Recently in Workplace Defamation Category

Fresenius Medical Care Sued for Allegedly Defamatory Statements of Employee

September 15, 2014,

As a business owner, you can't control everything your employees will do or say. What if one of them defames the character of another employee while on the job? Can the business be held responsible? If the employee uttered the defamatory words while performing the employer's business and acting within the scope of his or her employment, then yes, the employer can be held liable for defamation. How does one determine whether an employee's statements were made with the "scope of employment"? In Virginia, an act will be considered within the scope of employment if it was (1) expressly or impliedly directed by the employer, or is naturally incident to the business, and (2) performed with the intent to further the employer's interest, or from some impulse or emotion that was the natural consequence of an attempt to do the employer's business, and did not arise wholly from some external, independent, and personal motive on the part of the employee to do the act upon his own account. (See Kensington Assocs. v. West, 234 Va. 430, 432 (1987)). If a plaintiff alleges the existence of an employment relationship, it becomes the employer's burden to prove that the statement was not made within the scope of employment. Absent such proof, the employer is on the hook.

Last week, a defamation case against Bio-Medical Applications of Virginia, Inc. (doing business as Fresenius Medical Care Dominion) was allowed to go forward. The Amended Complaint filed in the case alleges that a Fresenius employee emailed to coworkers various false statements suggesting that the plaintiff (a registered nurse) had a complete disregard for patient welfare. For example, the alleged emails attributed to the plaintiff statements such as "[the patient] just needs a little bleach in his lines" and, in reference to another patient, "all she needs is a good shot of air. That'll take care of her." Another email accused the plaintiff of saying, "Well isn't it about time?" after another patient had died. Fresenius Medical Care filed a motion to dismiss the case, arguing that the complaint failed to plead sufficient facts to hold the employer liable for the statements of its employees, and that the elements of defamation had not been satisfied. The court disagreed on both counts and denied the motion.

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Familiar Rhetorical Devices May Not Carry Defamatory Meaning

August 11, 2014,

Extortion is a crime. Statements that falsely accuse another of committing a crime often constitute defamation per se in Virginia, particularly where the crime is one involving "moral turpitude." Does it follow, then, that false accusations of extortion will automatically qualify as defamation per se? The answer, which will undoubtedly surprise many of you, is no. The reason lies in the importance of context in defamation actions.

A good illustration comes from the Tenth Circuit, which issued its decision in Hogan v. Winder a few days ago. Chris Hogan worked as a consultant for the Utah Telecommunications Open Infrastructure Agency ("UTOPIA"), a state agency charged with upgrading high-speed Internet access. In the spring of 2011, Hogan began to suspect that UTOPIA's executive director unfairly favored a bid for a contract from the company where the director's brother worked, and he expressed his suspicions to UTOPIA's plant manager. He was terminated shortly thereafter. Believing that his termination was retaliatory, he hired a lawyer and sent UTOPIA a draft complaint along with certain settlement demands, pointing out that the public scrutiny that would result from filing the lawsuit would essentially destroy the company. In a response, UTOPIA's attorney characterized Hogan's demands as "extortion" and "blackmail."

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Forced Apology and Admission of Inappropriate Conduct Held Not Defamatory

July 14, 2014,

Defamation claims arise frequently in employment settings. Employees often disagree with their performance reviews and, if they feel particularly aggrieved, resort to the courts to extract a modicum of revenge. Unfortunately for them, statements relating to employee discipline and termination made by managers and supervisors usually enjoy a qualified privilege against defamation claims. The privilege generally insulates such statements from liability absent clear and convincing evidence of malice or some other indicator that the privilege has been abused. When an employer makes a false and defamatory statement about an employee, but that statement is protected by a qualified privilege that has not been lost or abused, the statement is not actionable.

Of course, before the question of privilege even comes into play, there is the matter of whether the statement at issue is defamatory in the first place. In Regina M. Zarrelli v. City of Norfolk, Ms. Zarrelli sued the City of Norfolk, Virginia (her former employer) along with the City's Commonwealth's Attorney, Gregory D. Underwood, based in part on being required to apologize to a vendor. It didn't work, and the case was dismissed both because the statements were not defamatory, and because even if they were, they were protected by qualified privilege.

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No Defamation Liability for Statements made to FBI During Background Check

December 2, 2013,

In most (but not all) cases, absolute immunity applies to statements made by government contractors to government investigators in the course of an official investigation. The United States District Court for the Eastern District of Virginia recently addressed this issue in Kolakowski v. Lynch and found that statements made to the FBI in the course of an employment background check could not form the basis of a defamation action.

Daniel Kolakowski filed an employment discrimination charge with the EEOC against his former employer, MITRE Corporation, alleging he had been harassed because of his Polish ancestry. Kolakowski and MITRE eventually signed a mediation agreement resolving the dispute. Under the agreement, MITRE agreed to not discriminate or retaliate against Kolakowski for filing the charge.

When Kolakowski later applied for a job with the Federal Bureau of Investigation, he signed a form authorizing the FBI to investigate his background and allowing former employers to release information about him. The FBI interviewed three of Kolakowski's former supervisors at MITRE. The three employees allegedly told the FBI that FBI seal.jpgKolakowski took excessive days off work, exaggerated how much worked, lied about his wife having cancer, and was generally untruthful. When the FBI did not hire Kolakowski, he sued MITRE and the three supervisors for breach of contract and defamation. The defendants removed the case to federal court and moved to dismiss for failure to state a claim.

Kolakowski argued that the supervisors' statements to the FBI amounted to defamation and retaliation and therefore breach of his agreement with MITRE. Defendants argued that the statements were protected by absolute immunity necessitating dismissal of Kolakowski's complaint.

In Mangold v. Analytic Serv. Inc., the Fourth Circuit considered whether absolute immunity shielded a government contractor from liability arising from statements made in response to government investigators during an official investigation, and it outlined a balancing test in which courts consider the extent to which the public interest would be served by granting or refusing immunity. The Fourth Circuit held that a government contractor receives absolute immunity only insofar as necessary to shield statements and information, whether truthful or not, given by a government contractor and its employees in response to queries by government investigators engaged in an official investigation.

Here, MITRE is a government contractor, and Kolakowski admitted that the defendants were responding to an inquiry by government investigators. The only question was whether the FBI background check was part of an "official investigation" or, as Kolakowski argued, a routine employment inquiry. The court found it clear that the FBI inquiry was an official investigation since it was conducted by an official government agency. Additionally, the FBI's website described the form that Kolakowski signed as a standard background investigation form used by the entire U.S. intelligence community. Because the defendants were government contractors responding to an official inquiry, Mangold applied and provided them absolute immunity against defamation and retaliation charges. The court also dismissed the breach of contract claim because it was based entirely on the court finding the defendants defamed and retaliated against Kolakowski.

The court granted the defendants' motion to dismiss and dismissed Kolakowski's complaint with prejudice.

SCoVA Clarifies Law of Qualified Privilege

November 1, 2013,

Sometimes the context in which a statement is made provides the speaker with a qualified privilege against defamation claims. A qualified privilege generally attaches to communications between persons on a subject in which the persons share an interest or duty. If such a privilege applies, the speaker will not be liable for slander unless the plaintiff can show by "clear and convincing" proof that the privilege has been lost or abused. In a published opinion released yesterday by the Supreme Court of Virginia, the court reversed its prior decisions mandating that the speaker have acted in good faith as a prerequisite to the privilege attaching, and clarified the situations in which the privilege can be lost or abused.

The case involved a dispute between Dr. Robert Smith, a trauma surgeon, and Dr. Bradley Cashion, an anesthesiologist. In November of 2009, the two were part of an emergency operating team providing care to a critically injured patient. The patient did not survive the procedure, and Dr. Smith blamed Dr. Cashion. In the presence of other members of the operating team, Dr. Smith claimed the patient "could have made it with better resuscitation" and directly accused Dr. Cashion of purposefully failing to resuscitate him. "You just euthanized my patient," he allegedly told Dr. Cashion.

The trial court sustained Dr. Smith's demurrer to the statements that the patient "could have made it with better resuscitation" and "[y]ou determined from the beginning that he wasn't going to make it and purposefully didn't resuscitate him," finding them both to be non-actionable expressions of opinion. The Virginia Supreme Court disagreed, finding that both statements attributed the patient's death to Dr. Cashion's action or inaction, which it found to be an allegation of fact capable of being proven true or false. The latter statement was held to be the equivalent of the "you just euthanized my patient" statement, which the trial court correctly found to be a surgery.jpgstatement of fact. (Note: Justice McClanahan, however, found the euthanasia references to be mere rhetorical hyperbole, and wrote a detailed dissenting opinion explaining why she would find the statements not actionable).

On the matter of privilege, the Supreme Court agreed with the trial court's determination that Dr. Smith's euthanasia statements were qualifiedly privileged as a matter of law. All persons hearing the statements had a continuing interest in the level of care that had been provided and the cause of the patient's death. Good faith, the Court clarified, is not a prerequisite for attachment of the privilege. Good faith is a matter to be submitted to the jury, for its consideration in determining whether the privilege has been lost or abused.

Finally, the Court explained that the trial court erred by ruling that a qualified privilege may be lost only by clear and convincing evidence of personal spite or ill will. Such common-law malice is but one of numerous ways in which the privilege can be lost or abused. Among other ways, the privilege can be lost upon a showing that (1) the statements were made with knowledge that they were false or with reckless disregard for their truth; (2) the statements were communicated to third parties who have no duty or interest in the subject matter; (3) the statements were motivated by personal spite or ill will; (4) the statements included strong or violent language disproportionate to the occasion; or (5) the statements were not made in good faith.

The Virginia Supreme Court reversed the trial court's entry of summary judgment for the defendant and sent the case back for further proceedings.

Mere Suspicion of Negative Job Reference Insufficient to Support Defamation Claim

October 28, 2013,

Having trouble finding a new job? That doesn't necessarily mean that your former employer is spreading defamatory disinformation about you. Any defamation claim you might file against your former employer in federal court is going to be dismissed unless you can both identify exactly what was said about you, and produce evidence of those statements sufficient to support a jury verdict in your favor. On October 8, 2013, the Eastern District of Virginia granted the defendant's motion for summary judgment in Gierbolini v. SAIC, illustrating these principles.

Catherine Gierbolini was working for Science Applications International Corporation (SAIC) as a Personnel Coordinator in Kuwait under the supervision of Raymond Mattes and alongside subordinate Heather Hudson when her poor relationship with Hudson eventually led to her termination. Gierbolini accused Hudson of disobeying orders and reporting false claims of misconduct to management. Gierbolini and Hudson frequently bickered, and each submitted complaints about the other to Mattes who issued them both a written reprimand for unprofessional conduct. Mattes eventually gave Gierbolini a written memo terminating her employment.

Gierbolini was unable to secure employment after her termination and suspected that SAIC issued a "letter of release" - a document that the military uses to bar personnel from returning to an active theater of war. She also surmised that Mattes and Hudson gave poor references to potential employers. Gierbolini sued SAIC for defamation and other claims. SAIC moved for summary judgment on the defamation claim, arguing that it was time-barred and that Gierbolini had failed to produce sufficient evidence of the statements claimed to be defamatory.

A court will grant summary judgment where no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. If the evidence indicates that a reasonable jury could return a verdict in favor of the non-moving party, a genuine issue of material fact exists and the court will deny the motion. The court views the record in the light most favorable to the non-moving party, but the disputed facts must be material to an issue necessary for proper resolution, and evidence in support of a jury verdict for the non-moving party must be of sufficient quality and quantity.

The court categorized the statements alleged in the complaint as follows: (1) comments that Hudson made between June and October 2010 regarding Gierbolini's poor conduct and performance; (2) comments Mattes made in February 2011 to a government representative regarding the reason for Gierbolini's termination; and (3) a "letter of release" that SAIC allegedly provided to the government around February 2011 that barred Gierbolini from obtaining employment. SAIC also identified allegedly defamatory statements from Gierbolini's deposition testimony: (1) a 2010 memo from Mattes warning Gierbolini that her conduct violated SAIC's policy; (2) a 2010 memo notifying Gierbolini of her early termination; and (3) a negative reference that Hudson and Mattes allegedly gave to potential employers at unspecified times.

The court found that the statements allegedly made prior to December 2011 were time barred because, in Virginia, a plaintiff must bring a defamation claim within one year after defendant published the allegedly defamatory statement, and Gierbolini did not bring her action until December 2012. The court rejected Gierbolini's argument that her filing of an EEOC charge tolled the statute of limitations.

The court held that the remaining statements that Gierbolini relied on to support her defamation claim were based on pure speculation, which is insufficient to support a claim. Gierbolini contended that Hudson and Mattes gave negative phone references to potential employers, but her only evidence of these references was her difficulty obtaining new employment. One potential employer indicated that SAIC never returned its call, but the court found such evidence insufficient to support a jury verdict in Gierbolini's favor. No reasonable inference of defamation could be drawn from the scant evidence presented. Additionally, Gierbolini was unable to plead the exact words spoken or written, which Virginia law requires. For these reasons, the court granted SAIC's motion for summary judgment.

"Actual Malice" Is Not Actually Malice

September 9, 2013,

Where an otherwise defamatory statement is subject to a qualified privilege, a plaintiff can overcome that privilege by showing that the defendant acted with actual malice. However, "actual malice" in the context of a defamation action--also known as "New York Times malice," is a different concept than the common-law malice ordinarily required to support an award of punitive damages. A speaker acts with actual malice when he knows that his statement is false or acts with reckless disregard as to its truth. Mere dislike of the plaintiff is not sufficient to indicate a speaker acted with actual malice.

The distinction was explained last month in the Texas case of Tyson v. Austin Eating Disorders Partners, LLC. Edward Tyson worked for Austin Eating Disorders Partners (AED) as medical director of AED's Austin eating disorder treatment center. After Tyson was removed from his position, he asked his accountant to inquire about AED's improved financials. Mark McCallum, CFO of AED, responded to the inquiry with an email to Tyson, AED's Board of Directors, AED's attorney, and AED's accountant stating that AED's financials had improved because Tyson had been a bad medical director who had no idea how to run the treatment center and took kickbacks for referring patients to other facilities. In a Second Amended Complaint asserting various defamation theories, Tyson conceded that McCallum's email was subject to a qualified privilege, but argued that he overcame the privilege by alleging that McCallum acted with actual malice. AED and McCallum moved to dismiss the claim.

The court noted that actual malice is shown where a statement is made with knowledge that it is false or with reckless disregard as to its truth. Actual malice is not the same as ill will. The key to an actual malice showing, the court held, is evidence that the speaker knew or had reason to know that his statements were false.

Tyson's Second Amended Complaint failed to allege facts showing that McCallum made any of the statements in the email with knowledge that they were false or with reckless disregard of their truth. Instead, Tyson attempted to not equal.jpgshow that McCallum disliked Tyson and acted with animus towards him. The court held that such allegations were insufficient to show actual malice because, as controlling case law has made clear, actual malice and evil intent are two different things. The court went on to note that although evidence of ill will may support an allegation of malice, ill will alone is not sufficient.

Moreover, merely showing that the statement is false or that the speaker failed to investigate the truth or falsity of the statement is not enough to show actual malice, nor is mere negligence sufficient. Rather, a plaintiff must show that the defendant entertained serious doubts as to the truth of his statements. Here, Tyson failed to allege facts showing that McCallum knew or had reason to know that any of his statements were false or had serious doubts about the truth of his statements and therefore did not overcome the qualified privilege.

In short, although the actual malice inquiry requires consideration of the state of mind of the speaker, the relevant state of mind is whether the speaker knew or had reason to believe the statement was false, not whether the speaker harbors ill will towards the plaintiff. Because Tyson failed to overcome the qualified privilege, the court granted defendants' Motion to Dismiss. The court further dismissed Tyson's claims with prejudice as he had amended his pleading multiple times without being able to plead any facts in support of actual malice.

Pilot's Defamation Case Goes to Supreme Court

June 24, 2013,

Applying Virginia law, the Colorado Supreme Court upheld a $1.4 million jury verdict against Air Wisconsin back in March of 2012, finding it was responsible for slander of a former pilot and not entitled to immunity. On June 17, 2013, the United States Supreme Court granted certiorari to consider the question of whether a court can deny the immunity provided by the Aviation and Transportation Security Act (ATSA) without a prior determination that the air carrier's statements to the Transportation Security Administration (TSA) were materially false.

After the September 11th terrorist attacks, Congress passed the ATSA in order to encourage the reporting of security concerns. The ATSA requires airlines and their employees to report potential security threats to the TSA. Reporting parties are given broad immunity and may only be liable for reports made with actual knowledge that the report was false, inaccurate, or misleading, or with reckless disregard as to the truth or falsity of the report. Because failure to report can result in civil penalties, shorthand for the policy has become known as "when in doubt, report."

William Hoeper was a pilot for Air Wisconsin Airlines. Hoeper apparently had failed three proficiency exams and abandoned his fourth attempt. Approximately ninety minutes into the test, Air Wisconsin contends that Hoeper ran the simulator out of fuel, flamed out the engines, and nearly crashed. According to Air Wisconsin, Hoeper knew he would be terminated and was acting irrationally, yelling and cursing at his instructors. Hoeper's version of the SCT.jpgstory is that Air Wisconsin was conducting the simulator test unfairly, and a personal dispute was escalated into a matter of national security.

A manager heard about the incident from other employees and was aware that Hoeper had been issued a firearm under the Federal Flight Deck Officer program but was unsure whether he was carrying it. Based on these facts and knowledge of other incidents in which terminated employees boarded planes intending to crash them, the manager reported Hoeper to the TSA and booked him on a flight from Dulles back home to Colorado. Hoeper contends that the manager responded to his threat to call his union by making a false report.

Hoeper was not armed, a fact which TSA agents discovered after removing Hoeper from the flight to Colorado and searching and questioning him. TSA cleared Hoeper for travel, but Air Wisconsin fired him the next day. Hoeper sued his employer in Colorado for defamation based on the manager's statements to TSA. Air Wisconsin argued it was immune from suit under the ATSA. A jury awarded Hoeper $1.4 million. The Colorado Court of Appeals affirmed, and the Colorado Supreme Court reviewed the case.

The Colorado Supreme Court noted that the issue of ATSA immunity was a question of law for the court and should not have been submitted to the jury. However, the court found this to be harmless error and affirmed the decision, holding that Air Wisconsin was not entitled to immunity under the ATSA. The court deferred to the jury's finding that the manager did not actually believe Hoeper to pose an actual threat to safety.

Air Wisconsin contends that the manager did exactly what Congress intended when he reported Hoeper, an employee about to board an airplane and whose mental state concerned him and that the state court's decision will chill future reports of potential security threats and thwart the ATSA goal of improving airport transportation security. On review, The United States Supreme Court will determine whether a court can deny ASTA immunity without first deciding whether the airline's report was true. Resolution of this question could have long term repercussions for airport security procedures.

Federal Employees May Be Immune From Defamation Claims

April 8, 2013,

I previously reported on the Stafford County case of Suzanne Brown v. Katherine Schoeneman in which Brown, an FBI agent, brought a defamation action against Schoeneman for allegedly false reports Schoeneman made to superiors accusing Brown of making sexual advances toward her. The Government removed the case to federal court, substituted itself as the defendant under the Westfall Act, and moved to dismiss under the Federal Tort Claims Act. The court granted the motion as the FTCA's waiver of sovereign immunity expressly excludes claims for libel and slander. See 28 U.S.C. § 2680(h).

The Westfall Act (aka the Federal Employees Liability Reform and Tort Compensation Act of 1988) amended the Federal Tort Claims Act to make it the exclusive remedy for torts committed by federal employees acting within the scope of their employment. It precludes federal employees from being sued for claims arising under state tort law (such as slander or intentional infliction of emotional distress) if they were acting within the scope of their employment. See 28 U.S.C. § 2679(b)(1). If the FTCA precludes recovery against the United States, then the plaintiff may be left without a remedy, as this case demonstrates.

Upon consideration of the Government's motion to dismiss, the only issue before the court was whether the allegedly defamatory acts fell within the scope of Ms. Schoeneman's employment. The plaintiff did not dispute that if the conduct was committed within the scope of employment, substitution of the United States as the defendant and removal to federal court was appropriate.

The Government's certification that a party acted within the scope of employment is conclusive unless challenged. Where challenged, the certification is prima facie evidence that the alleged acts were within the scope of employment, and the plaintiff must prove by a preponderance of the evidence that the employee was not acting brickwall.jpgwithin the scope of employment. A plaintiff is required to provide specific evidence rather than conclusory allegations that contradicts the certification. The question is always one of law for the court to decide, and discovery is not appropriate on the issue unless there is a material dispute of fact.

The court examined whether Brown had demonstrated by a preponderance of the evidence that Schoeneman was acting outside the scope of her employment when she reported Brown's alleged sexual harassment. The court noted that sexual harassment is illegal. The FBI has a policy of no tolerance where sexual harassment is concerned, and employees are encouraged to report such matters. Preventing and correcting workplace sexual harassment is therefore within the ordinary course of the FBI's business. Additionally, Schoeneman was on duty when she made the reports, and she made them at FBI facilities. Schoeneman, an FBI employee, followed FBI procedure and policy and reported an incident of harassment in the workplace. She clearly was acting within the scope of her employment, the court found. Brown had thus failed to meet her burden.

Brown argued that Schoeneman's conduct fell outside the scope of her employment because she committed an intentional tort when she reported the alleged harassment and because her reports were motivated entirely by her own interests and reckless disregard for the truth. The court rejected these arguments as the willfulness or wrongful motive of an employee does not excuse an employer's liability. Intentional torts are within the scope of employment as long as the act was done within the ordinary course of business. Any contrary rule would undermine the Government's sovereign immunity. Additionally, the Supreme Court of Virginia has held that an employee's motive in performing the allegedly tortious act does not determine whether the action falls within the scope of employment. The issue is whether the service in which the tortious act was done was within the ordinary course of business. For these reasons, the court dismissed the case.

FTCA Bars Defamation Claims Against Federal Government

March 6, 2013,

If you work for the federal government and a co-worker spreads false and malicious rumors about you that damage your reputation, it will be very difficult to pursue a claim for libel or slander against the individual in question. The recent Maryland case of Shake v. Gividen demonstrates the hurdles a prospective plaintiff would face in pursuing such an action.

Donald Shake worked for the Department of Veterans Affairs until he was terminated in 2011. Teresa Gividen and Brian Sexton also worked at the Department of Veterans Affairs. Gividen was the Assistant Human Resources Chief. Shake claimed that Gividen and Sexton accused him of accessing the medical records of a veteran and not completing hundreds of work orders. He asserted that Gividen and Sexton started rumors that Shake was the subject of disciplinary proceedings and that numerous complaints had been lodged against him. Shake sued Gividen and Sexton for defamation, alleging that they slandered his name and reputation by making false and malicious statements about him. Shake alleged that he lost his job and retirement benefits as a result of the slander and that his reputation was harmed such that he was unable to secure subsequent employment.

The United States filed a motion contending that Gividen and Sexton should be dismissed because they were acting within the scope of their employment, and it asked to be substituted as the sole defendant in the case pursuant to the Federal Tort Claims Act (FTCA). The United States further argued that Shake's defamation claim should then be dismissed for failure to exhaust administrative remedies and on sovereign immunity grounds. The court agreed.

The FTCA provides that when the Attorney General certifies that a defendant employee in a state court case was acting within the scope of his employment with the federal government at the time of the incident, the case shall capitol.jpgbe removed to federal court and be considered an action against the United States and the United states shall be substituted as the party defendant. 28 U.S.C. § 2679(d)(2).

Here, the United Stated Attorney General for the District of Maryland, acting on behalf of the U.S. Attorney General, certified that both Gividen and Sexton were acting within the scope of their employment at all times relevant to Shake's claims. Shake challenged the certification, and when certification is challenged, the burden shifts to the plaintiff to prove that the defendants were acting outside the scope of their employment.

In this case, Shake did not present any evidence nor hint at any evidence that might suggest that Gividen and Sexton were acting outside the scope of their employment. The court found that Shake therefore failed to meet his burden, and it dismissed the claims against Gividen and Sexton. The court substituted the United States as the sole defendant pursuant to the FTCA.

Under the FTCA, a plaintiff must exhaust his administrative remedies by presenting his claim to the appropriate federal agency before filing an action in federal court. Shake should have brought his complaint to the Department of Veterans Affairs. Shake claims that he appealed his termination to the Merit Systems Protections Board and therefore satisfied the exhaustion remedy. However, the United States provided evidence that there was no record of such a claim. The court found that Shake failed to file an administrative claim with the Department of Veterans Affairs as required by the FTCA and therefore it dismissed his claim.

The court went on to note that even if Shake had filed an administrative claim with the Department of Veterans Affairs, his action still would fail because the FTCA bars suits for slander against the federal government. See 28 U.S.C. § 2680(h).

False Accusation of Sexual Aggressiveness Per Se Defamatory, Claims FBI Agent

February 22, 2013,

Workplace defamation suits will usually raise privilege issues. When one employee complains to a manager or supervisor about another employee and falsely maligns the other employee's reputation in the process, the court will need to sort out whether the complaint is protected by qualified privilege. If it is, the statement can't form the basis for a claim unless it was made with common-law malice or made to persons having no business hearing it. Common-law malice is different than the constitutional "New York Times" malice so often discussed in analyzing defamation liability. Common-law malice generally refers to some form of ill will on behalf of the speaker, motivated by things like hatred or a desire for revenge. In Virginia, there is a presumption that the speaker acted without malice.

When a slanderous statement occurs at work, it often involves an accusation that a co-worker is unfit to perform the duties of his or her job, due to a lack of competence or lack of integrity. Statements such as these which prejudice a person is his or her profession fall into the defamation per se category, which means that a jury can presume the statement was harmful to the plaintiff, even if special damages are not proven.

Earlier this month, a case from Stafford County was removed to federal court in Alexandria. Suzanne Brown, the plaintiff, was an FBI agent assigned to the Behavioral Analysis Unit (BAU) within the Critical Incident Response FBI.jpgGroup (CIRG). The BAU handles cases involving threatened violence against public officials, and as a program manager, Brown was responsible for assessing such threats. Katherine Schoeneman, the defendant, is a psychologist who had formerly worked with Brown on some threat assessment cases under a contract with CIRG. Schoeneman offered her psychological observations while Brown provided investigative and law enforcement expertise.

The Amended Complaint alleges that in January 2010, Schoeneman failed to review a file that Brown had given her in a timely manner. Schoeneman was irritated when Brown took the file back, and she feared the Department of Justice would not renew her contract if Brown complained that Schoeneman could not handle her workload. Schoeneman then allegedly made false reports to superiors, both oral and written, claiming that Brown made sexual advances toward her and engaged in other inappropriate conduct which raised doubts about Brown's judgment and fitness for duty. The FBI investigated Schoeneman's claims, and Schoeneman allegedly made additional unsolicited and irrelevant allegations regarding Brown's psychological health.

Brown's lawsuit includes separate counts for defamation, defamation per se, and intentional infliction of emotional distress. Brown claims that Schoeneman knowingly made defamatory statements and demonstrated a reckless disregard for the truth. In doing so, Brown asserts that Schoeneman willfully and maliciously sought to harm her and that the false statements imputed a lack of fitness to perform her work duties and called her character into question. Brown alleges that, due to Schoeneman's defamation, her reputation has suffered, and she has experienced a loss of income due to demotion and suspension. She also claims emotional distress including anxiety and depression, and physiological harm such as vomiting, insomnia and chest pain. Brown is asking the court to award her economic damages, non-economic damages, punitive damages, and her fees and costs.

Absence of Malice Presumed in Employment Context

January 9, 2013,

Emmett Jafari sued the Greater Richmond Transit Company for defamation and retaliation under the Fair Labor Standards Act. Jafari was a Specialized Transportation Field Supervisor for a Virginia company that transported clients enrolled in a state economic program. John Rush, a GRTC driver, told Jafari's Chief Operating Officer, Eldridge Coles, that (1) he had seen Jafari in a heated discussion with a client in front of her home and (2) when the client boarded the van, she said Jafari had told her, "If you have something to say, say it to my face." Coles allegedly told Jafari's supervisor, Von Tisdale, "a customer had complained that Mr. Jafari told her 'if you have something to say, say it to my face.'" When Jafari was later fired, he sued, alleging Coles' statement to Von Tisdale was defamatory.

In Virginia, defamation requires (1) a publication, (2) an actionable false statement, and (3) negligence or malicious intent (depending on the circumstances). Statements made between co-employees and employers in matters pertaining to employee discipline and termination enjoy a qualified privilege, which insulates those statements from liability unless they are made with malice or shared with people (including fellow employees) who have no duty or interest in the subject matter. If a defendant makes a statement within the scope of a qualified privilege, then the statement is not actionable, even if false or based on erroneous information. The law presumes absence of malice.

To defeat this privilege, Jafari had to show, with "clear and convincing" evidence, the statements met the common law malice requirement, i.e., that they were said with "some sinister or corrupt motive such as hatred, revenge, personal spite, ill will, or desire to injure the plaintiff; or ... made with such gross indifference and recklessness as AbsenceOfMalice21.jpegto amount to a wanton or willful disregard of the rights of the plaintiff." This he could not do, so the court entered summary judgment in favor of the employer.

Jafari claimed Coles' motivations included racial animosity and the desire to humiliate him and that Coles set out to solicit negative information about him from others. Weighing the submissions under summary judgment standards, the Court found Jafari's claims did not demonstrate malice. Coles and Von Tisdale were supervisors with a duty to monitor and manage employee performance and Coles had only repeated the information to others in Jafari's supervisory chain with similar monitoring and management duties. These people were protected by qualified immunity.

Government Defamation May Violate Civil Rights

November 5, 2012,

In theory at least, when a government agency defames an individual, the defamation may be characterized as a violation of civil rights: a deprivation of "liberty" without due process of law. The United States Supreme Court, however, has held that an ordinary state-law defamation claim against the government will usually not be sufficient to state a civil rights claim. Under the "stigma plus" or "reputation-plus" test, a plaintiff must prove some loss beyond loss of reputation, such as the loss of a job. A recent New York case demonstrates how difficult it can be to maintain such an action.

Michael Jones, Jr., was Canandaigua, New York's Planning Board Attorney in 2008. Per agreement, he billed at two rates, depending on the circumstances. The Town Board approved his billing statements until August when members of the Town Board challenged the billing. The Town Board investigated and published a report accusing Jones of ethical violations. It referred the matter to the District Attorney and took steps to get him fired, get him to resign, or prevent his contract from being renewed. He completed his contractual term but did not seek renewal, believing doing so would be futile.

Claiming the extensive press coverage hurt his legal practice, Jones sued the Town, the majority Town Board members, and the Town Board attorneys for several state law actions, including defamation. In his federal actions, he claimed the Town violated his right to substantive due process and his civil rights, denying him a property right plus.pngof continued service as Planning Board Attorney and defaming him so badly that the stigma has substantially harmed his ability to practice law.

The due process clause protects certain 'liberty' interests including, in some cases, the right to contest, at a public hearing, stigmatizing government accusations that substantially disable an individual. To avoid dismissal, Jones had to convince the court that he would be able to show (1) the government published a provably false and actually false statement that was sufficiently derogatory to injure his reputation; and (2) a material state-imposed burden or state-imposed alteration of the plaintiff's status or rights, i.e., a stigmatizing statement plus some deprivation of a tangible interest.

Jones claimed the defamatory statements cost him several types of business and dried up his municipal work and municipal positions. The court found that Jones failed to meet the "aggravating circumstances" requirement of the stigma-plus analysis and entered summary judgment in the defendants' favor.

D.C. Defamation Cases Continue to Meet Anti-SLAPP Statute

November 2, 2012,

Statements made in the course of litigation by parties to the case are absolutely privileged and cannot form the basis of a defamation action. At the same time, reporters enjoy a "fair report" privilege that allows them to report and comment on judicial proceedings without fear of defamation liability, even if they repeat the allegedly defamatory statements in their coverage of the case, provided the report is a fair and accurate description of the case. Does it follow, then, that a litigant can make defamatory comments to a reporter during the course of a case? Most courts would answer that in the negative, since the reporter is not involved in the case. But if that litigant is speaking about an issue of public interest, such as the operation of the District's financial office, his comments may be protected by D.C.'s anti-SLAPP act.

Eric Payne, former contracting director for the District of Columbia, sued D.C.'s Chief Financial Officer, Natwar Gandhi, for wrongful termination. In an interview with The Washington Post, Gandhi claimed that he fired Payne because he was "a very poor manager," "nasty to people," and "rude to outsiders." Payne then sued Gandhi and the District of Columbia alleging that these remarks defamed him. The city has indicated that it plans to file a special motion to dismiss the case under the city's anti-SLAPP statute.

A "SLAPP" (or Strategic Lawsuit Against Public Participation) can exist in many forms but traditionally consists of a frivolous lawsuit filed by one side of a public debate against someone who has exercised the right of free speech NatG.jpgto express an opposing viewpoint. The anti-SLAPP statute was enacted primarily to protect citizen activists from these lawsuits filed for intimidation purposes, but can be applied in any situation where the lawsuit threatens the right of advocacy on issues of public interest.

Since the statute is relatively new, only a handful of suits have tested the anti-SLAPP statute. A D.C. firefighter filed a libel claim against a television station which aired a report about the firefighter's high overtime earnings. The court granted the station's anti-SLAPP motion to dismiss. Several federal litigants have invoked the statute, and the courts have thus far found that the law does not apply in federal court. Other cases have been settled before the anti-SLAPP claims were decided. In another case, television host Rachel Maddow invoked the statute to dismiss a claim filed by a Christian rock artist against her and MSNBC. Although a Superior Court judge granted the motion, the plaintiff is attempting to remove the case to federal court where the anti-SLAPP statute might not apply.

Payne will be unable to continue with discovery in his case while the anti-SLAPP motion is pending, and if the city prevails, Payne could be liable for the city's legal fees.

Summary Judgment Still Possible in Virginia State Court

October 29, 2012,

On October 4, 2012, the Virginia Supreme Court rejected the appeal of a personal trainer, represented by Virginia Beach lawyer Jeremiah A. Denton III, and allowed to stand the summary judgment order entered by the Norfolk Circuit Court against the trainer on her defamation claim. This shows just how serious the Virginia Supreme Court is about the absolute privilege that extends to defamatory statements made in demand letters preliminary to contemplated litigation and sent in good faith. Summary judgment is appropriate if a defamation claim is based on a privileged statement.

Darryl and Julie Cummings were members of the Norfolk Yacht and Country Club ("NYCC"). Deborah Allison, a personal trainer at NYCC and at Norfolk Academy, pursued and entered into a physical relationship with Julie. Darryl reported Addison's actions to NYCC management. Though the NYCC warned her not to pursue Julie Cummings on NYCC property, Addison disobeyed and was fired. Cummings and his wife ultimately divorced.

Darryl sued Addison for intentional infliction of emotional distress, tortious interference, and professional malpractice. Addison counterclaimed for intentional infliction of emotional distress, tortious interference with norfolk.JPGcontract, tortious interference with a contract expectancy, and defamation. Addison's claims stemmed from Cummings' email to the NYCC president, a draft complaint he sent to NYCC's attorney, and emails he sent to Norfolk Academy's headmaster.

In the NYCC email, Cummings stated, "The Cummings family did not join the club for an employee to become a predator, stalk, and harass them or for an environment that would encourage this kind of behavior." Addison claimed this was libel per se but the Court found it mere opinion and therefore not actionable.

Addison also claimed Cummings' draft complaint defamed her. As the Virginia Supreme Court clarified in June 2012, communications made outside of court but preliminary to proposed judicial proceedings will be absolutely privileged from defamation liability where (1) the statement is made preliminary to a proposed judicial proceeding; (2) the statement is "material, relevant or pertinent" to the proceeding; (3) the proceeding is contemplated in good faith and is under serious consideration; and (4) the communication is disclosed only to persons having an interest in the proposed proceeding.

The court applied an earlier version of this test and found that privilege should apply because the draft complaint had "some relation to a proceeding that is contemplated in good faith and under serious consideration" and because the draft complaint was substantially similar to the actual complaint.