Before Sullivan, P.j., Banks And Roberts, JJ.
The opinion of the court was delivered by: Banks, Justice
DATE OF JUDGMENT: 11/04/97
TRIAL JUDGE: HON. KOSTA N. VLAHOS
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - TORTS - OTHER THAN PERSONAL INJURY AND PROPERTY DAMAGE
¶1. Appellant contests the granting of summary judgment to all defendants in an action for wrongful discharge or failure to employ and tortious interference with a contract. We conclude that appellant's claim was not time-barred, that an at-will employee may have a cause of action for tortious interference with contract or conspiracy, and that not all the defendants were entitled to qualified immunity. We affirm, nevertheless, because we conclude that the evidence indicated does not support a viable substantive claim.
¶2. Memorial Hospital ("MHG") is a community hospital located in Gulfport, Mississippi. Ron Burton has served as Administrator/Chief Executive Officer of MHG since 1977. Cindy Campbell is the Chief Operating Officer and has served in that capacity since 1990. Virginia Ladner is the Director of Quality and Risk Management at MHG. From November 1985 through December 1990, Anne Levens was an employee of MHG, working as a Registered Nurse ("RN") in the neurosurgery unit, and subsequently, as an Administrative Supervisor.
¶3. Around November 1988, during her employment at MHG, Levens executed an employee statement acknowledging her agreement to employment conditions as stated in MHG's Employee Policy Guide. The Employee Policy Guide provided that MHG maintained the right to "reprimand, suspend, discharge, or otherwise discipline employees, with or without cause; to hire, terminate promote, demote. . . employees to work for any reason that is in the best interests of the hospital." In 1990, Levens left MHG and moved to Jackson, Mississippi to work at University Medical Center ("UMC") after her divorce from Jerry Levens. She worked at UMC until October of 1991, at which time she moved to Long Beach, Mississippi and went to work in the pediatric intensive care unit for Children's Hospital located in New Orleans, Louisiana.
¶4. Sometime before March 18, 1992, Levens was contacted by her friend Diane Black Smith, who was an RN at MHG at that time. Smith informed Levens that Amy Sheffield, the Director of the Pediatric Nursing Department at MHG, had requested she call Levens to see if she would be interested in a RN position that was available at MHG. On March 18, 1992, Levens met with Sheffield to discuss the possibility of a job opening in the pediatric unit. During this meeting, Sheffield described the shift, 3 p.m. to 11 p.m., to Levens with no Discussion of the salary. Sheffield did tell Levens to go ahead and fill out an application for employment, and that she would inform Melodie Griffith, the professional recruiter for MHG, that she was interested in her. Sheffield admitted that she did inform the recruiter to make an offer to Levens. Levens, in deposition testimony, testified that Sheffield offered her the RN position and told her she was hired after Levens accepted at the March 18th meeting.
¶5. On March 20, 1992, Levens completed an employment application with Griffith, who then offered Levens a job as a full time RN on the 3:00 to 11:00 p.m. shift. Levens supplied information on the application such as personal data, educational background, employment history. The employment application also had a section which provided that employment was contingent on the applicant meeting MHG's physical requirements, that the application was not an employment contract, and that employment and compensation could be terminated, with or without notice, at any time at the option of the hospital or the applicant. This section stated in pertinent part that:
"I understand that employment is contingent upon meeting the Hospital's physical requirements. I understand that this is an application for employment and not an employment contract. If employed, I understand that my employment and compensation can be terminated with or without notice, at any time, at the option of the hospital or myself. . ." Levens did accept the position. Griffith then explained Levens' salary, orientation date, and starting date, which was April 13, 1992.
¶6. On March 29, 1992, Sheffield telephoned Levens at home to tell her she could no longer offer her the RN position and that there was a hiring freeze on pediatrics. Sheffield testified in deposition testimony that after Anne was hired, she received a call, from Assistant Administrator Faye Anderson, who expressed concern over the hiring of Levens because Levens' ex-husband was presently intimately involved with Cindy Campbell (Levens), Chief Operating Officer at MHG. The two married in January 1993. Anderson, who had previously worked in a similar situation, was fearful that problems might arise in the workplace due the present situation involving Anne Levens and Cindy Campbell. Sheffield testified that for this reason, Anderson informed her there was a freeze on hiring. Anderson instructed her to notify Anne Levens of the freeze and that she could not start work. Campbell (Levens) asserted in deposition testimony that other than asking Anderson whether Levens had been discussing possible employment at MHG, she spoke to no other MHG employees about the situation.
¶7. On April 1, 1992, MHG received a demand letter from Nicholson and Nicholson law firm on behalf of Anne Levens. It was at this time that Virginia Ladner, Director of Quality and Risk Management, became aware of Levens' completed employment application. After MHG received the April 1, 1992 letter from Nicholson and Nicholson, Ladner inquired into prior activities/actions of Levens while she was a former employee.
¶8. Anne Levens commenced action against MHG, Cindy Campbell (Levens), W.R. Burton, and Virginia Ladner on June 30, 1993. Cindy Campbell Levens, Burton, and Ladner thereafter filed Motions to Dismiss and for Summary Judgment, to which MHG filed a joinder. After Levens amended her complaint, MHG filed its Motion for Summary Judgment on the issue of failure to employ, while the remaining defendants filed Supplemental Motions to Dismiss and for Summary Judgment. Included in Levens' response to these motions was the affidavit of Diane Smith, which the defendants below moved to strike.
¶9. The trial court granted defendants' Motion to Strike the affidavit of Smith, and granted the defendants' motions for Summary Judgment. The trial court found Levens' complaint and amended complaint to be time barred pursuant to a one-year statute of limitations under Miss. Code Ann. § 15-1-29 and §15-1-35. In his opinion, the chancellor ruled that assuming Levens was employed by MHG, she was an "at will" employee with no cause of action for wrongful termination; that an "at will" employee relationship cannot be interfered with by third parties, and no cause of action arises against a third party when an "at will" employee is terminated; assuming Levens was employed at MHG, a party to a contract cannot be a charged with interfering with his own contract; that conspiracy is not a cause of action in Mississippi, and that Levens could have been terminated by MHG for any reason either as an employee at will or based on a ninety day probationary period of employment recognized by MHG. Aggrieved, Levens now appeals to this Court for relief.
¶10. This Court conducts a de novo standard of review when considering a lower court's grant of summary judgment. Short v. Columbus Rubber & Gasket Co., 535 So. 2d 61, 63 (Miss. 1988). This entails reviewing all the evidentiary matters before it the light most favorable to the party against whom the motion has been made. Aetna Cas. & Sur. Co. v. Berry, 669 So. 2d 56, 70 (Miss. 1996). If, in this view, the moving party is entitled to judgment as a matter of law, summary judgment should be affirmed; otherwise, it should be reversed. Short v. Columbus Rubber & Gasket Co., 535 So. 2d at 63.
¶11. Levens asserts that the trial court erred in making factual findings on disputed facts, and in striking portions of the affidavit of Diane Smith as hearsay. The affidavit of Diane Smith, attached in support of Levens' Response to the Motions for Summary Judgment, stated in relevant part:
"Amy Sheffield told me that she had gone to talk with Cindy Campbell about the hiring of Anne Levens, and "had it out with her" over Cindy Campbell's interference with Amy Sheffield's selection of Anne Levens to work in Pediatrics. Amy Sheffield told me that Cindy Campbell told her that she did not want Anne Levens working in "her" hospital because she (Anne Levens) was coming there just to cause her (Cindy Campbell) grief. Amy Sheffield later told me that she and Faye Anderson had talked, and Faye Anderson had directed Amy Sheffield to tell Anne Levens that there was a hiring freeze on. Amy Sheffield told her that it was Faye Anderson's information to her that even though there was no hiring freeze, that there was to be a hold put on hiring for 3A "until this blew over", even though there was none when the position was offered to Anne Levens."
¶12. The trial court struck the foregoing as inadmissible hearsay. Levens argues admissibility under M.R.E. 801(d)(2)(D). Under this rule, "A statement is not hearsay if. . . .(2) Admission by Party-Opponent. The statement is offered against a party and is. . .(D) a statement by his agent or servant concerning a matter within the scope of his ...