The Virginia Defamation Law Blog
Several years ago, this blog covered Garnett v. Remedi SeniorCare of Virginia, LLC, 892 F.3d 140 (4th Cir. 2018), in which the Fourth Circuit held that an employer could not be held vicariously liable for a coworker’s crude and offensive remarks because they fell outside the scope of the speaker’s employment. The apparent lesson was that a Virginia employer is not a guarantor of everything its employees say, and that a defamation plaintiff who cannot connect the statement to the employee’s job responsibilities will not survive a motion to dismiss. A recent unpublished Fourth Circuit decision, Auckland v. Gilead Sciences, Inc., complicates that lesson. Applying a pleading-stage presumption that the Supreme Court of Virginia developed after Garnett, the court vacated the dismissal of a vicarious-liability defamation claim and, over a pointed dissent from Judge Wilkinson, held that the plaintiff’s complaint had pleaded sufficient facts to proceed.
Ian Auckland worked remotely from Southwest Virginia for Gilead Sciences, a California-based biopharmaceutical company, for more than nine years. In 2023, he applied for a preceptorship program associated with Gilead’s Key Accounts Team, a role viewed as a stepping-stone to a full-time position on the team. Hilary Zachry, a California employee who served as a mentor for the preceptorship program, allegedly favored other candidates. According to Auckland, Zachry falsely told a coworker that Auckland had said “I want to rip your panties off” during a brief conversation at a work conference in Nashville, and then directed that coworker to report the fabricated accusation to Gilead. Auckland was accepted into the program, but was soon investigated and terminated. He sued both Zachry and Gilead in the Western District of Virginia, asserting claims of defamation and defamation per se, and sought to hold Gilead vicariously liable for Zachry’s conduct.