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LARIMORE v. BLAYLOCK, et al.



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LARIMORE

v.

BLAYLOCK, et al.


April 21, 2000

Record No. 991567

L. KEITH LARIMORE

v.

BRUCE K. BLAYLOCK, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF RADFORD

Duane E. Mink, Judge

Present: Carrico, C.J., Lacy, Hassell, Keenan,
Koontz, and Kinser, JJ., and Poff, Senior Justice


OPINION BY JUSTICE ELIZABETH B. LACY

In this appeal, we consider whether defamatory
communications between persons involved in a university’s tenure
review process are entitled to the defense of qualified privilege
or absolute immunity under a doctrine of "intracorporate
immunity."

L. Keith Larimore, a Professor of Marketing in
the College of Business and Economics at Radford University,
filed a motion for judgment alleging that during the course of
his tenure review proceeding the defendants falsely accused him
of unethical publishing practices. The defendants were two
members of his Department Review Committee, Hsin-Min Tong and
Melvin R. Mattson, the former Chairman of the Department, Howard
W. Combs, and the Dean of the College of Business and Economics,
Bruce K. Blaylock. The defendants filed a motion for summary
judgment asserting, inter alia, that they were
absolutely immune from liability under doctrines of sovereign
immunity and "intracorporate privilege."

The trial court concluded that summary judgment
was appropriate and entered judgment in favor of the defendants
concluding that they were "protected by the doctrine of
intracorporate immunity" in that the complained of
communications "occurred between persons within the
corporation of Radford University having a legitimate corporate
interest in the subject matter of the communications, and there
is, therefore, no publication sufficient to support the charge of
defamation."
[1] Larimore filed an appeal
asserting that the trial court erred in holding that the
defendants were "clothed in absolute privilege" by the
"intracorporate immunity doctrine." Because the
communications at issue are properly treated as matters of
qualified privilege, not absolute privilege, we will reverse the
judgment of the trial court and remand the case for further
proceedings.

The tenure review process, as set out in
Radford University’s Faculty Handbook, begins with an evaluation
by a three-member personnel review committee comprised of faculty
members from the applicant’s department. The Vice President for
Academic Affairs receives the Committee’s recommendation along
with recommendations from the Chair of the applicant’s department
and the Dean of the College. Copies of these recommendations are
also sent to the tenure applicant. The Vice President submits his
or her recommendation to the University President who, in turn,
submits a recommendation to the Board of Visitors for a final
decision. If the recommendation of the Vice President or
President is negative, the tenure applicant is informed and may
appeal any negative recommendation to the Faculty Grievance
Committee. The applicant may also seek an appeal before the Board
of Visitors regarding tenure matters.

Larimore received negative tenure
recommendations from the faculty review committee, the Chair of
his Department, the Dean of the College, and the Vice-President.
However, the President recommended that he receive tenure, as did
the Personnel Committee of the Board of Visitors. Prior to a vote
by the Board, the defendants wrote letters to members of the
Board urging that Larimore’s tenure application be denied. All of
these communications except the recommendation of the
Vice-President and President contained the allegedly defamatory
statements. The Board voted to deny Larimore tenure. Larimore,
pursuant to the University’s appeal procedures, requested
reconsideration of the Board’s decision. The Board granted the
reconsideration and authorized an investigation of the matter.
Following this investigation and the President’s positive tenure
recommendation, the Board voted to grant Larimore’s tenure
application.

Larimore divides the defamatory communications
which form the basis of this appeal into two categories.
[2]
The first is the transmission of such communications by the
defendants in accordance with the tenure process outlined above.
The second category involves communications made by the
defendants directly to members of the Board of Visitors.
[3] Larimore asserts here, as he did in the trial court,
that the defendants are entitled to raise the defense of
qualified privilege for those communications in the first
category, but that the defense is not available for the second
category because those communications were not authorized by the
Faculty Handbook and, therefore, the defendants were under no
duty to make them.

Communications between persons on a subject in
which the persons have an interest or duty are occasions of
privilege. However, the privilege attaching to such occasions is
a qualified privilege which may be defeated if the plaintiff
proves that the defamatory statement was made maliciously. Chalkley
v. Atlantic Coast Line R.R. Co.
, 150 Va. 301, 306, 143 S.E.
631, 632 (1928). We have applied the doctrine of qualified
privilege in a number of cases involving defamatory statements
made between co-employees and employers in the course of employee
disciplinary or discharge matters. See Southeastern
Tidewater Opportunity Project, Inc. v. Bade
, 246 Va. 273, 435
S.E.2d 131 (1993); Oberbroeckling v. Lyle, 234 Va. 373,
362 S.E.2d 682 (1987); Great Coastal Express, Inc. v.
Ellington
, 230 Va. 142, 334 S.E.2d 846 (1985); Montgomery
Ward & Co. v. Nance
, 165 Va. 363, 182 S.E. 264 (1935); Thalhimer
Bros. v. Shaw
, 156 Va. 863, 159 S.E. 87 (1931); Chesapeake
Ferry Co. v. Hudgins
, 155 Va. 874, 156 S.E. 429 (1931); and Chalkley,
supra.

The protection of a qualified privilege is
afforded because:

[p]ublic policy and the interest of society
demand that in cases such as this an employer, or his proper
representatives, be permitted to discuss freely with an employee,
or his chosen representatives, charges affecting his employment
which have been made against the employee to the employer. There
is a privilege on such occasions and a communication made under
such circumstances, within the scope of the privilege, without
malice in fact, is not actionable, even though the imputation be
false, or founded upon erroneous information. The question is not
as to the truth or falsity of the communication, or whether the
action taken by the defendant with reference thereto or based
thereon was right or wrong, but whether the defendant in making
the publication acted in good faith or was inspired by malice.

Chesapeake Ferry, 155 Va. at 906-07, 156
S.E. at 441. Neither the soundness of this policy nor the
application of qualified privilege in these circumstances has
been questioned or altered over the passage of time.

The defendants contend, however, that neither
the doctrine of qualified privilege nor its underlying policy
should be applied to this case. Here, the defendants assert, they
were entitled to the absolute protection of the
"intracorporate immunity doctrine." That doctrine, as
described by the defendants, is that statements "published
only to persons within a corporate entity having a duty and
interest in the subject matter of the communication, have not
been ‘published’ for defamation purposes." According to the
defendants, this doctrine was recognized in Montgomery Ward,
Thalhimer, and Chalkley. Such a higher level of
protection is appropriate here, the defendants assert, because of
the nature of their duties in the tenure review process. We
reject these arguments.

In the three cases relied on by the defendants,
the defamatory statements were made in connection with the
discharge of the plaintiffs from employment and were recognized
as privileged occasions to which the qualified privilege defense
applied. While in each case the defamatory statements were
communicated to persons within the corporate entity, at least one
of the employees who heard or read the statement was not an
employee who ordinarily would have a duty or interest in the
termination decision. The issue in this regard was whether the
privileged occasion was lost because communication of the
statement to such an employee constituted communication or
publication to a third party. If so, liability for defamatory
statements would attach regardless of malicious intent.

In the Chalkley case, all parties to the
alleged defamatory statement, including Chalkley, were employees
of the telegraph company. The complained of statement was a
termination communication telegraphed by Chalkley’s
superintendent to the telegraph company dispatcher for delivery
to Chalkley through telegraph operators. The Court held that this
was an occasion of privilege, id. at 305-06, 143 S.E. at
632, and that there was no showing of malice or abuse of the
privilege, id. at 325, 143 S.E. at 637-38.

Even though the Court found an absence of
malice, it went on to consider whether the communication was made
under circumstances which would qualify as publication to third
parties for defamation purposes. If such publication occurred,
the privileged occasion would be defeated and Chalkley would not
be required to show malice in order to impose liability on the
defendant. After reviewing cases from other jurisdictions, the
Court in Chalkley concluded that the communication in that
case "was privileged and the typist had a duty to discharge
in the ordinary course of business in connection with the
transcription of the communication." Id. at 334, 143
S.E. at 640. The Court then stated that "this is not a
publication which will support such an action
. . . . The communication is therefore held to be
a communication from the company directly to the employee, and
there is no evidence showing any publication of the alleged
libelous matter by the employer, or its agents, and hence there
is no basis for the action." Id. at 334-35, 143 S.E.
at 640-41. The Court concluded there was no publication of the
statements to a third party which would defeat the privileged
occasion
and thus, because the Court had already concluded
there was no evidence of malice, Chalkley could not prevail.

The Thalhimer and Montgomery Ward
decisions addressed similar circumstances and, citing Chalkley,
applied the principle that the privilege prevailed in
circumstances where the defamatory statements were dictated to a
secretary who had no duty or interest with regard to the subject
of the employee discharge but who had a duty to transcribe the
statements. Montgomery Ward, 165 Va. at 380-81, 182 S.E.
at 271; Thalhimer, 156 Va. at 870-71, 159 S.E. at 90.

The thrust of these cases is that employment
matters are occasions of privilege in which the absence of malice
is presumed. This privilege is lost if defamatory statements are
communicated to third parties who have no duty or interest in the
subject matter, even if those third parties are fellow employees.
However, communication of the statements to an employee required
to transcribe or transmit the communication containing the
defamatory statements is not a publication to a third party which
would cause the loss of the privilege. We find nothing in these
cases to suggest, as the defendants contend, that all
transmissions of defamatory statements between members of the
corporate entity are entitled to absolute immunity. Furthermore,
no case subsequently decided by this Court has resolved
defamation claims involving employees of a corporate entity by
utilizing the concept of absolute immunity suggested by the
defendants.

Finally, the defendants assert that, as a
policy matter, they should be given enhanced protection because
they were "required" to issue "adverse or
potentially adverse" reports. We disagree. The defendants’
role in the tenure review process is to provide a
"recommendation" regarding tenure based on criteria
stated in the Faculty Handbook. While such recommendations may
from time to time be adverse, there is no requirement that the
recommendation be adverse or potentially adverse. In this regard,
the defendants’ duties in the tenure review process are no
different than the duties of employees generally to inform
management of adverse or improper actions by fellow employees and
the duty of management to investigate and make decisions
regarding matters of continued employment. The fact that the
defendants here are connected with a university and involved in a
tenure decision provides no basis for crafting a different and
much broader protection than that available in other workplace
settings.

The rule of qualified privilege that we adopted
years ago continues to encourage open communications on matters
of employment while not shielding the use of such communications
for an individual’s personal malicious purposes. Therefore, we
agree with Larimore and conclude that the trial court erred in
holding that the doctrine of qualified privilege did not apply
and that the communications at issue were absolutely immune from
Larimore’s defamation claims.

We disagree, however, with Larimore’s position
that because, under the Faculty Handbook, the defendants had no
duty to communicate directly with the Board of Visitors, the
qualified privilege defense is not available for those
communications. The Faculty Handbook sets forth a method of
complying with the duties owed by employees involved in tenure
review matters, but such procedural rules are not the standards
by which we determine the applicability of the qualified
privilege defense in a common law defamation action. That
determination is based on a party’s interest and duty with regard
to the subject matter. The members of the Board of Visitors are
persons with a duty and interest in Larimore’s tenure application
and communications made to them in connection with the tenure
application are entitled to the defense of qualified privilege.

In summary, we hold that Larimore’s tenure
application process was a privileged occasion and any defamatory
statements communicated by the defendants to the Board of
Visitors and members of the University administration were
entitled to a qualified privilege which shields the defendants
from liability unless a showing of malice is made by clear and
convincing evidence. Great Coastal Express, 230 Va. at
154, 334 S.E.2d at 854. Therefore, we will reverse the judgment
of the trial court and remand the matter for further proceedings
consistent with the views expressed in this opinion.

Reversed and remanded.

 

FOOTNOTES:

[1] The trial court did not rule on
defendants’ plea of sovereign immunity and that matter is not
before us.

[2] Larimore’s motion for judgment
also included counts relating to other allegedly defamatory
communications which the trial court held were barred by the
statute of limitations. Larimore did not assign error to that
holding.

[3] Larimore also complained of
defamatory communications made in conjunction with a disciplinary
process which was contemporaneously proceeding against him.
However, for purposes of the issue involved in this appeal, we
need not detail the disciplinary proceedings.

 

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