Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of the City of St. Louis 1722-CC01298
Honorable Robert H. Dierker, Jr.
M. Gaertner, Jr., Presiding Judge.
Lovelace (Lovelace) appeals the trial court's dismissal
of her defamation petition against Brian Van Tine (Van Tine).
She argues that the trial court erred in concluding that
intra-corporate immunity applied to her claim. We
allegations in Lovelace's petition are as follows.
Lovelace worked as a medical assistant for Washington
University School of Medicine from November 24, 2003 until
August 5, 2015. Van Tine is a physician in the Department of
Oncology at Washington University School of Medicine. Both
Lovelace and Van Tine worked at the Siteman Cancer Center
(Siteman), which is managed jointly by Washington University
School of Medicine and Barnes-Jewish Hospital. Paula Goldberg
(Goldberg), a registered nurse for Barnes-Jewish Hospital,
was Lovelace's manager. Goldberg performed all of
Lovelace's performance evaluations and controlled her
daily assignments. Denitra Brinkley (Brinkley), an employee
of Washington University, also supervised Lovelace.
Tine, as a physician, maintained a medical team made up of
nurses, a nurse practitioner, and occasionally medical
assistants. On July 8-9, 2015, Lovelace was assigned to Van
Tine's team as a "float" medical assistant. On
July 13, 2015, Goldberg and Brinkley met with Lovelace. They
told her that Van Tine had reported that Lovelace said,
"Don't hire Angle Butcher, she doesn't like
working with white people." Lovelace denied making any
such statement, became very upset, and was allowed to leave
work early. Lovelace called into work sick for several days
due to her distress, and eventually Goldberg and Brinkley
placed her on administrative leave. Lovelace was discharged
from her employment on August 5, 2015.
petition alleged that Van Tine maliciously and falsely
accused Lovelace of making the statement regarding Angie
Butcher in order to divert blame for making a racially-based
hiring decision. Lovelace alleged that Van Tine's
accusation directly and proximately caused Lovelace damage to
her reputation and the loss of her employment, as well as
extreme mental and emotional distress.
Tine moved to dismiss Lovelace's petition for failure to
state a claim, arguing that according to Missouri's
intra-corporate immunity rule, Van Tine's statement to
Lovelace's supervisors did not constitute publication to
a third party, which is an essential element of defamation.
Van Tine also argued that the statement was capable of an
innocent and non-defamatory meaning. The trial court agreed
with both of Van Tine's arguments and dismissed
Lovelace's petition. This appeal follows.
review the dismissal of a petition for failure to state a
claim de novo. Lynch v. Lynch, 260 S.W.3d 834, 836
(Mo. banc 2008). We treat the facts alleged in the petition
as true and construe them liberally in favor of the
plaintiff. Id. Dismissal is appropriate only where
those facts, if proven, would not entitle the plaintiff to
relief. See id.
raises two points on appeal, but the first is dispositive.
She argues the trial court erred in applying intra-corporate
immunity to her claim because Van Tine was not a supervisor.
elements of a claim for defamation are "1) publication,
2) of a defamatory statement, 3) that identifies the
plaintiff, 4) that is false, 5) that is published with the
requisite degree of fault, and 6) damages the plaintiffs
reputation." Farrow v. St. Francis Med. Ctr.,407 S.W.3d 579, 598-99 (Mo. banc 2013) (quoting Overcast
v. Billings Mut. Ins. Co.,11 S.W.3d 62, 70 (Mo. banc
2000)). Here, we examine only the element of publication.
"Publication is simply the communication of the
defamatory matter to a third person." Blake v. May