Presnell v. Pell

• Decision Date: 04 December 1979
• Docket Number: No. 38,38
• Citation: 260 S.E.2d 611,298 N.C. 715
• Parties: , 115 L.R.R.M. (BNA) 4856 Mary Alice PRESNELL v. Joe A. PELL, Jr.; Clinton W. Moseley; Grover W. Hanes, Jr.; James R. Marion; Claude V. Ayers; Fred A. Holder; Billy Smith; Doyle Key; Talmage Crouse; James S. Nixon; Individuals and Surry County Board of Education; Dennis Smitherman, Individually and as Principal of Mountain Park Elementary School; and Charles C. Graham, Individually and as the Superintendent of Surry County School System.
• Court: North Carolina Supreme Court

Page 611

260 S.E.2d 611

298 N.C. 715, 115 L.R.R.M. (BNA) 4856

Mary Alice PRESNELL v. Joe A. PELL, Jr.; Clinton W. Moseley; Grover W. Hanes, Jr. James R. Marion; Claude V. Ayers; Fred A. Holder; Billy Smith; Doyle Key; Talmage Crouse; James S. Nixon Individuals and Surry County Board of Education; Dennis Smitherman, Individually and as Principal of Mountain Park Elementary School; and Charles C. Graham, Individually and as the Superintendent of Surry County School System.

No. 38.

Supreme Court of North Carolina.

Dec. 4, 1979.

Franklin Smith, Elkin, for plaintiff-appellee.

Faw, Folger, Sharpe & White by Fredrick G. Johnson, Dobson, for defendants-appellants.

Tharrington, Smith & Hargrove by George T. Rogister, Jr., and Carlyn G. Poole, Raleigh, for North Carolina School Boards Association, Inc., amicus curiae.

EXUM, Justice.

This is an action for slander and wrongful discharge from employment. The questions presented are whether (1) the complaint states a claim for relief for defamation and (2) the claim for wrongful discharge was properly dismissed for want of original jurisdiction. We answer both in the affirmative.

Plaintiff alleges by her complaint: Before her discharge on 13 December 1976 she was employed by defendant Surry County Board of Education as manager of the cafeteria at Mountain Park Elementary School. She had held this position for some fourteen years. During the first part of December, 1976, defendant Dennis Smitherman, principal of the elementary school, "falsely and with reckless disregard of the consequences" accused plaintiff of having brought "liquor" onto the school premises and distributing it to painters then employed in the school cafeteria. Plaintiff denied the accusations and requested a confrontation with Smitherman's sources of information. Smitherman refused to identify his sources. Sometime before 13 December, Smitherman and defendant Charles Graham, Superintendent of the Surry County School System, called a meeting of the district school committee to discuss plaintiff's purported misconduct. Plaintiff was given no notice of this meeting. It was decided at the meeting to terminate plaintiff's employment. Plaintiff was dismissed by Smitherman on 13 December 1976. On or about the same date, Smitherman, "in bad faith, with malice, and with reckless disregard to the consequences" allegedly published the rumors regarding plaintiff to plaintiff's fellow employees. At no time prior to her discharge was plaintiff afforded a hearing.

Plaintiff filed this action on 22 March 1977 against defendants in their individual and official capacities seeking injunctive relief and damages for defamation and wrongful discharge. Instead of filing a responsive pleading to the complaint, defendants moved to dismiss pursuant to G.S. 1A-1, Rule 12(b)(6) for failure of the complaint to state a claim upon which relief could be granted, and pursuant to G.S. 1A-1, Rule 12(b)(1) for lack of jurisdiction over the subject matter. The Superior Court, Judge Kivett presiding, granted both motions, holding: (1) the complaint failed to state a claim for defamation and (2) the court lacked subject matter jurisdiction over the claim for wrongful discharge in that the complaint revealed that plaintiff failed to comply with the provisions of G.S. 115-34. ¹

The Court of Appeals reversed. In an opinion by Judge Mitchell, that court held that plaintiff's complaint sufficiently set forth a claim for defamation. We agree that the complaint states a claim for defamation against Smitherman and accordingly remand the cause for further proceedings against Smitherman only. The Court of Appeals further held that plaintiff need not have followed the appeal procedures set out in G.S. 115-34 inasmuch as plaintiff was constitutionally entitled to notice and hearing Prior to termination of her employment. We disagree. We hold that under the facts alleged by her complaint plaintiff has no constitutional right to an administrative hearing Prior to discharge and that the procedures provided in G.S. 115-34 accord plaintiff due process.

A complaint is deemed sufficient to withstand a motion to dismiss under Rule 12(b)(6) where no insurmountable bar to recovery appears on the face of the complaint and the complaint's allegations give adequate notice of the nature and extent of the claim. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). A claim for relief should not suffer dismissal unless it affirmatively appears that plaintiff is entitled to no relief under any state of facts which could be presented in support of the claim. Newton v. Insurance Co., 291 N.C. 105, 229 S.E.2d 297 (1976). Guided by these rules, we proceed to examine plaintiff's allegations underlying her claim for defamation.

The complaint alleges in substance: Smitherman falsely accused plaintiff of distributing alcoholic beverages on the school premises. Notwithstanding plaintiff's vigorous denial of these accusations and of the rumors upon which they were based, Smitherman then maliciously and recklessly published the rumors to plaintiff's fellow employees.

Taking these allegations to be true for the limited purpose of testing the adequacy of the complaint, we find that the plaintiff has stated a claim for slander Per se. The rumors and accusations imputed reprehensible conduct to plaintiff and tended to prejudice her standing among her fellow workers, stain her character as an employee of the public school system, and damage her chances of securing other public employment in the future. Smitherman's alleged publication of the rumors was thus actionable Per se. Badame v. Lampke, 242 N.C. 755, 89 S.E.2d 466 (1955).

Defendants respond however that the principal's communication with plaintiff's fellow employees, if slanderous at all, was qualifiedly privileged. This contention fails in at least two respects.

The defense of qualified or conditional privilege arises in circumstances where (1) a communication is made in Good faith, (2) the subject and scope of the communication is one in which the party uttering it has a valid interest to uphold, or in reference to which he has a legal right or duty, and (3) The communication is made to a person or persons having a corresponding interest, right, or duty. Stewart v. Check Corp., 279 N.C. 278, 182 S.E.2d 410 (1971); See also Arnold v. Sharpe, 296 N.C. 533, 251 S.E.2d 452 (1979); Hartsfield v. Hines, 200 N.C. 356, 157 S.E. 16 (1931). If we assume arguendo that it may be inferred from the face of plaintiff's complaint that Smitherman had a duty as principal of the elementary school to inquire into and communicate about plaintiff's rumored misconduct, the complaint yet fails to reveal any facts which disclose a corresponding duty on the part of plaintiff's fellow employees, the alleged recipients of the defamatory communication. The complaint itself thus falls short of describing an occasion of qualified privilege. See Stewart v. Check Corp., supra. If the privilege applies at all in this case, the facts upon which it may be predicated must be specifically pleaded by way of affirmative defense in defendant's answer. Stewart v. Check Corp., supra; R. H. Bouligny, Inc. v. United Steelworkers of America, 270 N.C. 160, 154 S.E.2d 344 (1967).

More importantly, the complaint in the instant case specifically alleges that the actions of the principal were taken maliciously and in bad faith. Such an allegation at the pleading stage serves to negate the good faith element of qualified privilege. A communication made under circumstances which otherwise support a finding of conditional or qualified privilege is nevertheless actionable upon a showing of express or actual malice. Ramsey v. Cheek, 109 N.C. 270, 13 S.E. 775 (1891). Plaintiff's complaint therefore states a claim against Smitherman for slander.

The complaint does not suffice, however, to impute liability for defamation to defendants other than Smitherman. The allegations of defamation relate solely to the conduct of Smitherman. No affirmative action or personal involvement in the alleged defamatory publication is charged to any of the other named defendants. Neither Superintendent Graham, the individual members of the county school board, nor the district school committee may be held individually accountable for actions taken by Smitherman alone. Nor is the complaint effective to join the corporate school board, the immediate employer of Smitherman as a party defendant on the defamation claim. Unless and until a school administrative unit has waived its immunity by procuring an applicable policy of liability insurance, it may not be held responsible under Respondeat superior for the intentional torts of its employees. G.S 115-53; Clary v. Board of Education, 285 N.C. 188, 203 S.E.2d 820 (1974). There being no allegations in the complaint of such a waiver via insurance procurement, the complaint fails to state a claim for defamation against the school board. Fields v. Board of Education, 251 N.C. 699, 111 S.E.2d 910 (1960).

Plaintiff's complaint also encompasses claims for actual and punitive damages for wrongful discharge. This aspect of the complaint was dismissed in superior court pursuant to G.S. 1A-1, Rule 12(b)(1), for lack of jurisdiction over the subject matter. Judge Kivett noted in his order of dismissal that plaintiff had failed to comply with the appellate procedures of G.S. 115-34. That statute provides for a two step appeal process by which a party may first appeal "from the decision of all school personnel to the appropriate county or city board of education" and then from the resulting decision of the appropriate board "to the superior court . . . in any action . . . Affecting one's character or right to teach." (Emphasis supplied.) Defendants contend this statute deprives the superior court of original jurisdiction over plaintiff's challenge to what is essentially an administrative decision by school personnel. Therefore the claim for...