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.

Fourth Circuit Finds Plaintiff’s Allegations of Sexual Harrassment Sufficient to State a Claim for Relief

On December 1, 2012, in the case of Sheila Davis v. City of Charlottesville School Board, the Fourth Circuit Court of Appeals (the Circuit with jurisdiction over North Carolina's federal courts) vacated a District Court’s dismissal of a sexual harassment complaint filed by Sheila Davis against the City of Charlottesville School Board.  Presently, only the slip opinion is available; click here to view the slip opinion.

As the opinion explains, in order to establish a claim for coworker sexual harassment under federal law, a plaintiff must demonstrate that the conduct was unwelcome, that it was based on gender, that it “was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment,” and that it is “imputable to her employer.” See, e.g., Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331 (4th Cir. 2003).

Ms. Davis alleged that she was the subject of an attempted sexual assault by a coworker and that she immediately reported the incident to a supervisor. She alleged that she then suffered an unwanted intimate touching by the same coworker the very next day. The district court concluded that Ms. Davis had not alleged any facts that would entitle her to relief and dismissed her complaint. The Fourth Circuit disagreed. It found that the facts alleged by Davis, including the physical nature of the harassment, stated a plausible claim that the assault was “sufficiently severe or pervasive” to survive dismissal. Furthermore, the Fourth Circuit held that Ms. Davis sufficiently alleged facts that could demonstrate liability on behalf of her employer, since she immediately reported the harassment and the harassment occurred again thereafter.

In sum, the Fourth Circuit held that Ms. Davis’s original complaint was sufficient to state a plausible claim for relief, and the district court’s judgment was reversed and remanded. The opinion is notable inasmuch as it confirms that even misconduct that is limited in frequency can suffice to establish a sexual harassment claim when the conduct is severe in nature.

The Davis case reaffirms the difficulties posed by allegations of workplace sexual misconduct.  Even in traditionally conservative federal circuits, when sexual misconduct is alleged to have recurred after reporting, such cases will almost surely reach a jury for final determination. If you are confronting issues of work place harassment, it is important to speak with experienced North Carolina employment lawyers. Please feel free to contact me directly at (336) 333-6375 to discuss the case or other North Carolina employment law matters.  For more information about my Greensboro law firm of Sharpless & Stavola, please visit our website at www.sharpless-stavola.com. 

It’s the Most Wonderful Time of the Year – for Social Host Alcohol Liability

So what could the holiday season possibly have to do with North Carolina employment law?  Unfortunately, quite a lot.  Potential employer liability issues abound with year-end parties, where employees are encouraged to participate in festivities free of the usual work place rules, constraints, and inhibitions.  Add to the relaxed environment a free flow of alcohol, and the risk of liability arising from various employee indiscretions increases exponentially.  Much has been written, for example, about the potential for sexual harassment claims to arise from such circumstances.

Another issue that employers and individuals frequently overlook is the potential for social host liability for alcohol related motor vehicle accidents.  Like many jurisdictions, North Carolina law allows persons injured by drunk drivers to sue host providers of alcohol in certain situations.  Under North Carolina’s dram shop statute, for example, a person or entity who furnishes alcohol to a minor can be sued by victims of motor vehicle accidents later caused by the underage or intoxicated driver.  North Carolina statute also prohibits the sale or giving of alcohol to a noticeably intoxicated person.  North Carolina case law also recognizes negligence based theories under which persons can be assessed with tort liability for injuries causes by a drunk driver.

With these principles in mind, consider the typical holiday party.  Often held at a management member’s home, a standard staple is a bar, where courtesy alcoholic beverages are served.  Employees are frequently invited to bring guests, which opens the possibility for underage dates, siblings, student interns, and other guests.  What would normally be considered inappropriate activity is frequently accepted.  Indeed, many people view boisterous activity as directly related to the success of the party.  Conduct that would otherwise be deemed unprofessional and unacceptable is typically expected and, to some extent, welcomed as employees are encouraged to “blow off steam” and build camaraderie.  All too often, guests are served alcohol beyond the point of inebriation and permitted to drive home.

What are some good strategies for minimizing the risk in this area?  Consider the following:

• Hire a professional bartender, one who is trained to notice signs of intoxication.
• In addition to beverages, serve food, which slows the absorption of alcohol and, hopefully, reduces the amount of alcohol consumed.
• Offer soft drinks as well as alcohol.  With surprising frequency, holiday parties overlook soft drinks and/or make them less available to attendees.  Offer a variety of soft drinks so that guests do not feel pressured into drinking alcohol.
• Have one or more designated drivers available.  Instruct these persons to monitor the crowd for potential problems and to take the initiative in offering rides to suspect individuals.
• Before the party, make it known that employees are expected to behave responsibly during the party.

These same principles apply to private parties hosted by individuals.   

Finally, if you have questions about social host liability, or if you are confronting legal issues as a result of an alcohol related accident, be sure to consult attorneys experienced in this important aspect of North Carolina law.

United States Supreme Court Ponders Definition of “Supervisor” in Harassment Case

On November 26, 2012, the U.S. Supreme Court heard argument in the employment law case of Vance v. Ball State University.  One issue in the case is whether the harasser is a “supervisor” such that the employer can be held vicariously liable for her actions under Title VII of the Civil Rights Act of 1964, the federal law that allows employees to sue for work place harassment.   

Many lower courts have defined “supervisor” narrowly as someone with the power to "hire, fire, demote, promote, transfer, or discipline" employees.  Other courts and the Equal Employment Opportunity Commission (EEOC) have adopted a broader definition, finding that someone who directs other employees’ daily work activities is a supervisor.  The distinction is important in employment discrimination matters.  If a supervisor is harassing an employee, the employer can be held liable.  On the other hand, if a mere co-worker harasses another co-worker, the employer is liable only if it knew or reasonably should have known about the harassment and did nothing to stop it.

The Vance case arises from a “hostile work environment” among the catering staff at Ball State University.  Maetta Vance, an African American female, alleged that she was subjected to racial hostility from her white co-worker, Saundra Davis.  Ms. Davis had some control over Ms. Vance’s daily work schedule, but Ms. Davis had no authority to fire her.  After years of alleged antagonism, Ms. Vance filed a lawsuit against the university.

In Vance, the U.S. Court of Appeals for the 7^th Circuit upheld a lower court’s decision to throw out Ms. Vance’s lawsuit.  In doing so, the 7^th Circuit endorsed the narrow definition and affirmed the trial court’s decision that since Ms. Davis could not fire Ms. Vance, she was not a “supervisor” and the university could not be held vicariously liable for her actions.  

According to several news sources, the Court hinted during oral arguments that Vance ultimately may not be the best case for resolving the question of who is a supervisor because of the disputed facts of the case.  However, if and/or when the Court does ultimately decide the issue, its holding is likely to have a significant impact on North Carolina employment law, as the Court’s decision could greatly expand or restrict the ability of employees to bring harassment complaints against co-workers that do not meet the narrow definition of “supervisor.”  

If you are confronting issues of work place harassment, it is important to speak with experienced North Carolina employment lawyers, as employment discrimination law raises many complex legal questions shaped by an evolving body of case law.  Please feel free to contact me directly at (336) 333-6375 to discuss this Supreme Court activity or North Carolina employment law matters.  For more information about my Greensboro law firm of Sharpless & Stavola, please visit our website at www.sharpless-stavola.com.