Thompson-Widmer v. Larson , 2021 ND 27 ( 2021 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
FEBRUARY 18, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 27Carrie Thompson-Widmer, Plaintiff and Appellant
v.
Kimberly Larson, Wells County,
Eddy County, and Foster County, Defendants and Appellees
No. 20200173
Appeal from the District Court of Eddy County, Southeast Judicial District,
the Honorable Mark T. Blumer, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Christopher A. Wills, St. Cloud, MN, for plaintiff and appellant.
Brian Schmidt (argued), and Scott K. Porsborg (on brief), Bismarck, ND, for
defendant and appellee Kimberly Larson.
Lawrence E. King, Bismarck, ND, for defendants and appellees Wells County,
Eddy County and Foster County.
Thompson-Widmer v. Larson
No. 20200173
McEvers, Justice.
[¶1] Carrie Thompson-Widmer appeals from a judgment dismissing her
claims of defamation and tortious interference with a business relationship
against Kimberly Larson, Wells County, Eddy County, and Foster County. We
affirm, concluding Larson’s communications were privileged and therefore not
subject to liability for defamation.
I
[¶2] Thompson-Widmer was the director of Tri-County Social Services, which
handled the social services for Wells, Eddy, and Foster Counties. Larson was
also employed by Tri-County. Thompson-Widmer was Larson’s direct
supervisor.
[¶3] In January 2017, Larson filed a formal complaint with the State Board
of Social Work Examiners against Thompson-Widmer on the basis of
Thompson-Widmer’s actions in two child protection services cases. Larson
alleged Thompson-Widmer misrepresented information about a child’s home
environment in one case, and altered a report about methamphetamine in an
infant’s meconium in the other case. Larson also met with a state’s attorney
about Thompson-Widmer’s actions. The attorney referred the matter to a
special prosecutor for consideration of potential criminal charges.
[¶4] Tri-County placed Thompson-Widmer on paid administrative leave, and
Larson became the interim director of Tri-County Social Services.
Approximately ten days later on January 24, 2017, Thompson-Widmer
resigned. Because the complaint to the State Board was filed while Thompson-
Widmer was a Tri-County employee, Larson placed the complaint and the
supporting documents in Thompson-Widmer’s employee personnel file.
[¶5] On March 14, 2017, the special prosecutor sent an email stating the
investigation into Thompson-Widmer’s conduct had ceased and “no criminal
charges are to be filed at this time.” On June 16, 2017, the State Board of Social
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Work Examiners issued a letter of concern to Thompson-Widmer but did not
take formal action against her social work license. The two documents were
not placed in Thompson-Widmer’s personnel file.
[¶6] After the criminal investigation into Thompson-Widmer’s action was
suspended, she became employed with Catholic Charities in April 2017. Tri-
County worked with Catholic Charities on adoption placement cases. Larson’s
staff informed her they did not feel comfortable working with Thompson-
Widmer. Larson notified Catholic Charities that Tri-County would rather work
with someone other than Thompson-Widmer. Catholic Charities submitted an
open records request for Thompson-Widmer’s personnel file, and Larson
fulfilled the request on Tri-County’s behalf. In May 2017, after receiving the
personnel file, which included Larson’s complaint against Thompson-Widmer,
Thompson-Widmer was terminated because she was not forthcoming about her
issues while employed by Tri-County.
[¶7] Following the State Board of Social Work Examiners’ June 2017
decision, Thompson-Widmer became employed by Dunn County Social
Services from January 2018 to March 2018. She worked at Candeska Cikana
Community College from March 2018 to March 2019. Thompson-Widmer also
applied for other positions. Larson fulfilled open records requests for the
employers and potential employers.
[¶8] In November 2018, Thompson-Widmer sued Larson and the Counties,
claiming Larson defamed her and interfered with potential business
relationships by sending her personnel file to potential employers. Thompson-
Widmer alleged Larson knew that providing the personnel file would harm her
employment or potential employment. Thompson-Widmer also alleged the
Counties were liable for Larson’s actions. In October 2019, Thompson-Widmer
moved to amend her complaint to add a claim of punitive damages against
Larson.
[¶9] Larson and the Counties moved for summary judgment, arguing they
were immune from suit. They also argued that sending Thompson-Widmer’s
personnel file to potential employers were privileged communications. After a
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hearing, the district court granted the motions for summary judgment, denied
Thompson-Widmer’s motion to add a punitive damages claim, and dismissed
her claims against Larson and the Counties. The court concluded Larson’s
fulfillment of an open records request was a privileged communication because
it was made in the proper discharge of an official duty. The court also concluded
Larson was immune from liability as a political subdivision employee. In
dismissing Thompson-Widmer’s claim of tortious interference with a business
relationship, the court concluded that since Larson was not liable for
defamation, she could not be liable under a different theory of tort. The court
concluded the Counties were not vicariously liable because Larson was not
liable.
II
[¶10] Our standard of review for a district court’s grant of summary judgment
is well established:
Summary judgment is a procedural device for the prompt
resolution of a controversy on the merits without a trial if there
are no genuine issues of material fact or inferences that can
reasonably be drawn from undisputed facts, or if the only issues to
be resolved are questions of law. A party moving for summary
judgment has the burden of showing there are no genuine issues
of material fact and the moving party is entitled to judgment as a
matter of law. In determining whether summary judgment was
appropriately granted, we must view the evidence in the light most
favorable to the party opposing the motion, and that party will be
given the benefit of all favorable inferences which can reasonably
be drawn from the record. On appeal, this Court decides whether
the information available to the district court precluded the
existence of a genuine issue of material fact and entitled the
moving party to judgment as a matter of law. Whether the district
court properly granted summary judgment is a question of law
which we review de novo on the entire record.
[¶11] THR Minerals, LLC v. Robinson, 2017 ND 78, ¶ 6, 892 N.W.2d 193(quoting Markgraf v. Welker, 2015 ND 303, ¶ 10, 873 N.W.2d 26).
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III
[¶12] Thompson-Widmer argues that Larson defamed her by implication by
sending her personnel file to potential employers without the documents
resolving the criminal investigation and the ethics complaint. Thompson-
Widmer asserts the March 2017 email which indicated the criminal
investigation was suspended and the June 2017 letter of concern from the
State Board of Social Work Examiners should have been included in her
personnel file as she believes these documents demonstrate the investigations
were resolved in her favor. Thompson-Widmer contends Larson’s
communications to the potential employers defamed her by implication
because Larson created the false and misleading impression that Thompson-
Widmer was the subject of an open criminal investigation and ethics complaint.
[¶13] Defamation includes either libel or slander. N.D.C.C. § 14-02-02. “Libel
is a false and unprivileged publication by writing . . . which has a tendency to
injure the person in the person's occupation.” N.D.C.C. § 14-02-03.
[¶14] Slander is a false and unprivileged publication other than libel, which:
3. Tends directly to injure the person in respect to the person’s
office, profession, trade, or business, either by imputing to the
person general disqualifications in those respects which the
office or other occupation peculiarly requires, or by imputing
something with reference to the person’s office, profession,
trade, or business that has a natural tendency to lessen its
profits;
....
5. By natural consequence causes actual damage.
N.D.C.C. § 14-02-04.
[¶15] “A publication must be false to be defamatory.” Schmitt v. MeritCare
Health Sys., 2013 ND 136, ¶ 11, 834 N.W.2d 627. “Statements that are
‘technically true’ on their face, however, may constitute civil libel if they use
innuendo, insinuation, or sarcasm to convey an untrue and defamatory
meaning.” Id.
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[¶16] Under N.D.C.C. § 14-02-05, certain communications are privileged:
A privileged communication is one made:
1. In the proper discharge of an official duty;
2. In any legislative or judicial proceeding or in any other
proceeding authorized by law;
3. In a communication, without malice, to a person interested
therein by one who also is interested, or by one who stands in such
relation to the person interested as to afford a reasonable ground
for supposing the motive for the communication innocent, or who
is requested by the person interested to give the information; and
4. By a fair and true report, without malice, of a judicial,
legislative, or other public official proceeding, or of anything said
in the course thereof.
In the cases provided for in subsections 3 and 4, malice is not
inferred from the communication or publication.
[¶17] “Privilege is based upon the sound public policy that some
communications are so socially important that the full and unrestricted
exchange of information requires some latitude for mistake.” Krile v. Lawyer,
2020 ND 176, ¶ 18, 947 N.W.2d 366. “There is no liability for defamatory
statements that are privileged.” Id.[¶18] The district court concluded that as the director of Tri-County Social
Services, Larson was legally required to provide Thompson-Widmer’s
personnel file on request because the file was a public record. The court
concluded Larson’s “fulfillment of an open records request is a communication
made in the proper discharge of an official duty and is a privileged
communication under N.D.C.C. § 14-02-05(1).” The court also concluded that
because Larson was a political subdivision employee, she was “immune from
liability for fulfilling open records requests for Thompson-Widmer’s personnel
file.”
[¶19] We agree with the district court that Larson’s communications were
privileged and she was immune from liability. The records of a public entity
are public records. N.D.C.C. § 44-04-18(1). “A personnel file maintained by a
personnel director of a political subdivision is a public record open to public
inspection.” City of Grand Forks v. Grand Forks Herald, Inc., 307 N.W.2d 572,
5
578 (N.D. 1981). “Upon request for a copy of specific public records, any entity
. . . shall furnish the requester one copy of the public records requested.”
N.D.C.C. § 44-04-18(2). Larson’s fulfillment of open records requests was the
exercise of an official duty; therefore, the communications were privileged
under N.D.C.C. § 14-02-05(1).
[¶20] Thompson-Widmer asserts Larson should have updated her Tri-County
personnel file with the documents stating criminal charges would not be filed
against her and no action would be taken against her social work license.
Thompson-Widmer argues that by not including those documents in her file,
Larson created the false and misleading impression that Thompson-Widmer
was the subject of an open criminal investigation and ethics complaint.
[¶21] Under N.D.C.C. § 32-12.1-03(3)(a), a political subdivision employee is
immune from liability for “[a] claim based upon an act or omission of a political
subdivision employee exercising due care in the execution of a valid or invalid
statute or regulation.” Additionally, a political subdivision employee may not
be held personally liable “for acts or omissions of the employee occurring within
the scope of the employee’s employment unless the acts or omissions constitute
reckless or grossly negligent conduct, or willful or wanton misconduct.”
N.D.C.C. § 32-12.1-04(3). The district court indicated Thompson-Widmer
provided no authority establishing Larson had a duty to update Thompson-
Widmer’s personnel file after she resigned. Thompson-Widmer has also not
alleged that failing to update her personnel file after her resignation was a
reckless or grossly negligent act.
[¶22] Larson fulfilled open records requests under N.D.C.C. § 44-04-18(2) on
behalf of Tri-County. We decline to hold that Larson’s failing to supplement
Thompson-Widmer’s personnel file after she resigned created a genuine issue
of material fact regarding Thompson-Widmer's claim of defamation by
implication. See, e.g., Schmitt, 2013 ND 136, ¶ 19 (stating “It would be an odd
use of the defamation doctrine to hold that silence constitutes actionable
speech.”). We conclude Larson’s communications were privileged and she was
immune from liability. The district court did not err in granting summary
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judgment in favor of Larson and the Counties. The court did not err in
dismissing Thompson-Widmer’s claims against Larson and the Counties.
IV
[¶23] We have considered the parties’ remaining arguments and conclude they
are either without merit or not necessary to our decision. The judgment is
affirmed.
[¶24] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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