## Facts

- Food Lion required employee drug testing under a written substance-abuse policy that treated a “substituted” urine sample as a failed test.
- On December 11, 2001, Mervyn D. Losing submitted a urine sample that was reported as “substituted” (non-human); a retest confirmed that result.
- Food Lion terminated Losing under its zero-tolerance policy for “failing a drug test.”
- Losing invoked a contractual right to an additional retest, which later returned negative; Food Lion conceded the initial “substituted” finding was erroneous and reinstated him.
- Losing alleged his supervisor, Robert Jones, told co-workers that Losing failed a drug test, substituted nonhuman urine, and was fired for failing the test.
- Losing also alleged statements suggesting his attorney could “get you off” a drug test, and statements characterizing Losing as “dishonest,” “untruthful,” or “unreliable.”
- Losing filed suit asserting, among other claims, slander per se and invasion of privacy; the invasion of privacy claim was first pleaded in a complaint filed January 28, 2005.
- The trial court granted summary judgment with prejudice for defendants on all remaining claims; Losing appealed.

## Issues

1. Whether summary judgment was proper on the slander per se claim because defendants established the affirmative defense of truth and because certain statements were not actionable as slander per se.
2. Whether the invasion of privacy claim was barred by the three-year statute of limitations and whether Rule 41(a) tolling applied when that claim was not asserted in the earlier complaint.

## Decision

- The court affirmed summary judgment for defendants on the slander per se claim.
- The court held defendants proved truth as an affirmative defense as to statements that Losing “failed a drug test” and was terminated for failing it under Food Lion’s policy.
- The court held the “attorney can get you off a drug test” remark did not qualify as slander per se.
- The court held generalized statements that Losing was “dishonest,” “untruthful,” or “unreliable” were not actionable as slander per se on this record.
- The court affirmed summary judgment for defendants on the invasion of privacy claim as time-barred.
- The court held Rule 41(a) tolling did not apply to a cause of action not asserted in the original complaint, even if arising from the same events.

## Legal Principles

- Truth, including substantial truth, is a complete defense to defamation; a statement may be treated as true if it accurately reflects the operative status under a governing policy when made, even if later events show an underlying premise was mistaken.
- Under an employer policy defining a “substituted” sample as a failed drug test, statements that an employee “failed a drug test” and was terminated for that failure may be substantially true where the reported result was “substituted” and termination occurred on that basis.
- Not all negative workplace statements constitute defamation per se; statements must fall within recognized per se categories (such as impeaching a person in the person’s trade or profession) to permit presumed damages without proof of special damages.
- Invasion of privacy claims are subject to a three-year limitations period under N.C. Gen. Stat. § 1-52(5).
- Rule 41(a) refiling tolling applies only to causes of action actually pleaded in the earlier, voluntarily dismissed action, not to new claims later added from the same facts.

## Conclusion

The appellate court affirmed summary judgment because defendants established that key allegedly defamatory statements were substantially true under the employer’s drug-testing policy, the remaining statements were not actionable as slander per se on the showing made, and the invasion of privacy claim was filed outside the three-year limitations period without Rule 41(a) tolling for a claim not previously pleaded.


Losing v. Food Lion, L.L.C., 648 S.E.2d 261 (N.C. Ct. App. 2007)