Builders and Contractors Exchange
Weekly Bulletin: 27 April 2007
Loose Lips Sink Ships
By: Heather M. Kofron
In Raytheon Technical Services Co. v. Hyland, the Virginia Supreme Court addressed on appeal in March 2007 whether certain statements made in a performance evaluation were statements of opinion, which are not actionable statements, or statements of fact, which may give rise to a claim for defamation.
The Plaintiff in this case, Cynthia Hyland (“Hyland”), worked for Raytheon as a senior vice president. After Raytheon lost several contracts, it retained outside consultants for a company review. During Hyland’s meetings with these consultants, she made confidential negative statements about the performance of her supervisor, Bryan Even (“Even”). When Even learned of these statements, he met with Hyland for a performance evaluation. Despite a recent promotion and a positive evaluation, Hyland received a negative performance evaluation. When Hyland refused to accept the feedback provided in her evaluation, Raytheon terminated her employment.
Hyland sued for defamation and the jury returned a verdict in Hyland’s favor for $3.5 million dollars. In Virginia, employers enjoy a limited qualified privilege in communications with an employee that affects the employment relationship where such statements are made in good faith and without malice. However, the Virginia Supreme Court held in Hyland that employee performance evaluations are not “immune from claims of defamation.” Indeed, “false statements of fact made maliciously in a performance review remain subject to claims of defamation.” Statements that “are relative in nature and depend upon the speaker’s viewpoint” or statements that do not “contain a provably false factual connotation” are typically expressions of opinion.
The Virginia Supreme Court determined that three statements made by Raytheon in Hyland’s performance evaluation were expressions of opinion because they were laced with Even’s opinions of Hyland’s performance and interactions with co-workers, supervisors, and customers. However, Even’s statements about Hyland’s financial performance and its impact on company losses were “laden with factual content” and contained “provably false factual connotations” that could constitute a claim of defamation.
While Virginia employers have a limited privilege in communications affecting the employment relationship, this case serves as reminder to employers that they should refrain from making unsupported factual statements or statements that are hostile or malicious in employee evaluations.
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This article is meant to bring awareness to this topic and is not intended to be used as legal advice.