       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

                                      -3-
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:


                                      -4-
      [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


                                    -5-
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.

                                      -6-
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.




                                    -7-
