North Carolina Lawyers Weekly
Where the plaintiff-police officers showed that the defendant-director of public safety (1) fired the officers, (2) prepared separation affidavits falsely stating that claims had been filed against the officers for creating a hostile work environment when no such claims had been made, and (3) submitted those separation affidavits to the North Carolina Criminal Justice Education Training Standards Commission, the district court could find that the public safety director committed libel per se.
We affirm the judgment against the public safety director as to the publication of the separation affidavits. We reverse the judgment against the public safety director and the defendant-town manager as to the publication of the officers’ termination letters. We affirm the dismissal of claims against the defendant-village.
Libel Per Se
With respect to the separation affidavits, defendants question whether the affidavits are libelous on their face such that damages may be presumed. We agree with the district court that they are.
To decide whether a publication is libelous per se, a court must first determine whether the statements are subject to a single interpretation. We focus on how an average reader would understand the publication.
Once a court has concluded that only one meaning can be derived from the publication, the court must determine whether said interpretation is defamatory. In North Carolina, a publication is libelous per se when considered alone without innuendo, colloquium or explanatory circumstances, it (1) charges that a person has committed an infamous crime; (2) charges a person with having an infectious disease; (3) tends to impeach a person in that person’s trade or profession; or (4) otherwise tends to subject one to ridicule, contempt or disgrace.
The allegedly defamatory statement in each of the separation affidavits states: “A complaint was filed with this agency regarding this Officer and several others involving 20 inappropriate electronic communications that created a hostile work environment in violation of Village policy.”
The disputed statement directly maligns plaintiffs’ professional capacities by stating that a complaint was filed charging them with creating a hostile work environment. This degrades plaintiffs in their positions as public safety officers, particularly since public safety officers are supposed to serve and protect, not intimidate and harass.
Moreover, the nature of the forms themselves emphasizes the connection to plaintiffs’ particular trade or profession. The disputed statement appears in an official form entitled “Affidavit of Separation: Law Enforcement Officer.” The form includes the public safety director’s check mark indicating that dismissal, not death or retirement, is the reason for separation.
We hold that the disputed statement tends to stain plaintiffs’ characters as employees of the Department of Public Safety and to damage their chances of securing other law enforcement positions in the future.
Because the statements within the separation affidavits are “susceptible of but one meaning” which tends to impeach plaintiffs in their profession, the director is liable for libel per se against all plaintiffs.
Actual Malice
With respect to the termination letters, which were sent to area newspapers, to recover damages for defamation, a plaintiff who is a public official must demonstrate “actual malice.” The parties agree that plaintiffs are public officials or figures, and that the actual-malice test applies.
Even if, as the district found, the village manager’s actual motivation for firing plaintiffs was that he believed “they were jerks,” and even though the manager – with knowledge of the village’s personnel policy – said plaintiffs violated specific policies with reckless disregard for whether they had actually done so, plaintiffs have not shown the manager acted with actual malice.
It does not naturally follow that because the manager believed plaintiffs were “jerks” and “disrespectful,” he did not also believe that plaintiffs’ text message chains violated the stated policy provisions. These notions are not mutually exclusive. The manager could have self-servingly wanted to fire plaintiffs to rid himself of some disrespectful “jerks” while also believing that plaintiffs had violated the Policy. The former does not foreclose the latter.
The manager’s belief that plaintiffs were “jerks” and that he wished to fire them arguably provides some circumstantial evidence supporting plaintiffs’ proffered inference that the manager may have been less cautious when selecting which policy provisions were supposedly violated and in drafting the letter. But, unlike the district court, we do not believe this alone rises to the level of clear and convincing evidence that the manager knew the alleged policy violations were false or entertained serious doubts about their truth.
Nor does the fact that the manager decided to terminate plaintiffs before figuring out which policy provisions, if any, plaintiffs may have violated require a finding of actual malice. Plaintiffs were at-will employees; thus, the manager did not need to cite any specific policy violation in order to fire them.
There is insufficient evidence to support a finding, by clear and convincing evidence, that Peck acted with actual malice.
Cross-Appeal
Contrary to plaintiffs’ argument, the defendant-village did dispute plaintiffs’ allegation that the village had waived governmental immunity by purchasing liability insurance. Moreover, plaintiffs put forward no evidence to prove their allegations.
The district court did not err by refusing to allow plaintiffs to amend their complaint to add claims related to a third defamatory publication. The motion to amend came after the relevant limitations period had expired, and defendants had no notice of the new claim. Therefore, the claim would not relate back to the filing of the original complaint, and the proposed amendment would have been futile.
Where plaintiffs never requested prejudgment interest prior to entry of the judgment, and where they waited 37 days after the entry of the judgment to move for prejudgment interest, we affirm the district court’s denial of plaintiff’s motion as untimely under Fed. R. Civ. P. 59(e).
Affirmed in part; reversed in part.
Cannon v. Peck (Lawyers Weekly No. 001-078-22, 52 pp.) (James Wynn, J.) No. 20-2382. Appealed from USDC at Wilmington, N.C. (Malcolm Howard, S.J.) Norwood Pitt Blanchard for defendants; Samuel Potter and Bradley Coxe for plaintiffs. 4th Cir.
