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JONES v. BRITT AIRWAYS

July 24, 1985

JENNIFER A. JONES, PLAINTIFF,
v.
BRITT AIRWAYS, INC., DEFENDANT.



The opinion of the court was delivered by: Rovner, District Judge.

MEMORANDUM OPINION AND ORDER

Plaintiff Jennifer Jones ("Jones") filed a complaint against defendant Britt Airways, Inc. ("Britt"), her former employer, for libel and slander as a result of certain statements that were made concerning her dismissal. Jones asserts that several Britt employees made defamatory statements accusing her of embezzling company funds. Jones alleges that, as a direct and proximate result of the defamatory statements made by Britt employees, she has suffered humiliation and embarrassment and has been unable to secure further employment. She seeks special damages for lost wages and an impaired credit rating, as well as general damages for humiliation suffered.

Britt has moved for summary judgment on three grounds. First, it contends that no defamatory statements were published, asserting that a communication by one corporate agent to another does not constitute publication, and any defamatory remarks were made only amongst Britt employees. Second, even if publication occurred, Britt argues that any remarks made were subject to a qualified privilege which can be overcome only by a showing of actual malice. Finally, Britt contends that the remarks allegedly made can be innocently construed and are not actionable.

Jones has also moved for leave to file a first amended complaint which would add a count of negligence against Britt for failure to investigate thoroughly the reasons for her dismissal. Jones contends that Britt assumed a duty to investigate when, in the course of a meeting with Jones concerning the voided ticket that was the subject of her dismissal, Britt employees told her that such an investigation would be undertaken. As a result of its failure to complete the promised investigation, Jones asserts that Britt is liable to her in negligence.

For the reasons stated below, both Britt's motion for summary judgment and Jones' motion for leave to amend her complaint are denied.

Facts

When considering a motion for summary judgment, this Court must construe the pleadings, depositions and affidavits most strictly against the moving party and most liberally in favor of the opponent. Trulson v. Trane Co., 738 F.2d 770 (7th Cir. 1984). The facts are therefore stated in a light most favorable to the plaintiff.

Pursuant to a routine audit, Robert Mur-rell ("Murrell"), Comptroller for Britt, initiated an investigation of several suspect tickets issued on March 13, 1983 at the Britt station at O'Hare Airport. The tickets had been marked "void," indicating that they had not been used and that no money had been received. Other information revealed that the tickets had been issued and actually used by passengers. The investigation began on March 22, 1983, and was conducted by Murrell, by the Director of Stations, Robert Pfrommer ("Pfrommer"), by the Station Director, James Arble ("Arble"), and by the Assistant Station Director, Brian Leahy ("Leahy"). Several Britt employees were questioned concerning the tickets.

On March 24, 1983, Murrell, Pfrommer, Arble, and Leahy met with Jones and questioned her about three tickets issued that morning, all of which were subsequently determined to have been properly voided. During that meeting, Jones initially acknowledged that she might have written the word "void" on another suspect ticket issued on March 13, but later denied the writing. Murrell then placed Jones on suspension pending an investigation, which he allegedly claimed might include polygraph examinations and handwriting analysis. Jones told Murrell she was willing to submit to a polygraph test and expressed her wish to assist Britt in the investigation.

Jones contends that no such investigation was ever conducted and she was never given a polygraph examination. The extent of Britt's investigation consisted of a phone call made to Sherry Confere, the passenger to whom the March 13 ticket had been issued. Ms. Confere verified that she had used the ticket on March 13, and she executed a statement to Britt to that effect. On April 13, 1983, Arble sent Jones a letter stating that she was terminated because the "discrepancies" that had been brought to her attention had been "confirmed." Arble sent copies of the letter to Murrell and Pfrommer.

Before and after she was terminated, Jones' attorney requested information concerning both the investigation and Jones' ultimate termination. He also reasserted Jones' willingness to assist in the investigation. He received a letter from Marilyn Britt, Assistant to the President, confirming the reasons for Jones' suspension and termination. The letter stated that her dismissal was based on her conduct at the March 24 meeting, specifically her denial that she had voided the suspect ticket, and on Britt's determination that the ticket had actually been used by a Britt passenger.

The circumstances surrounding Jones' suspension and subsequent dismissal were discussed with several low-level Britt employees, including a ticket agent, Denise Farace, and a counter agent, Donna Witten, both of whom were outside the scope of the investigation.

Discussion

Publication is an essential element of a cause of action for libel or slander. The only requirement for publication is that the defamatory statements be communicated to a third person. "There may be publication to any third person. It may be made to . . . the defendant's own agent, employee or officer, even when the defendant is a corporation." W. Prosser & W. Keeton, Torts ยง 113 at 798 (5th ed. 1984). Some courts have found no publication to have occurred when a defamatory statement is communicated only within the corporation, see e.g., Prins v. Holland North American ...


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