Privileges Category Archives — Page 4 of 5 — The Virginia Defamation Law Blog Published by Reston Defamation Attorney — Virginia Slander & Libel Lawyer

January 9, 2013

Absence of Malice Presumed in Employment Context

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.

October 29, 2012

Summary Judgment Still Possible in Virginia State Court

by Lee E. Berlik

On October 4, 2012, the Virginia Supreme Court rejected the appeal of a personal trainer, represented by Virginia Beach lawyer Jeremiah A. Denton III, and allowed to stand the summary judgment order entered by the Norfolk Circuit Court against the trainer on her defamation claim. This shows just how serious the Virginia Supreme Court is about the absolute privilege that extends to defamatory statements made in demand letters preliminary to contemplated litigation and sent in good faith. Summary judgment is appropriate if a defamation claim is based on a privileged statement.

Darryl and Julie Cummings were members of the Norfolk Yacht and Country Club (“NYCC”). Deborah Allison, a personal trainer at NYCC and at Norfolk Academy, pursued and entered into a physical relationship with Julie. Darryl reported Addison’s actions to NYCC management. Though the NYCC warned her not to pursue Julie Cummings on NYCC property, Addison disobeyed and was fired. Cummings and his wife ultimately divorced.

Darryl sued Addison for intentional infliction of emotional distress, tortious interference, and professional malpractice. Addison counterclaimed for intentional infliction of emotional distress, tortious interference with contract, tortious interference with a contract expectancy, and defamation. Addison’s claims stemmed from Cummings’ email to the NYCC president, a draft complaint he sent to NYCC’s attorney, and emails he sent to Norfolk Academy’s headmaster.

July 30, 2012

Absolute Judicial Privilege Extends to Demand Letters Sent in Good Faith

by Lee E. Berlik

Earlier I wrote about the case of Mansfield v. Bernabei, in which Fairfax Circuit Court Judge R. Terrence Ney sustained demurrers to a defamation claim based on statements made in a draft complaint forwarded to a small group of prospective defendants for settlement purposes. Judge Ney ruled that the statements were privileged from defamation liability because they were preliminary to a proposed judicial proceeding and sent in good faith. The Virginia Supreme Court has now affirmed that decision and set forth a new test for determining the applicability of the judicial privilege in Virginia.

Under the new test, communications made outside of court but preliminary to proposed judicial proceedings 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.

(Note: The court enumerated only three elements, combining (2) and (3) above. Because the test contains four distinct concepts, I find it easier to think of this as a four-part test. But that’s just me.)

July 22, 2012

No Defamation Claim for Medical Resident’s Poor Performance Evaluation

by Lee E. Berlik

Employment reviews often lead to libel allegations due to the fact they often contain harmful statements perceived by the employee to be false and defamatory. In most cases, however, even if the performance review contains a false statement, no defamation claim will lie because (1) statements of opinion are not actionable under Virginia law (or the United States Constitution); and (2) communications between people on a subject in which they both have an “interest or duty” are deemed privileged.

The Fourth Circuit Court of Appeals recently considered–and rejected–the defamation claims of Claudine Nigro, a former medical resident at the Shenandoah Valley Family Residency Program. After a semiannual performance review in 2009, Nigro was notified that she would not be renewed for another year of residency with the program. Nigro appealed this decision, but then resigned a few months later. She brought an action against the residency program’s director and the hospital itself, claiming that she was defamed during the appeals process by the director of the program, who discussed her perceived shortcomings with the faculty appeals committee, and by employees of the hospital, who reported Nigro for allegedly recording her conversations with physicians.

Nigro alleged the Program Director defamed her with statements he made in various meetings and notices, including “There has been no evidence of improvement or intention to improve in weak areas,” “There is no change in apathetic/disinterested approach or demonstrated interest in learning despite 3-4 months of discussion and coaching,” and “There is faculty consensus that [Nigro] may be suffering from depression or poor career choice.” The court found that all the alleged statements were either opinion, factually true, not defamatory, or were protected by the qualified privilege applicable to statements made to another with a corresponding interest or duty.

June 29, 2012

Breach of Non-Disparagement Agreement Leads to Defamation Claim

by Lee E. Berlik

The United States District Court for the Western District of Virginia has found that negative comments a customer service representative made to a customer may form the basis of a defamation action.

Charles and Donna Bates operate a school photography business. They entered a contract with Strawbridge Studios, Inc., also a school photography business, under which Strawbridge purchased the Bates’ accounts and employed them to handle certain accounts. The relationship deteriorated and ended in the Bates filing a breach of contract action again Strawbridge. The parties resolved their dispute and entered a settlement agreement which included a non-disparagement clause providing that neither party would “say, write, publish, broadcast, or in any other way participate in negative or disparaging comments about the other.”

Later, when a customer called Strawbridge looking for a photograph she believed the Bates had taken, Strawbridge’s customer service representative told the customer that the Bates were “not reputable” and “could not be trusted.” The representative also stated that “things got so bad” that Strawbridge “had to get involved in a lawsuit.” The Bates filed a second suit against Strawbridge and included a claim for defamation.

April 23, 2012

Defamation Plaintiffs Must Plead Exact Words and Non-Privileged Publication

by Lee E. Berlik

The elements of a defamation claim in Virginia are (1) publication, (2) of an actionable statement and (3) the requisite level of intent. A statement regarding a person’s professionalism may constitute defamation per se (meaning the plaintiff need not prove actual damage to reputation) if it implies that the person is unfit to perform the duties of his job, lacks integrity in performing those duties, or if it would tend to “prejudice” the plaintiff in his profession. Fairfax Judge Robert J. Smith, in a detailed opinion, recently made clear that to survive demurrer, a plaintiff must also state the exact words alleged to be defamatory, and must show that the defamation occurred in a non-privileged setting.

In Tomlin v. IBM, three former IBM employees brought defamation claims against IBM and five individuals. IBM received an anonymous letter alleging that Ms. Tomlin acted unethically by hiring her brother, Mr. Tomlin. After an investigation, IBM terminated the employees. Plaintiffs claimed that IBM and the individual defendants made the following false and defamatory statements to IBM colleagues: that Ms. Tomlin acted unethically in hiring her brother and that she and Mr. Tomlin and plaintiff Williams conspired to cover up the unethical hiring; that Mr. Tomlin falsely claimed to have certain skills in his job application and did not meet the minimum qualifications for his consulting position; and that Mr. Williams submitted a fraudulent hiring form regarding Mr. Tomlin. Plaintiffs alleged that defendant Ms. Minton-Package told IBM employees that Ms. Tomlin was fired because she had hired her brother and tried to “cover it up.”

Although a plaintiff does not need to plead specifics such as the identity of the speaker and other details surrounding purportedly defamatory statements, the complaint must contain the exact words spoken or written. Tomlin’s complaint, however, merely alleged the general nature of the defamatory statements; only the statements imputed to Ms. Minton-Package contained exact words. The court found that the plaintiffs failed to plead the defamatory statements with sufficient particularity except as to Ms. Minton-Package, and it proceeded to examine publication only as to her.

April 14, 2012

Slander of Pilot by Airline Results in $1.4 Million in Damages

by Lee E. Berlik

Workplace defamation suits can result in high damages awards. A former pilot and federal flight deck officer (FFDO), William Hoeper, successfully sued his former employer, Air Wisconsin, for defamation after one of its managers, Patrick Doyle, reported Hoeper to the Transportation Security Administration (TSA) as a potential threat to airline security. Last month, the Supreme Court of Colorado, applying Virginia law, upheld a $1.4 million jury verdict against Air Wisconsin.

Hoeper had been taking a test to fly a new plane. According to test administrators, Hoeper ended the test abruptly, raised his voice at the administrator, and used profanity. Afterwards, while Hoeper was waiting for his flight home, Doyle called TSA to report that Hoeper may be carrying his government-issued FFDO firearm and that he was concerned about Hoeper’s mental stability because Hoeper had been terminated that day.

When a plaintiff alleges defamation involving a “matter of public concern,” the defendant is entitled to First Amendment free speech protection unless the plaintiff can demonstrate that the statement was false and made with actual malice. Actual malice is present if the statement was made by the defendant with (1) knowledge of the statement’s falsity or (2) reckless disregard as to the statement’s falsity. However, even before the plaintiff presents his case, an airline defendant may be able to avoid liability altogether under the Aviation and Transportation Security Act (ATSA), which provides immunity from civil suits to “an air carrier who voluntarily discloses any suspicious transaction relevant to certain aircraft security statutes.” If the disclosures are made with actual knowledge or reckless disregard as to the statement’s falsity, however, ATSA immunity is lost and the plaintiff can proceed to demonstrating that a statement was defamatory.

May 25, 2011

In Lawyer’s Defamation Action, Draft Complaint Afforded Absolute Privilege

by Lee E. Berlik

Virginia courts have long held that statements made in connection with judicial proceedings are entitled to absolute protection from defamation liability. To encourage truthfulness in litigation, Virginia public policy has extended an absolute privilege to statements made in a party’s pleadings, statements made during depositions, and to the testimony of witnesses at trial, provided the statements are generally relevant to the proceeding. But what protection, if any, should be afforded to pre-litigation statements, such as those contained in a demand letter to a prospective defendant?

Fairfax Circuit Court Judge R. Terrence Ney recently had the opportunity to consider whether a defamation claim could be based on allegedly defamatory statements made in a draft complaint forwarded to a small group of prospective defendants for purposes of exploring settlement opportunities prior to filing suit. The issue has not yet been decided by the Virginia Supreme Court, and is particularly interesting because the ethical rules that prohibit lawyers from making frivolous claims arguably do not apply to statements made outside a judicial proceeding. As a result, when drafting pre-litigation demand letters, many lawyers are far less assiduous in their fact-checking than they would be when filing an actual pleading with the court.

In a sense, the situation is similar to the question of whether to grant a privilege to a law firm’s statements in a press release announcing a lawsuit. If a complaint contains defamatory statements, they would not be actionable, even if made with knowledge of their falsity, due to the absolute privilege for statements made in judicial proceedings. A press release discussing the lawsuit, however, is made outside the judicial proceeding, so it does not enjoy the same level of protection. Like a press release, a demand letter containing a draft complaint is very closely related to a judicial proceeding, or at least a contemplated one, but is not part of the proceeding itself.

February 2, 2011

Virginia Supreme Court Declines to Set Aside Defamation Verdict Against County Administrator

by Lee E. Berlik

In Virginia, as in other states, potentially defamatory statements made in official government proceedings receive protection from defamation claims. But some such statements get the benefit of absolute privilege, which means that even a knowingly false statement can’t be the basis of liability, while a larger category of statements receive only a qualified privilege. A qualified privilege gives the plaintiff an opportunity to show that the statement was made with malice — and to recover damages if he or she can prove that it was.

In Small v. Nogiec, the Supreme Court of Virginia examined remarks made by a county assistant administrator during a meeting of the Board of Supervisors of Isle of Wight County, and concluded that only a qualified privilege applies to the statements since they were not made in a legislative context. The court therefore unanimously upheld a jury verdict for the plaintiff.

In March 2007, Alan Nogiec retired from his job as the county’s director of Parks and Recreation. A few months before he retired, the county’s museum was damaged by heavy rains. In May 2007, Assistant County Administrator Patrick Small gave a report at a board meeting about efforts being undertaken to repair the museum. He said that before the storm, information about the likelihood of flooding “had been suppressed” by the parks director and that this “borders on negligence in my opinion.”

November 15, 2010

Defamation Claim Against Virginia Lawyer Goes Forward

by Lee E. Berlik

Statements made by litigants and their attorneys in judicial proceedings cannot form the basis for a defamation action because they are protected by an absolute privilege. But what if an attorney, desirous of increased media exposure, takes copies of what might otherwise be considered slanderous statements and forwards them to the media? Do statements made in judicial proceedings lose their privileged status when republished to third parties? The answer, according to Norfolk judge Charles E. Poston, is that it depends on whether the attorney acted with malice.

In D’Alfio v. Theuer, a sea captain sued a lawyer who had filed at least one lawsuit against him on behalf of a client claiming employment discrimination. The lawsuit, the sea captain contended, contained numerous false and defamatory allegations, such as that the captain had ordered a seaman on his ship to be handcuffed in retaliation for speaking to a newspaper reporter and that he had threatened to put him in a straightjacket. What the captain found particularly troublesome, however, was that the seaman’s lawyer faxed a copy of the lawsuit to the media. He sued the lawyer for defamation.

The lawyer filed a “demurrer” (essentially a motion to dismiss the complaint) on the ground that the allegedly defamatory statements were protected by absolute or qualified privilege. Judge Poston overruled the demurrer and permitted the lawsuit to proceed.