1. Libel and Slander--employment--actual malice--genuine issue of material fact
The trial court erred in granting defendants' motion for summary judgment on the
slander per se claim, based on defendant-manager Schneider's accusation in front of third
persons at their work that plaintiff-employee used illegal drugs on the company's premises and
accessed pornography on the internet on one of the company's computers, because viewing the
evidence in the light most favorable to plaintiff reveals a genuine issue of material fact exists
concerning actual malice since there is evidence that: (1) although Schneider made a statement
to a management employee who would have an interest, right, or duty regarding these activities,
Schneider also made a statement to a non-management employee; (2) Schneider exhibited anger,
personal hostility, and ill-will towards plaintiff when Schneider made the accusations, and also
Schneider exhibited personal hostility towards plaintiff prior to this time; (3) Schneider had a
“hit list” with plaintiff's name on it, and Schneider admitted his desire to terminate plaintiff's
employment;(4) Schneider made the statements about plaintiff viewing the pornographic
material with reckless disregard for the truth since Schneider based his accusation on the general
description of a “big, tall muscular woman” and failed to further pursue the report; and (5) the
company maintained attendance records, and plaintiff was not working on the date of the alleged
incident regarding the pornographic material.
2. Employer and Employee--tortious interference with contractual rights--genuine
issue of material fact
The trial court erred in granting defendants' motion for summary judgment on the
tortious interference with contractual rights claim because viewing the evidence in the light most
favorable to plaintiff-employee reveals that a genuine issue of material fact exists since: (1)
plaintiff had a permanent position with defendant Kimberly-Clark Corporation for 11 years; (2)
defendant-managers, Schneider and Wager, had knowledge of this contract; (3) Schneider
intentionally accused plaintiff of illegal drug usage and viewing pornography for the purpose of
causing her termination; (4) defendant-managers acted solely with malice and without
justification rather than for legitimate business interests; and (5) defendant-managers' actions
caused plaintiff to lose her employment with Kimberly-Clark, resulting in her damage.
3. Employer and Employee--tortious interference with contractual rights--non-
outsiders to contract
Although defendants, Schneider and Wager, contend they cannot be liable for a claim of
tortious interference with contractual rights since they were managers and thus non-outsiders to
plaintiff-employee's employment contract, the trial court erred in granting defendants' motion
for summary judgment on this issue because: (1) non-outsider status is pertinent only to the
question of whether defendants' actions were justified; (2) the qualified privilege of a non-
outsider is lost if exercised for motives other than reasonable, good faith attempts to protect the
non-outsider's interests in the contract; and (3) plaintiff's forecast of evidence sufficiently raises
the issue as to whether the motives of the two managers were reasonable, good faith attempts to
protect their interests or the corporation's interests.
4. Employer and Employee--tortious interference with contractual rights--ratification
Although defendant Kimberly-Clark Corporation contends it did not ratify any alleged
tortious conduct, the trial court erred in granting defendant's motion for summary judgment on
the tortious interference with contractual rights claim because plaintiff's forecast of evidence
revealed Kimberly-Clark had an Open Door policy investigation and failed to use it, including
evidence that: (1) the company's regional vice-president said he had talked with defendant-
manager Wager and he was going to stand behind Wager's decision; (2) the company's regional
vice-president admitted that he never talked to any of plaintiff's witnesses, nor did he do
anything else other than talk to Wager; (3) the company's regional vice-president admitted that
the company had no evidence that plaintiff ever accessed pornography on the internet while at
work; and (4) another company employee never returned plaintiff's calls when she sought to
report that she did not receive a fair investigation.
5. Employer and Employee--negligent supervision--actual or constructive knowledge
required
The trial court did not err in granting defendant Kimberly-Clark Corporation's motion
for summary judgment on the claim of negligent supervision because plaintiff's forecast of
evidence was insufficient to show that Kimberly-Clark had actual or constructive knowledge of
any tortious acts of defendant-manager Schneider since there is no evidence that any employee,
including plaintiff prior to her discharge, ever complained to the management about Schneider.
Kennedy, Kennedy, Kennedy and Kennedy, L.L.P., by Harvey L.
Kennedy and Harold L. Kennedy, III, for plaintiff-appellant.
Powell, Goldstein, Frazer & Murphy, LLP, by Samuel M. Matchett
and Jona J. Miller; Smith Helms Mulliss & Moore, L.L.P., by
Martin N. Erwin and Julie C. Theall, for defendants-appellees.
WALKER, Judge.
Plaintiff filed a motion for partial summary judgment on the
claim of slander per se, which was denied by Superior Court Judge
L. Todd Burke on 11 August 1998. Defendants then filed a motion
for summary judgment along with supporting affidavits. In an order
entered 23 October 1998 and filed 28 October 1998, Superior Court
Judge Russell G. Walker, Jr. granted defendants' motion and
dismissed all of plaintiff's claims. From the pleadings and discovery, the evidence tended to show
the following: Plaintiff was employed by Kimberly-Clark
Corporation (Kimberly-Clark) from October 1985 until 19 August 1996
as a production associate at its Lexington facility. In August
1996, plaintiff was working as a member of the D team, which
reported to defendant Schneider, a company manager. Defendant
Schneider, in turn, reported to defendant Wagar, the mill manager.
While plaintiff received “good” annual written evaluations and
numerous certificates of commendation during her 11 years of
employment with Kimberly-Clark, plaintiff had also received several
warnings from her supervisors.
Plaintiff alleges that on 12 August 1996, defendant Schneider
accused her in front of Elliot Goldson, the Human Resources
Manager, of using illegal drugs on the company's premises, but that
the accusation was false and slanderous. Also in August 1996, a
co-op student, Calvin Marshall, informed Steve O'Bryant, a manager
at Kimberly-Clark, that he had seen several employees including “a
man with a pony tail and a big, tall muscular woman” viewing sexual
material on the internet on a Wednesday and Thursday night shift
but that he did not know the employees' names. Defendant Wagar
called a meeting of the mill's management team, which consisted of
eleven individuals, to discuss the incident. Based on Marshall's
descriptions, defendants contend that the management team concluded
that the “man with the pony tail” was Wayne Koontz and the
“muscular woman” was plaintiff. Then, on 19 August 1996, defendant
Schneider met with plaintiff and accused her, in front of ElliotGoldson and another manager, Dan Heaton, of accessing pornography
on the internet from a company computer. Defendants contend that
during the discharge meeting, plaintiff admitted accessing non-
business sites on the internet.
Plaintiff argues, however, that this accusation was false and
that she was fired as a result of it. Plaintiff also denies ever
accessing any non-business sites on the internet and denies
admitting such during the discharge meeting. Instead, plaintiff
maintains that she worked primarily in the lab area which is not in
close proximity to the computer terminal in question on the
Wednesday night of the alleged incident. Further, she states that
she was not at work on the Thursday night the incident is alleged
to have occurred.
Plaintiff alleges that when defendant Schneider made both of
these statements to her, he exhibited “anger, personal hostility,
and ill-will” towards her. According to plaintiff, both defendants
Schneider and Wagar had exhibited personal hostility towards her
prior to August 1996. Specifically, plaintiff contends that
defendant Schneider had a “hit list with names of employees he
intended to get rid of” and that her name was included. After Rick
Purcell, a company manager, confirmed the existence of the “hit
list,” plaintiff confronted defendant Schneider and he admitted his
desire to terminate plaintiff's employment.
Wayne Koontz, a non-management employee of Kimberly-Clark for
almost 11 years, was also terminated on 19 August 1996. In his
affidavit, Koontz stated that he met defendant Schneider at hisoffice on 19 August 1996 and that Schneider informed him that he
was terminated for accessing pornographic material on the company's
computer. Koontz also averred that defendant Schneider then
“stated orally to me that Laura Barker had accessed pornography on
the internet on one of the company's computers and that he was also
going to fire her.”
Plaintiff assigns that the trial court erred in: (1) granting
defendants' motion for summary judgment on plaintiff's slander per
se claim since the court overruled a previous order of another
superior court which had determined that genuine issues of material
fact existed regarding the slander per se claim; (2) granting
defendants' motion for summary judgment on plaintiff's slander per
se claim since there are genuine issues of material fact; (3)
granting defendants' motion for summary judgment on plaintiff's
claim of tortious interference with contractual rights; and (4)
granting defendant Kimberly-Clark's motion for summary judgment on
plaintiff's claim of negligent supervision.
Summary judgment is proper when there is no genuine issue as
to any material fact and any party is entitled to judgment as a
matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c)(Cum. Supp.
1998); Coastal Leasing Corp. v. T-Bar S Corp., 128 N.C. App. 379,
496 S.E.2d 795 (1998). Defendant, as the moving party, bears the
burden of showing that no triable issue exists. Roumillat v.
Simplistic Enterprises, Inc., 331 N.C. 57, 62-63, 414 S.E.2d 339,
341-342 (1992). This burden can be met by showing: (1) that an
essential element of plaintiff's claim is nonexistent, (2) thatdiscovery indicates plaintiff cannot produce evidence to support an
essential element, or (3) that plaintiff cannot surmount an
affirmative defense. Id. at 63, 414 S.E.2d at 342. Once a
defendant has met that burden, the plaintiff must forecast evidence
tending to show a prima facie case exists. Id.
[1]We first address plaintiff's contention that the trial
court erroneously granted defendants' motion for summary judgment
on plaintiff's slander per se claim since issues of fact exist.
Slander per se is a false statement which is orally communicated to
a third person and amounts to:
(1) an accusation that the plaintiff committed
a crime involving moral turpitude; (2) an
allegation that impeaches the plaintiff in his
trade, business, or profession; or (3) an
imputation that the plaintiff has a loathsome
disease.
Averitt v. Rozier, 119 N.C. App. 216, 218, 458 S.E.2d 26, 28
(1995). A prima facie presumption of malice and a conclusive
presumption of legal injury and damage arises when a false
statement falling into one of these categories is spoken. Id.
Thus, an allegation and proof of special damages is not required.
Id.
In her affidavit, plaintiff alleges that defendant Schneider
falsely accused her of using illegal drugs on the company's
premises and of accessing pornography on the internet on one of the
company's computers. She further alleges that these accusations
were made in front of third persons, amounted to accusations of
crimes involving moral turpitude, and impeached her in her trade,
business, or profession. Defendants argue that defendant Schneider's statements did not
amount to an accusation of a crime of moral turpitude or tend to
impeach plaintiff in her trade, business, or profession, and
further contend that even if any of the three statements constitute
slander per se, the statements made by defendant Schneider were
privileged. A defamatory statement is qualifiedly privileged when
made:
(1) in good faith, (2) on subject matter (a)
in which the declarant has an interest or (b)
in reference to which the declarant has a
right or duty, (3) to a person having a
corresponding interest, right, or duty, (4) on
a privileged occasion, and (5) in a manner and
under circumstances fairly warranted by the
occasion and duty, right or interest.
Averitt, 119 N.C. App. at 219, 458 S.E.2d at 29. The existence of
the privilege creates a presumption that the communication was made
in good faith and without malice. Phillips v. Winston-
Salem/Forsyth County Bd. of Educ., 117 N.C. App. 274, 278, 450
S.E.2d 753, 756 (1994), disc. review denied, 340 N.C. 115, 456
S.E.2d 318 (1995). To rebut this presumption, the plaintiff must
show the statement was made with actual malice. Id.
Plaintiff first argues that defendant Schneider's statement to
Koontz was not privileged since Koontz had no corresponding
interest, right, or duty. In his affidavit, Koontz states that he
was a non-management employee at Kimberly-Clark, who was terminated
just prior to defendant Schneider stating orally to him that “Laura
Barker had accessed pornography on the internet on one of the
company's computers and that he was going to fire her.” Koontz's
affidavit further provides: When Christopher Schneider made the statement
to me about Laura Barker, I had no need for or
interest in [the] information; and I had no
duty to perform with respect to this
information.
Although plaintiff admits that Kimberly-Clark's management
employees would have an interest, right, or duty regarding an
employee's illegal drug use on its premises or the accessing of
pornographic material on the company's computer, she contends that
there was sufficient evidence of actual malice to rebut any
presumption of a qualified privilege. Actual malice may be proved
by showing:
evidence of ill-will or personal hostility on
the part of the declarant ... or by showing
that the declarant published the defamatory
statement with knowledge that it was false,
with reckless disregard for the truth or with
a high degree of awareness of its probable
falsity.
Clark v. Brown, 99 N.C. App. 255, 263, 393 S.E.2d 134, 138, cert.
denied, 327 N.C. 426, 395 S.E.2d 675 (1990).
Here, plaintiff alleges that defendant Schneider exhibited
“anger, personal hostility, and ill-will” towards her when he made
the accusations in August 1996 and that he had exhibited personal
hostility towards her prior to this time. Specifically, plaintiff
contends that defendant Schneider had a “hit list” with her name on
it and that he admitted his desire to terminate her employment.
Additionally, plaintiff argues that defendant Schneider made the
statements regarding plaintiff's alleged viewing of pornographic
material with reckless disregard for the truth since he based his
accusation on the generic description of a “big, tall muscularwoman” and failed to further pursue Marshall's report. In her
affidavit, plaintiff further states:
During my employment, the company maintained
attendance records documenting the days I
worked at the company and the days I was
scheduled to work. On the Thursday night in
question, I was not scheduled to work and I
did not work that night. The description of a
“big muscular girl” does not fit me, because I
am 5 feet, 7 inches tall. There were females
as tall as and taller than me during my
employment with Kimberly-Clark.
After a careful review, we find that an issue of fact exists
regarding plaintiff's slander per se claim and thus the trial court
improperly granted defendants' motion for summary judgment as to
this issue. Based on this finding, we need not address plaintiff's
assignment of error that one superior court improperly overruled
another superior court.
[2]We next address plaintiff's contention that the trial
court erroneously granted defendants' motion for summary judgment
on plaintiff's claim of tortious interference with her contractual
rights. The elements of tortious interference are: (1) the
existence of a valid contract between plaintiff and a third party;
(2) knowledge by defendant of the contract; (3) acts by defendant
to intentionally induce the third party not to perform the
contract; (4) defendant's acts were committed without
justification; and (5) actual damage to the plaintiff. Childress
v. Abeles, 240 N.C. 667, 674, 84 S.E.2d 176, 181-182 (1954). Here,
plaintiff's complaint and discovery documents give an evidentiary
forecast adequate to withstand defendants' motion for summary
judgment since (1) plaintiff held a permanent position withKimberly-Clark, where she had been employed for 11 years; (2)
defendants Schneider and Wagar, as managers, had knowledge of this
contract; (3) defendant Schneider intentionally accused plaintiff
of illegal drug usage and of viewing pornography for the purpose of
causing her termination; (4) defendants Schneider and Wagar acted
“solely with malice and without justification” rather than for
legitimate business interests; and (5) the actions of defendants
Schneider and Wagar caused plaintiff to lose her employment with
Kimberly-Clark, resulting in damage to her.
[3]Defendants Schneider and Wagar contend that they cannot be
liable for a claim of tortious interference with contractual rights
since they were managers and thus non-outsiders to plaintiff's
employment contract. It is true that non-outsiders often enjoy
qualified immunity from liability for inducing their corporation or
other entity to breach its contract with an employee. Lenzer v.
Flaherty, 106 N.C. App. 496, 513, 418 S.E.2d 276, 286, cert.
denied, 332 N.C. 345, 421 S.E.2d 348 (1992). However, non-outsider
status is pertinent only to the question of whether the defendant's
action was justified. Id. “The qualified privilege of a non-
outsider is lost if exercised for motives other than reasonable,
good faith attempts to protect the non-outsider's interests in the
contract interfered with.” Id.; see Wilson v. McClenny, 262 N.C.
121, 133, 136 S.E.2d 569, 578 (1964)(holding that directors and
stockholders were privileged to purposely cause the corporation not
to renew plaintiff's contract as president if they did not employ
any improper means and if they acted in good faith to protect thecorporation's interests); see also Sides v. Duke University,
74
N.C. App. 331, 328 S.E.2d 818, cert. denied, 314 N.C. 331, 333
S.E.2d 490 (1985)(holding that non-outsider status is immaterial
where the allegations in the complaint show defendants' motives for
procuring the plaintiff's termination were unrelated to their
business interest).
Here, plaintiff alleges that defendant Schneider falsely
accused her of taking illegal drugs and accessing pornographic
material on the internet and that “defendants Schneider and Wagar,
out of personal hostility and ill-will toward the Plaintiff,
schemed to come up with false and defamatory accusations against
the Plaintiff with the intent to bring about the termination of her
employment.” Further, plaintiff contends that defendant Schneider
had a “hit list with names of employees he intended to get rid of”
and that her name was included, and when she confronted defendant
Schneider regarding the “hit list,” he admitted his desire to
terminate her employment. Thus, plaintiff's forecast of evidence
sufficiently raises the issue as to whether the motives of
defendants Schneider and Wagar were reasonable, good faith attempts
to protect their interests or the corporation's interests.
[4]Defendant Kimberly-Clark also contends that it did not
ratify any alleged tortious conduct. In her affidavit, however,
plaintiff alleges:
6. When Christopher Schneider fired me, I
told him that I did not access pornography on
the company's computer. I asked to meet with
Tom Wagar, the plant manager. When I met with
him, I told him that these accusations were
false, and I asked him to investigate this. He declined to do so. Kimberly-Clark
Corporation has an Open Door policy. I used
the Open Door policy and called Wayne Sanders,
the President and CEO of Kimberly-Clark. He
never returned my calls, although I talked
with his secretary on several occasions. I
received a call from Jerry Schwoerer, the
company's regional Vice-President, at its
Roswell, Georgia facility. I told Mr.
Schwoerer that I had been falsely accused by
Chris Schneider and wrongfully fired by him.
Mr. Schwoerer said that he would do an Open
Door policy investigation and I gave him
details of the situation concerning Chris
Schneider's conduct toward me. Mr. Schwoerer
said that he would interview my witnesses, and
I gave him a list of the employees on my team,
the D1 team. The Open Door Policy requires
that the company conduct a fair and thorough
investigation. When Mr. Schwoerer called me
back, he informed me that he had talked with
Tom Wagar and that he was going to stand
behind Tom's decision. He admitted to me that
he never talked to any of the witnesses that I
had given him, nor did he do anything else
other than talk with Tom Wagar. He stated
that Kimberly-Clark had no evidence that I had
ever accessed pornography on the Internet
while at work. I called Wayne Sanders after
that and told his secretary that Mr. Schwoerer
had not conducted a proper Open Door Policy
investigation. I asked her to have Wayne
Sanders call me. I told her that my situation
was urgent. I never heard from Wayne Sanders.
Kimberly-Clark failed to follow its Personnel
policies and practices, because although an
Open Door Policy investigation was supposed to
be fair and thorough, this did not occur in my
case. In addition, Kimberly-Clark had a
Progressive Disciplinary Policy, which it also
failed to follow in my case. A fair and
thorough investigation would have revealed
that I was not even at work the night that
Calvin Marshall allegedly observed pornography
pulled up on the company computer.
Based on these allegations, plaintiff's forecast of evidence
was sufficient to show that there was an issue of fact regardingdefendant Kimberly-Clark's ratification; therefore, summary
judgment on this issue was improperly granted.
[5]Plaintiff also assigns as error the trial court's granting
of summary judgment to defendant Kimberly-Clark on the claim of
negligent supervision. In the recent case of Smith v. Privette,
128 N.C. App. 490, 494-95, 495 S.E.2d 395, 398, appeal dismissed,
348 N.C. 284, 501 S.E.2d 913 (1998), this Court held that to
support a claim of negligent supervision against an employer the
plaintiff must prove:
that the incompetent employee committed a
tortious act resulting in injury to plaintiff
and that prior to the act, the employer knew
or had reason to know of the employee's
incompetency.
There is no evidence here that any employee, including plaintiff
prior to her discharge, ever complained to the management at
Kimberly-Clark about defendant Schneider. Thus, we conclude that
plaintiff's forecast of evidence was insufficient to show that
defendant Kimberly-Clark had actual or constructive knowledge of
any tortious acts of defendant Schneider and that the trial court
properly granted defendant's motion for summary judgment on the
negligent supervision claim.
In summary, the trial court erred in granting defendants'
motion for summary judgment on plaintiff's slander per se claim and
plaintiff's tortious interference with contractual rights claim.
Summary judgment for defendant Kimberly-Clark on plaintiff's
negligent supervision claim is affirmed.
Affirmed in part and reversed in part. Judges GREENE and TIMMONS-GOODSON concur.
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