Flynn v. Reichardt

SONNER, Judge. Appellant, Christopher Flynn, a former special education teacher and cross-country coach at Walt Whitman High School, was accused of sexual abuse, sexual harassment, and sex discrimination by appellees — two high school students, Joanna Zuercher (“Joanna”) and Claire White-Crane (“Claire”), and their parents, Glenn Reichardt, JoAnn Zuercher, Donald Crane, and Diane White-Crane. One year after the appellees’ allegations against him, Flynn sued appellees in ³⁸⁹ the Circuit Court for Montgomery County for defamation and tortious interference with economic relationship. Feeling “constrained” by the ruling in Imperial v. Drapeau, 351 Md. 38 , 716 A.2d 244 (1998), and emphasizing “the societal need of clear, efficient, unfettered protection [for] reporting [teacher misconduct],” the lower court dismissed the case on the ground that appellees’ statements were absolutely privileged.

Appellant raises two issues on appeal: 1. Did the circuit court err in holding that high school students and their parents who manufacture false allegations of sexual harassment against a coach in order to cause him to be terminated from his job, are shielded from liability by an absolute immunity? 2. Does the absolute testimonial privilege that shields speakers from liability, “even if their motives were malicious, or knew the statement was false, or then-conduct was otherwise unreasonable” apply in a case where their statements are not subject to the charge of perjury? We have condensed appellant’s arguments into the single question of whether the trial court erred in dismissing the case based on the ground that appellees’ alleged defamatory statements were absolutely privileged.

For the reasons discussed below, we reverse the judgment of the trial court. Flynn has been a teacher in Montgomery County Public Schools (“MCPS”) since 1989 and was a high school track and cross-country coach from 1990 to 1998. Until the time of the appellees’ allegations, he was the only coach for Walt Whitman High School’s co-ed cross-country team. Appellees, Joanna and Claire, joined the cross-country team as high school freshmen in 1995.

During and after the 1997 cross-country season, several girls on the team asked Flynn if he would support their efforts to obtain a separate girls’ cross-country coach for the next season. He responded he would, but informed them he had been unsuccessful in his efforts in seeking a girls’ coach. Appellant’s complaint alleges that appellees were frustrated by failing to obtain a separate girls’ ³⁹⁰ coach and conspired to invent false allegations of sexual abuse, sexual harassment, and sex discrimination in order to get rid of' Flynn and to obtain a separate coach for the girls. On January 12,1998, appellees met with the high school principal, Dr. Jerome Marco, and told him of Flynn’s alleged misconduct.

Joanna and Claire also wrote to Montgomery County school officials about the alleged misconduct. Flynn was suspended with pay beginning the next day and formally suspended with pay by the Superintendent of Schools on January 15, 1998, while MCPS’s Department of Personnel Services conducted an investigation. He remained suspended until May 11, 1998, when he was placed in a non-teaching position. Flynn’s complaint states that “he was cleared by MCPS (and Montgomery County Police) of all sexual abuse, sexual harassment and misconduct charges.” However, appellees vigorously dispute this assertion and contend that, on July 8, 1998, after the investigation concluded, the MCPS Superintendent reprimanded Flynn for actions that showed differential and unequal treatment of girls on the cross-country team.

The record does not include the letter Joanna and Claire wrote to Montgomery County school officials and does not indicate how the investigation proceeded or was concluded. However, during oral argument, both parties agreed that Flynn received a reprimand. 1 Flynn has been transferred to a different school and no longer coaches athletic teams. Walt Whitman High School replaced Flynn with two cross-country coaches, one for the boys and one for the girls. In reviewing the trial court’s granting of the motion to dismiss, we must accept as true all Well-pleaded facts and ³⁹¹ allegations made in the complaint.

Faya v. Almaraz, 329 Md. 435, 443 , 620 A.2d 327 (1993). Dismissal is proper only if the facts and allegations, viewed in the light most favorable to the plaintiff, would nonetheless fail to afford the plaintiff relief if proven. Id. An appellate court must determine whether the trial court was legally correct by solely examining the sufficiency of the pleading.

Bobo v. State, 346 Md. 706, 709 , 697 A.2d 1371 (1997). Viewing the allegations in the light most favorable to Flynn, we must accept as true the following allegations set forth in his complaint: that appellees maliciously conspired to invent false sexual misconduct allegations against Flynn in an attempt to obtain a separate coach for the girls’ cross-country team; that appellees orally told the school principal, Dr. Jerome Marco, of these knowingly invented falsehoods on January 12, 1998; that Joanna and Claire wrote MCPS officials about the same invented allegations; and that appellees attempted to pressure other female members of the cross-country team to make false allegations of sexual misconduct. Although the lower court dismissed the case by relying on Imperial v. Drapeau, 351 Md. 38 , 716 A.2d 244 (1998), the issue of whether absolute immunity bars a defamation claim when a knowingly false complaint is made to a public school system about a public school teacher appears to be one of first impression in Maryland. In Imperial, Dr. Roland Imperial, a physician, called the Bethesda-Chevy Chase Rescue Squad, Inc., a privately funded, non-profit corporation that provides emergency as well as non-emergency transportation services to hospitals, to request non-emergency transport of his patient to Sibley Hospital.

Imperial, 351 Md. at 40, 716 A.2d 244 . Dr. Imperial spoke with the dispatcher on duty, Wayne A. Drapeau, who advised an ambulance crew to transport the patient to Sibley Hospital. Id. However, when the ambulance crew arrived at the patient’s residence, the two emergency medical technicians (EMTs) found that the patient’s blood pressure was 86/60 and that she was unaware of her surroundings.

Id. at 41, 716 A.2d ³⁹² 244. The crew, without consulting Drapeau, determined that the applicable protocols required them to take the patient to the closest hospital rather than Sibley Hospital. Id. After Dr. Imperial learned his patient had been transported to a different hospital, he wrote a complaint letter and sent it to Maryland Governor Parris N. Glendening and Congresswoman Constance A. Morelia.

Id. The letter stated that Drapeau was incompetent and that his actions in countermanding a physician’s explicit orders were unethical and illegal. Id. at 42, 716 A.2d 244 . The letter concluded with a request for an independent investigation by peer review with no ties to the Rescue Squad.

Id. Drapeau sued Dr. Imperial for defamation. Id. at 43, 716 A.2d 244 . Dr. Imperial moved for summary judgment, which the trial court granted, ruling that the letters were either absolutely or conditionally privileged.

Id. On appeal, this Court reversed and remanded. Id. The Court of Appeals, however, granted certiorari and reinstated the granting of summary judgment and, in a four-to-three decision, held that the letters were absolutely privileged.

Id. at 44, 716 A.2d 244 . The Court of Appeals reviewed the common law rule of absolute privilege in which a person is protected from liability for defamation for testimony given as a witness in a judicial proceeding, and then discussed Maryland’s broad view of the privilege, which includes administrative and other quasi-judicial proceedings. Id. at 44-45, 716 A.2d 244 . The Court of Appeals then discussed the two-prong test set forth in Gersh v. Ambrose, 291 Md. 188, 197 , 434 A.2d 547 (1981): Whether statements in an administrative proceeding are within the ambit of the absolute privilege is ‘decided on a case-by-case basis and ... in large part turn[s] on two factors: (1) the nature of the public function of the proceeding and (2) the adequacy of procedural safeguards which will minimize the occurrence of defamatory statements.’ Id. at 46, 716 A.2d 244 .

The Imperial Court found that the first prong weighed in favor of granting absolute immunity because public policy encourages the communication of infor ³⁹³ mation to public authorities responsible for maintaining the quality of medical services. Id. at 50, 716 A.2d 244 . Regarding the second prong, the Court evaluated the procedures involved when there is a complaint about emergency medical service as follows: ... The subject complaint was investigated by MIEMSS [Maryland Institute for Emergency Medical Services Systems], ... an independent state agency....

Any action, adverse to Drapeau, resulting from the investigation by MIEMSS could not be taken without Drapeau’s consent or without complying with the contested cases subtitle of the Maryland Administrative Procedure Act. Different paths, however, lead to that conclusion [as t]here are various classifications of EMTs____ [If the EMT is classified as an EMT-Cardiac, the Physician Quality Assurance] Board is authorized to reprimand or place on probation an EMT-Cardiac, or suspend or revoke the certification of an EMT-Cardiac, for any [prohibited] conduct.... Before any disciplinary action can be taken, ... the EMT-Cardiac is entitled to a hearing [at which] the Maryland Administrative Procedure Act applies.... [In addition, t]here are rights of review, first by the Board of Review of the Department of Health and Mental Hygiene, and then by a circuit court. [If the EMT is classified as an EMT-Paramedic, they] are subject to the same sanctions as are EMTs-Cardiac, and ... enjoy the same procedural safeguards.... [If the EMT is classified as an EMT-A,] MIEMSS also determines whether an EMT-A should be decertified.... The MIEMSS decertification procedure begins with the referral of any complaint that has been received to the local Emergency Medical System Authority.

The local authority’s investigation ‘shall be made confidentially,’ although the individual against whom the complaint has been filed ‘shall be notified at the investigation stage that the investigation is in process.’ The local Emergency Medical System Authority submits findings and a recommendation to the Di ³⁹⁴ rector of MIEMSS. Before the Director of MIEMSS may order any disciplinary action, written notice, stating the issues or charges, must be sent by certified mail to the subject of the complaint and to the local authority at least thirty days before the hearing. Any hearings before the Director of MIEMSS are to be conducted in accordance with the Maryland Administrative Procedure Act. Id. at 51-58, 716 A.2d 244 (emphasis added).

Therefore, the Court of Appeals found that there were procedural safeguards that adequately protected the reputation of a subject of a complaint and held that Imperial was absolutely immune from a defamation suit. Id. at 50-51, 716 A.2d 244 . In this case, the first prong of the Gersh test is clearly met. As the lower court observed, “[T]here is really nothing more important to the core of the well-being of our community, our State and our nation than the public school system.” It is unquestionably an issue of strong public interest that students and parents should be protected from suit for reporting a teacher’s alleged sexual misconduct.

The more difficult issue in this case is the second prong of the Gersh test: are there “adequate procedural safeguards which will minimize the occurrence of defamatory statements”? The difficulty in this question stems from the fact that Flynn did not appeal his suspension and reprimand. It is evident from the record that adequate procedural safeguards are available at the appellate level. For example, according to the Board of Education of Montgomery County Policy BLB, titled “Rules of Procedure in Appeals and Hearings,” all parties have the right to be represented by counsel, all testimony must be given under oath, and parties may submit evidence, make objections, cross-examine witnesses, and file exceptions and motions.

However, as we shall explain, we find that Flynn did not have the availability of an appeal, and because there were no procedural safeguards during the investigation of his alleged misconduct, appellees’ statements are not absolutely privileged. We begin with a review of those ³⁹⁵ cases in which there was no absolute immunity because of a lack of procedural safeguards. In Gersh v. Ambrose, 291 Md. 188, 196 , 434 A.2d 547 (1981), the Court of Appeals held that a witness testifying before the Baltimore City Community Relations Commission was not absolutely immune from a defamation suit because the hearing was merely an “ordinary open public hearing.” The Court distinguished an English case decided by the House of Lords, Trapp v. Mackie, 1 All E.R. 489 (1979), 1 W.L.R. 377, 1979 WL 67897 (H.L.1978), in which a witness testifying during an administrative hearing regarding a school headmaster’s dismissal was absolutely immune from a defamation suit because the tribunal was one recognized by law, the hearing was public and adversary in nature, the witnesses were compellable, sworn, and subject to cross-examination, the parties were represented by counsel, a written opinion was submitted for review, and the costs of the proceedings were assessable against the parties. Gersh, 291 Md. at 195-96 , 434 A.2d 547 .

Similarly, in McDermott v. Hughley, 317 Md. 12, 25-26 , 561 A.2d 1038 (1989), the Court of Appeals held that a psychologist was not absolutely immune from a defamation suit because it did not appear from the record that an official administrative investigation was even instituted. Moreover, there was no adversary public hearing, no compellable witnesses who were sworn or cross-examined, no reviewable opinion or analysis, and, most important, the plaintiff had no opportunity to present his side of the story. Id. at 26 , 561 A.2d 1038 . Another instructive case is Miner v. Novotny, 304 Md. 164 , 498 A.2d 269 (1985), in which the Court of Appeals held that a