Few workplace experiences are more demoralizing than being unfairly blamed by a superior for a mistake that was not one’s own, particularly when the error in fact originated with the supervisor. The injustice becomes especially acute when the supervisor or the employer has ready access to the media and the capacity to shape public perception through official press releases. When that power is misused to shift blame and to publicly impugn the competence or character of a subordinate, the reputational damage can be severe. If a press release contains a false statement that tends to lower an employee in the estimation of the community or deter others from associating with him, defamation liability may arise.
The Western District of Virginia recently faced such a situation and decided the plaintiff had alleged sufficient facts on his defamation claim to survive a motion to dismiss. The facts of Jacob T. Unger v. Timothy C. Carter are essentially as follows, as laid out in the opinion (and derived from the allegations in the complaint).
On April 5, 2024, Deputy Jacob Unger responded to a single-vehicle crash in Shenandoah County alongside Master Deputy Hank Hoover. The driver, Kyle Ortts, was located near the scene. Unger, recognizing Ortts as a former classmate but not a close acquaintance, conducted a brief assessment and saw no immediate signs of intoxication. However, at Hoover’s suggestion, Unger administered a preliminary breath test (PBT), which registered a blood alcohol concentration of 0.098 — above Virginia’s legal limit of 0.08. Following standard protocol, Unger had activated his body-worn camera. But after conferring with Hoover, he was instructed to deactivate it — an action that violated department SOPs. Afterward, Sergeant Keith Staffa arrived and told
The next day, Unger was told the reckless driving summons used the wrong code. He was given two options by his supervisors: either correct the summons through a magistrate or shred it and drop the matter. Following repeated assurances that he would face no consequences, Unger destroyed both copies of the summons after retrieving the defendant’s copy. Days later, he casually mentioned his discomfort with the situation to a state trooper, who reportedly alerted the Commonwealth’s Attorney. This set off a chain reaction culminating in Unger’s termination by Sheriff Timothy Carter, who proceeded to issue a public press release and video on May 7, 2024. In that press release, Carter claimed that “the deputy” (easily identifiable in the linked video as Deputy Unger) “made no effort to investigate the drunk driving incident,” even though the driver had admitted to drinking and crashed into a structure. Carter also stated that Unger “made a decision to charge reckless driving,” and noted that he “offered and received a fist bump” from the driver upon collecting the summons for destruction.
Unger sued Carter for defamation, arguing that the statements in the press release falsely portrayed him as negligent and unethical, ignored the fact that he had merely followed his superiors’ orders, and directly harmed his reputation and employment prospects. The court agreed that he had alleged a prima facie case of defamation under Virginia law.
Defamation consists of three elements: (1) publication of (2) an actionable statement with (3) the requisite level of intent. Carter contested only the second element, arguing that his statements were not actionable because they were either (a) opinions rather than factual assertions, or (b) not specifically “of or concerning” Unger.
The court found that at least two statements made by Carter in the press release were factual assertions that could plausibly be proven false. First, Carter stated that Unger made “no effort to investigate the drunk driving incident.” The court held this could be factually disproven, as Unger had in fact administered a preliminary breath test that showed the driver was over the legal limit. By administering the test, he had clearly taken an investigatory step, so it would be false to assert that he made “no effort” at all. Second, Carter claimed Unger “made the decision to charge reckless driving.” However, according to the complaint, Unger had not made that decision independently but had done so under direct orders from his supervisors. Both statements were therefore identified by the court as potentially false factual claims, and not protected expressions of opinion.
As for whether the statements were “of or concerning” Unger—a necessary part of the “actionable statement” element of a defamation claim—the court concluded that they were. Even though Carter never used Unger’s name in the press release or video, the materials included surveillance footage that clearly showed Unger interacting with the driver, including the now-publicized “fist bump.” The court found that those who knew Unger would reasonably understand that the statements referred to him. This was sufficient to meet the “of and concerning” standard at the motion to dismiss stage.