Labor & Employment Law Daily Odious and offensive comments, made at work, still outside scope of employment; no employer liability
Wednesday, June 13, 2018

Odious and offensive comments, made at work, still outside scope of employment; no employer liability

By Lisa Milam, J.D.

An employee could not hold her employer vicariously liable in a defamation action arising from a purported supervisor’s crude speculation as to why the employee had taken off work for a medical procedure, the Fourth Circuit held, refusing to revive her tort claim against the employer. Although the district court concluded the offending statements were not defamatory, the appeals court would not go so far, opting not to weigh in on her claims against the individual defendant. Rather, it affirmed on other grounds: The worker’s comments, although “beyond tasteless,” were outside the scope of his employment. The court offered a sweeping legal discussion of respondeat superior liability and on why its scope must have its limits. As a practical matter, though, the outcome may have turned on pleading failures on the plaintiff’s part: She did not present sufficient facts to support her assertion that his misconduct had a nexus to employment, or to establish that the tortfeasor was, in fact, a supervisor (Garnett v. Remedi SeniorCare of Virginia, LLC, June 11, 2018, Wilkinson, J.H.).

“Beyond tasteless.” The employee “worked alongside” the night supervisor, the individual defendant in this case. She told him she was going to be out the next day for surgery. According to her complaint, during her absence, he told coworkers that she “was having surgery on her vagina because she got a STD [be]cause that’s the only reason a female gets surgery on her vagina,” and also that she “was having a biopsy of her vagina.” She filed a defamation suit against the employer (and the supervisor, which was not at issue here).

Was the statement defamatory? The district court dismissed the employee’s defamation claims, concluding the comments were not defamatory; rather, they were merely his opinion (albeit “based on his faulty reasoning”) and no reasonable person would take the comments as “anything more than pure conjecture.” The Fourth Circuit would not adopt this holding, declining to hold as a matter of law that the individual defendant could not face a cause of action based on these comments. To do so would risk saying that an employee would never be able to prevail in a case against a supervisor “who boasts of inside knowledge of the plaintiff’s sexual activities and medical history without any factual basis.”

The district court hadn’t taken up the question of vicarious liability, but the appeals court found this case warranted tossing the usual rule that reviewing courts won’t consider issues that the district court had not resolved below, and found it an alternate ground for affirming the lower court’s decision, expounding on the doctrine of respondeat superior along the way.

Vicarious liability. Holding an employer vicariously liable for the actions of an individual employee “makes sense,” the appeals court said, if that employee is acting in furtherance of the employer’s interest, or the tortfeasor is using his position in the workplace to facilitate the tortious conduct. “In such circumstances, the employer both bears some responsibility for the tort and might have been able to prevent its commission by adopting different or more stringent workplace policies,” the appeals court explained. But to impose liability on an employer “for conduct that cannot possibly be connected to it” is a different matter. This is why the “scope of employment” requirement applies. The employer should not be held liable if the employee is acting independently, and in such a manner that it “does not serve any goal of the employer.”

What’s an employer to do? Absent some scope-of-employment requirement, it would be impossible for employers to shield themselves from liability for workplace misconduct of this sort “without proctoring the minutiae of a worker’s daily life or imposing draconian restrictions on employee speech,” the court wrote. An employer shouldn’t be held liable if an employee’s conduct furthers no “plausible” interest on its part, or if the wrongdoer’s position did not facilitate the wrongdoing, and “only the most heavy-handed workplace policies would have stood a chance of preventing the offensive conduct. It is difficult to see how employers could prevent all offensive or defamatory speech at the proverbial watercooler without transforming the workplace into a virtual panopticon. For all its undoubted value, respondeat superior and the resultant fear of liability should not propel a company deep into the lives of its workers whose privacy and speech interests deserve respect.”

A delicate balancing act is required. To illustrate this principle embodied, the appeals court gave a nod to the affirmative defenses established by the Supreme Court in its Faragher, Ellerth and Monell decisions as examples of occasions in which “respondeat superior is tempered but without eliminating the obligation on employers to make reasonable efforts to improve the workplace environment and head off deleterious conduct.”

Virginia got it right. Cognizant of the need to maintain this delicate balance, Virginia law, as articulated by its highest court, imposes clear limits on the reach of respondeat superior liability to require some nexus to employment, to limit the employer’s responsibility only to actions directed by it, either expressly, impliedly, or “natural incident to the business,” and only when those actions are undertaken with the goal of advancing the employer’s interests. Under Virginia law, the employer was not liable.

At work, but not work-related. The employee staked her claim on the fact that the comments were made at work, but as the appeals court pointed to case law recognizing the fact that “some things occur at work that bear little or no relationship to an employer’s business mission.” Perhaps there may have been a nexus here, but the employee’s complaint made no attempt to establish one. She merely attested that the tortfeasor was an employee of the defendant and offered a conclusory assertion that he “was acting within the scope and course of his employment,” with no factual support to back it up—no effort to tie the comments to the employer’s business interests, or the like.

The complaint also asserted that the comments were made “in the execution of the service for which he was engaged by the company,” but the appeals court rejected this statement as “simply untrue,” as his duties did not include gossiping to coworkers.

Is he even a supervisor? There was also the question of whether the tortfeasor was even a supervisor, for purposes of imputing vicarious liability on their mutual employer. The complaint fell short there too. She alleged “nebulously” that the individual defendant was a “supervisor,” but added nothing as to the nature of his supervisory role or what the term even means in the context of the underlying case. Was he doling out instructions to subordinates? Was he discussing the company’s business interests? Did the company direct or condone his actions? The complaint did not say.

A “limiting principle.” At bottom, as the appeals court stressed, “[i]t would hardly be possible for an employer to successfully police all employee interactions and thereby ensure that employee conversation never crosses decorous lines. There are literally millions of verbal workplace interactions, some of which may, unfortunately, be quite offensive. But to hold that such statements invariably give rise to vicarious liability admits of no limiting principle.” Because the employee failed to show how the comments, “while offensive and odious,” fell within the scope of the tortfeasor’s employment, the district court properly refused to impute vicarious liability on the employer.

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