Tort – Defamation suit reinstated against employer

Where Virginia law presumes that an employer is liable if its employee commits a tort during the existence of an employment relationship, and this presumption was not rebutted by the allegations in the complaint, the district court erred when it dismissed claims asserted against the employer.

Background

Ian Auckland was fired by his former employer, Gilead Sciences Inc., after a female co-worker, Hilary Zachry, alleged he made an unwelcome, sexually explicit comment to her at a work conference. Auckland then sued Gilead and Zachry in federal court in Virginia, bringing state-law defamation claims. According to Auckland, Zachry knowingly made false accusations against him, and Gilead, as her employer, was vicariously liable for her actions.

The district court dismissed the claims against both defendants, finding that it lacked personal jurisdiction over Zachry – who lived and worked in California – and that Auckland failed to state a claim for vicarious liability against Gilead.

Zachry

Auckland contends that Zachry had regular, work-related contact with Buffy Moran, a member of the Key Accounts Team, who she knew to be a resident of Virginia. And he points to a specific text message conversation between Zachry and Moran, arguing that in this conversation, Zachry communicated with Moran about her allegedly defamatory accusations

The first class of activities – general work communications with Moran – cannot support specific personal jurisdiction over Zachry in this case. The relevant question is not only whether the defendant directed activities at the forum state, but also whether those “contacts with the forum state form the basis of the suit.” Zachry’s general work-related communications with Moran are unconnected to, and in no way form the basis of, Auckland’s defamation claims against Zachry – and are thus irrelevant to the personal jurisdiction inquiry here.

For similar reasons, the specific text conversation identified by Auckland does not establish personal jurisdiction over Zachry. Auckland does not claim that this is a conversation in which Zachry shared her purportedly defamatory accusation with Moran. Instead, Auckland acknowledges that Zachry told Moran about her allegations while both women were in Nashville, which could not create personal jurisdiction in Virginia.

But Auckland now claims that Zachry continued discussing the topic with Moran via text message when Moran returned home to Virginia. The problem for Auckland is that the single conversation he relies on contains no mention of the allegedly defamatory statements at issue, as evidence from jurisdictional discovery established. Because the purportedly defamatory statements were not discussed, this conversation could not “form the basis” for Auckland’s defamation suit.

Gilead

Plaintiffs claiming vicarious liability under Virginia law “benefit from a unique presumption” that is triggered “once [the] complaint alleges the existence of an employment relationship at the time of the employee’s tort.” This presumption “shifts the burden of production to the employer to present facts sufficient to permit the factfinder to conclude that the employee was not acting within the scope of [her] employment at the time of [her] tortious conduct.”

This presumption can be rebutted in two ways. First, the employer can present facts sufficient to rebut it. But because courts do not resolve factual disputes at the motion to dismiss stage, this process would occur only later, through discovery and summary judgment. Second, the presumption can also be rebutted earlier in the litigation by “the very complaint that triggers it,” if the plaintiff “affirmatively alleg[es] facts that rebut” it. But for that to happen at the motion to dismiss stage, “the self-refutation must be clear, not conjectural, and irrefutable rather than debatable.”

Here, the amended complaint alleges that Zachry was a Gilead employee at the time of the alleged defamation and that the defamatory statements were made as part of Zachry’s employment with the company. Those allegations are sufficient to bring the presumption into play.

Thus, the presumption could be rebutted only through “self-refutation”: if the complaint’s allegations themselves “categorically rebut[ted] any presumption that [Zachry’s alleged] offenses could ever be within the scope of employment for vicarious liability purposes.” This court sees nothing in the complaint that could meet this high bar.

Affirmed in part, vacated in part and remanded.

Concurring/dissenting opinion

Wilkinson, J., concurring in part and dissenting in part:

I would affirm in its entirety the district court’s dismissal of the defamation claim against Gilead Sciences, Inc.

Auckland v. Gilead Sciences, Inc., Case No. 25-1933, June 9, 2026. 4th Cir. (Harris), from WDVA at Roanoke (Cullen). Thomas E. Strelka for Appellant. Jonathan M. Albano and Laura A. Saracina for Appellees. VLW 026-2-209. 24 pp.

Full-Text Opinion
VLW 026-2-209