Grasping At Straws: Virginia’s Defamation Standard Requires More

Many times, defamation lawsuits are filed based on suspicion that a former employer has disparaged the plaintiff because companies to which she has applied have not hired her.  While this may seem like a proper basis for legal action, a recent decision by the Eastern District of Virginia confirmed that it is not – the plaintiff must set forth “the exact words spoken or written” that constitute the alleged defamation. Without knowing what the employer said, if anything, a plaintiff cannot prevail.  Gierbolini v. Science Applications Int’l. Corp., No. 1:12-cv-1459  (E.D. Va., Oct. 8, 2013).

The employee-plaintiff in the case, Catherine Gierbolini, worked for the defendant SAIC for two years in Afghanistan and then was transferred to Kuwait where personality conflicts arose between herself and a colleague. Gierbolini was issued a written reprimand, and when the conflict persisted, her employment was terminated. Upon returning to the United States, Gierbolini had difficulty securing a new job and believed that SAIC was providing negative references to potential employers. She also alleged that SAIC had prepared a “letter of release” barring her from returning to an active theatre of war to work as a civilian.

Gierbolini filed four pro se complaints, alleging violation of the Equal Pay Act, Title VII, the No FEAR Act, the Whistleblower Protection Act of 1989, the ADA, and wrongful termination and defamation under Virginia state law. The court dismissed all the claims in which Gierbolini failed to assert “factual allegations or plausible claims upon which relief may be granted.” The defamation claim proved to be time-barred by the one-year statute of limitations for defamation in Virginia. Gierbolini alleged that her defamation occurred as late as February 2011, but she did not file her suit until December 2012.

Even if Gierbolini had filed her defamation claim within the required one-year timeframe, it would have failed. The court allowed Gierbolini to conduct discovery which produced nothing to support her claim. “Whether [SAIC] ever gave a potential employer negative references remains as much of a mystery now as it was when discovery began. Therefore, there is no evidence on which to draw a reasonable inference of defamation,” the court ruled.

The pleading standard for a defamation claim under Virginia law requires that the plaintiff set forth “the exact words spoken or written” that are alleged to be defamatory. While Gierbolini learned from one employer to which she applied that SAIC had not responded to its reference request, this evidence alone failed to meet the standard.  The Court dismissed her complaint.