The Virginia Defamation Law Blog
In an opinion published earlier this week by a federal court in Alexandria, the court analyzed a defamation claim brought by a sales representative against her former employer, manufacturer of the Mammotome breast biopsy system. Her former supervisor, after terminating her employment, had met with her largest customer to introduce her replacement to them, and when asked about her whereabouts, the supervisor responded that the employee had “up and left” and added that she was “not a closer.” The customer was not pleased, as they had held the employee in very high regard, and when they heard the news that she had parted ways with the manufacturer, they reached out to her and helped her land a job with another medical device company. The employee was also not pleased when she heard this, and she sued her old boss for defamation. The court denied her claim and entered summary judgment in favor of her former employer.
The case is Jasna Kuhar v. Devicor Products, Inc. The first statement at issue was that of Ms. Kuhar’s former supervisor, Joseph Baia, who told the customer that Ms. Kuhar had left Devicor voluntarily, without giving prior notice (which is how the court interpreted the “up and left” statement). As a preliminary matter, the court noted that this was a statement of fact, capable of being proven true or false (which is a prerequisite for defamation liability). The court disagreed, however, with Ms. Kuhar’s argument that the statement was “per se” defamatory in that it disparaged her qualifications as a sales representative. Ms. Kuhar presented no evidence to suggest that immediate resignation was frowned upon in the sales profession. (And at-will employees have the right to resign without giving advance notice). Here, Ms. Kuhar’s offer letter stated expressly that “Your relationship with the Company will therefore be at-will, which means you or the company may terminate your employment at any time, with or without cause or notice.” The court also noted that the undisputed evidence not only showed that the statement had not prejudiced her in her profession or trade, but that she had not, in fact, suffered any damage. Her customers testified that they continued to hold her in high regard, and even helped her find another job.
What’s more, the court found that the “up and left” statement was essentially true. When Baia told Kuhar she was being terminated, he gave her the option of continuing to work for a one-month transition period, and she agreed. She later changed her mind and left one week earlier than she said she would. If Baia told a customer that Kuhar had “up and left,” that either meant that Kuhar had abandoned the transition plan she initially agreed to, or that Kuhar voluntarily resigned. The very fact that the statement was ambiguous made it less likely to be actionable. (See Biospherics, Inc. v. Forbes, Inc., 151 F.3d 180, 185 (4th Cir. 1998)). But regardless, the court found the statement to be true, or substantially true, under either interpretation. She did, after all, quit prior to the date she had agreed would be her last day of employment. And while Kuhar not not, in fact, voluntarily resigned, such an interpretation would still be substantially true for purposes of defamation law.
A statement is substantially true “unless it would have a different effect on the mind of the reader from that which the…truth would have produced.” (See Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517 (1991)). Looking at the “sting” of the statement, the court found that the literal truth–that Kuhar had been
terminated for failing to meet her sales quotas–would have been more damaging to her professional reputation than the “up and left” statement that was made. Largely for that reason, the court held the statement was substantially true, even under this interpretation.
The other statement at issue was the one that Ms. Kuhar was “not a closer.” The court held that Ms. Kuhar could not prevail on this statement for a couple of reasons. First, the statement is a matter of opinion, and defamation claims cannot be based on expressions of pure opinion. Second, in the alternative, even if the statement were interpreted as factual and verifiable in nature, the court found that Ms. Kuhar wasn’t a “closer,” as measured by her consistent failure to hit sales targets over a number of years, so the statement was true. And truth is a complete defense to a defamation claim.