COA: Defamation claims lack ‘sting’ to proceed

Statements in a report to a state authority that a former employee met to discuss concerns and was under investigation when she resigned lacked the requisite sting to be actionable as defamation per se, the Court of Appeals of Virginia has ruled, affirming the circuit court’s judgment sustaining a demurrer.

After Zhan Wang resigned from Carilion New River Valley Medical Center, her former supervisor, Laura Taylor, filed a report to the Virginia Department of Health Professions about Wang.

The report referenced a meeting with Wang to discuss concerns about her employment, as well as the fact that Wang submitted her resignation while under investigation.

Wang filed suit, asserting that the statements were false and defamatory. The defendants demurred and the circuit court sustained the demurrer. Wang appealed and the Court of Appeals affirmed.

“[E]ven taking as true Wang’s assertions that she was not under investigation when she resigned, she does not dispute that an investigation occurred, nor does she dispute the statements Taylor made about her behavior that led to the investigation,” Judge David Bernhard wrote. “Given that context, the timing of Wang’s resignation carries diminished significance, and none of the challenged statements are ‘sufficiently damaging to [her] reputation so as to deter others from associating with her and render her contemptible in the estimation of the community.’”

Judges Vernida R. Chaney and Dominique A. Callins joined the unpublished eight-page opinion in Wang v.
Taylor (VLW 026-7-286).

Kimberly W. Daniel of Hancock, Daniel & Johnson in Glen Allen, who represented Taylor, was pleased with the decision.

“This is a terrific outcome for our client, and the decision relies on well- settled precedent about the requisite sting required for allegedly defamatory statements,” she said.

Roanoke attorney Thomas E. Strelka, who represented Wang, did not respond to a request for comment.

Contentious relationship

A licensed nurse practitioner, Wang worked in a psychiatric clinical practice at the Carilion Clinic health system’s New River facility beginning in August 2019. She and Taylor had a contentious relationship.

In September 2022, Taylor asked Wang to sign a noncompete agreement. Wang refused and the refusal “angered” Taylor, according to Wang’s suit. Wang observed and reported multiple patient care issues directly to Taylor in 2022 and 2023; according to Wang, Taylor took no action on the reports and became “frustrated and outright hostile” to Wang.

Wang also reported what she believed to be unlawful or inappropriate behavior, first to Taylor and then to the Virginia Board of Nursing, which led to an investigation, allegedly further angering Taylor, according to the lawsuit.

In April 2023, Wang submitted a 90-day resignation notice to Taylor. At a May 5
meeting, Taylor and Wang discussed Wang’s resignation and Taylor asserted that Wang had a conflict of interest between her own private practice clinic and the Carilion health system.

Taylor then filed her report with the state body, stating that Wang submitted her resignation “while under investigation for violating policies, rules, guidelines, or practices related to safe patient care.” Taylor also described a series of events leading up to the report, including that Wang may have examined a staff member off record, prescribed a controlled substance to the staff member and solicited patients for her private practice outside of Carilion.

The report referenced meetings with Wang on April 13 and May 5.

Wang sued Taylor and Carilion for defamation per se based on the statement that she met with Taylor on April 13 and that she submitted her resignation while under investigation.

Taylor and Carilion demurred, arguing that the statements lacked the requisite defamatory “sting” to be actionable.

The circuit court agreed and sustained the demurrer.

Wang appealed.

Defamation per se alleged

To state a claim for defamation, a plaintiff must allege “(1) publication of (2) an actionable statement with (3) the requisite intent” by the defendant, the court explained.

In order to satisfy the second requirement, the statement must have “the requisite defamatory ‘sting’ to one’s reputation,” which occurs if it “tends to injure one’s reputation in the common estimation of mankind, to throw contumely, shame, or disgrace upon him, or … tends to hold him up to scorn, ridicule, or contempt, or … is calculated to render him infamous, odious, or ridiculous.”

At common law, certain aspersions are defamatory per se, including those which impute to a person unfitness to perform the duties of an office or employment of profit, and those which prejudice a person in his or her profession or trade.

Wang asserted that the statements about the April 13 and May 5 meetings were defamatory per se because they prejudiced her in her profession as a nurse practitioner and imputed to her unfitness to perform the duties of that profession.

Negative, but not actionable

Examining the challenged statements in context, the court noted that Wang did not claim that Taylor’s allegations about her underlying conduct were false. Wang did not challenge the truth of the statement in the report that on May 5, 2023, she met with Taylor and two other Carilion employees and admitted to conduct of which she was accused; nor did she challenge the truth of the statement in the report that Carilion ultimately completed an investigation and sent her a disciplinary action.

Even taking as true Wang’s allegations that she was not under investigation when she resigned, she did not dispute that an investigation occurred, or the statements Taylor made about her behavior that led to the investigation.

Given the context, the court found that none of the challenged statements were sufficiently damaging to her reputation so as to deter others from associating with her and render her contemptible in the estimation of the community.

“For the same reasons, the statements do not prejudice her in her profession as a nurse practitioner, nor impute to her unfitness to perform the duties of that profession,” the court wrote. “Taken as a whole, the impact of Taylor’s report on Wang’s professional reputation is negative, surely. … But the specific challenged statements about the timing of her resignation do not have a significant impact when examined against the greater backdrop of the allegations in Taylor’s report, which Wang does not otherwise challenge. Thus, the circuit court correctly concluded that the allegedly defamatory statements lack the requisite sting to be actionable.”

The court affirmed the circuit court’s judgment sustaining the demurrer.

Wang v. Taylor

ISSUE           Did statements in a report to a state authority that a former employee was under investigation when she resigned have the requisite sting to be actionable as defamation
per se?

Answer      No (Court of Appeals of Virginia)

Attorneys  Thomas E. Strelka, Virginia Employment Law (appellant) Kimberly W. Daniel, Hancock, Daniel & Johnson (appellee)