Tort/Negligence – Defamation – Libel – Sovereign Immunity – Individual Capacity – Administrative Remedies – Intra-office Communication

White v. Trew (Lawyers Weekly No. 11-07-1300, 15 pp.) (Rick Elmore, J.) Appealed from Wake County Superior Court. (W. Osmond Smith III, J.) N.C. App. Click here for the full-text opinion.

Holding: Where the complaint only seeks damages from the defendant himself, defendant is being sued in his individual capacity; therefore, he is not entitled to sovereign immunity.

We affirm the trial court’s denial of defendant’s motion to dismiss.

Defendant, the head of N.C. State’s Department of Electrical and Computer Engineering, wrote an annual review of the plaintiff-professor and passed it on to the Dean of Engineering and in-house counsel at NCSU. Plaintiff claims the review is libelous.

Where defendant moved to dismiss based on sovereign immunity, the denial of his motion is immediately appealable.

Even though the phrase “individual capacity” does not appear in plaintiff’s complaint, the complaint makes it clear that plaintiff seeks monetary compensation not from NCSU, but from defendant himself. Plaintiff repeatedly seeks to “have and recover from Dr. Trew damages for reputational harm” that defendant’s alleged actions caused. Plaintiff drafted his complaint in such a way that clearly indicated this intent to sue defendant in his individual capacity.

Even if the writing of a review is an activity defendant could only have carried out in his official capacity, because plaintiff alleges that defendant carried out this activity maliciously, defendant is not protected by sovereign immunity, and plaintiff properly sued him individually.

Although plaintiff also pursued an administrative grievance against defendant, the only remedy available in a grievance procedure is the removal and destruction of material in plaintiff’s personnel file, and this lawsuit seeks monetary damages. The relief plaintiff seeks herein is different from the remedy provided under G.S. § 126-25, so the administrative remedy does not bar plaintiff from pursuing this libel suit.

We read Satterfield v. McLellan Stores, 215 N.C. 582, 2 S.E.2d 709 (1939), to say that intra-office communications can be published in terms of defamation if the individual who reads the communications is independent of the process by which the communications were produced.

Here, defendant produced the annual review on his own. He did not use the services of the Dean of Engineering or in-house counsel in drafting the review. Those parties only became involved after the review had been finished. Following the language endorsed by Satterfield, they were “distinct and independent of the process by which the statements were produced.” As a result, giving the review to the Dean and the staff of the office of general counsel constituted publication for the purposes of libel.

Affirmed.