Virginia Lawyers Weekly//April 16, 2021
Virginia Lawyers Weekly//April 16, 2021//
Statements contained in appellant’s disciplinary form lacked the requisite “sting” to be actionable as defamation. Further, any republication of the statements and other statements made in proceedings before the Virginia Employment Commission are absolutely privileged.
Appellant Shannon was the deputy director of Hampton Roads Community Action Program for almost 14 years. Braxton, HRCAP’s executive director, announced her retirement. Shannon would have taken over under a written succession plan. However, Vick was named Acting Executive Director instead. While Braxton was still executive director, Shannon submitted a leave time slip to her.
Braxton approved Shannon’s leave from Sept. 4 to Sept. 10, 2015. Shannon told Vick about her vacation at a Sept. 1 executive staff meeting. When Shannon returned, Vick met with her. “Vick ‘broached the HRCAP personnel tensions resulting from the controversial hire of Vick as the Interim Executive Director’ and discussed certain behaviors in the workplace.
“Vick wrote the September 14, 2015, HRCAP Disciplinary Action Form (‘Disciplinary Action Form’) that is the subject of this appeal and placed it in Shannon’s personnel file.
“While still employed by HRCAP, on November 12, 2015, Shannon filed a pro se complaint in the circuit court against Vick and HRCAP for defamation based on the statements made in the Disciplinary Action Form. Shannon was subsequently terminated from her position with HRCAP by letter dated February 8, 2016.”
Shannon applied to the VEC for unemployment benefits. Futrell, Vick’s successor as HRCAP’s chair of the board of directors, testified at the hearing. VEC denied Shannon’s application.
On June 19, 2016, Shannon nonsuited her defamation complaint and filed a new complaint on Dec. 14, 2016, in which she stated additional claims arising from republication of Vick’s memorandum during the VEC proceeding and other statements Vick made.
HRCAP demurred. After amendments and motions, the circuit court ultimately “dismissed the amended complaint with prejudice, without leave to amend.”
No defamatory statements
“An ‘actionable’ statement is both false and defamatory. … Defamatory words are those ‘tend[ing] so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.’ …
“This Court has described the requisite defamatory ‘sting’ for an actionable claim as containing language that: ‘tends to injure one’s reputation in the common estimation of mankind, to throw contumely, shame, or disgrace upon him, or which tends to hold him up to scorn, ridicule, or contempt, or which is calculated to render him infamous, odious, or ridiculous.’ …
“In this case, the statements at issue are contained within the three paragraphs of the Disciplinary Action Form. The first paragraph pertains to Shannon ‘abus[ing] her paid vacation-sick leave.’
“The paragraph states: ‘[Y]ou are not allowed to take sick leave without giving notice to your immediate supervisor prior to the start of the work day or contact with your supervisor about you taking off of work for sick leave. You were on vacation and on September 10, 2015, I was told by the administrative assistant at approximately 2 pm that you were taking sick leave because you were not feeling well.
“‘On September 11, 2015 you came in the office after 9 am and you did not communicate with your immediate supervisor, who is the interim executive director that you would be off for more than half of the day. I was not aware that you were on vacation for the entire week.’
“This statement, without more, does not rise to the necessary level of defamatory ‘sting.’ The statement does not ‘tend so to harm the reputation of [Shannon] as to lower [her] in the estimation of the community or to deter third persons from associating or dealing with [her].’ …
“It was an instruction from a supervisor to a subordinate to improve ‘clarity in communication to me, when you are on leave and when you will be reporting to work.’ The circuit court found that ‘[a]t the end of the first paragraph she merely says there needs to be clarity and communication to me. That is not accusing [Shannon] of anything.’ We agree.”
The second statement “is a request by Vick that Shannon not communicate with staff or participate in email traffic while Shannon is on vacation in the future. The statement is not defamatory and does not contain ‘sting.’
“The circuit court found that ‘I am requesting that you are – when you are on vacation, please, refrain from communication. That’s not accusing [Shannon] of anything.’ We agree with the circuit court that this statement did not contain the requisite defamatory ‘sting’ so as to cast Shannon into infamy.”
The third statement “contains an observation, not defamatory ‘sting.’ It observes that employees have been treated as though they were hourly instead of salaried, but does not indicate who has done so or how. The circuit court found that ‘it doesn’t accuse [Shannon] of doing anything. It’s merely a statement. This is merely a communication between co-workers about office policy by somebody who is very new to the job.’ We agree that this statement is not defamatory.”
“Code § 60.2-623 governs claims adjudication for the VEC. … ‘It is settled law in Virginia that words spoken or written in a judicial proceeding that are relevant and pertinent to the matter under inquiry are absolutely privileged.’ … Several Virginia circuit courts have concluded that Code § 60.2-623(B) grants absolute privilege to statements made during VEC proceedings. … Federal courts have drawn the same conclusion[.] …
“We hold that Code § 60.2-623(B) grants absolute privilege to statements made during VEC proceedings and affirm the circuit court’s order granting HRCAP’s special plea of absolute privilege.”
Bryant-Shannon v. Hampton Roads Community Action Program. Record No. 200153, April 8, 2021 (Lemons). From the Circuit Court of the City of Newport News (Savage). Chester Smith (Smith Law Group, on briefs), for appellant. Joseph F. Verser (Jordan C. Heath; Heath, Overbey, Verser & Old, on brief), for appellee. VLW 021-6-021, 12 pp.