McCullough v. Visiting Nurse Service
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MAINE SUPREME JUDICIAL COURT			Reporter of Decisions
Decision: 1997 ME 55
Docket: Yor-96-511
Argued  February 6, 1997  
Decided March 31, 1997

Panel:ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, and LIPEZ, JJ.

CHRISTINE J. McCULLOUGH

v.

VISITING NURSE SERVICE OF SOUTHERN MAINE, INC.

ROBERTS, J.

	[¶1]  Christine McCullough appeals from the summary judgment
entered in the Superior Court (York County, Crowley, J.) in favor of the
Visiting Nurse Service of Southern Maine, Inc. (VNS) on various claims
brought by McCullough based on her termination as an employee of VNS. 
McCullough contends that there are genuine issues of material fact (1)
whether she was an employee at will and (2) whether she was defamed by
VNS.  We affirm the judgment.
	[¶2]  In 1991, McCullough, a registered nurse, was hired by VNS to be
a part-time visiting nurse.  In applying for employment, and shortly after
being hired, McCullough signed a number of documents that explicitly
stated her position was terminable at will, with or without cause.  For
example, McCullough signed two acknowledgments showing she received
information regarding VNS's personnel policies.  Both acknowledgments
stated that VNS retained the right to terminate the employment
relationship "with or without cause and without notice at any time." 
Moreover, the acknowledgments went on to state that "[a]ny agreement
contrary  to the foregoing must be in writing and signed by the President of
[VNS]."
	[¶3]  In June 1992, McCullough was issued a written warning by VNS
for failing properly to flush a patient's intravenous (I.V.) line.  In March
1994, McCullough was accused of failing to add supplements to a patient's
I.V. solution.  Although an incident report was completed by McCullough's
supervisor, a written warning was not issued.  The incident report was given
to Magdalene Came, the VNS's director of home health care.  Came decided
McCullough should receive a formal warning.  She discussed the issuance of
a warning with McCullough's supervisor, who brought to Came's attention
the fact that McCullough received a warning because of the June 1992
incident.  Came determined that the combined incidents warranted
termination, and she discussed this conclusion with Maryanna Arsenault, the
executive director of VNS.  Arsenault agreed with Came, and on May 6,
1994, McCullough was fired.
	[¶4]  VNS granted McCullough a review of her termination.  After
further investigation, VNS determined there were mitigating circumstances
surrounding the June 1992 incident and that counseling, rather than
termination, should have been its response to the second incident.  VNS
offered McCullough reinstatement with a back pay settlement, but she
declined the offer.  Instead, she brought a ten-count complaint against VNS
alleging, inter alia, breach of an employment contract and defamation.  The
trial court granted VNS's motion for a summary judgment on all counts.  
	[¶5]  On an appeal from a summary judgment, we view the evidence in
the light most favorable to the party against whom the judgment was
entered to determine whether the record supports the trial court's
conclusion that there is no genuine issue of material fact and the moving
party is entitled to a judgment as a matter of law.  Simpson v. Central Maine
Motors, Inc., 669 A.2d 1324, 1325-26 (1996).  

I.
Breach of an Employment Contract

	[¶6]  A contract of employment of indefinite duration is terminable at
will by either party.  See Buchanan v. Martin Marietta Corp., 494 A.2d 677,
678 (Me. 1985); Terrio v. Millinocket Community Hosp., 379 A.2d 135, 137
(Me. 1977).  McCullough argues there is sufficient evidence to raise a
genuine factual issue as to whether she had an employment contract for a
definite term.  We disagree.  McCullough points to some references in VNS's
employee handbook that she claims show its intent to create a definite term
of employment.  For example, the handbook refers to each employee's
"tenure" with VNS; it provides for an initial performance evaluation after
three months and annual performance appraisals thereafter; and it provides
for special festivities to recognize employees who complete their fifth and
tenth years of service.  In addition, McCullough relies on a statement
contained in the employee pension plan that benefits vest after five years
should an employee "stop working for the Company before [his or her]
Normal Retirement Date."  Even when taken together, however, these
statements are too vague to create a genuine issue whether VNS created a
contract for a definite term.
	[¶7]  In the alternative, McCullough contends that even if her
employment contract were of indefinite duration, there is sufficient
evidence to raise a genuine issue whether VNS clearly intended to make the
contract terminable only for cause.  Although an employment contract of
indefinite duration is terminable at will by either party, the parties may
make the contract terminable "only pursuant to its express terms -- as 'for
cause' -- by clearly stating their intention to do so."  Larrabee v. Penobscot
Frozen Foods, Inc., 486 A.2d 97, 99-100 (Me. 1984).  We have interpreted
this exception narrowly.  See, e.g., Libby v. Calais Regional Hosp., 554 A.2d
1181, 1183 (Me. 1989) (directed verdict affirmed because written or oral
language merely implying that discharge is for cause only is not sufficient to
bind an employer); Bard v. Bath Iron Works Corp., 590 A.2d 152, 155 (Me.
1991) (summary judgment affirmed because pamphlet given by employer to
employees did not contain a clear statement of intention that employees
would be discharged only for cause).
	[¶8]  McCullough points primarily to two statements by VNS that she
argues show it clearly intended to make her employment contract
terminable only for cause.  First, in a 1992 work environment survey VNS
asked employees to respond to the statement "Employees know that
disciplinary action will be fair."  Second, in a "Management Guarantee to
Staff," distributed to employees as part of its Total Quality Service program,
VNS proclaimed that employees would be "treated with dignity and respect
and encouraged to grow in an atmosphere of trust."  We disagree with
McCullough's contention that those two statements constitute a clear
expression of VNS's intention to terminate her employment only for cause. 
They simply are too vague to provide the clear statement of intention
required by Bard and Libby.

II.
Defamation

	[¶9]  McCullough alleges defamation based on three statements made
by VNS to McCullough's co-workers and some VNS clients.  First, on the day
McCullough was fired her supervisor told other VNS nurses, whom she was
trying to get to cover McCullough's shift, that McCullough was "unavailable"
to perform her assigned visits.  Second, a VNS nurse who was heading a
teaching session shortly after McCullough's firing told other nurses in
attendance that McCullough had been fired because of "several incidents." 
Third, after McCullough was fired VNS sent a letter to patients she served
informing them that McCullough was "no longer employed by [VNS], and is
no longer authorized to provide services to you on behalf of VNS."
	[¶10]  An essential element of a claim for defamation is the existence
of a false and defamatory statement concerning the plaintiff.  Rippett v.
Bemis, 672 A.2d 82, 86 (Me. 1996).  We agree with the trial court that none
of the statements alleged by McCullough satisfy this element.  The statement
that McCullough was "unavailable" to perform her assigned visits is not
defamatory, as it is simply too vague to convey a defamatory message.  See
Bakal v. Weare, 583 A.2d 1028, 1029 (1990) (a statement is defamatory if it
"tends so to harm the reputation of another as to lower him in the
estimation of the community or to deter third persons from associating or
dealing with him.")  The statement that she was terminated for "several
incidents" when, in fact, she was only terminated for two incidents, is
substantially true even though it may not be technically accurate.  To a
reasonable person, the statement that McCullough was discharged because
of several incidents is no more damaging to her reputation than an accurate
statement would have been, namely, that she had been discharged because
of two incidents.  See also Restatement (Second) of Torts § 581A cmt. f
(1977) (It is not necessary to establish the literal truth of the precise
statement made.  Slight inaccuracies of expression are immaterial provided
that the defamatory charge is true in substance.).  The statement that
McCullough had been terminated and no longer had authorization to provide
services on behalf of VNS is true.  
	[¶11]  McCullough also bases her defamation claim on statements
made among members of VNS management concerning her disciplinary
action.  In particular, McCullough points to Magdalene Came's statements to
Maryanna Arsenault that the June 1992 and March 1994 incidents raised
concerns about patient safety and agency liability.  We agree with the trial
court that Came's statements were conditionally privileged.  See Rippett,
672 A.2d at 87 (a conditional privilege may arise in any situation in which an
important interest of the recipient of a defamatory statement will be
advanced by frank communication).  McCullough bears the burden of
creating a factual issue that Came abused the conditional privilege by, among
other actions, making the statements outside normal channels or with
malicious intent.  Gautschi v. Maisel, 565 A.2d 1009, 1011 (Me. 1989.) 
McCullough is unable, however, to point to evidence that would permit her
to meet this burden.
	[¶12]  The third category of statements on which McCullough bases
her defamation claim consists of two letters sent by VNS to the State Board
of Nursing shortly after McCullough was discharged.  The first letter briefly
informed the board that McCullough had been fired for "non-compliance
with professional practice standards relating to I.V. therapy."  The second
letter provided specific details about the two incidents leading to
McCullough's termination.
	[¶13]  The Maine Health Security Act, 24 M.R.S.A. §§ 2501-2985
(1990 & Supp. 1996), imposes the following reporting obligation on health
care providers who have terminated the employment of a nurse:

	A health care provider shall, within 60 days, report in
writing to the disciplined practitioner's board or authority the
name of any licensed, certified or registered employee ... whose
employment or privileges have been revoked, suspended,
limited or terminated, together with pertinent information
relating to the action.... The failure of any such health care
provider to report as required is a civil violation for which a fine
of not more than $1,000 may be adjudged.  

Id. § 2506 (1990).  Moreover, section 2511 (1990 & Supp. 1996) provides
immunity from civil liability for health care providers who "[make] any
report or other information available to any board ... or professional review
committee pursuant to law ...."
	[¶14]  The foregoing statutory language provides VNS with immunity
from civil liability for fulfilling its obligation to report McCullough's
termination to the board.  It is unnecessary for us to express an opinion
whether the immunity provided by section 2511 is absolute or conditioned
on the reporter acting without malice; even under the latter construction,
McCullough has failed to produce evidence that VNS acted with malice in
sending the letters.
	[¶15]  The remainder of McCullough's arguments do not merit
discussion.
	The entry is:
				Judgment affirmed.
                                                               
Attorneys for plaintiff:

Gregory O. McCullough, Esq. (orally)
P O Box 910
Sanford, ME 04073

Jeffrey A. Thaler, Esq.
Berman & Simmons
P O Box 961
Lewiston, ME 04243-0961

Attorney for defendant:

Timothy O'Brien, Esq. (orally)
Janet P. Judge, Esq.
Verrill & Dana
P O Box 586
Portland, ME 04112-0586