In cases of defamation per se in Virginia, successful plaintiffs can recover “presumed” damages even if they are unable to prove exactly how their reputations were harmed and to what extent. For example, defamatory statements that impute to the plaintiff an unfitness to perform the duties of her job would be considered defamatory per se because it is widely understood and accepted that a serious and false accusation about somebody’s ability to perform one’s job would inevitably cause compensable harm. What many don’t realize, however, is that the defamation-per-se categories presuppose that the underlying statement satisfies the elements of actionable defamation. If a statement doesn’t qualify as defamation, then it won’t qualify as defamation per se, even if it seems to fit into one of the per-se categories. If Dave says about Paul, a chef at an upscale restaurant, “Paul is the worst chef in the United States and I wouldn’t feed his disgusting dishes to my worst enemy’s dog,” the fact that the statement suggests Paul is unfit to perform the duties of his job does not make the statement defamatory per se. This particular statement would not be actionable because it reflects only Dave’s personal opinion. Defamation per se is a specific type of actionable defamation, not a substitute for it.
Defamation per se is not a separate tort. The tort is called defamation, and defamation per se is just a particular type of defamation. Lawyers get this wrong all the time, assuming erroneously that any statement that, say, imputes to the plaintiff an unfitness to perform the duties of a job or a lack of integrity in the performance of those duties, automatically qualifies for a multi-million-dollar defamation-per-se case. Did a co-worker tell your boss that you engaged in unprofessional or unethical conduct? Sure, a statement like that might be designed to convey that you are unfit to perform the functions of your job, but it takes more than that to bring a valid claim for defamation per se.
Mere accusations of “unprofessional” conduct are generally not going to be sufficient to state a claim for defamation because whether a person conducts himself or herself in a professional manner is a matter of opinion that can’t really be proven true or false. See Hanks v. WAVY Broad., LLC, 2012 WL 405065 (Case No. 2:11CV439) at *11–12 (E.D. Va. Feb. 8, 2012) (finding that statements accusing someone of acting “unprofessionally” or “unethically” are statements of opinion, not fact); Fuste v. Riverside Healthcare Ass’n, Inc., 265 Va. 127 (2003) (“unprofessional” and “uncooperative” are not actionable defamation); Kuley v. Fayez, 89 Va. Cir. 238 (Fairfax 2014) (an accusation of a “pattern of unprofessional and disrespectful behavior” is nonactionable opinion). Whether the claim is one for defamation per se or defamation per quod, the plaintiff needs to allege that the defendant made a false and defamatory statement of fact. If all the defendant said was that the plaintiff “is really unprofessional in the way he talks to clients,” that’s not enough. On the other hand, if the defendant said the plaintiff “routinely offers to sell cocaine to his clients, which I find extremely unprofessional,” well then you may be dealing with a valid claim (assuming the statement is false) because whether or not the defendant offered to sell drugs is a statement of fact, not an opinion.
Let’s take a look at the case of Dr. Wendi H. Anderson v. The School Board of Gloucester County, Virginia. Here’s what happened, according to the allegations of the complaint. Dr. Anderson is a teacher at Page Middle School in Gloucester County. She suffers from a “sensitivity [and] allergy to scents, including perfumes and topicals that contain vanilla, cocoa butter, flora/fruits, musks, patchouli (mint), body sprays, lotions and hand sanitizer.” Exposure to these scents allegedly causes her to experience multiple physical reactions, including “pain in the throat and mouth,” “difficulty breathing,” “coughing,” “cognitive dysfunction,” “diarrhea,” “blurry vision,” and “migraines.” Prior to the 2017-18 school year, Dr. Anderson sent the school principal a proposed note to share with parents detailing her various sensitivities and asking students to refrain from wearing products with certain scents. The principal was not crazy about the idea about sharing this information with students or parents. A number of disputes arose relating to the extent the school was willing to go to accommodate Dr. Anderson’s special condition, and at some point the following statements about Dr. Anderson were allegedly made by the principal and/or the school system’s H.R. director:
- “As I have stated previously, I fear that Wendi Anderson will do or say something that will harm the students in her care. I have lost faith in her ability to keep students safe.”
- The principal accused Anderson of engaging in a “pattern of unprofessional behavior.”
- After placing Anderson on a performance-improvement plan, the principal stated Anderson had “deficits in Standard 2, Standard 3, Standard 5 and Standard 6.”
- “This teacher [Anderson] tends not to plan things well.”
- “We wish her well with her ‘way worse illness and keep it moving ….'”
- “Wendi has not reported any incidents to administration, the school nurse, or main office staff. … She has not chosen to follow the recommendations nor she has requested supports or accommodations for many months. She has not reported at any time that she has been in distress. She has not seen the school nurse…. Unfortunately, we will have no documentation at school to support her report.”
Notice how most of these alleged statements relate to Dr. Anderson’s fitness to perform the duties of her job. So naturally, Dr. Anderson sued for defamation per se. But as the court explained in detail, if the statements at issue don’t qualify as regular, “per quod” defamation, they’re not going to qualify as defamation per se either, regardless of whether they relate to the plaintiff’s fitness to serve as a schoolteacher. The court found that none of the six statements constituted actionable defamation and dismissed the defamation-per-se claim from the lawsuit. Here’s why.
First, protected expressions of opinion are not actionable. If a statement cannot be objectively characterized as true or false, or is relative in nature and depends largely on a speaker’s viewpoint, the statement is one of opinion and not of fact. (See Jordan v. Kollman, 269 Va. 569 (2005); Hyland v. Raytheon Tech. Serv. Co., 277 Va. 40 (2009)). Statements #1 and #2 are statements of opinion. “The qualifying words ‘I fear’ at the beginning of her statement show that it is relative and based on her viewpoint,” the court wrote. Similarly, if the speaker “lost faith” in Dr. Anderson, or believes that Dr. Anderson engaged in “unprofessional behavior,” those are matters of personal opinion and cannot be actionable as defamation (per se or otherwise).
Statement #3 is not actionable because Dr. Anderson failed to allege it was published to a third party and failed to allege facts sufficient to demonstrate a sufficient defamatory sting. Statement #4 also lacks defamatory sting (whether Dr. Anderson is a good planner just isn’t important enough to base a defamation claim on) and is a non-actionable opinion anyway. Statement #5 is opinion as it cannot be objectively characterized as true or false and lacks defamatory meaning. Finally, while Statement #6 involves some assertions of fact, the court found that the statement–taken as a whole–also lacks defamatory sting in that it did not tend to make Anderson appear “odious, infamous, or ridiculous.” Even if it contains a false accusation that Anderson failed to report incidents or request support, these accusations just aren’t the sort of thing that would “deter third persons from associating or dealing” with her.
Having found that none of the statements at issue were sufficient to state a claim for regular defamation under Virginia law, the court dismissed Dr. Anderson’s claim for defamation per se.