So your city has been sued for firing an employee. Certainly not pleasant, but anytime an employee gets fired, there is a risk this will happen. But wait. Your name is listed as a defendant! You’re getting sued personally for allegedly being part of a civil conspiracy to get the employee fired. And insurance, while providing a defense, isn’t going to cover any judgment against you. All you did was make a tough business decision and this is your reward?
Welcome to the tort of civil conspiracy. Plaintiffs’ lawyers love using this when they can in employment cases. Why? Well, the first paragraph of this article tells you the main reason why. The plaintiff’s attorney thinks that if he can get the city administrator, human resources director or other decision maker named personally in the suit, he can greatly multiply the pressure to settle the case. And a lot of times he’s right. Getting personally sued can cause a lot of anxiety. It’s a lot easier to be objective if you know there is no risk of personal liability. Therefore, a civil conspiracy allegation often does encourage the city’s decision makers to want to settle the case.
So what is a civil conspiracy to terminate an employee? A civil conspiracy occurs when two or more people develop a plan to get an employee fired and they do it for an improper reason that is not in furtherance of the employer’s interests. For example, in the case of Pridgen v. Ward,1 it was held there was evidence that Pridgen’s manager (Ward) disliked him because Pridgen refused Ward’s request to lie about another employee. Ward then, with the help of other employees, allegedly arranged an unprecedented surprise inspection of the prison that Pridgen managed. That inspection revealed that prisoners had improper access to computers and unauthorized areas of the prison. Ward used this as grounds to recommend and get Pridgen terminated. The court held that Pridgen’s motive was not in furtherance of the employer’s legitimate interest and, because Ward acted with other employees to bring about Pridgen’s termination, there was sufficient evidence of an improper civil conspiracy.
Because civil conspiracy, by its very definition, is not in furtherance of the employer’s interests, the conspirators are, technically, acting outside the scope of their employment. For this reason, liability for a civil conspiracy is on the individual - not the employer. Consequently, it is not covered by insurance and results in personal liability.
Another reason why plaintiffs’ lawyers love this tort is because, where the basic elements can be established, it’s difficult to get a judge to dismiss such a claim. Unfortunately, the South Carolina Appeals courts have told the trial judges: “Civil Conspiracy is an act which is, by its very nature, covert and clandestine and usually not susceptible of proof by direct evidence.”2 And “conspiracy can be inferred from the very nature of the acts done, the relationship of the parties, the interests of the conspirators and other circumstances.” And finally, “the field of admissibility of evidence is broadened in proof of conspiracy.” What trial judges take from these comments is that they are not to require much evidence of a conspiracy to warrant submitting the question to the jury.
Getting a civil conspiracy claim dismissed is not impossible. There are a few strong legal defenses. First, the person with the ultimate authority to fire the employee cannot be named in a civil conspiracy. This is because an at-will employee can be terminated for any reason - good or bad. Therefore, the logic goes, the person with the authority to terminate the employee cannot have an improper purpose. For example, in the strong mayor form of government, the mayor has the statutory authority to fire the police chief so the mayor is not capable of engaging in a civil conspiracy to fire the chief.3 This point of law won’t help managers lower in the chain of command, only the person with ultimate authority.
Any employee who is deemed to be a “public official” is going to have a hard time asserting a civil conspiracy claim because residents are not considered “outsiders” to a public officials employment. For example, a city administrator is a public official within the city. Residents of the city are deemed to have a legitimate interest, and role, in whether or not a public official retains employment. Therefore, the logic goes, any resident can have any reason to terminate a public official and an “improper reason” is not possible.4 Finally, if it is clear the defendants were acting on behalf of the employer, and not for personal reasons, there can be no improper purpose.
Suppose, for example, a city employee is terminated for complaining that the city had condemned his property. Although perhaps not a fair reason to fire him, it is not a personal reason. It is therefore within the scope of the firing manager’s employment and he can’t be sued for civil conspiracy for it.5
A bill was introduced in 2011 to try to curb these claims. The bill would amend South Carolina statutes to provide that, in cases where a civil conspiracy claim is alleged, a judge must conduct an early hearing to determine whether the individual defendants were acting within the scope of their employment. In other words, to determine whether their reasons were personal or not. Unfortunately, if the bill was ever passed, the law would likely be invalid because it attempts to give a judge the power to decide facts which a plaintiff previously had a right to have a jury decide. The Seventh Amendment to the United States Constitution precludes any legislature from impeding a person’s right to a jury trial on any cause of action that existed at the time the Seventh Amendment was enacted (1791).6
So what might be done to minimize the risk? First, have the termination decision be made by the person with ultimate authority. For example in a strong mayor form of government, the mayor should fire the police chief and not simply rubber-stamp a lower-ranking manager’s recommendation. The decision-maker should review all evidence regarding the termination so that his or her decision is not tainted by any personal animosity of a lower-ranking employee.
Second, the persons discussing the termination and approving it should be limited to those with a need to be involved. As much as possible, lower-ranking supervisors and managers should be treated as witnesses, not as decision makers.
Third, make sure the investigation and the ground for the discharge are comparable to and consistent with precedent.
Finally, if there is any hint of personal animosity between the discharged employee and anyone higher in his chain of command, extra scrutiny should be given to the situation and an effort made to make sure that person with the personal problem with the employee is not part of the decision. If it’s a case where there is a hint of personal motive, it’s probably advisable to consult your employment counsel.
Chuck Thompson is a managing partner of Malone, Thompson, Summers & Ott LLC, a law firm in Columbia, South Carolina, that limits its practice to representing management and insurance carriers in labor and employment matters.
1 Pridgen v. Ward.
2 Island Car Wash, Inc. v. Norris, 358 S.E.2d 150, 153 (S.C. Ct. App. 1987).
3 Angus v. Burroughs & Chapin Co., 596 S.E.2d 67 (S.C. App. 2004).
5 Cricket Cove Ventures, LLC v. Gilland, 2010 WL 3396829, 6 (S.C. App. 2010); See also, Anthony v. Ward, 2009 Westlaw 1931192, 3-4 (4th Cir. 2009) and Lawson v. S.C. Dept. of Corrections, 539 S.E.2d 259, 261 (S.C. 2000).
6 Curtis v. Loether, 415 U.S. 189 (1974).