Gilbertson v. Jones et al, No. 3:2016cv00255 - Document 22 (E.D. Va. 2016)
Court Description: MEMORANDUM OPINION. See for complete details. It is so ORDERED. Signed by District Judge Robert E. Payne on 08/17/2016. (nbrow)
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Gilbertson v. Jones et al Doc. 22 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division SUZANNE GILBERTSON, CLERK, U.S. DISTRICT COURT RICHMOND, VA Plaintiff, v. Civil Action No. 3:16cv255 STANLEY B. JONES, Ed.D., and KING & QUEEN COUNTY SCHOOL BOARD Defendants. MEMORANDUM OPINION This matter DISMISS (Docket is before the Court on Defendants' No. For 4) • Defendants' MOTION TO DISMISS part and denied in part. the reasons (Docket No. The motion 4) MOTION TO stated below, will be granted in will be granted as it pertains to Count One, and denied as it pertains to Count Three. BACKGROUND Plaintiff Suzanne Gilbertson the Food Schools Services Coordinator ("the School System"). January 2015, ("Gilbertson") was employed as for King (Compl., Gilbertson learned that & Queen County Docket No. 1, Public '.lI 1). In she had cancer and took (Compl. '.lI'.lI 7-17). The School System denied time off for surgery. Gilbertson's request for an extension of leave under the Family & Medical Leave Act certain forms. (" FMLA") , (Compl. allegedly over failure to return '.lI'.lI 12-16). On March 23, 2015, Gilbertson Dockets.Justia.com filed a grievance against her supervisor, B. Jones ("Jones"), superintendent Stanley over the denial of FMLA leave and over the reorganization of her department which occurred in her absence. (Compl. Cj[Cj[ 3, 16-17). On April 15, eliminate 2015, Gilbertson's Gilbertson, Jones and the School System decided to position. (Compl. CJ[ 18) . According to "[t]he alleged basis for the decision was budgetary concerns, but the truth is that Dr. Jones and the School System were intentionally retaliating against Gilbertson for her FMLArelated grievance. (Compl. II that "on May 1, 2015, Gilbertson with pay was performance, suspension was Dr. err 18) . further The stated reason for the in retaliation err alleges Jones and the School System suspended but this reason was grievance." (Compl. Gilbertson for false 'suspension' In truth, Gilbertson's FMLA-related 19). The Complaint states that [s]oon after that, Jones defamed Gilbertson, both in TV and in print. First, on May 7, 2015, as part of a news story on WTVR titled "Would you eat this? Charred food served at area high school" which discussed food quality problems at the School System, Dr. Jones told the TV station that Gilbertson had been placed on suspension and then stated, al though he could not go into details, "if an employee is suspended, generally, it's going to be related to performance." In other words, he told the TV station that Gilbertson had performance problems and that her performance problems were the reason for the food service problems that the station was reporting on. 2 the (Compl. 20) ':![ (emphasis added) . Jones is alleged repeated similar statements to a local newspaper. Gilbertson's June 30, 2015. April 29, and Liberty statements. alleges (against the School School Interest" ':![ the alleges basis Count Two Termination alleges of ':![ 21). ended on (Compl. Jones's press School Interference Claims (Compl. ':![ Process the "Defamation" Jones' s statements in the press. Count One "Due (against and Medical Leave Act." Jones) System three counts. System) on 25-31). "Wrongful & (Compl. have 23) . Gilbertson filed this Complaint on ':![ the (Compl. under the Family Three with The Complaint alleges Jones Violation: System) (Compl. 2016. (against employment to ':![ on 32-39). Count the basis of 40-45). On June 23, 2016, Jones and the School System (collectively "Defendants") filed a Motion to Dismiss Counts One and Three. (Docket No. 4) . LEGAL STANDARD A motion challenges to the dismiss legal sufficiency Alternative Resources Corp., Fed. R. Civ. P. under 8 (a) (2) 458 Fed. of R. a P. complaint. F. 3d 332, "requires Civ. only 338 a 12(b) (6) Jordan v. (4th Cir.2006). short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it 3 rests." McCleary- Evans v. Maryland Dep't F.3d 582, 585 of Transp., (4th Cir.2015) State Highway Admin., 780 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). When deciding a motion to dismiss court "draw[s] all reasonable plaintiff." Nemet Chevrolet, under Rule inferences Ltd. v. in 12 (b) (6), favor of Consumeraff airs. com, a the Inc., 591 F.3d 250, 253 (4th Cir. 2009). However, while the court must "will pleader's accept the "any conclusions court that description can be "need not accept of what reasonably drawn conclusory allegations happened" and therefrom," the encompassing the legal effects of the pleaded facts," Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure§ 1357 Chamblee v. Old Dominion Sec. WL *4 (E.D. Va. true a legal 1415095, accept as allegations. Ashcroft v. Co., 2014). L.L.C., Nor conclusion Iqbal, 556 is No. the (3d ed.1998); 3:13CV820, court unsupported U.S. 662, 2014 required to by factual 678-79 (2009). "Twombly and Iqbal also made clear that the analytical approach for evaluating Rule 12 (b) (6) motions to dismiss requires courts to reject conclusory allegations that amount to mere formulaic recitation of the elements of a claim and to conduct a contextspecific analysis to determine whether the well-pleaded tactual allegations plausibly suggest an entitlement to relief." Wright & Miller, supra; Chamblee, supra. 4 APPLICATION A. Plaintiff Fails to State the Allegations Character Defect as Required to Sustain of Serious the Due Process Claim Alleged in Count One The liberty interests protected by the Due Process Clause go beyond physical security: these liberty implicated "[w]here a person's good name, interests reputation, are also honor, or integrity is at stake because of what the government is doing to him." Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971); Doe v. Rector & Visitors of George Mason Univ., 132 F. Supp. 3d 712, 722 of (E.D. Va. 2015). Accordingly, action plaintiff where: by ( 1) alleging character defect; (2) a state that federal law recognizes a cause actor's statements plaintiff suffers and ( 4) 637 F. App'x 749, Ridpath v. Bd. a serious (3) the statements were the statements were false. 751 from a such statements are accompanied a negative change in plaintiff's employment status; published; stigmatize (4th Cir. 2016) Greene v. (unpublished) of Governors Marshall Univ., 447 Scott, (relying on F.3d 292, 308 (4th Cir. 2006)). At this stage, Defendants do not contest statements accompanied Gilbertson's firing, were public, that Jones's that the statements or that the statements were false. Therefore, the sufficiency of Count One turns on the first requirement: whether Jones's statements alleged a serious character defect. 5 The line of cases recognizing a arise out of Constantineau, 424 U.S. that a 693 (1976). 400 U.S. at 433, and Paul v. Davis, In Constantineau, Due Process police chief posted liquor were forbidden permitting liberty a posting Due Process stigma claim interest notice to of in the Supreme Court held was liquor plaintiff, such notices implicated stores that pursuant when to where sales a a of statute excessive drinkers exhibited certain traits. Constantineau, 400 U.S. at 434-439. In Paul, the Supreme where implicated Court held police that chiefs no liberty included a interest photograph plaintiff identifying him as an active shoplifter, was of noting that "reputation alone," without harm to a tangible interest such as employment, interest. stigma was insufficient to implicate a Due Process liberty Paul, claim 424 U.S. at 701. The origins of the Due Process inform the level of seriousness required for allegedly def amatory statements by state actors to be actionable under the Amendments. 1982) Due Process Robertson v. (stating, in Clause of Rogers, 679 F.2d 1090, employment Due the Fifth Process and 1092 stigma Fourteenth (4th Cir. case, that "[i]t is noteworthy that the Court's dictum in Paul v. Davis was made in the context of allegations of criminality."). Recognizing that not all disparagement by a state actor is constitutionally actionable, character defect" threshold. courts employ To be actionable, 6 the "serious a state actor's allegations must "imply the existence of serious character defects such as dishonesty or immorality" so that the statements "might seriously damage [plaintiff's] standing and associations in his community" or foreclose "his freedom to take advantage of other employment opportunities." Zepp v. 387-88 U.S. (4th Cir. 1996) 564, 573 News, Va., the level Sciolino, 66 (4th with also Sciolino (4th Cir. 2007) "serious 1986) 319-320 (4th financial City of Newport (quoting Robertson, character 480 F.3d at 647; Boston v. Webb, Cir. v. Allegations of fraud or dishonesty rise to qualifying sufficient to state 314, see 480 F.3d 642, 647 of 70 F.3d 381, (relying on Board of Regents v. Roth, 408 (1972)); 67 9 F. 2d at 1092) . Rehrmann, (allegation that liberty claim); Cir. 1973) irregularities McNeill v. sufficient E.g., 783 F.2d 1163, 1165- employee (allegation defects." received Butz, connecting to state 480 bribe F.2d employee liberty claim) . 1 The Fourth Circuit's approach is largely consistent with its sister circuits. See Sciolino, 480 F.3d at 647; Head v. Chicago Sch. Reform Bd. of Trustees, 225 F.3d 794, 801 (7th Cir. 2000); O'Neill v. City of Auburn, 23 F.3d 685, 691-93 (2d Cir. 1994); Staton v. Mayes, 552 F.2d 908, 915-16 (10th Cir. 1977). Some circuit courts augment the "serious character defect" language with requirements that the state actor allege "moral turpitude" or create a "moral stigma." Greer v. Detroit Pub. Sch., 507 F. App'x 567, 573-74 (6th Cir. 2012); Wheaton v. WebbPetett, 931 F.2d 613, 617 (9th Cir. 1991); Roley v. Pierce Cty. Fire Prot. Dist. No. 4, 869 F.2d 491, 495-96 (9th Cir. 1989). Even this language is not greatly inconsistent with the Fourth Circuit approach, given the significant overlap between "serious character defects" and "moral turpitude." 1 7 Yet allegations imply serious of incompetence, character defects, the Due Process Clause. Ridpath, 751 (statements support regarding claim); "management 79 problems" F.2d at 1092 did (statements claim); Zarrelli 2860295, at violations 64 7 see also Greene, F.3d at not work 388 support do actionable 4 8 0 F. 3d at inadequate alone, not under (relying on 637 F. App'x at product did (statements claim); not regarding Robertson, 679 (statements regarding incompetence did not support claim); Merritt v. Mullen, 1999) and are not Sciolino, 447 F.3d at 308-09); standing 49 F. Supp. 2d 846, regarding City of (E.D. *6 v. Va. Jun. "mismanagement" Norfolk, 23, No. 2014) of off ice policy did not 848-49 did not 2:13CV447, (statements support (E.D. Va. support 2014 WL regarding claim) . 2 The rule that incompetence alone does not support a liberty claim follows naturally which from the considered rule's origins allegations more in Constantineau serious and more and Paul, indelible than simple incompetence in a particular position. 2 Other non-actionable statements include allegations of: difficulty getting along with others, inability to deal with coworkers, undermining of social agencies, incompetence, hostility toward authority and aggressive behavior, being a poor teacher, non-specific allegations of malfeasance, and absenteeism. Greer, 507 F. App'x at 574 (collecting Sixth Circuit cases); Roley, 869 F.2d at 495-96 (collecting Ninth Circuit cases). Actionable statements include charges of untruthfulness and mental illness. Greer, 507 F. App' x at 57 4 (collecting Sixth Circuit cases); Head, 225 F.3d at 801 (collecting Seventh Circuit cases) . In older cases, allegations of Communism were actionable. E.g., Adams v. Walker, 492 F.2d 1003, 1008-09 (7th Cir. 197 4) (collecting older Seventh Circuit cases) . 8 Gilbertson attempts to escape the rule that allegations of incompetence are insufficient to support a Due Process liberty claim by citing Ridpath v. Bd. of Governors Marshall Univ., F.3d 292, 308 Mtn. (4th Cir. 2006). to Dismiss, employed as Docket No. "Compliance Director," a compliance ("NCAA") with rules. (Pl.'s Am. Mem. in Opp. to Def.'s 13, defendant role Ridpath, 4) Collegiate 4 47 F. 3d at a University's responsible Association Athletic 300-01. for During Ridpath' s the NCAA became aware of serious improprieties at the university, became Ridpath was Marshall in which he was tenure as Compliance Director, Ridpath ("Pl.'s Opp."). Governors National 447 "convenient including academic fraud. scapegoat," and was Id. reassigned within the university. Id. at 301. University officials informed the NCAA that Ridpath' s reassignment was a "corrective action" taken to remedy the university's NCAA rules violations, "corrective action" report on label was the matter. Id. included in the at 301-302. honesty, integrity Compliance argued implicate understood professional Coordinator" opportunities. dismiss, and a Id. at that protected to 302. the The liberty constitute a 9 alleging of in a label because a as an future his action" interest charge sued, into question his university, "corrective official competence destroyed and NCAA' s Ridpath that the "corrective action" label "call [ed] and the it serious NCAA career motion "did cannot to not be character defect," and that [Ridpath] the was Fourth athletics action' the label "indicated nothing more incompetent." Id. Circuit agreed, at 308-09. that, the the use and intercollegiate of the 'corrective label in this context is typically understood to connote dishonesty and other serious bearer," character defects the label's for resolution in a motion to dismiss. [that] Ridpath argued, "within community in particular, than that use of the raising a question 'corrective action' of on the part of fact Id. at label inappropriate 309 ("we agree lays blame on him for the NCAA rules violations - including academic fraud and thus insinuates 'the existence of serious character defects such as dishonesty or immorality.'") the As Sciolino, actor's Fourth Circuit (emphasis added) . made clear in Ridpath, Zepp, and context is significant in determining whether a state statement connotes serious character defects, because context helps to determine whether a statement "might seriously damage [plaintiff's] standing and associations in his community" or foreclose "his freedom to take advantage of other employment opportunities." 70 F.3d at 387-88; Sciolino, 480 F.3d at 647. For example, accusing a police officer of "neglect of duty" may implicate a Due Process liberty interest in the context of other allegations. 626 (7th Cir. untruthfulness, Ratliff v. 1986) failure City of Milwaukee, ("Ratliff to obey 10 was orders, also neglect 7 95 F. 2d 612, charged of duty, with and insubordination. Such charges ... indicate that she is unfit to serve as a law enforcement officer in any capacity also seriously community."). damage Yet her standing accusing the and [and] associations chairman of a might in state the liquor control commission of "neglect of duty," in the absence of other sufficiently aggravating accusations, does not implicate a Process liberty interest. Adams v. Walker, 09 (7th Cir. 1974). In Ridpath, the Due 492 F.2d 1003, 1008- Fourth Circuit noted two context-specific facts which exacerbated the "corrective action" label and dismiss: allowed Ridpath's the ( 1) claims "corrective associated Ridpath with fraud, serious character defect used within particular," connote dishonesty. survive a motion effectively label action" to which is clearly linked to the of dishonesty; and ( 2) the label was "intercollegiate athletics community in community members understood such to the where to Ridpath, 447 F.3d at 309. label If the university had merely alleged incompetence by an employee whose employment was unrelated to non-actionable, F.3d at as in Zepp, 1091-92. implicated ethical But Ridpath's implied that Ridpath dishonesty, the compliance, the 7 9 F. 3d at 38 8, where the involvement university's academic serious allegations Ridpath, 477 F.3d at 309. 11 would and Robertson, allegations in suffered the allegation of 67 9 incompetence fraud, and thus character defect were be of actionable. Unlike unavailing. raised a Ridpath, Gilbertson's Gilbertson serious claims appeal that attack on the context to "Jones's public is comments character of Gilbertson - not only in her capacity as the Food Service director but also as a steward of the school healthiness." (Pl.' s Opp. 5) . There are two substantial problems with this argument. First, lack of healthiness character defect in the academic fraud dishonesty. way implies does that the not imply alleging serious connection character serious Gilbertson has not cited, a any defect to of nor has the Court found, authority that would support such a notion. Second, to suggest the "steward of school healthiness" language seems that Gilbertson public servant, or perhaps system, a carries allegation which sort believes as her her position someone who works of moral impugns that for responsibility, competence in a as school and that that a position any of public trust necessarily also impugns her character. This simply cannot be squared with case law. Courts have required pleading more-than-mere-incompetence employees for positions which implicate the moral trust: school Trustees, of New principals, 225 F.3d 794 York, Colchester Bd. 459 Head v. in of Educ., 207, 217 514 F. 12 of responsibilities of public Chicago Sch. (7th Cir. 2000); teachers, F.3d number a (2d Supp. Cir. 2d 284 Reform Bd. Segal v. City 2006); (D. of Skiff Conn. v. 2007), aff'd sub nom. ( 2d Cir. Skiff v. 2 00 9) ; Colchester Sch. school Sch., 507 F. App'x 567 security guards, Cir. Pierce Cty. 1989); Clara, 995 and F.2d Fire Prot. public 898 Greer v. Nevertheless, permit the allegations Dist. defenders, (9th Cir. as a Pub. No. 4, 8 69 F. 2d 4 91 Portman 1993). All v. Cty. of these of (9th Santa positions if not more moral than the position of Food Services Coordinator. the courts assessing those liberty claims did not plaintiffs of to proceed incompetence serious character defect. Here, infer that Detroit (7th Cir. 1986); fire chiefs, carry at least as much moral responsibility, responsibility, 316 F. App'x 83 (6th Cir. 2012); police officers, Ratliff v. City of Milwaukee, 795 F.2d 612 Roley v. Dist., Jones' s steward of assertions school in based public on the service theory that insinuated a too, the Court cannot reasonably that Gilbertson performed poorly healthiness somehow insinuate the existence of a serious character defect. 3 To find otherwise would create an exception that swallows the serious-character-defect rule. Many, if not most, people who file employment-related stigma-based liberty claims are public employees, and have a corresponding moral responsibility to fulfil the public's trust that they will perform competently. When they are fired for incompetence, there is necessarily an implication that they were unable to fulfil that particular form of public trust. If allegations of incompetence in any public position were sufficient to state a liberty claim on the basis that such allegations imply a moral failing to fulfil the public's trust in competent service, then all public employees could file on the mere basis of allegations of incompetence. As case law shows, this is clearly not the case. More importantly, it should 3 13 The Court cannot which incompetence, presently conceive standing alone, a tremendous specifically plead, incompetence somehow incompetence as a temperamentally amount as demonstrate public unfit statement that responsible for of Ridpath food that moral renders not beyond of mere them indelibly Because Jones's problems performance did must allegations failing profession. quality in a moral responsibility did, their Gilbertson's poor moral a job Even public employees who servant which for government inherently implies failing or serious character defect. shoulder a imply any were serious character defect, Count One will be dismissed. Moreover, because nothing in the record suggests that Gilbertson will be able to remedy the lack of allegation of moral failing, this dismissal will be with prejudice. B. Gilbertson Properly States a Claim for Defamation at Count Three In Count statement Jones's generally, 20). To Three, Gilbertson that "[i]f pleads an defamation employee a "(1) publication; claim for defamation, plaintiff on suspended, is it's going to be related to performance." state based (Compl. must CJI plead: (2) of a statement that is actionable; and (3) not be the case: the government does public servants who are incompetent. 14 need to be able to fire requisite intent." 3 : 0 7 CV 4 4 7 , 2008 Andrews v. 2 096964 , at WL Virginia * 10 Union ( E . D. (relying on Jordan v. Kollman, 269 Va. 569, Va . Univ. , May 16, No. 2008 ) 612 S.E.2d 203, 2-06 (2005)). At this requisite Docket No. stage, intent. 5, Defendants (Def.'s 6-12) on actionability. and defamatory. 10 92 (4th Cir. do in Mem. not Supp. ("Def.' s Mem. "). To be actionable, Chapin v. 19 93) . a of publication Mtn. or to Dismiss, Defendants focus, instead, a statement must be false Knight-Ridder, Whether contest Inc., statement is 993 F. 2d 1087, actionable is matter of law. Id. At common law def amatory words which are actionable per se are: ( 1) Those which impute to a person the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished. (2) Those which impute that a person is infected with some contagious disease, where if the charge is true, it would exclude the party from society. ( 3) Those which impute to a person unfitness to perform the duties of an office or employment of profit, or want of integrity in the discharge of the duties of such an off ice or employment. ( 4) Those which prejudice such person in his or her profession or trade. Carwile v. Richmond Newspapers, 196 Va. 1, 7, 82 S.E.2d 588, 591 (1954). Additionally, it is a rule that allegedly general def amatory words are to be taken in their to be plain and natural meaning and understood by courts and juries as other 15 a people would understand them, and according to the sense in which they appear to have been used. In order to render words defamatory and actionable it is not necessary that the defamatory charge be in direct terms but it may be made indirectly, and it matters not how artful or disguised the modes in which the meaning is concealed if it is in fact defamatory. Accordingly, a defamatory charge may be made by inference, implication or insinuation. Carwile, 82 S.E.2d at 591-92. 1. Jones's Statements Identified Gilbertson as an Under-Performing Person with Reasonable Specificity First, Defendants argue insufficiently specific to that defame statements Jones' s Gilbertson. (Def.' s were Reply in Supp. of Def.'s Mtn. to Dismiss, Docket No. 15, 2). The exact words are "there is a problem and [Dr. Jones] confirmed the head of food services for the entire school system was suspended a couple of weeks ago, but declined to comment further citing personnel matters." Second, "If an employee is suspended, generally, it's going to be related to performance." (Def.' s about Reply 1-2). Plaintiff suspension suspensions was Defendants is that given cannot be especially given the not commenting she on was read that "the suspended, The second to fairly no statement be about only statement reason about the for (Def.' s Reply 2) . However, context of the statements was 16 the general Plaintiff, immediately preceding sentence that he her." acknowledge that the argue is Defendants as follows: (1) Jones commented that the Food Services Coordinator had been suspended; ( 2) suspensions generally," the reporter and "followed ( 3) Jones are generally related to performance. Defendants' of Jones' s argument flies by stated asking that about suspensions (Def.'s Reply 1-2). in the comments in context. up face of a plain reading Allegedly defamatory statements are given their "plain and popular" construction. E.g., Carwile, 82 Co., 416 S.E.2d at 320, 330-31 591-92; (4th Hatfill v. Cir. 2005); (holding that whether a determined by Newspapers, a v. York Times Andrews, 2007 WL 4143080 F.3d at *8 statement is one of fact or opinion is reasonable Inc. New construction) Lipscomb, 234 Va. (relying 277, on Richmond 362 S.E.2d 32, 43 n. 8 (1987)). Evaluation of a defamation claim requires the court to consider the plain language of the words spoken and the context and general tenor of the message. In order to determine whether an alleged statement is defamatory, the court must "assess how an objective, reasonable reader would understand a challenged statement by focusing on the plain language of the statement and the context and general tenor of its message." Cutaia 525471, v. Radius at *4 Eng'g (W.D. Int'l, Va. Phelps, 580 F.3d 206, 219 Inc., No. 5:11CV00077, 16, 2012) (quoting Feb. (4th Cir. 2012 WL Snyder v. 2009)); see also Carwile, 82 S. E. 2d at 592 (noting that the defamatory aspect of a statement may by be made "inference, implication, 17 or insinuation"). Defendants themselves note that "allegedly defamatory words are to be taken in their plain and natural meaning and to be understood by courts and juries as other people would understand them, been and according to the used." (Def.' s sense in which they appear to have Reply 2) (quoting Schaecher v. Bouff aul t, 772 S.E.2d 589, 595 (Va. 2015)). Here, making a reasonable inference in favor of Gilbertson, a reasonable Gilbertson person was would suspended, read Jones's followed by statement ( 1) a statement that that (2) suspensions are "generally ... related to performance" as meaning that (3) Gilbertson performance. statement meaning A that that was suspended reasonable he his could person not following for would comment reasons not on statement related understand personnel that to Jones' s matters suspensions as are generally related to performance did not pertain to Gilbertson. In the context of this interview for a story about the quality of school suspended, food, and after a remark that Gilbertson was the Court can reasonably infer that an ordinary and reasonable person would understand Jones as stating that Gilberton's performance caused her suspension. 2. Jones's Statements are Not Statements of Opinion Second, actionable statements Defendants statements of fact argue of that Jones' s opinion, statements rather which may be proven true 18 than or are non- actionable false. (Def.' s Mem. 7, 9-11); 3424253, at opinion] may connotation see also Katti v. *4 (E.D. be Va. are 3:06CV471, Nov. 22, if they have thus capable a of person 2006 WL ("statements 2006) actionable and Moore, No. a [of provably being proven false true or below a false.") . Allegations professional may be standard are employed relevant to see also, Drawing reasonable objective and statement as performance e.g., stating reasons, in and thus 286 Va. at favor Gilbertson that testimony plaintiff of at 8, was met the 337, 749 82 S.E.2d Gilbertson, understand would reader expert 196 Va. Carwile, that the Cashion, inferences reasonable because whether standard. performed has actionable, determine professional S.E.2d 526; 588. that Jones's suspended her performance an fell for below the expected standard in her profession. Contrary to Defendants' position, Jones' s statements may be proven testimony about professional standards, true or false by and a reasonable person would not understand them as statements of opinion. 3. Defamation Per Se Defendants argue that Jones's statements are not defamatory per se. (Def.' s Mem. 7). 4 It is unclear why Defendants divided their initial brief into "defamation per se" and "common law defamation." (Def.'s Mem. 712). Defamation per se is a common law principle. 4 19 Virginia per for se, law recognizes certain including statements which her trade, plaintiff in occupation, pursuit Ellington, 230 Va. or thereof. statements as defamatory impugn plaintiff's profession Great 142, 334 S.E.2d 846, which Coastal 849 fitness prejudice v. Express (1985); Carwile, 82 S.E.2d at 591; Hatfill, 416 F.3d 320, 330 (4th Cir. 2005). For such prejudice to arise, the statements must relate to "the skills or character required to carry out the particular occupation of the plaintiff." Fleming v. Moore, 221 Va. 884, 275 S.E.2d 632, 636 (1981). Thus, a corporation may be defamed per se by statements "which cast aspersion on its honesty, credit, efficiency or its prestige or standing in its field of business." General Products Co., Inc. v. Meredith Corp., 526 F.Supp. 546, 549-50 (E.D. Va. 1981). Swengler v. ITT Corp. 1063, 1070-71 is capable defamation of per Electro-Optical (4th Cir. 1993). Div. , 9 93 F. 2d In assessing whether a statement having defamatory se a is Products question meaning of law, for and the the purposes Court of must Defamation per se is distinguished from non-per se defamation because "if a plaintiff establishes a claim for defamation per se, Virginia law presumes that the plaintiff suffered actual damage to its reputation and, therefore, does not have to present proof of such damages," and because punitive damages may be awarded upon a finding of defamation per se "even though actual damages are neither found nor shown." Swengler v. ITT Corp. Electro-Optical Products Div., 993 F.2d 1063, 1071 (4th Cir. 1993). Because Gilbertson has pled harm (Compl. 25, 44) and Defendant has not argued that her harms are somehow insufficiently pled, the distinction between defamation per se and non-per se defamation is irrelevant at this stage. Regardless, Gilbertson has stated a claim for defamation per se. 20 construe the words used in context and in their popular sense to determine whether an allegedly defamatory statement impugns or prejudices. See, e.g., Hatfill, 416 F.3d at 330-31. A reasonable person would understand Jones's statements in an interview about the poor quality of school food, ( 2) mentioning that had suspended, and Food ( 3) Services Coordinator mentioning that suspensions related to performance, as the were carry out her occupation. skills F.2d at required to 1070-71. (Def.'s Mem. 8), (4) Gilbertson Contrary (1) after been generally suggesting that Gilbertson lacked to 993 characterizations Defendants' Jones's statements, Swengler, as reasonably understood in context, directly touch upon Gilbertson's fitness for her trade, occupation, or profession. Accordingly, Gilbertson has pled a statement that is defamatory per se. 4. Well-Pled Allegations of Falsity Finally, alleged" to indicates suspended, is as false. that generally, (Def.'s an that she was FMLA claim; state that <][<JI 18, and she was Defendants Jones' s argue statement ("If that an "nothing employee is it's going to be related to performance") Reply, clearly pleads that 17); falsity, 2). That is her performance was actually suspended as that it is incorrect. satisfactory Gilbertson (Compl. retaliation for accordingly false for suspended based on her performance. <JI filing Jones to (Compl. 42) . The allegation of falsity might have been pled more 21 artfully, but the Complaint is clear enough that the Court can reasonably infer that Gilbertson is pleading the falsity of accept as Jones's statement. At false the any Chapin, motion to statements 993 dismiss that F. 2d at 1092. the stage, a court Complaint must alleges to be false. Because Gilbertson has pled that she did not suffer from performance issues and that any statements imply she Court did must suffer accept from that performance Jones' s issues inference are false, that the Gilbertson suffered from performance issues as false at this stage. CONCLUSION For the reasons stated above, (Docket No. 4) motion be will dismissed with Defendants' MOTION TO DISMISS will be granted in part and denied in part. granted as prejudice, it pertains and denied to as Count it One, pertains which to Three. It is so ORDERED. Isl Robert E. Payne Senior United States District Judge Richmond, Virginia Date: August 2016 -'-!!--' 22 The is Count
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