North Carolina Supreme Court Dismisses University Professor’s Libel Complaint on Sovereign Immunity Grounds

The North Carolina Supreme Court has issued another employment law decision, this one on the subject of employer defamation.  In an opinion filed January 25, 2013, the Court ruled that an employment defamation action brought by a public university professor against his department head should have been dismissed at the trial court level.  The opinion, White v. Trew, is important in two respects.  First, it clarifies pleading requirements in suits against public officials and imposes potential dispositive significance when a complaint is silent as to the capacity in which a public official is sued.  The case additionally addresses the important question of whether an employer’s internal communication of allegedly defamatory remarks can be deemed a publication for defamation purposes.  Our post today reviews the first ruling.

The case, White v. Trew, was filed by a tenured associate professor at North Carolina State University (“NCSU”) after he received a negative performance review.  The review, issued by the plaintiff-professor’s departmental head, stated that the professor did not meet departmental expectations and had engaged in “extremely disruptive behavior.”  The review additionally enumerated specific examples of unprofessional behavior.  The department head shared the review with the College Dean and with NCSU’s in-house counsel.

The professor wrote a rebuttal demanding correction of “falsities” contained in the review.  After no action was taken, the professor initiated a university grievance process.  While that process was still ongoing, the professor filed a complaint against the department head alleging that the review constituted libel, or defamation in written form.  In his answer to the complaint, the defendant raised affirmative defenses of qualified privilege and sovereign immunity and moved to dismiss the complaint on this basis.  The trial court denied the motion to dismiss and was affirmed by a unanimous Court of Appeals.

In reviewing the case, the North Carolina Supreme Court reviewed several principles of sovereign immunity.  The Court explained that the doctrine of sovereign immunity generally provides the State with immunity from suit absent a waiver of immunity.  Case law, the court further noted, has established that a suit against a public official in his official capacity is a suit against the State.  Although the North Carolina Tort Claims Act provides a limited immunity waiver in cases of negligence, the waiver is inapplicable to intentional act claims.  

Because libel is an intentional act claim, the first critical issue was whether the suit constituted an action against a public official in his official capacity.  The plaintiff’s complaint, however, did not specify whether the plaintiff had sued the department head in his individual or official capacity.  Despite this technical omission, the Court of Appeals had concluded that the complaint was drafted in a way that clearly indicated an intent to sue the defendant in his individual capacity.  As such, the Court of Appeals affirmed the trial court’s determination that sovereign immunity did not bar the claim.

The Supreme Court disagreed on the basis of earlier precedent stating that a pleading should indicate in the caption the capacity in which a plaintiff intends to hold a defendant liable.  In its opinion, the Court concluded that this earlier directive “is mandatory rather than precatory.”  In the absence of such clarity, the Court ruled, it must be presumed that the defendant is being sued only in his official capacity. 

After establishing the mandatory nature of the rule, the Court’s resolution of the issue on appeal was brief.  The Court noted that the complaint did not include the words “in his official capacity” or “in his individual capacity,” while the allegations provided no further evidence of capacity.  The Court, applying its newly announced mandatory rule, presumed that the defendant was sued in his official capacity and determined the claim to be barred by sovereign immunity.

The Court’s decision raises pleading requirements for plaintiffs in cases brought against governmental employees.  Going forward, plaintiffs must specify whether a government official is being sued in an individual or official capacity.  Failure to do so will trigger a presumption of official capacity and, in the case of intentional acts, a waiver of the claim under sovereign immunity.  Inasmuch as the majority of employment actions raise allegations of intentional misconduct, the opinion has far-reaching consequences for North Carolina employment law practitioners.

The opinion drew dissent from two Justices, and understandably so.  As the dissenting Justices pointed out, North Carolina case law has never previously required this particular designation by plaintiffs.  To at once announce such a mandatory rule and dismiss the case on that basis seems harsh, particularly since the rule appears to be at odds with the traditional principles of notice pleading.

As explained, the Supreme Court also addressed a second question of whether internal communication of the negative review satisfied the requirement of third-party publication.  We will discuss the Court’s resolution of this additional issue in our next post.  Please feel free to contact me directly by email or at (336) 333-6388 to discuss the case or other North Carolina employment law matters.