Must Overcome Qualified Privilege When Suing Your Employer for Defamation

In Virginia, employers can fire their employees for any reason or no reason at all, subject to certain limited exceptions. Employers aren’t required to articulate a reason for letting go an employee (see Johnston v. William E. Wood & Assocs., 292 Va. 222, 225 (2016)), but they often do anyway. As you might expect, the employees getting fired don’t always agree with the reasons being offered for the termination. A common response of disgruntled employees is to sue their former employer not only for wrongful termination but for defamation as well, theorizing that their reputation was harmed as the result of false accusations made about them. This approach rarely succeeds.

In a ruling from earlier this month, a federal court threw out an employee’s defamation claim based primarily on two concepts: lack of publication, and qualified privilege. Publication refers to the requirement that an actionable statement be transmitted to some third person so as to be heard and understood by such person. Qualified privilege refers to the special protection afforded to defamatory statements made in certain contexts (like the context of a performance review or exit interview).

The basic facts of Nedrick v. Southside Regional Medical Center, according to the opinion, go something like this. Gail Nedrick worked for many years for the hospital as an Assistant Supervisor. She left the workforce for 11 years due to a “chronic systemic infection and blindness from cataract.” She eventually returned to the hospital, but was only offered a night-shift position. She accepted and got off to what she believed was a strong start, but was fired at the end of her ninth day. She was told orally by the Laboratory Director that the reason was simply that Nedrick “was not a good fit” because she was “slow” and “not keeping up.” The hospital later gave her a written notice that explained there were concerns that Nedrick was “unable to maintain the workflow at any reasonable pace.” She disagreed with these assessments and sued for defamation.

The court analyzed both alleged statements separately but ultimately decided that neither was sufficient to state a valid claim for defamation.

The first statement–the one made orally to Nedrick by the Lab Director–was easily dispensed with as it had not been made to a third party. Publication sufficient to sustain a common-law defamation claim consists of communicating the slanderous words to some third person so as to be heard and understood by such person. (See Thalhimer Bros. v. Shaw, 156 Va. 863, 871 (1931)). The oral statement was made to (and heard by) no obstacle-300x212one but Nedrick herself. Therefore, it had not been “published” for purposes of stating a defamation claim.

The written notice was trickier because at least one other person had seen the document. The written notice had been published, but was it actionable? The court said no. It might have done this by ruling that the assertion that Nedrick was “unable to maintain the workflow” at a brisk enough pace was a matter of opinion and not fact. Instead, it held that it really didn’t matter whether the accusations in the written notice were defamatory, because they were made in a privileged context and Nedrick had not alleged any facts that would be sufficient to defeat the privilege.

Under Virginia law, qualified privilege attaches to communications between persons on a subject in which the persons share an interest or duty. (See Cashion v. Smith, 749 S.E.2d 526, 532 (Va. 2013)). A plaintiff can overcome a claim of qualified privilege by showing clear and convincing evidence of common-law malice. (See Goulmamine v. CVS Pharm. Inc., 138 F. Supp. 3d 652, 664-65 (E.D. Va. 2015). In this context, common-law malice isn’t limited to things like personal spite and ill will, but also includes knowledge of falsity, communicating the statement to someone with no duty or legitimate interest in the subject matter, and making the statements in bad faith. (See Cashion, 286 Va. at 338-39). Employment matters are occasions of privilege in which the absence of malice is presumed.

Here, the written notice wasn’t circulated around the hospital or posted on Facebook. It was written by the Lab Director, witnessed by a supervisor, and presented only to Nedrick. Each of those people have a direct interest or duty in the subject of Nedrick’s suitability for employment at the hospital. There were some vague allegations that others may have seen the notice because it was included in her employee file, but there were no allegations that the information was shared with anyone lacking a proper interest or duty in the subject matter. Therefore, the written notice was protected by qualified privilege.

Qualified privilege can be defeated by a showing of common-law malice, but Nedrick had not alleged malice in her complaint. She asserted only that the statements about her performance were “not true.” By failing to allege facts sufficient to show the privilege had been lost or abused, Nedrick failed to state a claim for defamation and the court granted the hospital’s motion to dismiss the claim.

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