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

August 4, 2024

Public Concern vs. Private Concern

Virginia’s anti-SLAPP statute offers immunity against tort claims based on statements “regarding matters of public concern.” We know generally that matters of public concern are those considered to be subjects of “legitimate news interest” such as those “relating to any matter of political, social, or other concern to the community.” (See City of San Diego, Cal. v. Roe, 543 U.S. 77, 83–84 (2004); Snyder v. Phelps, 562 U.S. 443 (2011)). The boundaries of what, exactly, constitutes “legitimate” public interest in a particular statement are not well defined, however, so I was pleased to see the Virginia Court of Appeals take up the matter and lay out some guidance in the recent case of Rolofson v. Fraser.

Samuel Rolofson and Brittany Fraser are Army officers who dated briefly in 2017 while stationed at Fort Bragg in North Carolina. After their relationship ended, Fraser complained to the military chain of command that Rolofson was harassing her with inappropriate text messages and that he had abused his authority by deleting from a security computer the name of another man he had accused Fraser of having an inappropriate relationship with. Rolofson’s chain of command conducted an investigation, held a hearing, and eventually issued a General Officer Memorandum of Reprimand, finding that Rolofson had “demonstrated a complete lack of judgment and responsibility” and “discredited” himself. He sued Fraser for defamation.

April 25, 2024

Not Sure Whether a Particular Word is Defamatory? Check the Dictionary.

by Lee E. Berlik

As noted previously on this blog, if an employer falsely suggests to others that an employee was fired for cause when, in truth, the employee quit the job voluntarily, the employer may be liable for defamation. Similarly, when news outlets report on the separation of public figures from their places of employment, they need to be careful with the words they use. Nobody wants to open a newspaper and encounter a story about how they were forcibly removed from a position they voluntarily quit, leaving readers with the false impression that some sort of misconduct occurred. A recent Virginia case involved a news story reporting that a school superintendent was “ousted.” In examining whether a term like this could support a defamation action, the court relied primarily on dictionary definitions.

In Sroufe v. Scripps Media, Inc., Dr. William D. Sroufe, the former superintendent of Colonial Heights Public Schools, took issue with a news story that aired in February 2023 on WTVR/CBS6. The broadcast allegedly misrepresented the circumstances of his departure from the school system. According to the report, Sroufe was “ousted” due to allegedly covering up misconduct by a softball coach at the school. This narrative, he asserted, was not only damaging to his reputation but also blatantly false.

January 10, 2024

Context Helps Separate Fact From Opinion

by Lee E. Berlik

Defamation actions cannot be based on expressions of pure opinion because such statements are protected by the First Amendment. To survive a motion to dismiss, a plaintiff needs to allege a false assertion of fact. Separating fact from opinion, however, is not always as clear-cut as one might expect. Courts have reached differing conclusions on whether words like “racist” and “unethical” state facts or merely personal opinions. The easiest way to distinguish fact from opinion is to ask whether the statement is capable of being proven true or false. If so, it’s likely a factual statement. (Statements of opinion can’t be proven true or false because they depend on the speaker’s personal, subjective viewpoint.) To do this, it’s necessary to determine exactly what “the statement” is. In other words, what, exactly, is the message the defendant has conveyed to others about the plaintiff that has caused (or is causing) an adverse effect on the plaintiff’s reputation? This is where it becomes necessary to examine the precise context in which the statement was made.

In Hyland v. Raytheon Tech. Servs. Co., 277 Va. 40, 48 (2009), the Virginia Supreme Court held that in analyzing whether a statement claimed to be defamatory is one of fact or opinion, “a court may not isolate one portion of the statement at issue from another portion of the statement” but must instead “consider the statement as a whole.” The court explained that to fully understand the meaning of the statement being communicated, it’s necessary to view the words claimed to be defamatory together with any accompanying statements and not to examine portions of a larger statement in isolation. Courts also need to consider the speaker, the audience, and the means or media used to communicate the message.

June 19, 2023

Accusations of Giving Preferential Treatment to Favored Vendors

by Lee E. Berlik

When does ordinary workplace criticism become actionable defamation? While there’s no hard and fast rule, the answer usually lies in the extent to which the criticism involves provably false factual assertions. Expressions of pure opinion are not actionable, so a performance review that merely contains negative assessments of an employee’s performance won’t support a libel suit absent the inclusion of express or implied falsehoods. An accusation that an employee is slow to pay vendors? Not defamatory, because “slow” is relative and means different things to different people. An accusation that the employee is difficult to deal with? Also not defamatory, because calling someone “difficult” doesn’t convey any actual facts about the employee susceptible of being proven false. (How do you define “difficult”?) What about an accusation that the employee played favorites with vendors and paid preferred vendors before paying disfavored vendors? According to a federal judge sitting in Harrisonburg, Virginia, that statement crosses the line into defamatory territory as it can be proven false at trial.

The case of Christine A. Thompson v. Rockingham County presents the following facts. Christine Thompson worked in the Children’s Services Act (CSA) office for Harrisonburg and Rockingham County from 2005 to February 2020. Initially serving as the CSA coordinator and later promoted to CSA manager, her responsibilities included overseeing daily operations, facilitating invoice payments, and supervising employees. Thompson did not have the authority to approve payments to vendors, but she oversaw the generation of purchase orders for approved services and the submission of invoices by vendors. Once submitted, invoices were reviewed and signed by the Department of Social Services before being returned to the CSA office for payment processing. Payments were expected to be issued within 45 days of invoice submission, and adherence to procedural requirements was crucial for vendors to receive payment.

January 30, 2023

Qualified Privilege Insufficient Basis for Pretrial Dismissal

by Lee E. Berlik

It’s never a good idea to slander another person, but in some circumstances a privilege may apply to a defamatory statement that exempts the statement from any libel or slander claims. Statements made on the witness stand in a legal proceeding, for example, are immune from defamation claims (even if they are false). The justice system is designed to sort out which witnesses are lying and which are telling the truth; it doesn’t permit an aggrieved individual to sue witnesses who offered unfavorable testimony during the trial. In other contexts, a “qualified” privilege may apply to the communication. In these situations, the privilege is not absolute and will be forfeited if abused. A qualified privilege generally attaches to communications between persons on a subject in which the persons share an interest or duty. For example, consider the employee performance review, where the person completing the review form and the person receiving it both share an interest or duty in the review being conducted. In situations like these, the reviewer is generally permitted–and expected–to include whatever negative feedback may be appropriate without having to worry about getting sued by the employee for defamation. However, this privilege is not absolute; a qualified privilege does not give the reviewer a license to maliciously defame another individual with impunity.

Defamatory words uttered with malice will not be protected by qualified privilege. This means that a plaintiff may often be able to pursue a defamation claim even when the claim is based on a statement made in a privileged context. A plaintiff can overcome the qualified privilege with clear and convincing evidence that the defendant made the statement with “malice” (not to be confused with “actual malice.”) Malice in this context can be shown in a variety of ways, such as a showing 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)).

September 1, 2022

Trying to Get Someone Fired Is Risky Business

by Lee E. Berlik

When relationships go bad, it’s not uncommon for one of the parties to seek to embarrass or harm the other by “exposing” the person for the horrible human being that he or she is. I see this most often in the form of revenge porn, social media bullying campaigns, and in efforts to contact the other person’s spouse or employer to disrupt those relationships and possibly get the other person fired. I’ve written earlier about how the First Amendment may protect informing another’s employer of harmful information if those allegations are completely true, but doing so carries risk. If the employer acts on the information and the employee suffers an adverse employment action, the whistleblower may face liability for defamation and tortious interference, particularly if the employee can convince the court that the statements or their implications are untrue.

Consider the case of Selamawit Teka* v. Jonathan Jack. In August 2021, Teka sued Jack in federal court, complaining that “Jack engaged in a course of unlawful and unauthorized contact with Teka’s employer, wherein he publicized and exposed personal details of Teka’s private life to those she works for without cause, reason or justification. In these communications, Jack publicized and exposed the contents of private social media conversations, and other details of Teka’s personal life, dealings, conversations and activity, to those with no legitimate interest or concern in her private affairs. Jack defamed Teka and violated her right to privacy with the intent to insult, humiliate and embarrass Teka, and get her fired.” The court was not impressed with the invasion-of-privacy claims, but it was persuaded that Teka had alleged a plausible cause of action for defamation and denied Jack’s motion to dismiss that claim.

September 15, 2021

Misrepresentation of the Reasons for Termination of Employment

by Lee E. Berlik

A common concern among employees who quit their jobs or get fired is that their former employer will badmouth them to their colleagues or prospective employers, interfering with their ability to earn a livelihood. Although there are some benefits to getting fired versus quitting (e.g., unemployment benefits, severance packages), most people would prefer to have the record reflect a voluntary separation rather than an involuntary one, which usually implies poor performance on behalf of the employee. If you’re reading this, you’re probably wondering whether you would have a potential libel or slander claim against your former employer if that employer tells people that you were fired for bad behavior when the truth of the matter is that you either quit or were asked to leave through no fault of your own. The answer, as it so often is when dealing with legal problems, is maybe. It depends on why you left your former job, and what, exactly, your former employer communicated to others about the reasons for the separation.

The Virginia Supreme Court has recognized that misrepresenting the reasons for an employee’s termination may be sufficient grounds for a defamation lawsuit. In Government Micro Res., Inc. v. Jackson, 271 Va. 29 (2006), evidence showed that after a company fired its President and CEO, others were told that the CEO had “mismanaged the company” and “had been removed from his job because he lost $3 million.” The evidence also showed that these statements were untrue and that they were made with the intent to defame the former CEO and harm his ability to gain employment with a competitor. These facts were deemed sufficient to support a multi-million dollar defamation verdict. (Note: The holding wasn’t based on an accusation merely of “mismanagement,” which surely would have been deemed non-actionable opinion, but rather the coupling of that statement with an assertion that the CEO’s mismanagement resulted in substantial financial losses which were the basis for his termination. Those are factual statements, as they can be proven true or false).

June 20, 2020

The Defamation Per Se Categories Are Irrelevant to Non-Defamatory Statements

by Lee E. Berlik

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. (See Darrell Gaebel v. United States Polo Ass’n (E.D. Va. May 12, 2022) (holding that “because defendant did not make any false statements, there is no basis to consider whether they were defamatory per se”)). 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.

February 29, 2020

Must Overcome Qualified Privilege When Suing Your Employer for Defamation

by Lee E. Berlik

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).

August 20, 2019

Does Absolute Judicial Privilege Apply to Employer Investigations?

by Lee E. Berlik

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.