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It’s not me, it’s you

Have you defamed a coworker when you say she faced conflict on the job because she was not always to work on time?

Fact versus opinion in the workplace was before the Supreme Court of Virginia this morning when the court heard oral argument in two defamation cases.

First up was Butler v. N.E.W. Customer Servs. Cos., a 2007 Fairfax case, tried twice, in which a woman claims she was defamed by a former colleague’s comments about the woman’s conflicts with coworkers over her work schedule. The woman said she left for a higher-paying job and the negative comments came to light several years later when she applied for a job that required a high-level security clearance.

Supreme Court Justice Barbara Keenan closely questioned Fairfax lawyer Ben Trichilo, representing plaintiff Kristen Butler, about the framing of an assignment of error. Trichilo previewed the next case on the docket when he argued that the Fairfax trial judge had applied Raytheon Technical Services v. Hyland as if the viewpoint of the speaker was the litmus test for regarding a comment as defamatory.

Richmond lawyer Duncan Getchell, who represented the employer N.E.W., argued that a “person’s assessment of someone else’s state of mind is always an expression of personal opinion,” which is a “core liberty.”

In the main bout, the justices took another look at Raytheon, back from last year’s remand in which the high court reversed a $1.85 million award to a former executive with a defense contractor who sued for a “defamatory” job evaluation.

The 2007 opinion said that only two of the five allegedly defamatory statements in the job evaluation could support a defamation claim, and the Supreme Court remanded “for a new trial consistent with this opinion.” But the mandate apparently directed remand for “further proceedings.”

So the lawyers, Fairfax lawyer Elaine Bredehoft for the executive and Richmond lawyer John Charles Thomas for the contractor, tangled over whether the trial judge followed the court’s instructions when it granted summary judgment to the employer.

With the tandem cases to consider, employers may be hoping for some more definitive word on workplace comments on employees, when the court hands down its next batch of opinions Jan. 16.

By Deborah Elkins

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