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If you can’t say something nice, don’t say anything to a disinterested third party.

Suarez v. Loomis Armored US, LLC, Civil Action No. 3:10-CV-690-JRS (E.D. Va. December 7, 2010).The Defendant, Loomis Armored US, LLC, provides armored truck services and the Plaintiff, Suarez, was employed by Loomis as one of its drivers. Loomis terminated Suarez by a letter in which Loomis implied that Suarez had been stealing money from ATMs. In the months following Suarez’s termination, Suarez alleged, Loomis supervisors and employees told another employee named Allport that Suarez had been fired for theft. Later, Allport told an employee at a Walgreens who knew Suarez that Loomis said Suarez had “stole a bunch of money.”

Prior to his termination, Loomis had testified for a former co-worker at an unemployment hearing and Loomis alleged that his general manager had accused Loomis of theft in retaliation for that testimony. Suarez also alleged that Loomis either knew or should have known that Suarez did not steal any money because his general manager had cancelled a meeting to discuss such matters, because Loomis did not pursue criminal charges against Suarez, and because Loomis did not challenge Suarez’s own unemployment claims. Suarez alleged that the statements made by the Loomis employees to the Walgreens employee were defamatory and that Loomis was liable for the defamatory statements made by its employees

Loomis asked the court to dismiss the case and on the grounds that Suarez had not alleged facts sufficient to make Loomis liable for the defamatory statements of its employees and because the statements were protected by a qualified privilege.

The court began with a review of the essential elements of the defamation claim in Virginia. These elements are (1) publication of (2) an actionable statement with (3) the requisite intent. Publication occurs when the statement is transmitted to some third person so as to be heard and understood by such person. Certain types of statements are actionable in and of themselves. They are:

  • statements that a person has committed a crime of the sort that leads to jail time;
  • statements that a person has a contagious disease of the sort that will exclude a person from society;
  • statements that a person is not fit for a job, or lacks integrity in discharging job duties;
  • statements which prejudice a person in his or her profession or trade.

The court found that Suarez had sufficiently alleged that the “stole a bunch of money” statement was actionable in itself because it imputed to Suarez both the commission of a crime and unfitness to perform the duties of his previous job. The court also found that Suarez had sufficiently alleged that Allport had repeated defamatory statements he overheard from other Loomis employees and supervisors who, despite knowing that the information was false, acted with malice and with the reasonable expectation that their statements would be repeated to third parties.

Loomis also challenged whether Suarez sufficiently alleged that Allport was working within the scope of his employment at the time he made the “stole a bunch of money” statement. Loomis argued that it could not be made liable for that statement if Allport was not working within the scope of his employment when he made it. The court found, however, that the allegation that Allport was conducting Loomis’s business when he was servicing the ATM at Walgreens during his work hours was sufficient to show that Allport was working within the scope of his employment when he made the statement.

Loomis had also challenged Suarez’s claim by saying that the statement was protected by qualified privilege. Qualified privilege is frequently raised as a defense in defamation cases that spring from an employment relationship. In Virginia, the privilege protects a person who makes an otherwise defamatory statement if the statement is made to a person who shares a common interest or duty in the subject matter. By way of example, qualified privilege attaches to communications between an employer and its employees explaining a former coworker’s termination or to communications between a person’s former and prospective employers. An employer may not abuse the privilege, though, and a plaintiff can overcome the privilege by showing that a statement was made maliciously.

Suarez argued that the Walgreens employee was an “uninterested third-party” and as a result there was no common interest or duty in the subject matter of the statement. Under such circumstances, qualified privilege does not apply. Loomis countered that Allport and the Walgreens employees had a common interest in Suarez’s termination, because it “affected both their jobs.” Loomis, however, made no showing that the Walgreens employee’s duties included inquiring about and discussing the termination of Loomis drivers. As a result, the court concluded that Loomis had failed to show that a qualified privilege applied to protect the statement.

The court denied Loomis’s motion to dismiss the complaint.

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