Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Poff, Senior Justice
L. KEITH LARIMORE
v. Record No. 991567 OPINION BY JUSTICE ELIZABETH B. LACY
April 21, 2000
BRUCE K. BLAYLOCK, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF RADFORD
Duane E. Mink, Judge
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
1
The trial court did not rule on defendants' plea of
sovereign immunity and that matter is not before us.
2
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
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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
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
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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
purposes of the issue involved in this appeal, we need not
detail the disciplinary proceedings.
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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
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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
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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.
8
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
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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
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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.
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