of their employment secretary giving adequate in not in- sor’s relationship to extent stated in the first Pittsburgh for Plain- trip. structions paragraph my dissent, provi- but this the employer tiffs insisted should be bound sion, understood, so was irrelevant Equitable, this mistake and that not dispute and, therefore, parties between the they, bear the cost of mistake. should there no was contract breach. hand- being is, prob- Human nature what it provision book here is not to be construed serious, something into lem escalated more as if it agreement were entire on mat- in a confrontation which neither side would of employee discipline (it ters and dismissal yield. not), a but as modification parties’ of the at-will expressed.1 contract the extent point, Equitable discharged thе
At this
insubordination, i.e.,
gross
for
plaintiffs for
What
left
we are
with is a common-law
unwillingness
flagrant
to submit to author-
action,
defamation
recognized
as we
Unfortunately
ity.
Equitable,
jury
for
Park,
in
Co.,
Stuempges v.
Davis &
gross
found there was no
insubordination.
(Minn.1980),
N.W.2d
except that
follow, however,
Equitable
It
not
does
publication
here we
allow
satis-
to be
plain-
by discharging
breached
contract
fied, subject to certain
safeguards,
strict
unproven charge
tiffs on an
of insubor- by
issue,
publication.”
“self
On this
undisputed
It is
dination.
punitive damages issue, agree
well as the
I
employee
employees
except
at will
as the
majority.
with the
may
arrange-
handbook
have modified this
Nothing
says
ment.
in the
handbook
COYNE,
(dissenting
part
in
Justice
say Equitable
can be construed to
concurring
part).
in
agreed
employees
could
be dis-
charged
join
cause.
I
opinion
See Hunt v. IBM Mid
in
Simonett’s
dis-
Justice
Employees
senting
part.
America
Federal Credit Un-
and concurring in
ion,
(Minn.1986).
plain-
If
with at will *’ difficult to conclude the terminations jury no idea We have how the construed employees these four was done handbook, although, me, it seems callous, shoddy, perhaps even deceiv- likely was the trial influenced ing manner, I feel constrainеd to dissent. deal court’s erroneous instruction on “fair today’s opinion. court ing,” especially meaning- on the Unless the handbook delivered phrase handbook “misconduct serious to these four modified the rela enough warrant immediate dismissal.” tionship parties, employ between Kelley points But as his Justice out respondents by Equitable ment of the handbook, dissent, interpretation relationship. an at-will River evidence, Pine since it involved no extrinsic Mettille, v. 62 State Bank N.W.2d of law for the decide. court to (Minn.1983), House, specifically we held that Alpha Sorority See Turner Phi (“That change an (Minn.1979) employment order to at-will con- the issue does tract resolved not transform into a unilateral contract misconduct, 1) Apparently jury, except in order a contract to find as follows: serious *17 breach, 2) conduct, immediately; only to read the to be the for other after a chose handbook - therefore, and, agreement warning probationary period." a is entire on dismissal to But this and say discharged employee in effect: "No will be not how the handbook reads. cause, only ployee vaguely “Except for the words used Manual terminable asserts: by employer employee enough in the an handbook for misconduct serious to warrant dismissal, in an language” employee must set out “definite immediate no bewill proce- offer for a unilateral contract for discharged previous warning without a job discipline dures to followed in period performance up be in which bring to However, in dismissals. Id. at 630. Pine satisfactory my opinion, a level.” In the River, general also noted that state- we in language Equitable handbook policy ments of do not meet the contractual to nothing general amounts more than a requirements of- sufficient to constitute an which, policy statement of as in indicated Degen 626. fer. Id. at See also v. Inves- majority opinion, legally is insufficient Inc., Services, 260 Minn. tors employment change an at-will relation- Diversified 424, N.W.2d ship discharge may only to one where I for cause. cannot conclude that the nebu- discipline comparison A and dis- language Equitable Employee lous provisions employ- missal the Pine River “clearly right freely Manual limits Eq- ment manual with contained in those employees.” dismiss employment uitable’s handbook demon- vague language Eq- strates that majority compa- While the concedes the approach uitable manual fails to the defi- ny’s every contemplate handbook “does not requirement niteness forth in Pine set Riv- possible question regarding pro- dismissal discipline provisions er. The and dismissal cedures,” languagе enough is “definite provided definite, in Pine for a ex- River permit jury to conclude that plicit, four-step procedure. and detailed rights.” received certain Al- contractual If an has violated though admitting precise “nature ap- policy, following procedure will unclear,” rights those is majority ply: opines jury it is for the to determine reprimand by 1. An or, oral immediate parties, I intent as under- offense, supervisor it, for the first stand determine whether the lan- written notice sent to the Executive Vice guage sufficiently is definite.1 President. In question Pine River there was no reprimand 2. A written the second disciplinary proceed- the termination and offense. ings sufficiently definite so as con- meeting reprimand 3. A written and a offer. jury stitute an needed with the Executive President Vice decide intended whether bank the hand- possible suspension from work without it, 6, binding book to be on id. at n. pay days. for five so, and, if whether I breached. Discharge employment from for an suggest Equitable that whether the hand- employee whose conduct does im- language sufficiently book dismissal def- prove previous a result of as action inite to is a constitute an offer taken. court, law for the not for the which person In no instance will a be dis- duty acceptance, has the to decide issues charged without a re- consideration, breach, and, if appropriate, view of facts the Executive Offi- See, damages. e.g., Hunt v. IBM Mid cer. Employees America Federal Credit Un- ion, (Minn.1986). 384 N.W.2d 333 N.W.2d at n. 3. In precisely holding to this contrast delineated could have con- procedure, Equitable discipline pro- termination Em- cluded that the and dismissal relying sufficiently exclusively 1. When are on in the manual is definite to consti- language contained in a manual furnished tute a contractual offer is for court. Hunt employer attempting to establish a contract Employees IBM Un- Mid America Federal Credit providing dures, disciplinary proce- or termination ion, (Minn.1986). here, language whether used *18 respondents. “read as a whole” the com- visions limited claims of the At the time rights discharge, employ- respondents to terminate pany’s by at-will were told the ees, company majority permits the find reason for the dis- the charge “gross insubordination.” Not- may only be for cause. The that dismissal withstanding the crudeness with which employees by Equitable handbook issued is supervisory employees handled reference, the situa- any directly completely devoid of tion, that, still the fact remains over indirectly, to “dismissal for cause.” months, course respondents of three inten- repeated aphorism An in law is oft tionally, adamantly, and repeatedly refused that cases mаke This is “hard bad law.” to obey company numerous requests to superiors, such a The conduct of case. expense submit travel reports revised prompted degree, arguably in some complied previously with established com- least, in by obduracy employees of the pany policies Thus, for such accounts. comply expense refusing standpoint super- of the company was, reporting policies, on account visor, catego- that conduct is appropriately whole, despicable. Fortunately, egre- rized “gross as insubordination.” Never- by gious superiors em- conduct towards theless, communication of that rare, ployees days in these is but when respondents was to the themselves. There present is why juries it understandable publication was no of the reason for the judges tempted sometimes are to extend Indeed, discharge by Equitable. to others judicial rules to afford those victims vindi- it Equitable’s policy any to not release compensation. cation and As much as employees, information on former other appealing these sense results to one’s than the dates of and the last case, justice this I conse- fear the job title, employee unless former autho- today’s quences decision allow fu- -will rized, writing, the release of additional courts, fact, juries and ture after the Moreover, information. did amorphous, vague language express- strain challenge any applications any not ing general policy into a definite contract respondents of these when made un- employer subject liability which the is employment compensation claims. employer prove unless the can cause. just The company published neither nor com- go beyond I I would Pine River. municated reason for its termination to would hold that before a unilateral contract person than the employees other them- providing process type can arise for due clear that publica- selves. It is there was discipline procedures, dismissal the lan- tion; publication but the was made offer, guage alleged in the whether con- themselves communications type in an tained manual or other prospective employers. Generally, such employee, of communication to the must be publication publica- amounts insufficient sufficiently definite to meet the standard tion to sustain defamation claim. See set out in Pine River as a matter law. (Second) 577(1) Restatement Torts § Further, language whether the so defi- is majority opinion holds that be a nite should of law publication” “self in this case comes under juries court tо decide. Otherwise exception general a narrow rule contracts, creating long after courts will defamatory of a communication statement inception employment, contain- person by person to a third defamed ing discipline procedures termination and Very this not actionable. few courts of objectively contemplated never either recognized exception. nation have this party at time of the institution of the recognized Those who it few courts have relationship. defamatory for a have held that disagree majority actionable, I likewise with the to be the claimant must show opinion alleged addresses the defamation more than defamer “knew *19 eliminate, gate,
or should have known” that the
if
utterances
not
the
recovery
basis of
publication
damages. Predictably, therefore,
of future
and their
would come
the
respondents chose to dismiss this claim for
person.
attention
a third
Belcher v.
See
declaratory
expungement
relief because
Little,
(Iowa 1982).
Ct.App.1985) (Forsberg, dissenting). example, respondents
For originally here
sought “gross to have ex insubordination”
punged from their records as of de
claratory Obviously, relief. such an ex-
pungement against would work their self because, granted,
interest would miti-