Gilbertson v. Jones et al
Filing
22
MEMORANDUM OPINION. See for complete details. It is so ORDERED. Signed by District Judge Robert E. Payne on 08/17/2016. (nbrow)
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
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
problems"
F.2d at 1092
79
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
Virginia
Union
Univ. ,
No.
~~~~~~~~~~"--~~~~~~~~~~
WL
* 10
( E . D.
(relying on Jordan v. Kollman, 269 Va.
569,
Va .
May
16,
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
<][
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