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.

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.

N.C. Supreme Court Concludes Injured School Employee Failed to Satisfy Heightened Willfulness Standard Under Exception to Worker’s Compensation Exclusivity Rule

As discussed in our last post, the North Carolina Supreme Court, in its recent Trivette v. Yount opinion, ruled that a Caldwell County public school employee stated a valid negligence cause of action against her school’s principal for an injury suffered on the job.  In so ruling, the Court concluded that the employee’s claim was not barred by the exclusivity provision of North Carolina Workers’ Compensation Act because the relationship between the employee and the school’s principal was one of co-workers rather than one of employee-employer.  Consequently, the claim against the principal qualified for the  Pleasant exclusivity exception, which allows plaintiffs to pursue negligence claims against co-workers for injuries resulting from willful, wanton, and reckless negligence.

After making this initial determination, the Supreme Court considered the defendant’s second, alternative argument.  Specifically, the defendant argued that the plaintiff’s claim, even if allowed to circumvent the exclusivity argument, still failed as a matter of law because the principal’s alleged conduct simply did not rise to the level of willful, wanton, and reckless conduct.  Under this alternative argument, the defendant moved for a summary judgment in its favor.  The trial court denied this motion, finding that disputed issues of fact required a jury to decide the issue. 

After reviewing the facts of the case in a light most favorable to the plaintiff, the Supreme Court agreed with the defendant’s position and determined that the trial court should have granted summary judgment.  The Supreme Court reversed the trial court on this basis.

In its analysis, the Court acknowledged evidence showing that the plaintiff was worried that a mishap with the fire extinguisher could trigger a relapse of her myasthenia gravis.  The Court further found evidence sufficient to suggest that the defendant was aware of this fear.   Nevertheless, the Court referred to precedents holding that even unquestionably negligent behavior rarely meets the high standard of willful, wanton, and reckless negligence.  The Court concluded that there was no evidence indicating that the fire extinguisher presented any danger, whether immediate or latent, while the record was silent as to whether the extinguisher contained any warning labels.  The Court then concluded that even if the defendant knew that an unexpected discharge would be “messy and unpleasant,” the evidence was still insufficient to support an inference that the defendant was willfully, wantonly, or recklessly negligent, or that he was manifestly indifferent to the consequences of an accidental outburst.

Ultimately, the Supreme Court’s ruling in Trivette is something of a mixed bag for parties to negligence actions arising from work place injuries.  On the one hand, the opinion arguably broadens the scope of the Pleasant exception to Worker’s Compensation exclusivity by establishing that a school’s principal and administrative worker constitute co-workers for purposes of the exception.  At the same time, however, the opinion confirms the high level of proof necessary to establish willful, wanton, and reckless negligence under this exception.  Please feel free to contact me directly by email or at (336) 333-6388 to discuss this case law development or other North Carolina employment law issues. 

N.C. Supreme Court Clarifies Worker’s Compensation Exclusivity Exception in Negligence Action Brought against Public School Principal

In a December opinion, Trivette v. Yount, the North Carolina Supreme Court ruled that a Caldwell County public school employee stated a valid negligence cause of action against her school’s principal for an injury suffered on the job.  In so ruling, the Court determined that the school’s principal and the subordinate employee constituted co-employees.  This relationship, the Court found, was not subject to the exclusivity provision of North Carolina Workers’ Compensation Act – even though the injury occurred on the job and even though the plaintiff was simultaneously pursing a workers’ compensation claim before the North Carolina Industrial Commission.   

The facts of the case are somewhat bizarre.  The plaintiff testified that a student had pulled the safety pin from a fire extinguisher and sprayed it in a classroom.  The extinguisher was then brought to the area where the plaintiff’s desk and the principal’s office were located.  The next day, the principal placed the extinguisher on the corner of the plaintiff’s desk.  After the plaintiff asked the principal to remove the extinguisher and replace its safety pin, the principal allegedly scoffed and continued “playing” with the extinguisher while joking around with another secretary.  The extinguisher then discharged, causing a fine powdery mist to land on the plaintiff.  The plaintiff alleged that the substance aggravated her myasthenia gravis, a pre-existing medical condition that had been in remission.  She filed a claim with the North Carolina Industrial Commission seeking workers’ compensation benefits and also filed a separate lawsuit against the principal for additional damages.  Her husband joined in the lawsuit with a claim of his own for loss of consortium.

The defendant-principal moved to dismiss the lawsuit on grounds that North Carolina’s Workers’ Compensation Act provides the exclusive remedy for the plaintiff’s claim.  The defendant alternatively moved for summary judgment on grounds that the alleged conduct did not rise to a sufficient level of culpability even if the exclusivity provision did not bar the claim.

In opposing the motion to dismiss, the plaintiff argued that her suit was permissible under an exception to the exclusivity provision of the Workers’ Compensation Act.  That exception, known as the Pleasant exception, allows an injured worker to sue a co-employee for “intentional injuries,” a term defined to include injuries resulting from willful, wanton, and reckless negligence. 

In assessing whether the plaintiff’s action could fall within the Pleasant exception, the critical issue was whether the school principal constituted the plaintiff’s co-worker.  The Pleasant exception would allow the action if he was a co-worker.  If, on the other hand, the principal were deemed the plaintiff’s employer, rather than a co-worker, the exclusive remedy provision of the Workers’ Compensation Act would preclude the action. 

In order to resolve the issue, the Court closely examined the nature of the working relationship between the two parties.  The Court recognized that the defendant, as school principal, was an agent of the school board.  The Court also agreed that the defendant-principal held supervisory authority over the plaintiff.  Neither fact, however, was determinative. 

Instead, the Court turned to N.C.G.S. § 115C-276(j), which indicates that every person employed in North Carolina’s public schools (other than charter schools) is an employee of the local board of education.  On this basis, the Court concluded that the defendant-principal and the plaintiff were both employees of the Caldwell County Board of Education.  Consequently, the Court affirmed the lower courts’ determination that the plaintiff stated a permissible cause of action under the Pleasant exception to worker’s compensation exclusivity.

In further support of its opinion, the Supreme Court also approved of several North Carolina Court of Appeals decisions, which have previously held that supervisors and those they supervise should be treated as co-employees under the Workers’ Compensation Act.  By aligning itself with these cases, the North Carolina Supreme Court leaves no question that supervisors, in cases of willful, wanton, or reckless negligence, can be sued for work place injuries despite the availability of workers’ compensation benefits.

As noted earlier, the defendant also moved for summary judgment on grounds that his alleged misconduct did not arise to a sufficient level of culpability to support a liability finding under Pleasant in any event.   Please return soon for discussion of the outcome of this separate, but equally important North Carolina employment law ruling.