“You’re fired,” it turns out, is all you really need to say.

Trail v. General Dynamics Armaments and Technical Products, Inc., Civil Action No. 1:10-cv-00001 (W.D.Va. March 25, 2010). The plaintiff, Trail, was recording secretary of a union that went on strike over the terms of a collective bargaining agreement. During the strike, unknown persons published the names, Social Security numbers, and salaries of management employees. A police investigation followed and one of the employer’s human resource managers allegedly identified Trail as having been in possession of the information. After the strike was over, another agent of the employer alleged that Trail had had possession of the material. Trail was later indicted for identity theft and the indictment was locally publicized in an erroneous newspaper article. Following the indictment, the local prosecutor declined to prosecute the case.

The employer defendant publicized Trail’s indictment via mass distribution of the news article; suspended Trail without pay; and ultimately, terminated Trail in a letter that accused her of unethical and criminal activity despite reassurances from the prosecutor that Trail would not face criminal charges. Among other things, the termination letter accused Trail of unlawful conduct. Trail sued the employer for defamation and violation of Virginia’s Insulting Words statute. Virginia’s Insulting Words statute requires proof that the defendant used words to the plaintiff “which from their usual construction and common acceptance are construed as insults and tend to violence and breach of the peace.”

The employer asked the Court to dismiss the Insulting Words claim on the grounds that Trail had not alleged facts that would support it. The Court found, however, that – consistent with other Virginia decisions – a false accusation of unlawful conduct would “tend to violence and breach of the peace.” The defendant’s motion to dismiss was denied.

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