*1 rationally 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 ever 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 of 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 Examples 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. 266 N.W. 872 (1936). have, however, employment followed the found We Only plaintiff one recognizing exceptions forthright with a modem trend being completely while See, employment e.g., her termination at will. Grouse v. prospective employer about Plan, Inc., 114 plaintiff Group ob- Health 306 N.W.2d by company. A second (Minn.1981); College misrepresen- she Bussard v. St. employment tained after of Inc., 215, Thomas, reason for 294 Minn. 200 N.W.2d application ted on the form her did, however, (1972). Specifically, have deter leaving She 155 we company. that, circumstances, explain in her interview. A mined under certain the true reason only provisions may create plaintiff employment employee handbook third obtained including ployment papers. any Equitable of em- tion records

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 333 N.W.2d at 627. We require policy do not meet the contractual o conclude dismissal fore handbook’s River, ments for offer. Pine plaintiffs’ provisions employ- E n The language N.W.2d at 626. on dismis ment contracts. sals, however, “Except definite: mis enough conduct serious to warrant immedi 2. Was there breach? dismissal, ate no will be dis We next consider whether the charged previous warning '[ and a without ' its breached contracts with period bring performance up in which to ' *8 doing only plaintiffs. so we need assess satisfactory a level.” ‘ the as a reason- whether evidence whole s argues ably supports jury’s The the lan company that verdict. Lesmei (Minn. in guage Dilly, its handbook is not definite 330 N.W.2d ter ’ 1983). enough compa- to an We dis The jury constitute offer. concluded that the agree. clearly language ny’s The used limits actions breached its contractual obli right freely gations. to dismiss company argu provides period

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 considered 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, 203 N.E.2d 665 First Misc. Ake, Corpus In order for a statement to be State Bank Christi (Tex.Civ.App.1980). These S.W.2d defamatory, considered it must be commu recognized if courts have a defamed plaintiff, someone other than the nicated to person way compelled in some to com false, it must be and it must tend harm defamatory to a municate the plaintiff’s reputation and to lower him person, third it was foreseeable community. or her in the estimation of the person the defendant the defamed Generally, Stuempges, 297 N.W.2d at 255. compelled, would be so then the defendant publication there is no where defendant could held for the defamation. liable directly to a communicates a statement specifically recog- then communicates it to a plaintiff, who Several courts have (Second) exception compelled self-pub- person. nized this third Restatement ond, part rally breach. proximately that there was a failure on the resulted from perform all or some of what defendant to In order for each of the to recover promised in the contract—in other was words, theory, and, of contract in this lawsuit on a breach that the contract breached— prepon- establish a fair each of them must third, prove each must the amount and extent evidence,first, derance of the that there was damage. her defendant; and the sec- contract between her Clara, lication in the context of supra. dis- A discharged deputy sher- charges. Georgia early ap- brought iff case an a claim of against defamation pellate presented court was with an em- his employer. former appel- California *11 ployee discharged alleged improper for recognized con- late court that liability for def- duct employees. may toward fellow Colonial amation arise originator “where the Stores, Barrett, supra. Inc. v. At that defamatory statement has reason to time, Manpower the War Commission re- person believe that defamed will be quired persons seeking employment strong compulsion under a to disclose the present availability pro- a certificate of defamatory contents of the statement to a spective employers. The person defendant em- third he has read it or been after ployer discharged who informed of its contents.” Cal.App.3d 110 discharge 796, written the reason for on the at Cal.Rptr. 168 (emphasis at 93-94 employee’s certificate of availability. original). The The court’s rationale impos- for employee brought suit for ing liability defamation. on a defendant the foresee- fo£ court, affirming The republication the trial by plaintiff court ver- able of a defam- plaintiff, dict in favor atory held that there upon was based “may publication “strong be a when the sender causal link” between the defend- ant’s suppose damage intends or has reason to actions and the by caused republication. persons, communication will reach third The court reasoned: happens, which naturally or which result This causal link is no strong less where sending.” flows from Ga.App. 73 at republication the foreseeable by is made 840, (quoting 38 at Corpus S.E.2d person operating defamed under a 172). Juris § strong compulsion republish the de- famatory statement and the circumstanc- case, Michigan In a plaintiff employ- strong es which create the compulsion discharged ee was subsequently originator are known of the defam- brought against a slander action her for- atory statement at the time he communi- employer. Co., Upjohn mer v. Grist su- person cates it to the defamed. pra. alleged She that the defendant had given defamatory 798-99, her false and Cal.Rptr. reasons for Id. at at 94. discharge her and that she was forced to presents argu The two repeat prospective employ- the reasons to against recognition ments of the doctrine detailing previous ers in her employment. compelled self-publication. argues It The trial court instructed the recognition creating that such amounts to could find a slanderous statement even liability which, wrongful discharge tort for though the statements the defendant asserts, rejected by has been this court . plaintiff. Affirming were made 442, In Minn. Rarig, Wild v. at instruction, the trial court’s the Michi- N.W.2d at we held that bad-faith ter-† gan appellate court held: “Where the con- , mination of independent contract is not an ditions are such that the utterer of the permit tort of the kind that will a tort: n defamatory intends or has matter reason to recovery. however, company, mis- suppose ordinary in the course of holding regarding reads our liability, tort events the will matter come to the knowl- wrongful discharge. We did hold edge person, publication of some third resulting bad-faith; that the harm from a may Mich.App. be effected.” 16 at give termination of a contract could never 168 N.W.2d at 406. Indeed, repovery. recog rise to a tort we recently, Most possibility by California court con- nized such a stating that a compelled self-pub- plaintiff sidered the damages is limited to contract “ex employment discharge lication in the cept exceptional con- cases where defend McKinney County text. Santa ant’s breach of contract constitutes or is accompanied independent avoiding tort.” Id. of the statement or resulting damages; words, 234 N.W.2d at 789. If in other in cases where person here can establish a cause of action compelled defamed pub- defamation, circumstances, the fact that the lish the statement. defamation damages fairly occurred the context of dis- viewed as the direct charge originator’s result of the recovery. should not defeat actions. Properly applied, the doctrine of com- argues also that rec pelled self-publication unduly does not bur- ognition self-publication of the doctrine of den the free communication of views or discourage plaintiffs mitigat would unreasonably scope broaden the of def- *12 ing damages. ap This concern does not liability. amation Accordingly, we hold however, pear problem, liability to be a defamation, that in an publi- action for self-publication defamatory of state requirement may cation be satisfied where imposed only plaintiff ments is where plaintiff compelled publish to a significant way compelled was in some to defamatory person statement to a third if it repeat defamatory statement and such was foreseeable to the defendant that the was, compulsion been, or should have fore plaintiff compelled. would be so Also, to the duty seeable defendant. to mitigate protected by can be further re action, present the record quiring plaintiffs they when encounter a plaintiffs compelled indicates that were they compelled situation in which are repeat the allegedly defamatory statement repeat defamatory statement to take all prospective employers and that the com steps attempt explain reasonable pany plaintiffs knew would be so com true nature of the situation and to contra pelled. The manager St. Paul office admit defamatory dict the statement. In such plaintiffs ted that it was foreseeable that circumstances, voluntary there would nobe by prospective would be asked employers plaintiff act on the of a that would identify they the reason that were dis mitigate. constitute a point failure to This charged. Their choice would be to tell clearly present illustrated action. “gross them insubordination” or to lie. Fa company points The to no reasonable brication, however, unacceptable is an al plaintiffs course of conduct that could have ternative. mitigate taken to damages. 2. Issue Truth

The trend of authority per modern recog suades us that Finding Minnesota law should publica that there was a tion, nize compelled 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 fore 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, 297 N.W.2d at 256-57 (quoting underlying implication of the state Hebner v. Great Railway, Northern however, ment. In Dirkswager, un 289, 292, Minn. (1899)). 80 N.W. necessary question. to resolve the More privileged doctrine of communication over, distinguishable that case is from the upon public rests policy considerations. As present case underlying because there the jurisdictions other recognize, the existence presented merely statements were as “alle privilege of a results from the court’s de gations of misconduct.” Id. 219 n. 4. termination that statements partic made in Here, company’s charges against plain ular contexts or on certain occasions should tiffs beyond went accusations and were encouraged despite the risk that conclusory statements that might statements be defamatory. See Ca engaged gross insubordination. lero v. Del Corp., Chemical 68 Wis.2d *13 498, 737, (1975). 744 Whether Requiring that truth as a defense proper an occasion is a upon one which to go underlying implication to the of the recognize privilege a is a of law statement, at least where the statement for the court to determine. Jacron Sales simple allegation, ap involves more than a 580, Co. v. Sindorf, 276 Md. 350 A.2d 688 pears to be the better view. See Restate (1976); Myers, Fisher v. 339 Mo. 100 (Second) 581A, ment of Torts comment e § (1936); S.W.2d 551 Empire Cash v. Gas (1977). Moreover, falsity the truth or of a Corp., 547 S.W.2d (Mo.Ct.App. 833 inherently statement is province within the 1976). In the context of rec jury. This court will not overturn a ommendations, generally the law recog jury finding on the of falsity issue unless qualified nizes a privilege between former finding is manifestly palpably con prospective employers long as the trary Thus, to the evidence. we find no in good statements are made faith and for point error on this because record am legitimate purpose. a Stuempges, 297 ply supports jury verdict the N.W.2d at 257. charge gross insubordination was false. argue self-publica that a

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, 11 L.Ed.2d 686 and the cation of the or can be avoided expungement Stuempges, common-law definition. of defamatory See statements * * *." * 297 N.W.2d at 257. The common-law defi Equitable Lewis v. Assur Life appropriate employer- more in the Society, nition is ance jury N.W.2d at 883. A employee situation it focuses because on award will not be set aside unless it is employer’s plain manifestly attitude palpably contrary toward and to the tiff. id. at Metropolitan See 258. Under common- evidence. Levienn v. Tran definition, Commission, law 'malice where the de exists sit 297 N.W.2d “ (Minn.1980); fendant ‘made the from ill Hughes, statement will Miller v. 259 Minn. 53, 56, motives, improper causelessly We wantonly purpose injuring determine this that it case is not neces ” plaintiff.’ sary (quoting Id. at 257 McKenzie remand the of compensatory award damages. v. William J. Burns International Detec expungement Neither Inc., 311, 312, Agency, tive 149 Minn. 183 company’s records nor vindication at trial (1921)). instructions, In its N.W. eliminate all plaintiffs’ future harm to the jurors the court informed the earning capacity. The fact that company found that the entitled to a brought against suit may it qualified privilege, plaintiff prove had to have self future detrimental effects. A “with was made actual person brings against who suit a former defining jury, malice.” malice employer likely to be a less attractive correctly the court set forth common- employment prospective candidate to em law definition. We therefore find no error ployers. No amount vindication with jury in the instructions. respect gross charge insubordination impact plaintiffs’

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 After 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, 370 N.W.2d at 882. When an depends upon these causes of actions employer’s reputation liability and its variety policy evaluation of a considera “ potentially large money damages are at tions, including ‘the nature of the conduct stake, employer may unwilling question, in the wisdom of some form of jury. trust its fate to a Even pecuniary punishment, advisability and the ” qualified privilege, punitive the risk of Plante, of a deterrent.’ Scott v. 641 F.2d result, damages may prove great. too As a 117, (3d Cir.1981) (quoting v. 135 Fisher employer may refuse to state a reason Volz, 333, (3d Cir.1974). 496 F.2d 347 Puni discharging employee. when an As indi- damages generally tive are not favored above, cated such a result would not serve O’Connell, the law. v. 701 F.2d Sellers public. the interests of the 575, (6th Cir.1983); Scott, 579 641 F.2d at 135; 102, Desmond, v. 572 F.2d Cochetti determining availability puni- In (3d Cir.1978); Weeks, Simpson 105 570 v. damages, tive we must consider the inter- 240, (8th Cir.1978); Knippen F.2d 243 v. society ests of as well those 993, Co., (D.C. Motor 546 F.2d 1002 Ford plaintiff. punitive damages We find that Cir.1976); Lee v. Southern Home Sites compelled self-publication case are not 290, (5th Cir.1970). Corp., 429 F.2d Accordingly, advisable as a deterrent. we They to be allowed with caution punitive damages hold that are not avail- and within narrow limits. Fountila upon able in actions defamation based com- Carter, (9th Cir.1978); 571 F.2d pelled self-publication, and therefore the 243; Simpson, 570 F.2d at Southern punitive damages award “ Sites, very Home 429 F.2d at 294. ‘[T]he reversed. power remedy judges demands that part; part. Affirmed in reversed exercise imposition close control over the ” punitive damages.’ and assessment of Greenberg Roofing SIMONETT, Eisert v. Met (dissenting & Sheet Justice Co., (Minn.1982) al concurring part). (quoting Roberts, Mallor & Punitive Dam handbook, Equitable its reserved its ages: Principled Approach, Toward a 31 right employer as an at-will dismiss (1980)); Hastings L.J. see also misconduct, employee for serious but Eustermann,

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 the

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 384 N.W.2d 853 tort, remedy, tiffs have it must lie in not KELLEY, (dissenting): Justice contract, willing away unless we are do though I concede Even it is employment.

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 constrained 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,” language 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 make 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 to 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). 315 N.W.2d 734 In lower, eliminate, recovery would if not addition, strong compul- there must exist a damages. future defamation upon person sion the defamed to disclose defamatory parties. statement to third view, my In majority opinion gives Likewise, showing there must be that such insufficient attention to the ramifications compulsion reasonably by mitigation problem. foreseeable opinion wrongdoer problem asserts the nonexistence of at the time the statement such a * * * liability imposed “if only where published. at Id. 738. What consti- plaintiff significant way was in some compulsion by tutes must be decided compelled repeat defamatory state- finder of fact. Id. was, compulsion ment and such or should case, In this the trial court’s instruction been, have foreseeable to the defendant.” on when and under what circumstances the brought by ex-employees against claims exception publication” ap- narrow of “self employers for defamation when the em- correct, was, plies, technically if even ployment was terminated for “incom- best, confusing. example, sep- For on two petence,” “dishonesty,” “insubordination” instructions, arate occasions in the the trial carrying or for other reason a connota- generally publication” court discussed “self immorality, tion of ineptness, improbity, or occasions, “compulsion.” On both “compulsion” will almost automatically be incomplete instruction was either or errone- job applica- found connection with future instance, point In a third ous. of time by discharged employee. tions Such two, considerably would, removed from the other “compulsion” certainty, by Moreover, ex-employer. the court instructed the if foreseeable agree I cannot with the assertion in the defamatory language found the was “com- opinion “Properly applied, that: the doc- plain- municated to someone other than the compelled self-publication trine of does not by Equitable plaintiffs, tiffs Life or * ** unduly burden the free communication of compensatory damages themselves unreasonably scope views broaden the presumed.” added.) Thus, (Emphasis liability.” contrary, of defamation To I occasion, on that was reminded suggest today’s ruling substantially “compulsion” require- neither of nor expands scope of the defamation action. Equitable ment that should have realized Now, only way employer can avoid compelled disclosure would be to third litigation possible liability and the for sub- parties. damages, stantial is to cease communicat- Recognition of the so-called “doctrine” of ing justified the reason it felt the termi- publication” “self under circumstances sim nation, persons, to third but even discourages plaintiffs ilar to this case himself or herself. mitigating damages, pointed out reasons, For these I would reverse. dissenter in appeals. the court of Lewis v. Equitable Society Assurance Life States, (Minn. United J.,

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-