Larimore v. Blaylock

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.

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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.

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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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