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Employer Has Qualified Privilege in Defamation Claim Where Thorough Investigation as to the Veracity of an Alleged Incident is Made

Shirley Shaheen v. The WellPoint Companies, Inc.
No. 11-2317 (4th Cir. Aug. 3, 2012)

by Natalie Scurto, Summer Associate
Semmes, Bowen & Semmes (www.semmes.com)

In this case, Plaintiff, Shirley Shaheen (“Shaheen”) challenged the District Court’s finding of summary judgment in favor of Defendant, The WellPoint Companies, Inc. (“WellPoint”).  The Fourth Circuit, affirming the District Court’s holding, found that Shaheen failed to raise a genuine dispute of material fact sufficient to defeat WellPoint’s qualified privilege, as a matter of law, in the underlying defamation suit.

On September 11, 2011, Sheehan, a manager at her place of employment, requested that an employee, Linda Taylor (“Taylor”), move from one cubicle to another cubicle that was equipped with the phone system that Taylor needed to perform her job.  According to Sheehan, Taylor responded in a hostile manner and proceeded to “use the ‘f-word.’  Sheehan reported the incident to her superiors, Kelli Lohmeyer (“Lohmeyer”) and Whitney Ingle (“Ingle”).  In a memo addressed to Lohmeyer and Ingle, Sheehan also reported that two other employees overheard Taylor curse at her.  Taylor was eventually terminated.

Days later, Taylor challenged her termination and Ingle and Lohmeyer subsequently opened an investigation into the incident.  After interviewing the two (2) employees who Shaheen claimed witnessed the incident, Ingle and Lohmeyer were unable to confirm that Taylor had used a curse word in her interaction with Shaheen.  Ingle and Lohmeyer met with Shaheen and were dissatisfied with her answers to their questions.  On October 15, 2010, Shaheen was terminated because she “misrepresented the severity of the situation between herself and Taylor.  Shaheen filed an action against WellPoint alleging defamation and defamation per se.  She challenged six (6) statements, including those statements that claimed Shaheen misrepresented or lied about the situation, as well as statements concerning Shaheen’s termination and violation of company policy.

The District Court found that the statements were protected by a qualified privilege.  Shaheen failed to defeat the qualified privilege and failed to show the existence of a genuine dispute as to whether the statements were defamatory.

In Virginia, a defamation action requires publication of an actionable statement along with the requisite intent.  Chapin v. Greve, 787 F. Supp. 557, 562 (E.D. Va. 1992).  An actionable statement is defamatory and false.  Id.  To be considered defamatory, a statement must “make the plaintiff appear odious, infamous, or ridiculous.”  Id.  Virginia recognizes a qualified privilege for “communications between persons on a subject in which the persons have an interest or duty.”  To defeat that privilege, a plaintiff must show malice, or that the statement was made with such “gross indifference and recklessness as to amount to a wanton or willful disregard of the rights of the plaintiff.”  Southeastern Tidewater Opportunity Project, Inc., 435 S.E.2d 131, 132-33 (Va. 1993).

Shaheen attempted to defeat the qualified privilege with three (3) arguments.  First, she alleged that WellPoint acted with reckless disregard for the truth due to its “gross[ly] deficient investigation.”  Second, Shaheen argued that WellPoint used disproportionate and exaggerated language to describe the facts, and lastly, that there existed a lack of reasonable cause for believing the allegations against Shaheen to be true.

The Court, rejecting Shaheen’s first argument, found that the investigation was not “grossly deficient” as Ingle and Lohmeyer interviewed all associates whom Shaheen had identified as witnesses of the incident.  The only corroboration of Shaheen’s story was a witness’ allegations that Taylor spoke loudly and was agitated.  None of the witnesses stated that Taylor had cursed, the reason for which she was terminated.

Shaheen relied on several cases for her assertion that WellPoint’s investigation was deficient.  The Court, however, found that WellPoint’s investigation was far more thorough than the incomplete or nonexistent investigations in the cases cited by Shaheen.

For the reasons above, the Fourth Circuit Court of Appeals affirmed the District Court’s finding of Summary Judgment in favor of WellPoint.


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