Bryant-Shannon v. Hampton Roads Cmty. Action Program, Inc.

856 S.E.2d 575

Lisha BRYANT-SHANNON

v.HAMPTON ROADS COMMUNITY ACTION PROGRAM, INC.

Record No. 200153

Supreme Court of Virginia.

APRIL 8, 2021

OPINION BY CHIEF JUSTICE DONALD W. LEMONS

In this appeal, we consider whether the Circuit Court of the City of Newport News ("circuit court") erred when it dismissed with prejudice an amended complaint filed by Lisha Bryant-Shannon ("Shannon") against the Hampton Roads Community Action Program, Inc. ("HRCAP") alleging its liability for defamatory statements made by HRCAP Interim Executive Director Tina Vick ("Vick").

I. Facts and Proceedings

Shannon worked at HRCAP for 31 years and as its Deputy Director for nearly 14 years. Vick is a member of the Newport News City Council, was the Vice Mayor, and served as the chair on HRCAP's board of directors. On or about June 30, 2015, the former Executive Director of HRCAP, Wendell Braxton ("Braxton"), resigned with an effective date of August 31, 2015. The written succession plan provided that the Deputy Director would succeed as Acting Executive Director, but Shannon did not become the Acting Executive Director.

Vick sought appointment as Acting Executive Director to eventually become the permanent Executive Director. Shannon had previously applied for the position of Executive Director and was "again interested to be a candidate for the position." During a July 17, 2015 board meeting, the HRCAP board of directors nominated Vick as Interim Executive Director on a "consulting" basis effective August 10, 2015.

Shannon submitted a leave slip to then-Executive Director Braxton for September 4th, 2015 at 8:00 a.m. until September 14th, 2015, at 5:00 p.m. Braxton approved Shannon's leave on August 3, 2015, before the effective date of his resignation. Shannon informed Vick of the pending vacation during an Executive Staff Meeting on September 1, 2015.

On or about September 14, 2015, Vick convened a scheduled meeting with Shannon concerning HRCAP business matters. During that meeting, Vick "broached the HRCAP personnel tensions resulting from the controversial hire of Vick as the Interim Executive Director" and discussed certain behaviors in the workplace. Vick wrote the September 14, 2015, HRCAP Disciplinary Action Form ("Disciplinary Action Form") that is the subject of this appeal and placed it in Shannon's personnel file.

While still employed by HRCAP, on November 12, 2015, Shannon filed a pro se complaint in the circuit court against Vick and HRCAP for defamation based on the statements made in the Disciplinary Action Form. Shannon was subsequently terminated from her position with HRCAP by letter dated February 8, 2016.

Shannon applied for unemployment benefits to the Virginia Employment Commission ("VEC") on July 10, 2016. The VEC conducted a fact-finding hearing on July 26, 2016. Angela Futrell ("Futrell"), Vick's successor as HRCAP's chair of the board of directors, testified during this hearing. There is no transcript from the July 26, 2016 hearing. The VEC denied Shannon's application for unemployment benefits.

On June 19, 2016, Shannon took a voluntary first nonsuit of the defamation action she had filed against Vick and HRCAP on November 12, 2015. On December 14, 2016, Shannon filed the present action against HRCAP, stating additional claims for defamation based on the republication of the allegations of Vick's memorandum during the VEC proceedings and other statements made by Vick. The circuit court sustained HRCAP's demurrer, with leave to amend. Thereafter, Shannon filed her amended complaint on November 19, 2018. HRCAP responded to the amended complaint with a demurrer, special pleas of the statute of limitations, absolute privilege, and charitable immunity, and a plea in bar regarding the issue of publication.

The circuit court conducted a hearing on HRCAP's motions on August 16, 2019. In an order dated November 25, 2019, the court sustained the demurrer, holding that the Disciplinary Action Form "is not defamatory as a matter of law." The circuit court granted the special plea of the statute of limitations and held that "those statements that are alleged in paragraphs 27, 31, 36, and 39 of the ... Amended Complaint are time-barred and STRICKEN from this action." The court further held that inasmuch as the statements in the enumerated paragraphs related to the content contained in the Disciplinary Action Form, "those statements are further subject to this Court's sustaining of the Demurrer in addition to" the granting of the special plea of the statute of limitations. Finally, the circuit court denied the special plea of absolute privilege "with respect to statements alleged to have been made at the July 26, 2016 [VEC] hearing, as alleged in paragraph 35 of the ... Amended Complaint." The order states that: "The Court notes that its prior ruling with respect to statements made before the [VEC], as reflected in paragraph (2) of this Court's Order entered December 12, 2018, is hereby REVERSED." Accordingly, the matter proceeded only on those statements alleged in paragraph 35 of the amended complaint pertaining to the VEC hearing.

Shannon filed a motion for reconsideration of the partial-dismissal or, alternately, requesting leave to amend. HRCAP filed a motion to reconsider the ruling with respect to whether statements made during the VEC proceedings were privileged.

In a final order dated November 25, 2019, the circuit court granted HRCAP's motion to reconsider and the special plea of absolute privilege. The circuit court reversed its prior ruling on the special plea, holding that the statements alleged in paragraph 35 pertaining to the July 26, 2016, VEC proceeding were "subject to Virginia Code § 60.2-623(B), and, inasmuch as this matter does not arise under Title 60.2 of the Code of Virginia, those allegations are STRICKEN from this matter." Because this ruling disposed of the last basis for Shannon's claim of defamation, the circuit court dismissed the amended complaint with prejudice, without leave to amend. Shannon appealed to this Court.

We granted Shannon's appeal on the following assignments of error:

1. The Trial Court erred in granting the Defendant Hampton Roads Community Action Program's (HRCAP's) Demurrer and in holding that the statements HRCAP Interim Executive Director Tina Vick made in the September 14, 2015 Disciplinary Action [F]orm against the Plaintiff Lisha Bryant-Shannon (Shannon) were not defamatory, despite Vick's false accusations that Shannon had abused her paid vacation-sick leave, violated HRCAP e-mail policy, and improperly treated salaried employees as hourly ones in violation of federal labor law.

2. The Trial Court erred in granting HRCAP's Special Plea of Absolute Privilege, since a VEC hearing is not a judicial proceeding, Futrell's defamatory statements falsely accusing Shannon of "stealing" HRCAP e-mails do not constitute information to be "used" in support of any cause of action based on the breach of a separate duty or obligation, and Vick later republished these statements to a third party.

II. Analysis

A. Standard of Review

In an appeal from a defamation action decided on demurrer, we "conduct a de novo review of the statement in question to independently determine (a) ... whether it is capable of being proved true or false, and (b) whether it has the requisite defamatory ‘sting’ to one's reputation." Handberg v. Goldberg , 297 Va. 660, 668, 831 S.E.2d 700 (2019) (some quotation marks omitted).

"While ‘[t]he standards of review for a defensive plea in bar and a demurrer are substantially similar, [a] plea in bar presents a distinct issue of fact which, if proven, creates a bar to the plaintiff's right of recovery. The moving party has the burden of proof on that issue." Station #2, LLC v. Lynch , 280 Va. 166, 175, 695 S.E.2d 537 (2010) (quoting Sullivan v. Jones , 42 Va. App. 794, 802, 595 S.E.2d 36 (2004) and Hilton v. Martin , 275 Va. 176, 179-80, 654 S.E.2d 572 (2008) ). The question whether an absolute or qualified privilege applies to the circumstances of the pending case presents a question of law that is reviewed de novo. Isle of Wight County v. Nogiec , 281 Va. 140, 152-53, 704 S.E.2d 83 (2011).

B. Defamation

An "actionable" statement is both false and defamatory. Tharpe v. Saunders , 285 Va. 476, 481, 737 S.E.2d 890 (2013). Defamatory words are those "tend[ing] so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Chapin v. Knight-Ridder, Inc. , 993 F.2d 1087, 1092 (4th Cir. 1993) (interpreting Virginia law). This Court has described the requisite defamatory "sting" for an actionable claim as containing language that:

tends to injure one's reputation in the common estimation of mankind, to throw contumely, shame, or disgrace upon him, or which tends to hold him up to scorn, ridicule, or contempt, or which is calculated to render him infamous, odious, or ridiculous.

Schaecher v. Bouffault , 290 Va. 83, 92, 772 S.E.2d 589 (2015).

A statement must contain the requisite defamatory sting to be actionable. In Schaecher , a planning commission member wrote a series of emails regarding a business owner who applied for a special use permit to operate a dog kennel. In the emails, the planning commission member stated that the proposed use by the applicant would potentially violate county ordinances, recorded covenants, and easements. Id. at 94, 772 S.E.2d 589. The planning commission member further wrote that "[i]t would appear that [the applicant] was not totally truthful" in the application. Id. at 100, 772 S.E.2d 589. The applicant filed suit for defamation, and the circuit court sustained the planning commission member's demurrer, finding that the statements were not defamatory as a matter of law.

Applying the definition above, this Court held that the statements did not carry the requisite "defamatory sting" for an actionable claim. Id. at 95-96, 772 S.E.2d 589 ("The face of these emails does...