North Carolina Supreme Court Finds Communications of Professor’s Negative Review Findings to Other University Officials Insufficient to Constitute Publication

As previously discussed, the North Carolina Supreme Court recently ruled, in the case of White v. Trew, that an employment defamation action brought by a public University professor against his department head should have been dismissed at the trial court level.  As we explained last week, the Supreme Court first determined that the plaintiff’s action against his department head, a state employee, failed on sovereign immunity grounds.  The Court also determined that the department head’s communication of the negative review findings to NCSU’s College of Engineering Dean and to the University’s in-house counsel did not constitute a publication of the allegedly defamatory statements in any event.  The lack of publication constituted an additional ground for dismissing the complaint.

The Court’s discussion of this second dismissal basis was relatively short and straightforward.  To be actionable, a defamatory statement must be publicized, or communicated to third-party.  While the defendant in this case did share the allegedly defamatory statements with other persons, several state regulations and statutes allowed him to do so.  The Court cited to various regulations that require the department head to review faculty member performance and “to keep the appropriate dean apprised on the status of the reviews.”  Additionally, the regulation authorized the department head to consult with tenured faculty of the department and to “seek such other advice as the department head deems appropriate.”  Finally, the regulation provided that the written review would become part of the personnel file, which would be open for inspection by “any individual in the chain of administrative authority above the faculty member.”

The Court additionally cited to similarly worded state statutes.  From these authorities, the Court concluded that the dean had a clear right to review the review contents and that it was reasonable for the department head to have consulted in-house counsel given the contentious nature of his relationship with the professor under review.  The Court reasoned that it would run contrary to the referenced statutory and regulatory directives to have required the defendant to keep information about the plaintiff’s allegedly hostile and aggressive workplace behavior to himself.  Consequently, the defendant’s communication of the review findings in conformance with the rights and obligations imposed by the statutes and regulations could not constitute a publication for purposes of a libel suit.

On this particular issue, the Supreme Court based its ruling entirely upon the extensive statutory and regulatory language, which provided extensive support for the Court’s reasoning.  It is noteworthy, however, that the Court did not also characterize the communications as privileged in nature.  Other cases have acknowledged that statements communicated in good faith between persons sharing a common interest or duty and relevant to that common interest or duty enjoy a qualified privilege.  By providing no discussion of privilege protection, the ruling arguably supports a narrow application of the qualified privilege in the context of discussing employee review findings.

The law firm of Sharpless & Stavola, P.A., based in Greensboro, North Carolina, provides counsel and representation in the area of employment defamation.  Please contact us with questions or concerns relating to this or other North Carolina employment law issues.