Doe v. Gonzaga University

Faith E. Ireland.

The witnesses presented widely divergent accounts of the facts in this case.

In late 1992, while John Doe was an elementary education student at Gonzaga University, he had a sexually intimate relationship with Jane Doe, a student who was studying special education at Gonzaga.

In October 1993, Roberta League, Gonzaga's teacher certification specialist, overheard student Julia Lynch talking with another student about Lynch's dissatisfaction with the way the school dealt with complaints of date rape. Lynch said that when she had been a resident assistant, she had observed Jane Doe in obvious physical pain, which Jane Doe said was the result of having sex with "John." Lynch was angry that no one from Gonzaga had bothered to find out what had happened.

League recognized the name "John"; she knew John Doe was a student teacher in the education program at Gonzaga. Two days later, League told Dr. Susan Kyle, Gonzaga's director of field experience for student teachers, what she had overheard. Kyle and League decided that they needed to investigate the situation. League was concerned that the allegations she had overheard about John Doe might affect the dean's ability to submit an affidavit supporting John Doe's application for teacher certification.

The two women met with Lynch on October 14, 1993. According to Lynch, Jane Doe told Lynch that John Doe had sexually assaulted her three times in late November or December 1992. Lynch also said that she accompanied Jane Doe to the student health center soon after the last assault, and the nurse concluded that Jane Doe had been date raped. According to League and Kyle, Lynch said that Jane Doe claimed John Doe verbally coerced her into participating in "aberrant sexual behavior" with "other objects besides his penis," and urged Jane Doe to engage in multiple partner sex.
At the conclusion of the meeting, League and Kyle asked Lynch to see if Jane Doe would speak with them about her relationship with John Doe. Lynch did, and Jane Doe became angry and told Lynch that she did not want to make a complaint. Lynch told Kyle and League of Jane Doe's response.

On October 28, 1993, Kyle met with Jane Doe, and told her about the date rape allegations. During the meeting, Jane Doe stated, "I guess I don't really know what rape is," and "I promised [John] I wouldn't tell." Jane Doe refused to make a formal statement.

After leaving Kyle's office, Jane Doe talked with Professor William Sweeney (Sweeney), who later described her as near hysteria and weeping uncontrollably. Sweeney testified that Jane Doe told him that John Doe had sexually assaulted her on three occasions, each time more violent and abusive, and that she screamed and tried to get away. According to Sweeney, Jane Doe also said that John Doe repeatedly threatened her life, and that she did not believe the university could protect her from him.

In February 1994, Dr. Corrine McGuigan, dean of the School of Education, met with League, Kyle, Burcalow, and Sweeney. McGuigan obtained written summaries of the narratives they presented to her, and later concluded that there was sufficient evidence of a serious behavioral problem to preclude her from signing the moral character affidavit supporting John Doe's application for teacher certification.

John Doe first learned about Gonzaga's investigation of him on March 4, 1994, the same day he made his final payment of fees and tuition to Gonzaga. John Doe received a call asking him to come to McGuigan's office. He was escorted to a private room and left to read a letter from McGuigan. The letter explained that in light of allegations of sexual assault, McGuigan would not give John Doe the moral character affidavit required to support his application for certification to teach. McGuigan refused to tell John Doe who had made the allegations against him. Testimony was also presented that when John Doe and his parents asked about their appeal rights, they were told there were none.

By the time of trial, Jane Doe had married and was attending graduate school in another state. Because she was unavailable, John Doe presented her testimony through portions of a 1997 videotaped deposition, which were shown to the jury. In both the videotaped deposition and a 1995 deposition, Jane Doe denied that John Doe had sexually assaulted her. She denied that she had made many of the statements that Gonzaga personnel attributed to her. She testified that Lynch had "really blown things out of proportion," and that there were falsehoods in the declarations of Kyle, Burcalow, and Sweeney. She testified that some of the things that happened in her sexual relationship with John Doe made her uncomfortable.

John Doe testified that he and Jane Doe had sexual intercourse on five occasions. He said he stopped when she seemed uncomfortable, and she never asked him to stop. John Doe presented the testimony of roommates that they never saw or heard any indication that Jane Doe was unwilling to engage in sexual intercourse. He presented the testimony of two former girl friends that John Doe never pressured them to engage in sexual activity, never tried to talk them into sexual activity uncomfortable to them, and never criticized them for not engaging in sex. John Doe testified that he found "a lot of lies" when he read the declarations of League, Kyle, Burcalow, and Sweeney. The declarations made him disgusted and angry. John Doe said that Gonzaga destroyed his career in teaching, his goals, and his dreams.

1. Defamation

"In Washington, a defamation plaintiff must show four essential elements: falsity, an unprivileged communication, fault, and damages." Liability for defamation requires that the defamation be communicated to someone other than the person defamed; in other words, there must be a "publication" of the defamation. The Court of Appeals vacated John Doe's defamation award and directed that the jury be instructed on remand that Gonzaga cannot be held liable for communications among its own employees.

More than 80 years ago, this Court held that intracorporate communications are not "published" for purposes of defamation. "For a corporation . . . acting through one of its agents or representatives, to send a libelous communication to another of its agents or representatives cannot be a publication of the libel on the part of the corporation. It is but communicating with itself." The plaintiff there was a Seattle branch manager of a company headquartered in the Netherlands. The alleged defamation was contained in a letter sent by the main office and read only by the plaintiff's comanager and a bookkeeper. The Prins court held that there had been no publication of the allegedly defamatory statements.

In the case before us, the Court of Appeals reasoned that, likewise, the conversations and memoranda between Gonzaga's employees regarding John Doe should be characterized as the university communicating with itself--not the kind of "publication" required to support a defamation claim.

John Doe contends that the common interests of a corporation's employees create only a qualified privilege. "A privileged communication involves the occasion where an otherwise slanderous statement is shared with a third person who has a common interest in the subject and is reasonably entitled to know the information." The plaintiffs in Pate were chambermaids who sued their employer and its supervisors for defamation. The alleged slander was a supervisor's statement that the plaintiffs were sneaking around joining a union--actions which amounted to Communism. The statement was made in a meeting attended by both the plaintiffs and nonunion housekeepers. The opinion noted that the supervisor had no duty to comment upon the ideology of unions in the ordinary course of her work, which took her statement outside the circumstances and principles of Prins.

Because the employees in Prins were clearly acting "within the limits of their employment, "the court was not required to address the nature of any privilege on the communications among them. However, when the supervisor in Pate made comments not "in the ordinary course of her work," she could be held liable for publishing a defamatory statement to third persons, even though the third persons were also employees of the corporation. Under these cases, intracorporate communications are not absolutely privileged. When a corporate employee, not acting in the ordinary course of his or her work, publishes a defamatory statement, either to another employee or to a nonemployee, there can be liability in tort for resulting damages.

In the instant case, from the evidence presented at trial, it could reasonably be found that Julia Lynch was not acting in the ordinary course of her work as an office assistant when she told another student that John Doe had injured Jane Doe during a sexual relationship. It could also be found that Roberta League was not acting in the ordinary course of her work as a certification specialist when she eavesdropped on Lynch's conversation and shared her concerns of possible misconduct with Susan Kyle. Likewise, it could be found that Roberta League and Susan Kyle were not acting in the ordinary course of their work when they questioned Lynch about alleged sexual assaults of Jane Doe by John Doe and then disclosed John Doe's identity and details about his sexual relations to Adelle Nore at OSPI.

There is a qualified privilege for communications made between coemployees, but that privilege may be lost if the employees are not acting in the ordinary course of their work. The trial court's instructions fully encompassed the principles of publication and qualified privilege in a corporate context as announced in Pate. Therefore, the jury was properly instructed.

When a defendant has a qualified privilege to communicate a potentially defamatory statement, the privilege may also be lost by showing that the defendant made the statement with actual malice. Actual malice exists when a statement is made "with knowledge of its falsity or with reckless disregard of its truth or falsity." "To prove actual malice a party must establish that the speaker knew the statement was false, or acted with a high degree of awareness of its probable falsity, or in fact entertained serious doubts as to the statement's truth."

Under Washington law, the trial court properly instructed the jury regarding the defamation claim. There was sufficient evidence for the jury to find that communications among Gonzaga personnel and statements made to OSPI were not privileged. Therefore, the jury's verdict and damage award for John Doe's defamation claim are reinstated.