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Clouser v. Doherty

Supreme Court of Delaware

September 7, 2017

JEFFREY A. CLOUSER, Plaintiff Below, Appellant,
v.
KIM DOHERTY, WAYNE A BARTON, LILLIAN LOWERY, MARK HOLODICK, PATRICK BUSH, JAMES SCANLON, BRANDYWINE SCHOOL DISTRICT, DELAWARE DEPARTMENT OF EDUCATION, CURRENT AND FORMER MEMBERS OF THE BRANDYWINE SCHOOL DISTRCT BOARD OF EDUCATION: DEBRA HEFFERNAN, OLIVIA JOHNSON-HARRIS, MARK HUXSOLL, PATRICIA HEARN, CHERYL SISKIN, RALPH ACKERMAN, JOSEPH BRUMSKILL, and DANE BRANDENBERGER, Defendants Below, Appellees.

          Submitted: June 9, 2017

          Revised: September 8, 2017

         Court Below-Superior Court of the State of Delaware C.A. NO. N15C-07-240

          Before VALIHURA, SEITZ, and TRAYNOR, Justices.

          ORDER

          Collins J. Seitz, Jr. Justice

         This 8th day of September 2017, upon consideration of the parties' briefs and record below, [1] it appears to the Court that:

         (1) The appellant, Jeffrey A. Clouser, filed this appeal from a Superior Court decision granting two motions to dismiss by separate groups of defendants- the first filed by Kim Doherty, Mark Holodick, Patrick Bush, James Scanlon, Brandywine School District, and current and former members of the Brandywine School District Board of Education: Debra Heffernan, Olivia Johnson-Harris, Mark Huxsoll, Patricia Hearn, Cheryl Siskin, Ralph Ackerman, Joseph Brumskill, and Dane Brandenberger (collectively, "the School Defendants"), and the second motion to dismiss filed by Wayne Barton, Lillian Lowery, and the Delaware Department of Education ("DDOE") (collectively, "the State Defendants"). We conclude that the Superior Court erred in dismissing the defamation and tortious interference claims against two of the State Defendants, but did not err in dismissing the remaining claims against the State Defendants nor all of the claims against the School Defendants. Accordingly, we affirm in part and reverse in part.

         (2) According to the allegations of the complaint, Clouser began teaching in the Brandywine School District in 1991.[2] On February 9, 2009, while teaching at Concord High School, Clouser was placed on administrative leave after a computer monitoring system report showed his inappropriate use of a school computer. School officials alerted the Delaware State Police who conducted a forensics investigation of Clouser's school computer. According to a police report dated February 18, 2009 and approved by a supervisor on March 4, 2009 that summarized the results of their investigation, the police did not find any illegal images on Clouser's school computer. This information was provided to Concord High School's School Resource Officer on February 23, 2009. A supplemental police report dated April 16, 2009 reflected that no illegal images were found on Doherty's personal computer. Doherty, who was the Director of Human Resources for the Brandywine School District, had used her personal computer to investigate the searches run on Clouser's school computer.

         (3) Clouser submitted a letter of resignation to Doherty on February 20, 2009. Doherty received and time-stamped the letter.

         (4) In a letter dated March 5, 2009 sent to Clouser, ("the Doherty Letter") Doherty summarized the events leading to Clouser's placement on administrative leave, [3] Doherty copied Holodick, then principal of Concord High School, and Ron Mendenhall, then principal of Hanby Middle School. Clouser alleges that Doherty, contrary to the police report that she knew or should have known about by March 5, 2009, falsely accused him of searching for, accessing, and viewing child pornography.

         (5) Doherty also informed Clouser that if he did not agree to waive all claims concerning his employment, termination would be recommended at the Brandywine School District Board of Education's March 23, 2009 meeting. Clouser was unwilling to agree to this condition, because he believed the School Defendants had wronged him. According to Clouser, in another March 5, 2009 letter, Scan Ion, then Superintendent of the Brandywine School District, stated the Brandywine School Board of Education accepted his resignation.

         (6) In a letter dated March 11, 2009, Barton, then Director of Professional Accountability for the DDOE, informed Clouser that the DDOE had received notice he was terminated by the Brandywine School District for misconduct and immorality. Clouser was also notified that the DDOE had initiated a license disciplinary investigation under 14 Del. C. § 1218(g). At their March 23, 2009 meeting, the Brandywine School Board of Education voted to terminate Clouser because he did not accept the conditions for his resignation. In a letter dated April 8, 2009, Clouser's counsel informed Doherty that Clouser had resigned on February 20, 2009, and therefore could not be terminated.

         (7) While these events were unfolding, it appears that Doherty suggested to Clouser that he get counseling for his "self-sabotaging behavior."[4] Clouser went to a treatment center for counseling. Clouser was in treatment at Caron/Renaissance Center from February 28, 2009 to June 1, 2009. On July 31, 2009, Clouser met with Barton. Following the meeting, Barton sent an August 12, 2009 letter ("Barton Letter") to Lowery, who was then Secretary of Education. In the letter, Barton summarized his investigation of Clouser's termination.

         (8) According to Clouser, Barton made many false statements in the letter: (i) Barton inaccurately recounted that some students said Clouser must have been searching for pornography again; (ii) he falsely stated that the school district never heard the results of the police investigation; (iii) he falsely stated that Clouser attempted on more than one occasion to access pornography on the school's computer, and his claim that he was only looking for adult women was not credible; (iv) the letter from Clouser's in-patient counselor was not an endorsement of Clouser's fitness to teach; and (v) the letter and Clouser's demeanor during the interview left Barton concerned about Clouser being around children.[5] According to Clouser, the evidence shows he only used school computers on one occasion, he was only looking for adult women, the school district was aware of the police report and its conclusions, and the students' statements and Barton's opinion on the Caron/Renaissance Center counselor's letter and Clouser's demeanor were unsupported or untrue.

         (9) Lowery sent a letter, dated September 21, 2009 ("Lowery Letter"), to Clouser and copied Barton, a Deputy Attorney General, and the executive director of the Delaware Professional Standards Board. According to Clouser, the letter falsely stated he attempted numerous times to access pornography websites, the websites were verified as child pornography sites, and he was unfit to teach. After receiving the Doherty Letter and Lowery Letter, Clouser requested a hearing before the Delaware Professional Standards Board because "he knew the defamatory accusations against him were not true and were based on false, exaggerated, and manipulated evidence."[6]

         (10) The hearing occurred on November 4, 2010. According to Clouser, Doherty, Barton, and Bush, then Brandywine School District Director of Technology, lied at the hearing. After the hearing, Clouser consented to a three-year suspension of his teaching license.

         (11) On August 26, 2013, in connection with the Pennsylvania Department of Education's ("PDOE") case against Clouser for reciprocal consequences from his license suspension in Delaware, Clouser received his personnel file from the PDOE. The PDOE had subpoenaed the file from the DDOE. Upon receiving the personnel file, Clouser learned of the Barton Letter for the first time. He also learned the National Association of State Directors for Teacher Education and Certification ("NASDTEC") website incorrectly stated his Delaware teaching license was suspended due to a criminal conviction. After Clouser submitted Freedom of Information Act[7] requests to the DDOE regarding the wording on the NASDTEC website, the website changed the language to state Clouser's suspension was based on sexual misconduct that did not result in a criminal conviction. Clouser alleges this information is still false because sexual misconduct is the abuse of another person, not the viewing of websites.

         (12) Since reinstatement of his teaching license, Clouser has unsuccessfully applied for multiple teaching and coaching positions. Clouser alleges he was well-qualified for the positions. Even after interviews that he alleges went well, Clouser has not obtained permanent employment because he has been forced to disclose the 2009 events. Clouser has worked as a substitute teacher in the New Castle County public school districts since 2012. In October 2012, Doherty asked Clouser's staffing agency to remove him from the Brandywine School District's substitute teaching list.

         (13) On July 30, 2015, Clouser filed a 116-page complaint alleging defamation, conspiracy, and tortious interference with prospective business relations. The defamation count was based on false statements in the Doherty Letter, the Barton Letter, the Lowery Letter, and the NASDTEC website. According to Clouser, Doherty, Barton, Lowery, and the DDOE made these false statements despite the contrary findings of the police, which they knew or should have known about. Clouser claimed the other defendants were liable for defamation because they supported the defendants who defamed him.

         (14) Clouser further alleged the defendants conspired to terminate him in 2009, defame him at the November 4, 2010 Professional Standards Board Hearing, and prevent him from finding employment after reinstatement of his license. Finally, Clouser alleged the defendants tortiously interfered with his prospective business relationships when: (i) he was terminated in 2009; (ii) Doherty asked Clouser's staffing agency not to assign Clouser to substitute teaching assignments in the Brandywine School District; (iii) Barton and the DDOE submitted false information to the NASDTEC website; and (iv) a principal's offer of a teaching position was withdrawn and other schools failed to offer Clouser a teaching position. Clouser contended the statute of limitations did not begin to run on these claims until August 26, 2013, when he received his personnel file from the PDOE and learned of the Barton Letter and incorrect information on the NASDTEC website.

         (15) The School Defendants and the State Defendants moved to dismiss the complaint. The School Defendants argued: (i) the defamation claim was barred by the statute of limitations and failed to state a claim; (ii) the conspiracy claim was barred by the statute of limitations and privilege; and (iii) the tortious interference claim was barred by the statute of limitations and failed to state a claim.

         (16) The State Defendants argued: (i) all of the claims were barred by sovereign immunity; (ii) the defamation claim was barred by the statute of limitations, the Barton Letter was protected by privilege, Clouser failed to state a claim, and Barton's conduct was protected by the State Tort Claims Act;[8] (iii) the conspiracy claim was barred by collateral estoppel and privilege; and (iv) the tortious interference claim was barred by the statute of limitations and failed to state a claim.

         (17) In support of their sovereign immunity argument, the State Defendants filed an affidavit of Debra Lawhead, the Insurance Coverage Administrator of Delaware, stating the State and the DDOE had not purchased any insurance or established any self-insurance program that would apply to the events described in Clouser's complaint.[9] The Superior Court judge then-assigned to the case informed the parties that if the affidavit were considered, the motion to dismiss would have to be converted to a motion for summary judgment.[10] At the hearing on the motions to dismiss before a different judge, Clouser said he was not suggesting there was insurance when the Superior Court inquired about the affidavit.[11] The State Defendants argued the Superior Court could find sovereign immunity without the affidavit of no insurance, because Clouser identified no statutory or constitutional waiver of sovereign immunity by the State.[12]

         (18) In an opinion dated December 28, 2016 and docketed on January 4, 2017, the Superior Court granted the motions to dismiss. As to the State Defendants, the Superior Court held Clouser's claims were barred by the doctrine of sovereign immunity, the defamation claim was barred by privilege, and Clouser failed to state a claim for conspiracy or tortious interference. As to the School Defendants, the Superior Court held Clouser's claims were barred by the statute of limitations and Clouser failed to plead a claim. This appeal followed.

         (19) We review a trial court's grant of a motion to dismiss de novo.[13] In deciding a motion to dismiss under Rule 12(b)(6), the trial court must accept as true all well-pled allegations of facts and draw reasonable inferences in the plaintiffs favor.[14] A court is not, however, required to accept as true conclusory allegations "without specific supporting factual allegations"[15] or "every strained interpretation of the allegations proposed by the plaintiff."[16]

         (20) On appeal, Clouser's arguments are summarized as follows: (i) the Superior Court erred in finding his claims against the State Defendants were barred by sovereign immunity; (ii) the Superior Court erred in finding his defamation claim against the State Defendants was barred by a conditional privilege; (iii) the Superior Court's separate treatment of the State Defendants and School Defendants caused the Superior Court to conclude erroneously that the statute of limitations barred his claims against the School Defendants; (iv) he stated a claim for conspiracy based on the defendants' collective conduct, his termination, and the November 4, 2010 hearing; and (v) he stated a claim for tortious interference based on the collective conduct of the defendants and his inability to obtain full time employment after employers checked his background. We first address the State Defendants' assertion of sovereign immunity.

         Claims Against the State Defendants

         Sovereign Immunity

         (21) "Sovereign immunity ... is an absolute bar to liability claims against this State unless it is waived by the General Assembly."[17] The Superior Court held sovereign immunity barred Clouser's claims against the State Defendants because Clouser failed to identify an express waiver of sovereign immunity by the State.

         (22) Clouser first argues the Superior Court erred because the State Defendants waived sovereign immunity. According to Clouser, the State Defendants violated Clouser's rights under 42 U.S.C. § 1983, DDOE rules and regulations regarding the maintenance and disclosure of employee records, [18] the Federal Privacy Act Regulations, [19] the State Employees', Officers', and Officials' Code of Conduct, [20] the Delaware Administrator Standards, [21] and the statute protecting public employees reporting suspected violations of law, [22] which prohibits the discharge of a public employee who reports a violation of law to an elected official. Clouser did not allege violations of these statutes or regulations in his lengthy complaint or response to the States Defendants' motion to dismiss. The Superior Court never passed on any of these arguments because they were not raised below. His reference to 42 U.S.C. § 1983 in a footnote of his opposition to the State Defendants' Motion to Dismiss does not validly raise a § 1983 claim, which he asserts for the first time in his opening brief.[23] Clouser also argues for the first time on appeal that DDOE's participation in NASDTEC waives sovereign immunity. Because Clouser did not raise any of these arguments before the Superior Court, we will not consider them for the first time on appeal.[24]

         (23) Clouser next argues that the Superior Court erred by ruling on sovereign immunity for the State Defendants on a motion to dismiss. According to Clouser, when the State Defendants raised the sovereign immunity defense on a motion to dismiss and filed an affidavit of no insurance with their motion, the State Defendants' motion should have been converted into a motion for summary judgment. Relying on Pajewski v. Perry, [25] Clouser argues that, before the court decided the summary judgment motion, he was entitled to explore the details of the State's purchase of insurance. Although Clouser's reliance on Pajewski for broad discovery concerning the State's insurance program is misplaced, [26] we conclude the Superior Court erred in dismissing the claims against the State Defendants on the grounds of sovereign immunity.

         (24) In Delaware, the defense of sovereign immunity "was established initially by our first Constitution and has been continued thereafter by successive Constitutions."[27] Under Article I § 9 of the Delaware Constitution, the State cannot be sued without its consent.[28] Thus, "the only way to limit or waive the State's sovereign immunity is by act of the General Assembly."[29]

         (25) Under 18 Del. C. § 6511, "[t]he defense of sovereignty is waived and cannot and will not be asserted as to any risk or loss covered by the state insurance coverage program, whether same be covered by commercially procured insurance or by self-insurance." The State has an insurance coverage program in place to cover some losses.[30] When the State's insurance coverage program does not cover the loss, however, the State typically files an affidavit of no insurance coverage-as it did here-to show it has not waived sovereign immunity under § 6511.[31] Before it can consider the affidavit of no insurance, which is outside of the complaint, the Superior Court must give notice of its intent to convert the motion to dismiss into a summary judgment motion.[32] If the plaintiff asserts a sufficient basis in a Rule 56(f) affidavit to contest the affidavit of no insurance, she can pursue narrow and limited discovery into the statements in the affidavit of no insurance.[33]

         (26) Here, the State Defendants filed an affidavit of no insurance. The Superior Court, however, did not consider the affidavit. Instead, the Superior Court required Clouser on a motion to dismiss to "proffer[] an express waiver of sovereign immunity."[34] Because he failed to point to an express waiver, such as insurance coverage for his claims under § 6511, the court upheld the State Defendants' assertion of sovereign immunity and dismissed his claims.

         (27) We find that the Superior Court erred by requiring Clouser to plead insurance coverage under § 6511 for his claims. When the State asserts on a motion to dismiss that sovereign immunity has not been waived under § 6511, it must rely on a review of its insurance program and the coverages available. The plaintiff cannot reasonably be expected to know what is and is not covered by the State's insurance program. Instead, as is typically done, and as was done here, when the State claims that its insurance program does not cover potential claims, it must back up the defense with an affidavit from the Insurance Administrator confirming the absence of insurance coverage under the insurance program for the potential loss. Then, on notice and after converting the motion to dismiss into a summary judgment motion, the Superior Court can consider the affidavit and any challenge the plaintiff might make to its assertions.[35]

         (28) Given the affidavit the State Defendants filed with the court, they may be able to demonstrate that the defense of sovereign immunity can be asserted due to the lack of insurance covering Clouser's claims. The Superior Court must also evaluate whether the individual State Defendants were acting in their official as opposed to their individual capacity.[36] But, at this stage of the proceedings- namely, a motion to dismiss-it was error to require Clouser to demonstrate insurance coverage under § 6511 when the State has the unique knowledge about the coverage of its insurance programs. The Superior Court's error was not harmless because, as discussed below, we conclude Clouser stated claims for defamation and tortious interference with prospective business relations against Barton and the DDOE.

         Defamation

         (29) We next turn to Clouser's defamation claim against the State Defendants. The elements of a defamation claim are: (i) a defamatory communication; (ii) publication; (iii) the communication refers to the plaintiff; (iv) a third party's understanding of the communication's defamatory character; and (v) injury.[37] The Superior Court ruled that Clouser's lengthy complaint pleads the necessary elements of a defamation claim relating to the Barton Letter and the NASDTEC website information.[38] But, the court accepted the State Defendants' defense of privilege.[39]

         (30) The Superior Court held it could not conclude, on a motion to dismiss, that the defamation claims based on the Barton Letter and NASDTEC website were time-barred. The Superior Court found that, based on the complaint's allegations, Clouser could not be held to have known about the Barton Letter, that the Barton Letter was sent to PDOE, or that there was false information on the NASDTEC website before he received this information from the PDOE on August 26, 2013.

         (31) Clouser filed his complaint on July 30, 2015. Under the discovery rule, the statute of limitations does not begin to run until "the discovery of facts 'constituting the basis of the cause of action or the existence of facts sufficient to put a person of ordinary intelligence and prudence on inquiry which, if pursued, would lead to the discovery' of such facts."[40] Clouser alleged he was unaware of the Barton Letter and NASDTEC website information until August 26, 2013. At this stage of the proceedings, Clouser's allegations about the time of discovery support his claim that the statute should be tolled, and thus the Superior Court did not err in concluding Clouser's defamation claims based on the Barton Letter and NASDTEC website were not time barred. We also note that the Superior Court did ...


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