Horne v. WTVR, LLC

Filing 113

OPINION re: 70 Order. See Opinion for details. Signed by District Judge John A. Gibney, Jr. on 4/6/2017. (sbea, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

ANGELA ENGLE HORNE,

Plaintiff,
Civil Action No. 3:16-cv-000092- JAG

V.

WTVR, LLC, d/b/a CBS6,
Defendant.
OPINION

The Prince George County School System (the "School System") hired, and then fired,

Angela Engle Home, a convicted felon, as its Director of Budget and Finance. A local television
station, WTVR, LLC, doing business as CBS 6 ("WTVR"), aired a segment about the "Felon

Hired, Then Fired." The segment did not provide details on the specific employment situation,
but it did review the hiring process, including the fact that making a false representation about

prior criminal convictions on an application is a criminal offense. In reality, the School System
hired Home after she disclosed her prior criminal conviction on her application, and then fired
her when it realized that hiring her had violated state law.

Home has sued WTVR for

defamation, alleging that the segment it broadcast defamed her by implying that Home had
committed a crime by lying on her application. WTVR has moved for summary judgment.

Because the segment is reasonably capable of the alleged defamatory meaning, and because

disputes of fact exist as to WTVR's intentwhen it published the segment, the Court will deny the
motion for summary judgment, and the case will proceed to trial.

L BACKGROUND

In July 2014, Home completed an online application for the position of Director of

Budget and Finance for the School System. On the application, Home disclosed a prior felony
conviction. The School System hired Home for the position. She started in September 2014.

The Director of Budget and Finance (the "Director") is responsible for managing the

financial, budgetary, and purchasing affairs of the School System. The Director reports to the

Assistant Superintendent for Administration and Personnel, and supervises the Accounting
Associate. The position description includes nineteen responsibilities, which involve planning,
directing, coordinating, managing, tracking, overseeing, and analyzing.

Most of the

responsibilities focus on the intemal logistics, such as accounting, reports, audits, and benefits.
Additionally, the Director "[m]ust be available to attend regular school board meetings and be

comfortable presenting to the school board." (Mem. Supp. Mot, Summ. J. Ex. 2.) According to
Home, she only spoke at a meeting once.

In January 2015, the Prince George County School Board (the "School Board") received
an anonymous letter that, in relevant part, asked why the School Board had hired Home despite

her prior conviction. The School Board directed the Superintendent for the School System,
Bobby Browder, to consult a lawyer about the issue. The lawyer advised Browder that Home's

hiring was illegal under Virginia law. On Febmary 10, 2015, Browder asked Home to resign.
Home refused, so Browder fired her.

WTVR is a television station that broadcasts in the Metro-Richmond area. At some point

prior to February 13, 2015, Wayne Covil, a reporter for WTVR, received a tip that the School
System had hired a convicted felon. Mid-moming on Febmary 13, 2015, Covil received an

anonymous email with the same information. Covil directed another WTVR employee to look

into Home as the potential felon. The employee found a possible phone number for Home, and
Covil left a message at this number. Covil also contacted Browder, who said that he could not

discuss specific details on the individual whom the School System had hired and fired, but could
discuss the hiring process in general. Later that day, Covil interviewed Browder about the hiring
process.

That evening, at the top of the 5:30 p.m. broadcast, WTVR aired a segment titled "Hired
and Then Fired." The "teaser" said: "A CBS 6 viewer reached out to us concerned about a felon

working for a local school system." One of the anchors then introduced the segment: "Getting a

job with a felony conviction is perfectly legal in Virginia, unless you want to work in a school.
That's not allowed. CBS 6 Senior Reporter Wayne Covil is working for you. He spoke to the
School System about how they keep this from happening."
The camera then turned to Covil, who began: "Sources tell us the person who was hired
to work in the School Board Office is no longer employed. While the School Superintendent

cannot legally talk about personnel matters, he did talk to me about the hiring practice, and it
starts with this book—Virginia School Law." The segment then explained the hiring process,

using clips from the interview with Browder, voice-overs from Covil, and related images and
video clips. Throughout the segment, the banner at the bottom of the screen read: "Felon Hired,
Then Fired: How Prince George Schools Prevents This."

The segment explained that the hiring process starts with an online application, which

includes a question that asks specifically about crimes. If an applicant lists a prior crime, the
School System asks for fiirther details. Once the School System selects the final applicant, it
then starts the finger printing and background check process. This process, however, could take
from four to six weeks, and the new hire sometimes starts before the School System receives the

results of the background check. Browder explained that state law prohibits people with felony
convictions and people with misdemeanor convictions for crimes toward children from working
for the School System. The segment ended with the following statement: "Virginia state law is

also specific when it comes to filling out an application for a school system. It is a Class 1
misdemeanor to make false representations when it comes to revealing criminal convictions."

Virginia law does mandate that school board applications must require the applicant to
certify that the applicant has not been convicted of certain crimes. Va. Code Ann. § 22.1-

296.1(A). As interpreted by the Supreme Court of Virginia, "[a] felon cannot make such a
certification." Butler v. Fairfax Cty. Sch. Bd, 291 Va. 32, 37, 780 S.E.2d 277, 280 (2015). The
same statute makes it a misdemeanor for a person to make a "materially false statement
regarding any such offense." Id,

II. DISCUSSION^

Home has sued WTVR for defamation, arguing that the segment implied that she hid her

prior conviction when she submitted her application and that, in doing so, she committed a
crime. To state a claim for defamation in Virginia, the plaintiff must allege that the defendant

published an actionable statement about the plaintiff with the requisite intent. Schaecher v.

Bouffault, 290 Va. 83, 91, 99, 772 S.E.2d 589, 594, 598 (2015). To be actionable, the statement
must be both false and defamatory, and, depending on the statement, must result in actual
damages. Id.; Carwile v. Richmond Newspapers, Inc., 196 Va. 1, 7, 82 S.E.2d 588, 591 (1954).

' WTVR moves for summary judgment. Rule 56 of the Federal Rules of Civil Procedure directs
courts to grant summary judgment "if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a). In deciding a summary judgment motion, the court must draw all reasonable inferences in
favor of the non-moving party. Anderson v. Liberty Lobby, Inc., All U.S. 242, 255 (1986).
Nevertheless, if the non-moving party fails to sufficiently establish the existence of an essential
element to its claim on which it bears the ultimate burden of proof, the court should enter
summary judgment against that party. Celotex Corp. v. Catrett, 411 U.S 317, 322 (1986).

WTVR has moved for summary judgment, claiming that Home cannot establish that the segment

was defamatory or that WTVR acted with the requisite intent. WTVR also raises the fair
comment and fair report privilege as a defense to Home's claim.
A, Defamatory

Defamatory words are those that damage a plaintiffs reputation in the community or that
deter others from associating or dealing with her. Schaecher, 290 Va. at 91-92, 772 S.E.2d at
594. For example, statements that falsely assert that a person committed a crime of moral
turpitude are defamatory. Carwile, 196 Va. at 7, 82 S.E.2d at 591.

A statement can qualify as defamatory whether made directly (i.e., on the face of the

statement) or by implication. Carwile, 196 Va. at 7, 82 S.E.2d at 591-92. When a plaintiff
alleges that a statement is defamatory by implication, the court must determine whether "the
words ascribed to the defendants, given their plain meaning, are reasonably capable of conveying
the defamatory innuendo of which the plaintiff complains." Pendleton v. Newsome, 290 Va.
162, 175, 772 S.E.2d 759, 765 (2015). If a statement is reasonably capable of the defamatory

meaning alleged, then it goes to the fact finder to decide whether the statement was actually
defamatory. Perk v. Vector Res. Grp., Ltd., 253 Va. 310, 316-17, 485 S.E.2d 140, 144 (1997).

In making its evaluation, a court must accept reasonable inferences in the plaintiffs
favor, but must resist using innuendo to extend the meaning of defamatory language beyond its
ordinary meaning. Webb, 287 Va. 84, 89, 752 S.E.2d 808, 811 (2014) (citing Carwile, 196 Va.

at 8, 82 S.E.2d at 592). Additionally, context matters. "[A]llegedly 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, and according to the sense in which they appear to have been used."
Carwile, 196 Va. at 7, 82 S.E.2d at 591-92. For example, in Carwile v. Richmond Newspapers,

an attorney charged the local police department with corruption, but after investigation, a grand
jury did not return indictments. Id, at 3, 82 S.E.2d at 589. The newspaper reported the story, and
included the fact that city officials did not answer a question about whether they would
recommend the attorney to the State Bar for his conduct in leveling the charges. Id. The story

then explained that the State Bar may request disbarment of an attorney for ethical violations.
M, 82 S.E.2d at 589-90. Carw//e held

[I]t is a reasonable implication of this language, read in connection
with the whole article, that the plaintiff is guilty of unethical and
unprofessional conduct for his charges made against the Police
Department; for which conduct the defendant suggests in a veiled
but pointed way that the plaintiff could and should be subjected to
disbarment proceedings.
Id. at 9, 82 S.E.2d at 592. In so holding, the Supreme Court of Virginia noted that the article did

not charge the plaintiff with a breach of ethics in express terms, but, when "aided by innuendo,
operating within the scope of its legitimate function," the article did impute conduct that
damaged the plaintiffs reputation. Id.

In this case, the WTVR segment is reasonably capable of the defamatory meaning alleged
by Home. The segment began with the report that the School System had hired, and then fired, a
convicted felon. Covil explained that Browder could not discuss personnel matters, so WTVR

would instead explain the hiring process. Nevertheless, throughout the segment, the banner at
the bottom of the screen read "Felon Hired, Then Fired." The segment ended with the fact that it

is a crime to make false representation about criminal convictions when filling out an

application. Taken in context, including both the words spoken and the images displayed, the
segment is reasonably capable of conveying that the School System fired the "Felon" because

she lied about her conviction when filing out her application. Like the article in Carwile, the
segment gives rise to this implication despite the fact that Browder would not discuss the specific

situation. Through its presentation, WTVR "suggests in a veiled but pointed way" why the
School System fired Home, and that Home committed a crime when she filled out her

application. Because the segment is reasonably capable of the alleged defamatory meaning, the
jury must decide whether the statement was actually defamatory.
B, Requisite Intent

The level of intent a plaintiff must prove to succeed on a defamation claim depends on

the status of the plaintiff, namely whether she is a private or public person. If the plaintiff is a
public person, to protect competing First Amendment freedoms, the plaintiff must prove that the
defendant published the allegedly defamatory statement with "actual malice." N. Y. Times Co. v.
Sullivan, 2>16 U.S. 254, 279-80 (1964). The Supreme Court has outlined two categories of

public persons that warrant this heightened standard for intent: public officials and public

figures. Courts must decide as a matter of law^ whether a plaintiff qualifies as a public official
or public figure. Carr v. Forbes, Inc., 259 F.3d 273, 278 (4th Cir. 2001). The analysis begins
with the presumption that the plaintiff is a private individual, subject to the defendant's burden of
proving that the plaintiff is a public official or public figure. Foretich v. Capital Cities/ABC,
Inc., 37 F.3d 1541,1553 (4th Cir. 1994).

Public officials are government employees that "have, or appear to the public to have,
substantial responsibility for or control over the conduct of government affairs." Rosenblatt v.
Baer, 383 U.S. 75, 85 (1966). In other words, the plaintiff can qualify as a public official based
on either her actual or apparent authority over governmental affairs. A position is more likely to
convey such authority if the responsibilities include participating in policy determinations,

making recommendations, or exercising discretion. Arctic Co. v. London Times Mirror, 624

^ Federal constitutional law govems this determination, not state law. Richmond Newspapers,
Inc. V. Lipscomb, 234 Va. 277, 284, 362 S.E.2d 32, 35 (1987).
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F.2d 518, 521-22 (4th Cir. 1980). The Supreme Court based its description of the "public
official" on the "strong interest in debate on public issues," and the "strong interest in debate
about those persons who are in a position significantly to influence the resolution of those
issues." Rosenblatt, 383 U.S. at 85. This public official status applies where "a position in

government has such apparent importance that the public has an independent interest in the
qualifications and performance of the person who holds it, beyond the general public interest in
the qualifications and performance of all government employees." Id. at 86.
Here, WTVR has met its burden in proving that Home was a public official as Director of

Budgetand Finance for the School Systembecause the position, at the very least, appears to have
substantial responsibility for the conduct of governmental affairs. Home focuses on her actual

authority as Director, arguing that she did not have any discretion over the budget.^ This
argument misses the point that, regardless of what the position actually entailed, the Director of
Budget and Finance for the School System would appear to the public to have substantial
responsibility for the School System's budget. The budget of a local school system certainly
qualifies as a public issue over which the Director appears to hold a position of significant
influence. Accordingly, the Court finds that Home was a public official at the time WTVR

broadcast the segment at issue."*

^In her opposition. Home also argues that the alleged defamatory statements do not relate to her
official conduct as Director. The Supreme Court, however, has held that "official conduct"
includes "anything which might touch on an official's fitness for office." Garrison v. Louisiana,
379 U.S. 64, 77 (1964). Honesty on an application, as well as prior criminal convictions,
certainly would touch on an official's fitness for office.

^ Because the Court finds that Home was a public official at the time of the publication, it need
not decide whether she was a limited-purpose public figure.
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Because Home was a public official at the time of the publication, she must prove that
WTVR acted with actual malice.^ The term "actual malice" in this context means "with

knowledge that [the statement] was false or with reckless disregard of whether it was false or
not." N.Y. Times Co. v. Sullivan, 376 U.S. at 279-80. In turn, "reckless disregard" requires

"subjective awareness of the probable falsity" of the statement. Hatfill v. N.Y. Times Co., 532
F.3d 312, 317 (4th Cir. 2008) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 334 n.6

(1974)). A plaintiff may prove the defendant's state of mind through circumstantial evidence.
Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 668 (1989).

The Court finds that a genuine dispute of material fact exists as to whether WTVR acted

with actual malice when it published the segment. Further, the Fourth Circuit has cautioned that

a court should employ summary judgment carefully when addressing a party's subjective state of
mind. Eramo v. Rolling Stone, LLC,

F. Supp. 3d

, No. 3:15-CV-00023, 2016 WL 5234688,

at *7 (W.D. Va. Sept. 22, 2016), reconsideration granted on other grounds, 2016 WL 5942328
(W.D. Va. Oct. 11, 2016) (citing cases). Accordingly, the Court will leave the issue of WTVR's
intent to the jury.

C. Fair Report Privilege^
The fair report privilege, recognized by most jurisdictions, protects "press reports of
official actions or proceedings, so long as the report was accurate and either complete or fairly
abridged." Chapin v. Knight-Ridder, Inc., 993 F.3d 1087, 1097 (4th Cir. 1993). In the relevant

^"Actual malice," as described in New York Times v. Sullivan, differs from common law malice.
Lipscomb, 234 Va. at 284, 362 S.E.2d at 35.

^ WTVR also asserts the fair comment privilege, which deals more with opinions. See Tomblin
V. WCHS-TV8, 434 F. App'x 205, 220 n.8 (4th Cir. 2011) (Davis, J., dissenting) (discussing the
difference between the fair comment privilege and the fair report privilege under West Virginia
law). This privilege does not apply to this case, as WTVR did not offer an opinion on the
situation.

jurisdictions, the Supreme Court ofVirginia has not addressed this privilege for half a century,^
and the Fourth Circuit has recognized a fair report privilege in certain situations, seemingly

based on constitutional considerations.® Regardless ofthe legal basis for the fair report privilege
that WTVR raises, any such privilege at least requires that the report be fair and accurate.
In this case, WTVR cannot claim the fair report privilege because it did more than simply

report what Browder, as the Superintendent for the School System, said about the hiring process.

In the segment, WTVR juxtaposed what Browder said with its report that the School System had
hired, and then fired, a convicted felon, and with the "Felon Hired, Then Fired" banner

displaying throughout the story. Accordingly, WTVR cannot rely on the fair report privilege in
this case.
III. CONCLUSION

In summary, the Court finds that Home was a public figure at the time WTVR aired the
segment at issue, so Home must prove that WTVR broadcast the segment with actual malice.
The Court, however, will leave this subjective inquiry to the jury.

Further, the segment is

reasonably capable of the alleged defamatory meaning, so the Court will leave for the jury the
decision of whether the segment actually defamed Home. In its defense, WTVR cannot rely on
the fair report privilege.

' Alexandria Gazette Corp. v. West, 198 Va. 154, 159, 93 S.E.2d 274, 279 (1956) ("The
publication of public records to which everyone has a right of access is privileged, if the

publication isa fair and substantially correct statement ofthe transcript ofthe record.").
Lee V. Dong-A Ilbo^ 849 F.2d 876, 878 (4th Cir. 1988); see also Reuber v. Food Chem. News,
Inc., 925 F.2d 703, 712 (4th Cir. 1991) ("While the sources of the fair report privilege are in
some dispute, several circuits have recognized that a privilege which goes to the heart of news
organizations' ability to report to citizens about their government is one with constitutional
implications.").
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The Court entered a corresponding Order on March 8, 2017.
Let the Clerk send a copy of this Opinion to all counsel of record.

Date:
Richmond, VA

John A. Gibney, Jr.

.2017

(L

United States Distilct

11