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P. McAdoo v. M. Diaz et al (11/25/94), 884 P 2d 1385
<![CDATA[
NOTICE: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501.
THE SUPREME COURT OF THE STATE OF ALASKA
PATRICIA McADOO, )
) Supreme Court No. S-5359
Appellant, )
) Superior Court No.
v. ) 3AN-91-9032 Civil
)
MARTIN L. DIAZ, THE HOLY )
FAMILY CATHEDRAL, THE )
ARCHDIOCESE OF ANCHORAGE, )
and THE WESTERN DOMINICAN ) O P I N I O N
PROVINCE, )
)
Appellees. ) [No. 4151 - November 25, 1994]
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Mark C. Rowland,
Judge.
Appearances: Phillip Paul Weidner and
Elizabeth D. Friedman, Weidner & Associates,
Inc., Anchorage, for Appellant. James M.
Gorski, Hughes, Thorsness, Gantz, Powell &
Brundin, Anchorage, for Appellees.
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices,
and Bryner, Justice pro tem.*
COMPTON, Justice.
A parishioner volunteered in a local Catholic church as
a weekend receptionist and a physical therapist for the parish
staff. She also volunteered to serve in various charitable and
lay ministries and served on the Pastoral Council. She filed a
report with the State of Alaska alleging that the church's plans
for an altar without a handrail constituted elder abuse or
neglect under state law. The pastor of the church dismissed her
from several of her volunteer positions. The parishioner sued,
alleging that her dismissal violated the "whistleblower"
protection of the elder neglect reporting statute, and that the
pastor had defamed her in a dismissal letter. The trial court
granted summary judgment for the pastor and the church. We
affirm the dismissal of the statutory whistleblower claim, but
remand for a determination of the defamation claim.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. FACTUAL HISTORY
1. Genesis
Father Martin Diaz is an ordained Catholic priest. He
has been the Pastor of Holy Family Cathedral in Anchorage since
1986. Patricia McAdoo is a licensed physical therapist. She has
been an active member of Holy Family Cathedral since her arrival
in Anchorage in 1982. She participates in various lay ministries
within the church. She was elected to the Pastoral Council in
1986 and served on it until her dismissal in 1990. She serves as
a lector and a lay Eucharist minister. From 1987 to 1990, she
worked as a volunteer receptionist on Saturdays for Father Diaz,
answering the phones and performing other church administrative
duties. Ms. McAdoo also worked as a volunteer physical therapist
for the Holy Family staff, including Father Diaz. She volunteers
in other charitable ministries as well. She has never been
compensated for her activities.
The relationship between Father Diaz and Ms. McAdoo has
been difficult. She describes the relationship as "dynamic" and
admits that they have "scrapped"and "nipped"at each other since
he became Pastor. He states that she treats him in "an abusive
and vindictive manner"and that they "occasionally clashed on
numerous matters involving the operation of the Parish."
As a licensed physical therapist, Ms. McAdoo is
required by law to report promptly instances of elder abuse or
neglect. AS 47.24.010(a)(1). An employer or supervisor of a
person reporting elder neglect, or an entity providing benefits,
services or housing to the reporting person, may not retaliate
against the reporting person. AS 47.24.010(h). These statutory
obligations and protections form the legal framework for the
final deterioration of the relationship between Ms. McAdoo and
Father Diaz.
Father John Fearon, an elderly priest at Holy Family
Cathedral, was hospitalized for transient ischemia in 1987. Ms.
McAdoo provided volunteer physical therapy services for Father
Fearon during his recovery. On Father Fearon's release, she
recommended that Father Diaz make physical changes in the rectory
to accommodate Father Fearon's weakened condition, including
removing throw rugs from the bathroom, installing grab bars near
the toilet and bathtub, and installing handrails on the stairs.
Father Diaz resisted these changes. When Ms. McAdoo threatened
to report the church for elder neglect, Father Diaz relented and
the changes were made.
Later Father Diaz discussed with the Pastoral Council
plans to renovate the altar. At the meeting, Ms. McAdoo stated
that Father Fearon would need a handrail on the altar. As the
plans progressed, Ms. McAdoo reminded Father Diaz of the need for
a handrail. At a meeting on October 10, 1990, she again brought
up the subject. Father Diaz stated, "I am tired of hearing about
the handrail and there is not going to be a handrail." Ms.
McAdoo threatened to report to the State that the plans for an
altar without handrails constituted elder neglect. Father Diaz
reiterated that there would be no handrails.
The next day, Ms. McAdoo called the Division of Family
and Youth Services (DFYS) and asked if she was obligated to
disclose elder neglect discovered in a volunteer capacity. The
representative responded that she was required to do so if her
services were "uniquely professional in nature and differing
significantly from those which could reasonably be expected from
an instructed and motivated family member." Ms. McAdoo made an
allegation of neglect to DFYS later that day. A representative
investigated the allegation and recommended state intervention on
Father Fearon's behalf.
2. Exodus
On October 17, Father Diaz left a message on Ms.
McAdoo's answering machine asking her to resign from the Pastoral
Council. She later was told not to report for her regular
volunteer receptionist work.1 On October 24, Ms. McAdoo met with
Father Diaz and Mr. McLean, the President of the Pastoral
Council. When she refused to resign, Father Diaz dismissed her
from the Pastoral Council. Father Diaz sent a letter to Ms.
McAdoo and other members of the Pastoral Council citing an
inability to work together, and specifically referring to Ms.
McAdoo's report to DFYS. Ms. McAdoo remains active in other
church activities. Father Diaz distinguishes the receptionist
and Pastoral Council positions from Ms. McAdoo's other volunteer
activities because the former require close interaction between
the two antagonists.
B. PROCEDURAL HISTORY
Ms. McAdoo filed suit against Father Diaz, the Holy
Family Cathedral, the Archdiocese of Anchorage, and the Western
Dominican Province for statutory retaliation, defamation, and
outrageous conduct. The defendants moved to dismiss and for
summary judgment. Following oral argument, the court granted the
defendant's motion from the bench.2 It held that the
"whistleblower" section of the elder abuse statute did not
protect volunteers, stating "[t]he claims asserted by the
plaintiff, and the facts surrounding those claims, do not bring
her within the class of persons protected by [AS 47.24.010 and]
the defendants are protected from the claims asserted by the
plaintiff by" the federal and state constitutions. The court
rejected Ms. McAdoo's argument that she was a public interest
litigant and ordered her to pay $5,015, representing fifty
percent of the defendants' attorney's fees.
II. DISCUSSION
The scope of the elder neglect statute is a question of
statutory interpretation to which this court applies its
independent judgment. Summerville v. Denali Center, 811 P.2d
1047, 1049-50 (Alaska 1991).
A. AS 47.24.010 DOES NOT COVER THE
INTANGIBLE BENEFITS OF VOLUNTEERING.
Alaska Statute 47.24.010 provides in part:
(a) The following persons who, in
the performance of their professional duties,
have reasonable cause to believe that an
elderly person has suffered harm shall, not
later than 24 hours after first having cause
for the belief, report the harm to the
Department of Health and Social Services:
(1) a physician or other licensed
health care provider;
. . .
(c) A person who fails to comply
with this section is guilty of a violation.
. . .
(h) If a person makes a good faith
report of harm under this section, an
employer or supervisor of the person, or a
public or private agency or entity that
provides benefits, services, or housing to
the person, may not discharge, demote,
transfer, reduce the pay or benefits or work
privileges of, prepare a negative work
performance evaluation of, deny or withhold
benefits or services, evict or take other
detrimental action against the person because
of the report. The person making the report
may bring a civil action for compensatory and
punitive damages against an employer,
supervisor, agency, or entity that violates
this subsection. In the civil action there
is a rebuttable presumption that the
detrimental action was retaliatory if it was
taken within 90 days after the report of harm
was made.
(Emphasis added).
The parties do not dispute that Ms. McAdoo is a
"licensed health care provider"who made a good faith report
under the statute. Ms. McAdoo argues that the defendants are
"private entities" who have deprived her of the "benefit" of
serving as a volunteer receptionist and member of the Pastoral
Council. She also argues that Father Diaz took other
"detrimental action" against her. Father Diaz responds that
these benefits are "intangible" and "essentially religious
fulfillment." Under Ms. McAdoo's theory, the statute forbids any
adverse action by anyone. She argues that subsection (h)
"prevents anyone, including a private agency or entity that
provides any type of benefit or service to the person who makes a
good faith report of elder abuse and/or neglect from taking any
type of detrimental action in retaliation against the person."
She interprets the statute to protect her right to confer
gratuitously services upon the church. We conclude that this
interpretation sweeps too broadly.
In 1983 the Alaska Legislature passed legislation for
the prevention of elder abuse and neglect. Ch. 36, 2, SLA
1983. The act required certain persons, including "a physician
or other licensed health care provider,"to report promptly elder
abuse or neglect to a state agency, required the agency to take
prompt action on the report, and assured that the act of
reporting could not be the basis of civil or criminal liability.
AS 47.24.010(a)(1), (f), .020(a). At its inception, the statute
contained no section proscribing retaliation for a report.
In 1987 Congress passed legislation requiring that each
state establish a "State Long-Term Care Ombudsman"to monitor the
status of the elderly in nursing homes and other long-term care
programs. Older Americans Act Amendments of 1987, Pub. L. No.
100-175 129(d)(12)(J)(ii), 101 Stat. 926, 937 (1987). Congress
required that each state "prohibit retaliation and reprisals by a
long-term care facility or other entity with respect to any
resident, employee, or other person for filing a complaint with
[the Ombudsman and] provide for appropriate sanctions." 42
U.S.C.A. 3058g(j)(2)-(3) (West 1994 Supp.).
In 1988 the Alaska Legislature addressed the new
requirements by introducing Senate Bill (S.B.) 442. 1988 Sen.
Journal 2276-77. The primary purpose of S.B. 442 was to
establish the office of the Long-Term Care Ombudsman to protect
Alaskans living in long-term care facilities, such as nursing
homes. Sen. State Aff. Comm., Mar. 2, 1988, Side B, No. 485-515.
The Bill implemented the federal requirements to bar retaliation
for reports made to the Long-Term Care Ombudsman. In addition,
the Bill added a new section on retaliation to the more general
elder abuse and neglect statute. The language of each of the
proposed sections prohibiting retaliation was identical,
proscribing retaliation by an "employer or supervisor" for
workplace reprisals or "other detrimental actions."3
The Senate State Affairs Committee took testimony and
made a number of changes to the Bill. After the Committee had
approved certain amendments and was preparing to release the
Bill, the following additional testimony was taken.
Mr. Chairman, [this is] Duncan Fowler of
the Ombudsman's office. [There is] one other
place where I think that you might be able to
strengthen the bill[.] From time to time we
have allegations that clients or people who
are receiving services from certain agencies
are being intimidated or being threatened
[with losing] services or this kind of thing.
May I suggest . . . inserting 'or agency
serving a client' [after 'employer or
supervisor'].
Sen. State Aff. Comm., Mar. 21, 1988, Side B, No. 175-95.
After reference to different drafts and questions from
the Committee, Mr. Fowler stated, "It is my belief that [this
would] make it very difficult for an owner of a nursing home to .
. . take some action against a patient in the nursing home
because they . . . filed a complaint with your Long-Term Care
Ombudsman." Sen. State Aff. Comm., Mar. 21, 1988, Side B, No.
240-50. The final Committee added "or a public or private agency
or entity that provides benefits, services, or housing to the
person" after "employer or supervisor," and added "deny or
withhold benefits or services, [or] evict" to the list of
proscribed retaliatory actions. This language was added to the
retaliation subsections of both the ombudsman and the general
elder neglect statutes. Compare AS 44.21.237(b) with AS
47.24.010(h).
The legislative history of AS 47.24.010 indicates that
the legislature limited the scope of the statute by identifying
and protecting certain relationships between the reporting person
and the retaliating person. The original bill protected only the
employment relationship. The state has a significant interest in
protecting employees from unfair firing. See Mitford v. de
Lasala, 666 P.2d 1000, 1007 (Alaska 1983). Many whistleblower
statutes protect only this important relationship. See, e.g., 10
U.S.C. 2409 (1988 Supp.) ("An employee of a defense contractor
may not be discharged, demoted, or otherwise discriminated
against as a reprisal for disclosing . . . a substantial
violation of law related to a defense contract.") (emphasis
added); 12 U.S.C.A. 1831j (West Supp. 1994) ("No insured
depository institution may discharge or otherwise discriminate
against any employee with respect to compensation, terms,
conditions, or privileges of employment" for a report of a
"violation of any law.") (emphasis added).
The amendment sought to protect the elderly in nursing
homes from retaliatory withdrawal of housing or other benefits or
services. The state has a significant interest in assuring that
its citizens have fair access to housing. Swanner v. Anchorage
Equal Rights Comm'n., 874 P.2d 274, 282-283 (Alaska 1994), cert.
denied, 63 U.S.L.W. 3341, 3345 (U.S. Oct. 31, 1994) (No. 94-169).
However, nothing in the legislative history or text of the
statute supports the broad reading urged by Ms. McAdoo. We have
not been directed to any whistleblower statute that protects the
reporting party from any negative reaction by any person on the
basis of the report.4 The statute protects against retaliatory
action in the context of certain important relationships between
the reporting and retaliating party. Protected relationships
include employment and situations where the retaliating party
provides substantial tangible benefits to the whistleblower. AS
47.24.010 does not protect the intangible benefits of
volunteering.5 The statute creates no right to continued
altruism.
Because we hold that Ms. McAdoo has no statutory claim,
we do not reach the argument that application of the statute
violates Father Diaz's rights under the free exercise of religion
clauses of the state and federal constitutions. See National
Labor Relations Board v. Catholic Bishop of Chicago, 440 U.S. 490
(1979). However, we must determine whether her defamation claim
against Father Diaz can stand in the face of these clauses.
B. MS. MCADOO'S DEFAMATION CLAIM IS NOT BARRED
BY THE STATE OR FEDERAL CONSTITUTIONS.
In Marshall v. Munro, 845 P.2d 424, 427-28 (Alaska
1993), we held that a cause of action against a minister could
proceed only if the elements of the claim did not require the
court to evaluate the qualifications of the minister or interpret
church dogma. The claim that the minister had defamed the
plaintiff was found to have only secular elements. Id. at 428-
29. Ms. McAdoo has asserted six causes of action. The first
claim is for statutory retaliation, which we rejected supra. Her
second claim is for libel in the dismissal letters and the third
is for unspecified slander. Slander and libel are both forms of
defamation. Restatement (Second) of Torts 568 (1977).
To create liability for defamation there
must be:
(a) a false and
defamatory statement concerning
another;
(b) an unprivileged
publication to a third party;
(c) fault amounting at
least to negligence on the part of
the publisher; and
(d) either actionability
of the statement irrespective of
special harm or the existence of
special harm caused by the
publication.
Restatement (Second) of Torts 558 (1977).
Father Diaz may assert truth or privilege as a defense.
Privilege, truth, and damage appear to be the most likely areas
of contention in this case. If Father Diaz made the allegedly
defamatory statements within the scope of his duties as a Pastor,
he has a conditional privilege to speak. Marshall, 845 P.2d at
428 & n.4. Ms. McAdoo must then show that Father Diaz made the
statements with a reckless disregard for their truth. Although
the privilege determination requires some general inquiry into
the duties of a pastor, it does not touch the merits of any core
religious questions. Similarly, a determination of whether the
statements were true and the amount of damage to Ms. McAdoo's
reputation does not present a religious question. Therefore, we
remand the case to the trial court to consider the merits of Ms.
McAdoo's defamation claims.6 Because the trial court appears not
to have reached her claims of intentional infliction of emotional
distress, outrage, and failure to rectify the acts of others, we
express no opinion on the factual or legal validity of these
claims.7
III. CONCLUSION
Dismissal of Ms. McAdoo's claim under AS 47.24.010(h)
is AFFIRMED. Dismissal of Ms. McAdoo's defamation claims is
REVERSED and REMANDED. The award of attorney's fees against Ms.
McAdoo is VACATED.
_______________________________
* Sitting by assignment made pursuant to article IV, section
16 of the Alaska Constitution.
1 Ms. McAdoo asserted in her complaint and affidavit that
she was left off the lector and Eucharist minister schedules for
January, 1991. Father Diaz asserts in his answering affidavit
that she is actively involved in these and other lay ministries.
In her appellate briefs, she has not argued retaliatory dismissal
from her lector and lay Eucharist minister positions. We
conclude that arguments based on these two allegations have been
waived.
2 It is not clear from the motion or the order granting
the motion whether the suit was dismissed under Alaska Civil Rule
12(b) or summary judgment was granted under Rule 56. If the
court considered materials outside the pleadings, the motion was
automatically converted to a motion for summary judgment. Alaska
R. Civ. P. 12(b). In Martin v. Mears, 602 P.2d 421, 426 (Alaska
1979), we stated "in the future all trial courts must expressly
state whether they have in fact excluded or considered"materials
beyond the pleadings. We have been less than successful in
getting the trial courts to follow this commandment. See Andrews
v. Wade & De Young, 875 P.2d 89, 90-91 (Alaska 1994); Homeward
Bound, Inc. v. Anchorage Sch. Dist., 791 P.2d 610, 611-12 (Alaska
1990); Brice v. State, 669 P.2d 1311, 1313-14 (Alaska 1983);
Douglas v. Glacier State Tel. Co., 615 P.2d 580, 590 (Alaska
1980). The primary purpose behind our concern in Martin was the
possibility of prejudice to the nonmoving party from an
unannounced conversion to summary judgment. Under Rule 12(b),
"all parties shall be given reasonable opportunity to present all
material made pertinent"by the conversion. In the present case,
the motion gave notice that summary judgment was contemplated and
Ms. McAdoo submitted a competing affidavit in opposition. There
was no prejudice to Ms. McAdoo from the trial court's imprecise
description of its action. See Douglas, 615 P.2d at 590.
In addition, we are not convinced that the distinction
significantly affects appellate review.
Both the summary judgment procedure and the motion for
judgment on the pleadings are concerned with the
substance of the parties' claims and defenses and are
directed towards a final judgment on the merits.
Indeed, the standard applied by the court appears to be
identical under both motions. All factual inferences
and intendments are taken against the moving party and
the motion is not granted unless the movant is entitled
to judgment as a matter of law. . . . Any possible
distinction between the [scope of the] two motions . .
. was eliminated by the 1948 amendment to Rule 12(c),
which provided that if material outside the pleadings
is presented on the motion, the court may consider it
and treat the motion as if it had been brought under
Rule 56.
5A Wright & Miller, Federal Practice and Procedure 1369, p. 534-
535 (1990).
In Martin, we noted three options are available where
the superior court has failed to treat a Rule 12(b) motion as a
motion for summary judgment where matters outside the pleadings
were considered. We may remand, review as a dismissal, or review
as a summary judgment. Martin, 602 P.2d at 427. We held that
reversal was warranted whether the decision was treated as a
dismissal or summary judgment. Id. Although subsequent
decisions repeat these three options, the decisions usually apply
the summary judgment standard of review. Homeward Bound, 791
P.2d at 612; Brice, 669 P.2d at 1314; Douglas, 615 P.2d at 590.
We see little utility in remanding for clarification and little
effective difference between reviewing this matter as a dismissal
or as a summary judgment in the absence of prejudice to either
party.
3 "An employer or supervisor of a person who, in good
faith, makes a report of harm under this section may not
discharge, demote, transfer, reduce pay or benefits or work
privileges of, prepare a negative work performance evaluation of,
or take other detrimental action against the person because of
the report." S.B. 442 15th Leg., 2nd Sess. (February 19, 1988).
4 We express no view as to whether such an all-
encompassing statute would violate the personal rights of
association and disassociation. See Laurence H. Tribe, American
Constitutional Law 1010-22 (2d. ed. 1988).
5 Philosophers, economists, and legal theorists have
struggled with a theoretical motivation for altruism. It does
not fit neatly into the traditional conservative view that all
humans act rationally for their own self-interest. Under this
view, a person volunteers to do good for others without
expectation of direct benefit for one of two reasons: (1) the
rational expectation of actual, but less tangible benefits, such
as an increased standing in the community or an expectation of
reciprocal acts of kindness from the recipient, or (2) because of
a hypothetical "psychic income"to the volunteer generated by the
act of doing good. Jeffrey L. Harrison, Egoism, Altruism, and
Market Illusions: The Limits of Law and Economics, 33 U.C.L.A.
L. Rev. 1309, 1316-19 (1986). Opposing philosophical views allow
for the possibility that rational humans can perform altruistic
acts out of simple kindness or a commitment to family, society,
or creator. See John Rawls, A Theory of Justice (1971). Ms.
McAdoo suggests that she volunteered to enhance "her standing
within both the religious and her secular, professional
community." Her record of charitable acts suggests that her
motives were selfless. But even if she acted selfishly to gain
the intangible benefits of volunteering, these benefits are
beyond the scope of the whistleblower statute.
6 At oral argument, Ms. McAdoo's counsel twice admonished
the court to "[not] give us half a loaf." We decline to treat
this admonition as a waiver of Ms. McAdoo's non-statutory claim.
7 The basis for the defamation claims is a letter Father
Diaz distributed to the members of the Pastoral Council. In the
letter, he asserts that Ms. McAdoo has been "abusive and
vindictive"toward him for at least two years and that the last
time Ms. McAdoo "attended counseling with someone from the parish
it turned very negative very quickly." Ms. McAdoo also cites a
number of occurrences after the dismissals to support her claims
of intentional infliction of emotional distress, outrage, and
failure to rectify the outrageous acts of agents. She says that
(1) Father Diaz and Mr. McLean refused to take her phone calls
before their meeting with her, (2) Father Diaz said, "Well,
excuse you," after Ms. McAdoo had a coughing attack during a
sermon, (3) Father Diaz sang the words "power to the laity" on
one occasion when he saw her, (4) and Mr. and Mrs. McLean moved
away from her in church.
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