MARY M. CAMERON, PH.D v. NICOLE A. JASTREMSKI, PH.D

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

MARY M. CAMERON, Ph.D.,

Appellant,

v.

NICOLE A. JASTREMSKI, Ph.D.,

Appellee.

No. 4D17-39

[April 25, 2018]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm

Beach County; Cheryl A. Caracuzzo, Judge; L.T. Case No. 50-2016-CA-

005118-XXXX-MB.

William R. Amlong, Karen Coolman Amlong and Isha Kochhar of

Amlong & Amlong, P.A., Fort Lauderdale, for appellant.

Oscar E. Marrero and Lourdes E. Wydler of Marrero & Wydler, Coral

Gables, for appellee.

GROSS, J.

This is an appeal from an order granting a motion to dismiss based on

absolute immunity in a defamation action between two teaching colleagues

at a local university. We reverse because appellee’s entitlement to claim

absolute immunity does not appear on the face of the complaint. Rather,

in this case, the issue is one of proof, which may be raised at a limited

evidentiary hearing or on summary judgment.

On an appeal from an order granting a motion to dismiss, we take the

factual allegations of the complaint as true and consider them in the light

most favorable to the plaintiff. See, e.g., Palm Beach-Broward Med.

Imaging Ctr., Inc. v. Cont’l Grain Co., 715 So. 2d 343, 344 (Fla. 4th DCA

1998).

As alleged in her complaint, Mary Cameron is a senior member of the

anthropology department at Florida Atlantic University (“FAU”). Nicole

Jastremski is a visiting instructor of anthropology and an unsuccessful

candidate for a tenure-track position as an assistant professor at the

university. Following Jastremski’s rejection for the position, she sent a

letter to the dean complaining about a series of derogatory statements

Cameron made to Jastremski about her fellow professors and the

department. Jastremski also shared these statements with the

department secretary, other colleagues in the department, and a former

colleague who teaches at the University of Miami.

Cameron denied making any of the statements attributed to her.

Cameron filed a single count complaint for defamation against

Jastremski. 1 Jastremski moved to dismiss the complaint, asserting she

was entitled to absolute immunity as a matter of law because her actions

were within the scope of her duties as a public employee. The circuit court

granted the motion.

We have previously described an absolute privilege:

“[A]bsolute privileges” are based chiefly upon a recognition of

the necessity that certain persons, because of their special

position or status, should be as free as possible from fear that

their actions in that position might have an adverse effect

upon their own personal interests. To accomplish this, it is

necessary for them to be protected not only from civil liability,

but also from the danger of even an unsuccessful civil action.

To this end, it is necessary that the propriety of their conduct

not be inquired into indirectly by either court or jury in civil

proceedings brought against them for misconduct in their

position. Therefor[e] the privilege, or immunity, is absolute

and the protection that it affords is complete. It is not

conditioned upon the honest and reasonable belief that the

defamatory matter is true or upon the absence of ill will on the

part of the actor.

Cassell v. India, 964 So. 2d 190, 193 (Fla. 4th DCA 2007) (quoting

Fridovich v. Fridovich, 598 So. 2d 65, 68 (Fla. 1992)). “In Florida, ‘[p]ublic

officials who make statements within the scope of their duties are

absolutely immune from suit for defamation.’” Id. (quoting Stephens v.

Geoghegan, 702 So. 2d 517, 522 (Fla. 2d DCA 1997)). As explained by the

1 Because this case was dismissed on the ground of absolute immunity, that is

the only issue we address in this opinion. We do not reach the issues of whether

the complaint sufficiently states a claim for defamation or whether qualified

immunity may apply.

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Fifth District in Alfino v. Dep’t of Health & Rehab. Servs., 676 So. 2d 447,

449 (Fla. 5th DCA 1996):

Conduct is within the scope of one’s employment if it is the

type of conduct which the employee is hired to perform, the

conduct occurs substantially within the time and space limits

authorized or requested by the work to be performed, and the

conduct is activated at least in part by a purpose to serve the

employer.

(citing Craft v. John Sirounis & Sons, Inc., 575 So. 2d 795 (Fla. 4th DCA

1991)). “The scope of an officer’s duties is to be liberally construed.”

Cassell, 964 So. 2d at 194 (citing Goetz v. Noble, 652 So. 2d 1203, 1205

(Fla. 4th DCA 1995)). “The term ‘duties’ is not confined to those things

required of the officer, but rather extends to all matters which he is

authorized to perform.” Id. at 194 (citing Stephens, 702 So. 2d at 523;

Restatement (Second) of Torts § 591).

Absolute immunity rests on the lofty principle that officials who are

carrying out service to the public

should be free to exercise their duties unembarrassed by the

fear of damage suits in respect of acts done in the course of

those duties—suits which would consume time and energies

which would otherwise be devoted to governmental service

and the threat of which might appreciably inhibit the fearless,

vigorous, and effective administration of policies of

government.

Barr v. Matteo, 360 U.S. 564, 571 (1959).

We reject Cameron’s argument that absolute immunity does not extend

to “rank-and-file employees” like Jastremski. “Originally, the protection

was afforded only to high-ranking officials, but over time, courts began

focusing less on the rank of the official and more on the nature of the

employee’s duties.” Boggess v. Sch. Bd. of Sarasota Cty., No. 8:06-CV-

2245-T-27EAJ, 2008 WL 564641, *5 (M.D. Fla. Feb. 29, 2008) (citing City

of Miami v. Wardlow, 403 So. 2d 414, 416 (Fla. 1981)); accord Skoblow v.

Ameri-Manage, Inc., 483 So. 2d 809, 810 (Fla. 3d DCA 1986) (“[T]he

emphasis has shifted to the ‘nature of the officer’s duties rather than the

level of his rank.’”) (quoting Wardlow, 403 So. 2d at 416). And this court

has written that “an absolute privilege protects the statements of all public

officials, regardless of the branch of government or the level of the official.”

Cassell, 964 So. 2d at 194 (emphasis added). Instead, “the controlling

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issue in deciding whether a public employee is absolutely immune from

actions for defamation is whether the communication was within the scope

of the employee’s duties.” Skoblow, 483 So. 2d at 810-11 (citing Wardlow,

403 So. 2d at 416).

The majority of employment-related defamation cases where Florida

courts have found the existence of an absolute privilege generally involve

a public official exercising supervisory responsibilities over another public

employee or over personnel matters. It is well-settled that “absolute

immunity protects public officials for statements made ‘in connection with

an employee’s discharge . . . if the official has responsibility for discharging

the employee.’” Prins v. Farley, 208 So. 3d 1215, 1217 (Fla. 1st DCA 2017)

(quoting Lock v. City of W. Melbourne Fla., No. 6:12-cv-680-Orl-36TBS,

2015 WL 1880732, *27 (M.D. Fla. April 24, 2015)); see also Hauser v.

Urchisin, 231 So. 2d 6 (Fla. 1970) (city commissioner’s statements to the

press in response to former city prosecutor’s comments after removal were

absolutely privileged); Cassell, 964 So. 2d at 196 (police lieutenant entitled

to absolute immunity because his statements about a police officer were

“part and parcel of his duties as [the police officer]’s supervisor and as a

ranking officer accountable to other officers either in the chain of

command or in positions of responsibility over potential claims for

benefits.”); Skoblow, 483 So. 2d at 811 (officials’ statements to the press

about plaintiff’s work were absolutely privileged); Danford v. City of

Rockledge, 387 So. 2d 967 (Fla. 5th DCA 1980) (absolute immunity applied

where city officials made unfavorable statements to the news media about

a city police officer); cf. Albritton v. Gandy, 531 So. 2d 381 (Fla. 1st DCA

1988) (holding that statements about plaintiff’s employment were not

privileged where the official was not in charge of hiring or firing).

Florida courts have also found that statements by a public official are

made within the scope of his or her duties if they involve an important

public function or further the interest of the public good. For example, in

Wardlow, a police captain called a job applicant’s former employer at

another police department to inquire about the applicant’s background.

403 So. 2d at 415. In response to the inquiry, the former employer made

statements that the applicant considered to be slanderous. Id. No

administrative rule required the former employer to explain the

circumstances under which the applicant left his job. Id. at 416. At the

time of the applicant’s departure, the former employer was personally

involved in the investigation of accusations against the applicant. Id. In

determining that this communication was within the scope of the former

employer’s duties and covered by absolute immunity, the Florida Supreme

Court wrote:

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[W]hile the communication at issue here was privately made,

as distinguished from the situation in Barr v. Matteo, we

perceive that an important public function was involved.

[Former employer]’s job involved attempting to ensure that no

unfit persons were allowed to serve as police officers in the

City of Miami. An ancillary function, but very important to

the public, would be to communicate the results of his

department’s investigations to inquiring officials from another

municipal police department.

Id.; see also Palm Beach Cty. Health Care Dist. v. Prof’l Med. Educ., 13 So.

3d 1090 (Fla. 4th DCA 2009) (director of district’s trauma agency, which

funded educational seminars for county health care workers, acted within

the orbit of his duties as “caretaker of public funds” when he wrote letter

to organization that had oversight over medical training courses); Mueller

v. The Fla. Bar, 390 So. 2d 449, 451 (Fla. 4th DCA 1980) (holding that

Florida Bar employee acted within the scope of his authority in

disseminating a press release about a disbarred attorney because doing so

was “in the interest of the public good and therefore absolutely

privileged.”); Fla. State Univ. Bd. of Tr. v. Monk, 68 So. 3d 316, 316 (Fla.

1st DCA 2011) (finding that state university enjoyed absolute immunity

from defamation suit for releasing report of academic misconduct

investigation because “[t]he nature of the charges . . . and the fact that

FSU is a public university made release of the investigation report

necessary.”); Johnsen v. Carhart, 353 So. 2d 874, 877 (Fla. 3d DCA 1977)

(holding that state attorney who had prosecuted plaintiff and subsequently

sent an allegedly defamatory letter to the police department expressing his

reservations about the plaintiff’s fitness to serve as a policeman was

immune from defamation liability because he acted “in furtherance of the

public good.”).

Jastremski claims that she acted within the orbit of her responsibilities

as a public university instructor because her statements were made to aid

her supervisor with authority over personnel, and to promote a healthy

working environment. Yet, there is no allegation in the complaint that

Jastremski was acting within the scope of her duties in passing along

Cameron’s supposed negative comments about coworkers and the

department administration.

The face of the complaint does not support the conclusion that

Jastremski’s conduct fell within the scope of her duties as a visiting

instructor. The primary function of a college professor is teaching

students. It has been said that President James Garfield described the

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ideal college as “Mark Hopkins 2 on one end of a log and a student on the

other.” This epigram identifies the heart of a university as the student-

professor relationship. However, Jastremski did not pass along criticisms

of Cameron’s relationship with students. It is difficult to see how the orbit

of an instructor’s responsibilities is so broad that it encompasses passing

along gossipy repetition of a professor’s critical comments of her

department and the dean. Like Socrates, a gifted teacher may not always

get along with the powers that be. A university is not a totalitarian state

where criticism of a superior is strictly verboten.

On remand, Jastremski should have the chance to demonstrate by

proof that the orbit of her responsibilities included the conduct here at

issue. For example, she might present evidence of the common practice

at FAU or policies contained in a university manual. Even if such proof

exists, we are hard-pressed to see how Jastremski’s statements to the

department secretary and a professor at a completely different university

are entitled to absolute immunity.

Our remand in this case is similar to the third district’s treatment of an

absolute immunity issue in a recent case. In Del Pino-Allen v. Santelises,

the plaintiff, a college professor, sued her colleague for defamation arising

out of statements the defendant made to the administration of the college.

43 Fla. L. Weekly D427a (Fla. 3d DCA Feb. 21, 2018). The plaintiff claimed

that the defendant made the defamatory statements in retaliation for

plaintiff’s criticism of mistakes purportedly made by the defendant in part

of the textbook that they were working on together. Id. The appellee

moved to dismiss the complaint “based on his alleged status as a ‘public

official’ entitled to absolute immunity,” and the trial court granted the

motion. Id.

On appeal, the third district reversed, finding that appellee’s claim of

absolute immunity was “not discernible from the four corners of the

complaint and applicable precedent at this procedural juncture.” Id. In

reaching this conclusion, the court stated that the complaint failed to

“establish that [appellee]’s allegedly defamatory statements all were made

within the course and scope of his supervisory or other duties and some

special position or status.” Id. (citing Cassell, 964 So. 2d at 193-94).

Further, the Court noted, “Factual issues outside the four corners of the

complaint may crystallize such matters as the scope of [appellee]’s duties

. . . and the basis for characterizing a professor at [the college] as a ‘public

official.’” Id. The court ultimately reversed and remanded for

reinstatement of the complaint and for further proceedings, finding that

2 Mark Hopkins was the president of Williams College from 1836-1872.

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appellee failed to establish a basis for dismissal on a motion to dismiss.

Id.

As in Santelises, while “factual issues outside the four corners of the

complaint may crystallize such matters as the scope of [Appellee]’s duties,”

Jastremski has failed to demonstrate her entitlement to absolute

immunity at this juncture. Accordingly, we reverse and remand for

reinstatement of the complaint and further proceedings.

Reversed and remanded for proceedings consistent with this opinion.

WARNER AND CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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