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 to 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.