From McMurtrie v. Sarfo, determined Sept. 12 by the Tennessee Court docket of Appeals (Choose John W. McClarty, joined by Judges Thomas R. Frierson, II and Kristi M. Davis:
Plaintiff-Appellee John McMurtrie (“Plaintiff”) was previously employed because the Director of Security and Safety for Maryville School, a non-public liberal arts school. The events agree that the school shouldn’t be part of any authorities or governmental company. Plaintiff’s job was to supervise campus safety and supervise the school’s 5 safety guards who labored in rotating shifts. Plaintiff is a former Pennsylvania state trooper and former FBI agent, however he had retired from these jobs earlier than accepting the place at Maryville School in 2018. Neither Plaintiff nor the opposite safety guards who labored underneath him had been sworn regulation enforcement officers. They weren’t deputized officers of any metropolis or county. They didn’t carry weapons and had no authority to grab or arrest anybody. They might name the Maryville Police Division for points needing regulation enforcement. The faculty’s streets are usually open to the general public.
On July 9, 2021, Defendant-Appellant Ransford Sarfo, a 2010 graduate of Maryville School who lives out-of-state, was visiting campus in a rented Toyota Prius. As Plaintiff approached a pointy flip in entrance of Carnegie Corridor on Circle Drive, he noticed the Prius stopped in the course of the roadway with its four-way emergency flashers activated. It was steadily raining and darkish as a result of storm clouds overhead, and Plaintiff believed the automotive posed a hazard as a result of its place within the roadway and the low visibility. Plaintiff then noticed an arm emerge from the motive force’s aspect window as if to wave him to go round, at which level Plaintiff pulled his automobile round and stopped beside Sarfo’s Prius, on the motive force’s aspect. Sarfo glanced at Plaintiff. Plaintiff lowered his passenger aspect entrance window to talk with Sarfo, who didn’t interact with him. Plaintiff then tapped his horn. Sarfo then lowered his personal driver’s aspect window. Nonetheless seated in his automobile, Plaintiff requested Sarfo “why are you parked in my driveway?” Plaintiff maintains that he meant this as a joke.
Sarfo replied that he had stopped for {a photograph} as a result of he used to stay in Carnegie Corridor and that, as an alum, he had a proper to be there. Sarfo additionally suggested Plaintiff that he was having hassle shifting the rented Prius out of park. Plaintiff advised Sarfo that he nonetheless wanted to maneuver his automotive out of the center of the highway and will proceed taking pictures from one of many a number of open parking areas in entrance of Carnegie Corridor. Sarfo requested Plaintiff to establish himself, so Plaintiff advised him his identify and title of Director of Security and Safety. Sarfo, uncomfortable and offended, suggested Plaintiff that this is able to not be the top of the matter. Plaintiff then drove away. He noticed Sarfo drive away, too. The whole interplay between the 2 males lasted roughly one minute. There isn’t a proof within the report to counsel that Plaintiff knew Sarfo was an individual of coloration when he first approached him concerning the improperly parked automotive.
The subsequent day, Sarfo wrote an e-mail about his interplay with Plaintiff to Maryville School’s President, Bryan Coker, and 6 different school officers. The topic line was “MC Alumni harassed on campus.” The e-mail said, partially:
I used to be deeply troubled that [Plaintiff] didn’t ask why my hazard lights had been on, however assumed that I didn’t belong on the campus. In my years on the School, I by no means heard a workers member consult with any a part of the campus as their property to justify their reasoning for one more individual to depart. It is extremely disheartening that I got here again to a spot I name dwelling and was advised by a workers member that I used to be on their property and requested to depart. I AM HURT! I shall be reaching out to each alumni committee that I do know to share my expertise yesterday. Dr. Gerald Gibson could be deeply troubled to listen to that we’ve workers members who don’t perceive the true that means of neighborhood. I felt bullied, unwelcomed, and mistreated on the very school campus that I lived for 4 years. This isn’t the Maryville School that I knew in 2010.
Sarfo’s e-mail signature included a piece picture of himself. Then, Plaintiff acquired a letter from the school outlining Sarfo’s complaints towards him. On July 24, 2021, Sarfo contacted Maryville’s native newspaper, The Day by day Instances, which is owned by Defendant-Appellant Adams Publishing Group, LLC (“the newspaper”) concerning the encounter with Plaintiff. On July 26, 2021, Plaintiff met with the school’s Human Sources Director. On July 29, 2021, Plaintiff, on the path of Maryville School, had a Zoom assembly with the Human Sources Director and acquired a verbal warning for unprofessional conduct. Sooner or later within the disciplinary course of, Maryville School concluded that there was no racial animus between Plaintiff and Sarfo, however the school directed Plaintiff to attend two digital coaching classes: “Variety and Inclusion within the Office – Unconscious Bias Consciousness” and “Buyer Service Excellence for Group Members.” Within the July 29 Zoom assembly, the school’s officers advised Plaintiff that President Coker was planning to reply to The Day by day Instances’ request for remark.
On Sunday August 8, 2021, The Day by day Instances ran a front-page article with the headline, “‘Should do higher’ Coker: MC wants to enhance its inclusivity.” The article started, “An incident final month wherein a White safety officer questioned a Black alumnus on the Maryville School campus has President Bryan Coker saying the college ‘can – and should – do higher, in terms of creating and sustaining a welcoming, supportive, and inclusive setting for all.'” The article described the July 9, 2021 interplay between Sarfo and Plaintiff from Sarfo’s standpoint, which characterised it as an interrogation and “simply horrible.” The story additionally included Sarfo’s accounts of racism he encountered on campus sixteen years earlier when he was a pupil there.
Two days later, on August 10, Maryville School terminated Plaintiff’s employment. On August 11, native information station WBIR reported The Day by day Instances’ story by a video posted on WBIR’s web site wherein the information anchor associated that Maryville School was “trying to find a brand new director of campus security and campus safety. The college fired the previous director, John McMurtrie, after an investigation right into a discriminations [sic] case.” On August 12, 2021, The Day by day Instances revealed one other front-page article with a photograph of Plaintiff and the headline, “Safety director now not with MC.” Within the second article, Sarfo was quoted saying that he was dissatisfied with how the school dealt with the scenario and what he hoped the school would do going ahead. The article said that the school confirmed that Plaintiff was now not employed there however declined to remark additional. On August 13, WBIR posted on its web site a extra detailed article with the headline, “Maryville School leaders apologize after an alumnus says he was racially profiled.”
Plaintiff sued the newspaper and Sarfo for defamation; each defendants sought to dismiss underneath the state anti-SLAPP statute, the Tennessee Public Participation Act:
The TPPA gives, in related half, that “[i]f a authorized motion is filed in response to a celebration’s train of the appropriate of free speech … that social gathering could petition the court docket to dismiss the authorized motion.” The train of the appropriate of free speech is outlined as “a communication made in reference to a matter of public concern … that falls inside the safety of the USA Structure or the Tennessee Structure.” … If the petitioning social gathering meets this preliminary burden, then “the court docket shall dismiss the authorized motion until the responding social gathering establishes a prima facie case for every important aspect of the declare within the authorized motion.” Moreover, “However subsection (b), the court docket shall dismiss the authorized motion if the petitioning social gathering establishes a sound protection to the claims within the authorized motion.” …
“Matter of public concern” consists of a difficulty associated to:
(A) Well being or security;
(B) Environmental, financial, or neighborhood well-being;
(C) The federal government;
(D) A public official or public determine;
(E) , product, or service within the market;
(F) A literary, musical, creative, political, theatrical, or audiovisual work; or
(G) Every other matter deemed by a court docket to contain a matter of public concern[.]
The defendants apparently centered simply on the “public official or public determine” prong, and did not argue that Sarfo’s allegations had been in any other case on “a matter of public concern.” However the court docket concluded {that a} small personal college’s Director of Security and Safety would not qualify:
The report comprises no proof that Plaintiff was a sworn regulation enforcement officer on July 9, 2021 or at any level throughout his employment with the school. Nothing within the report may counsel that Plaintiff managed the conduct of governmental affairs at any time related to this case. In his function as a safety guard, Plaintiff was not a deputized officer of any metropolis or county, didn’t carry weapons, and had no authority to grab or arrest anybody. Below these circumstances, we maintain that Plaintiff shouldn’t be a public official. {We’re unpersuaded by the newspaper’s passing suggestion that Maryville School must be deemed the “practical equal of any state establishment” as a result of it’s “a high-quality instructional establishment with vital rankings on a nationwide scale.”}
And the court docket concluded that McMurtrie wasn’t a limited-purpose public determine, as a result of that standing requires that McMurtrie have voluntarily injected himself into some controversy; it is not sufficient that he grew to become the topic of this one, or that he allegedly acted the best way he did in direction of Sarfo.
The court docket additionally concluded that the honest report privilege did not immunize the newspaper’s repetitions of Sarfo’s allegations:
“[T]he honest report privilege is an exception to the frequent regulation rule ‘that an individual who repeats the defamatory statements made by one other can also be accountable for defamation.'” … [T]he honest report privilege is restricted to solely public proceedings or official actions of presidency which have been made public. The honest report privilege doesn’t apply to the info of this case as a result of there was neither a public continuing nor an official motion of the federal government that had been made public….
Richard Everett Collins, II represents McMurtrie.
