Workplace Defamation Category Archives — Page 2 of 5 — The Virginia Defamation Law Blog Published by Reston Defamation Attorney — Virginia Slander & Libel Lawyer

August 20, 2019

Does Absolute Judicial Privilege Apply to Employer Investigations?

In Virginia, some statements enjoy absolute immunity from defamation claims. Such statements are said to be protected by an absolute privilege. The most common of the absolute privileges is the so-called “judicial privilege,” which protects statements made in connection with and relevant to a judicial proceeding. The doctrine is typically applied to statements made by witnesses testifying in court, or to scandalous statements made in pleadings or motions filed with a court in connection with a judicial proceeding. For example, if Mrs. Smith files for divorce against Mr. Smith on the ground that he allegedly had an affair with the couple’s au pair, Mr. Smith won’t be able to sue Mrs. Smith for defamation even if the allegation about him and the au pair is completely false; the allegation was made in a judicial proceeding, so it’s absolutely privileged.

There seems to be a trend towards broadening this privilege by expanding the scope of what it means for a statement to have been made “in connection with” a judicial proceeding. In 2012, The Virginia Supreme Court held in Mansfield v. Bernabei that communications made outside of court but preliminary to a proposed judicial proceeding 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 following year, a federal court sitting in Virginia held that once litigation is filed, the absolute judicial privilege could extend to statements made outside of court, even if made to persons without an interest in the litigation. And now this year, we have another federal case further extending the privilege to cover statements made in the course of a human-resources investigation of an employee’s complaint.

June 16, 2018

No Vicarious Liability Unless Statement Made Within Scope of Employment

by Lee E. Berlik

Vicarious liability principles apply to defamation actions just as they do in tort law generally: the principal is normally liable for the tortious conduct of his agent committed within the scope of the agency relationship. Employers can thus be held liable for defamatory statements made by their employees while acting within the scope of their employment. This does not mean, however, that employers need to police every single employee interaction lest they be subject to defamation liability. Virginia businesses cannot be held liable for employee statements made outside the scope of their employment. But what does that mean, exactly?

On June 11, 2018, the Fourth Circuit decided the case of Sade Garnett v. Remedi Seniorcare of Virginia, LLC. Remedi SeniorCare is an institutional pharmacy that ships medications to nursing homes and other long-term care facilities. Sade Garnett worked at its Ashland, Virginia location, often alongside Aaron Try, a night supervisor. One day, Garnett told Try she would be out the next day to undergo surgery. During that absence, Try allegedly told other Remedi employees that “Sade was having surgery on her vagina because she got a STD [be]cause that’s the only reason a female gets surgery on her vagina,” and that “Sade was having a biopsy of her vagina.” Garnett sued Remedi for defamation, based on the false STD accusation.

January 4, 2018

Where Qualified Privilege Applies, Defamation Case May Never Reach a Jury

by Lee E. Berlik

To establish defamation, a plaintiff in federal court must plausibly show the defendant (1) published (2) an actionable statement with (3) the requisite intent. An “actionable statement” is one that is (1) factual (as opposed to opinion); (2) false; (3) defamatory in nature; and (4) about the plaintiff. Certain potentially defamatory statements are protected from defamation actions by qualified privilege. Specifically, the privilege applies to communications between persons on a topic in which they share a common interest or duty. (See Larimore v. Blaylock, 259 Va. 568, 572 (2000)).

A plaintiff can overcome this privilege if he shows by clear and convincing evidence 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. (See Cashion v. Smith, 286 Va. 327, 339 (2013)).

October 13, 2017

Separating Fact From Opinion Is Not Always Easy

by Lee E. Berlik

Defamation Law 101 teaches that expressions of opinion are protected by the First Amendment and are not actionable in court. To bring a successful defamation suit, you’ll need to prove that someone made a false statement of fact about you. If that person merely expressed his or her personal opinion, the law of defamation will not provide a remedy, no matter how unfavorable the opinion is or how harshly it was expressed. Distinguishing assertions of fact from expressions of opinion, however, is not always an easy task. Smart lawyers and even judges will frequently disagree with each other on whether a particular statement is “fact” or “opinion”.

In theory, the differences are clear. A statement of fact is one that contains an assertion capable of being proven true or false. Statements of opinion are those that can’t be proven true or false because they depend on the speaker’s personal, subjective viewpoint. A recent Virginia case illustrates the difficulties that come with applying this test to real-world situations.

March 16, 2017

No Discovery Rule for Defamation Claims in Virginia

by Lee E. Berlik

The statute of limitations for defamation actions in Virginia is one year. This means that if somebody libels you on the Internet, you have just one year from the date of the defamatory post in which to file a lawsuit. A question I get asked a lot is, “what if someone defamed my character several years ago but I just found out about it last week?” Here in Virginia, the answer (I’m sorry to say) is: it doesn’t matter. The statute of limitations begins to run when the injury occurs, not when you discover you’ve been injured, and courts have held that when someone defames your character, your reputation suffers even if you don’t know about it. Although it’s certainly true that you won’t become emotionally upset or embarrassed about false statements made about you behind your back, the fact remains that emotional distress is not a necessary element of a cause of action for defamation, and statues of limitation begin to run once the elements of the claim have been met. When a person’s reputation is unfairly attacked with false statements, the injury is immediate: people who know you and who read the statement and believe it will think less of you as a person, regardless of whether you know about it and regardless of whether you have suffered any emotional distress because of it.

Certain causes of action in Virginia–like fraud–are subject to a “discovery rule,” meaning that the cause of action will not accrue, and the statute of limitations will not begin to run, until the alleged misconduct is either discovered, or, by the exercise of due diligence, reasonably should have been discovered. Defamation claims, however, do not enjoy the benefit of the discovery rule, so the limitations period begins to run as soon as an actionable statement is published with the requisite intent. (See, e.g., Jordan v. Shands, 500 S.E.2d 215, 218 (Va. 1998) (holding that “when an injury is sustained in consequence of the wrongful or negligent act of another and the law affords a remedy, the statute of limitations immediately attaches.”)). Illustrating this point is the case of Robert L. Matthews v. Tracy M. Gee, decided March 9, 2017, by the Eastern District of Virginia.

March 6, 2017

Don’t Overlook Defamation Per Quod

by Lee E. Berlik

When suing for libel or slander in Virginia, it helps if you can make out a claim for that form of defamation known as defamation per se. If the judge agrees that your claim qualifies, he or she will instruct the jury to presume general damages and authorize it to award punitive damages even in the absence of compensatory damages. However, too often, plaintiffs place unneeded emphasis on trying to characterize their claim as defamation per se and overlook regular garden-variety defamation, known as defamation per quod. Defamation per quod can give rise to fairly substantial liability, as Rolling Stone found out when a former University of Virginia won $3 million based on a false portrayal of her in an article about rape on campus.

Defamatory words fall into the “per se” category if they: (1) impute to a person the commission of some criminal offense involving moral turpitude for which the party, if the charge is true, may be indicted and punished; (2) impute that a person is infected with some contagious disease, where if the charge is true, it would exclude the party from society; (3) impute to a person unfitness to perform the duties of an office or employment of profit, or want of integrity in the discharge of the duties of such an office or employment; or (4) prejudice the plaintiff in his or her profession or trade. (See Carwile v. Richmond Newspapers, 196 Va. 1, 7 (1954)).

October 28, 2016

Former Boss Fired You But Tells People You Quit: Not Defamatory

by Lee E. Berlik

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.

April 10, 2016

Opinions Laden with Factual Content Are Actionable

by Lee E. Berlik

As a general proposition, libel and slander liability requires a defamatory statement of fact; expressions of opinion are not actionable. Distinguishing assertions of fact from expressions of opinion, however, is not always an easy task. Factual statements are generally those that contain—expressly or impliedly—a provably false factual connotation. “Mr. Smith drank ten shots of tequila last night” is a statement of fact; either he drank ten shots or he didn’t. Expressions of opinion, on the other hand, are relative in nature and depend largely upon the speaker’s personal viewpoint. They tend to consist of evaluative statements reflecting the speaker’s own political, moral, or aesthetic views. “I think Mr. Smith drinks more tequila than he really should” would likely be deemed an expression of opinion by most courts. But consider the statement “I think Mr. Smith must be an alcoholic.” Fact or opinion?

Statements that appear at first to be opinions but which could fairly be interpreted as implying the existence of facts not disclosed by the speaker are treated by Virginia courts as opinions “laden with factual content,” which is a sufficient predicate upon which to base a defamation action. (See Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277, 298 n.8 (1987)). Ultimately, whether a statement of apparent opinion will be deemed sufficiently laden with factual content to support a defamation action will depend on a number of factors that would influence how a reasonable reader or listener would most likely interpret the statement. Considerations include the following:

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December 7, 2015

In Federal Court, Unnecessary to Plead Exact Words

by Lee E. Berlik

Most Virginia litigators probably associate the Supreme Court’s decisions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal with an increased pleading burden in federal court, requiring that lawsuits allege “plausible” claims rather than just remote possibilities. In the limited context of pleading defamation claims, however, the plausibility standard applicable in federal court appears to be making it easier to survive preliminary dismissal motions in federal court than in Virginia state court.

Earlier this year, I wrote about Potter v. Associated Press, in which a federal court allowed a defamation claim to go forward despite the absence of facts sufficient to show defamatory meaning, reasoning that it was plausible the claim was valid. Last month, in the latest example of this phenomenon, the Eastern District of Virginia held that unlike in state court, defamation claims can survive even if they do not allege the exact words used. Why? Because all that is needed to survive a motion to dismiss in federal court is a “short and plain” statement of the claim demonstrating a plausible right to relief. A complaint may be plausible on its face even if it fails to set forth the exact words allegedly used by the defendant.

July 18, 2015

Must Context Be Apparent from the Face of the Complaint?

by Lee E. Berlik

Last month, the Supreme Court of Virginia held in Pendleton v. Newsome that where defamatory meaning is not apparent from the face of a statement claimed to be defamatory, a plaintiff may introduce evidence to show that the statement was made in a context that would reasonably cause the statement to be interpreted in a defamatory sense. Allegations that the circumstances surrounding the making and publication of the statement were such as would convey a defamatory meaning, together with an explanation of meaning allegedly conveyed, “will suffice to survive demurrer if the court, in the exercise of its gatekeeping function, deems the alleged meaning to be defamatory.”

This language certainly seems to suggest that a court might properly dismiss a defamation claim if the full context of the statement is not pled in the complaint. In Potter v. Associated Press, however, the Eastern District of Virginia denied a motion to dismiss and allowed a defamation claim to go forward after expressly recognizing that the complaint omitted the full context of the statement and that the context was necessary to determine whether the statement could reasonably be interpreted to have defamatory meaning.
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