PRESENT: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Millette JJ., and Carrico, S.J.
CYNTHIA HYLAND
v. Record No. 080157 OPINION BY
JUSTICE BARBARA MILANO KEENAN
January 16, 2009
RAYTHEON TECHNICAL SERVICES
COMPANY, ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Arthur B. Vieregg, Jr., Judge
In this defamation action, we consider whether the circuit
court, upon our remand of the case, erred in granting summary
judgment in favor of the defendants after considering isolated
factual segments of two allegedly defamatory statements.
In 2003, Cynthia L. Hyland brought several claims against
her former employer, Raytheon Technical Services Company
(Raytheon) and its president, Bryan J. Even. In the claims
involved in this appeal, Hyland asserted that her supervisor,
Even, made certain defamatory statements concerning Hyland’s job
performance. Raytheon and Even filed grounds of defense
asserting, among other things, that Hyland was not entitled to
damages because the alleged statements were true.
The case proceeded to a jury trial. At the trial, the
evidence showed that Hyland worked for Raytheon for about 21
years and eventually became senior vice president and general
manager of a certain division in the company.
In 2000, Hyland’s division lost its bid for a large
government contract. Despite this loss, Even provided Hyland
with a positive job performance evaluation.
In 2002, Hyland’s division lost another large government
contract bid. After this loss, Even reorganized Raytheon and
appointed Hyland as senior vice president and general manager of
a larger business unit, which was comprised of Hyland’s former
division and two additional units.
Raytheon later hired a consulting firm to conduct
assessments of the job performance of certain executive-level
employees. As part of these assessments, Hyland provided both
positive and negative comments about Even’s leadership skills.
Although the consulting firm had assured Hyland that her comments
would be kept confidential, Even later learned about Hyland’s
critical remarks. At the time of Hyland’s next performance
evaluation, Even for the first time rendered a negative
assessment of Hyland’s job performance. Even later terminated
Hyland’s employment.
During the trial, the circuit court denied the motions to
strike raised by Raytheon and Even (collectively, Raytheon) and
submitted Hyland’s defamation claim to the jury on five allegedly
defamatory statements. The jury returned a verdict in favor of
Hyland, and the circuit court later entered final judgment
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awarding Hyland $1,850,000, which included $350,000 in punitive
damages. 1
In Raytheon’s appeal of that judgment (the first appeal), we
held that only two of the five statements submitted to the jury
were actionable for defamation, and that the remaining three
statements were not actionable because they were statements of
opinion that could not be proved true or false. Raytheon Tech.
Servs. Co. v. Hyland, 273 Va. 292, 641 S.E.2d 84 (2007). We
concluded that a new trial was required because the jury
instructions permitted a verdict in favor of Hyland on any one of
the five statements, and we were unable to determine whether the
jury based its award in part or in whole on the non-actionable
statements of opinion that it erroneously was permitted to
consider. Id. at 306, 641 S.E.2d at 92.
The first statement that we held actionable (the first
statement) was:
Cynthia lead [sic] [Raytheon] in the protest of the FAA’s
evaluation selection process for the TSSC contract and
through a difficult procurement for the TSA, both of which
demanded her constant attention. These visible losses
created significant gaps in our strategic plans and in her
business unit financial performance.
1
The jury also considered and ruled in favor of Hyland on
her claims of actual fraud and tortious interference with
business expectancy. However, the circuit court later entered
an order vacating those verdicts, and none of the parties
challenged that ruling in the first appeal.
3
Id. at 304, 641 S.E.2d at 91. We concluded that this statement
was actionable for defamation because it was subject to empirical
proof. Id. We explained that although the adjective
“significant” may be a matter of opinion, the operative part of
the statement addressed Hyland’s responsibility for the losses,
not the size of the losses. Id. at 305, 641 S.E.2d at 91.
The second statement that we held actionable (the second
statement) was:
Cynthia and her team met their cash goals, but were
significantly off plan on all other financial targets
including Bookings by 25%, Sales by 11.5%, and profit by
24%.
Id. at 304, 641 S.E.2d at 91. With regard to this statement,
we explained that “[w]hether the business unit missed its goals
by the stated percentages is a fact that may be proved true or
false.” Id. We also stated that the word “significantly” in
the first phrase is defined by certain percentages and is “not
merely the view of the writer.” Id. Accordingly, we set aside
the jury verdict and remanded the case to the circuit court for
a new trial on the claim of defamation limited to consideration
of these two statements in their entirety. Id. at 306, 641
S.E.2d at 92.
On remand in the circuit court, Raytheon filed a motion for
summary judgment, asserting that the two statements that were the
subject of our remand were not defamatory because they were true.
4
Raytheon argued that there was no genuine issue of material fact
regarding those statements, because Hyland had acknowledged the
truth of the statements before the first trial in her response to
Raytheon’s request for admission.
Hyland opposed the motion for summary judgment and argued
that several portions of the two statements at issue were false
and were sufficiently misleading to constitute defamation. She
also contended that in remanding the case for a new trial, this
Court necessarily had rejected Raytheon’s contention that she had
admitted the truth of the statements.
The circuit court granted Raytheon’s motion for summary
judgment. In a letter opinion, which was incorporated by
reference in the circuit court’s final judgment order, the
circuit court held that the two statements were true as a matter
of law.
With regard to the first allegedly defamatory statement, the
circuit court held that the “first factual component” of that
allegedly defamatory statement is “[w]hether Hyland led the
protest of the TSS contract award and the TSA procurement and was
responsible for ‘these visible losses.’” The circuit court
concluded that this “first factual component” was true based on
Hyland’s admission in her response to Raytheon’s request for
admissions that she “oversaw the efforts of the proposal team’s
support to the [TSS] protest,” and that she was the “Proposal
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Manager” in charge of acquiring the TSA contract. The circuit
court concluded that “[a]s the senior executive on both projects,
she is ultimately responsible for the company’s failure to
acquire the contracts.”
The circuit court then addressed what it referred to as the
“second factual connotation” of the first allegedly defamatory
statement. The circuit court identified this segment of the
statement as being whether “losses from those projects created
gaps in the company’s plans and the financial performance of
business units which she oversaw.” The circuit court concluded
that Hyland admitted in her responses to Raytheon’s request for
admission that the loss of the TSS contract “created a financial
shortfall,” that the TSA contract “would have reduced the
financial challenge,” and that the loss of the TSA contract “left
a gap in sales revenue.” Thus, the circuit court held that “the
second factual component of the first allegedly defamatory
statement is true.” The circuit court further held that the
question whether this “gap” was “significant” was a matter of
opinion as defined by this Court in the first appeal.
The circuit court next identified “the factual component of
the second allegedly defamatory statement” as “[w]hether the
business unit missed its goals by the stated percentages.” The
circuit court held that the “factual component of the statement
is not whether Ms. Hyland was to blame for all of the division’s
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losses for 2002,” but was “whether the division, in fact,
incurred losses to the extent Mr. Even indicated.” Referring to
Hyland’s counsel’s argument before this Court in the first
appeal, the circuit court held that Hyland conceded that Even’s
characterization of the extent of the losses for 2002 was
correct. Thus, the circuit court held that “[t]he second
allegedly defamatory statement is true.”
Hyland appeals from the circuit court’s award of summary
judgment in favor of Raytheon. She contends that the circuit
court erred by failing to consider each allegedly defamatory
statement as a whole. Hyland contends that this error resulted
from the circuit court’s misinterpretation of our opinion in the
first appeal, which resulted in the circuit court removing from
consideration any words in the statements that manifested an
opinion and any inferences or implications arising from each
statement considered as a whole.
In response, Raytheon contends that the circuit court
accurately applied our directives regarding the allegedly
defamatory statements that we remanded for further proceedings.
Raytheon argues that Hyland admitted “the limited factual
portions” of the two allegedly defamatory statements and that,
therefore, the circuit court properly awarded summary judgment in
Raytheon’s favor. We disagree with Raytheon’s arguments.
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Generally, under our common law, a private individual
asserting a claim of defamation first must show that a defendant
has published a false factual statement that concerns and harms
the plaintiff or the plaintiff’s reputation. See WJLA-TV v.
Levin, 264 Va. 140, 152-54, 564 S.E.2d 383, 390-91 (2002); The
Gazette, Inc. v. Harris, 229 Va. 1, 15, 37, 325 S.E.2d 713, 725,
738 (1985). The plaintiff also must show that the defendant knew
that the statement was false or, believing that the statement was
true, lacked a reasonable basis for such belief, or acted
negligently in failing to determine the facts on which the
publication was based. WJLA-TV, 264 Va. at 154, 564 S.E.2d at
391; Food Lion, Inc. v. Melton, 250 Va. 144, 150, 458 S.E.2d 580,
584 (1995); The Gazette, 229 Va. at 15, 325 S.E.2d at 724-25.
When a plaintiff asserts that the defendant acted negligently,
the plaintiff further must prove that the defamatory statement
made apparent a substantial danger to the plaintiff’s reputation.
Union of Needletrades v. Jones, 268 Va. 512, 519, 603 S.E.2d 920,
924 (2004); WJLA-TV, 264 Va. at 154, 564 S.E.2d at 391; The
Gazette, 229 Va. at 15, 325 S.E.2d at 724-25.
Defamatory words that cause prejudice to a person in her
profession are actionable as defamation per se. Fuste v.
Riverside Healthcare Ass’n, 265 Va. 127, 132, 575 S.E.2d 858, 861
(2003); Carwile v. Richmond Newspapers, Inc., 196 Va. 1, 7, 82
S.E.2d 588, 591 (1954). Defamatory statements may include
8
statements made by inference, implication, or insinuation. Union
of Needletrades, 268 Va. at 519, 603 S.E.2d at 924; Fuste, 265
Va. at 132, 575 S.E.2d at 861; Perk v. Vector Resources Group,
253 Va. 310, 316, 485 S.E.2d 140, 144 (1997); Carwile, 196 Va.
at 7, 82 S.E.2d at 592.
Expressions of opinion, however, are constitutionally
protected and are not actionable as defamation. Raytheon Tech.
Servs., 273 Va. at 303, 641 S.E.2d at 90; Williams v. Garraghty,
249 Va. 224, 233, 455 S.E.2d 209, 215 (1995). Therefore, before
submitting a defamation claim to a jury, a trial judge must
determine as a matter of law whether the allegedly defamatory
statements contain provably false factual statements or are
merely statements of opinion. See Government Micro Res., Inc. v.
Jackson, 271 Va. 29, 40, 624 S.E.2d 63, 69 (2006); Tronfeld v.
Nationwide Mutual Ins. Co., 272 Va. 709, 714, 636 S.E.2d 447, 450
(2006); Fuste, 265 Va. at 132-33, 575 S.E.2d at 861-62; American
Communications Network, Inc. v. Williams, 264 Va. 336, 340, 568
S.E.2d 683, 686 (2002).
When a statement is relative in nature and depends largely
on a speaker’s viewpoint, that statement is an expression of
opinion. Raytheon Tech. Servs., 273 Va. at 303, 641 S.E.2d at
90; Tronfeld, 272 Va. at 714, 636 S.E.2d at 450; Fuste, 265 Va.
at 132, 575 S.E.2d at 861; Chaves v. Johnson, 230 Va. 112, 119,
335 S.E.2d 97, 101 (1985). Factual statements made in support of
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an opinion, however, can form the basis for a defamation action.
Raytheon Tech. Servs., 273 Va. at 303, 641 S.E.2d at 90; WJLA-TV,
264 Va. at 156, 564 S.E.2d at 393; American Communications
Network, 264 Va. at 340, 568 S.E.2d at 686; Williams, 249 Va. at
233, 455 S.E.2d at 215.
In determining whether a statement is one of fact or
opinion, a court may not isolate one portion of the statement at
issue from another portion of the statement. Raytheon Tech.
Servs., 273 Va. at 303, 641 S.E.2d at 91; Government Micro Res.,
271 Va. at 40, 624 S.E.2d at 69; American Communications Network,
264 Va. at 341-42, 568 S.E.2d at 686. Rather, a court must
consider the statement as a whole. Government Micro Res., 271
Va. at 40, 624 S.E.2d at 69.
The requirement that an allegedly defamatory statement be
considered as a whole also is vital to a determination of the
truth or falsity of a defamation claim, because defamatory
statements may be made by implication, inference, or
insinuation. See Union of Needletrades, 268 Va. at 519, 603
S.E.2d at 924; Fuste, 265 Va. at 132, 575 S.E.2d at 861; Perk,
253 Va. at 316, 485 S.E.2d at 144; Carwile, 196 Va. at 7, 82
S.E.2d at 592. Thus, the factual portions of an allegedly
defamatory statement may not be evaluated for truth or falsity
in isolation, but must be considered in view of any
accompanying opinion and other stated facts. See Raytheon Tech.
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Servs., 273 Va. at 303, 641 S.E.2d at 91; WJLA-TV, 264 Va. at
156, 564 S.E.2d at 393; American Communications Network, 264 Va.
at 340, 568 S.E.2d at 686; Williams, 249 Va. at 233, 455 S.E.2d
at 215.
The circuit court improperly limited its analysis to the
separate factual portions of the alleged defamatory statements
and excluded the necessary consideration of each statement as a
whole, including any implications, inferences, or insinuations
that reasonably could be drawn from each statement. In
addition, when considering the truth or falsity of the
allegedly defamatory statements, the circuit court improperly
removed from the statements those portions imparting an
opinion.
Unlike the determination whether an allegedly defamatory
statement is one of fact or opinion, which presents a legal
question to be decided by a trial judge, the determination
whether an allegedly defamatory statement is false ordinarily
presents a factual question to be resolved by a jury. Thus,
once a trial judge has determined that an allegedly defamatory
statement is capable of being proved false, the jury’s function
is to evaluate the evidence presented and to determine whether
the plaintiff has met her burden of proving that the allegedly
defamatory statement is false. Only if a plaintiff
unequivocally has admitted the truth of an allegedly defamatory
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statement, including the fair inferences, implications, and
insinuations that can be drawn from that statement, may the
trial judge award summary judgment to the defendant on the
basis that the statement is true. See Shutler v. Augusta
Health Care For Women, 272 Va. 87, 91, 630 S.E.2d 313, 315
(2006) (summary judgment available only when no material facts
are in dispute); Stockbridge v. Gemini Air Cargo, Inc., 269 Va.
609, 618, 611 S.E.2d 600, 604 (2005) (same).
In the present case, however, Hyland did not admit the
truth of the two allegedly defamatory statements. As we
observed in our opinion in the first appeal in this case, the
stated and implied import of the first statement in Hyland’s
job performance evaluation is that Hyland was responsible for
the losses of the two contract bids, and that those losses
created gaps in the company’s plans and in the business units
that she directed. Raytheon Tech. Servs., 273 Va. at 304-05,
641 S.E.2d at 91. Hyland did not concede in her responses to
Raytheon’s request for admission that this was true. She also
did not concede in those responses that she failed to meet her
team’s financial targets by the percentages stated in the
second allegedly defamatory statement.
By awarding summary judgment to Raytheon in the absence of
such admissions, the circuit court deprived Hyland of the
opportunity to present evidence to a jury to establish the
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falsity of the allegedly defamatory statements. The circuit
court’s judgment also denied Hyland the right to have a jury
consider each allegedly defamatory statement as a whole.
Therefore, we hold that the circuit court erred in awarding
Raytheon summary judgment, and that Hyland is entitled to a
jury trial on the two allegedly defamatory statements discussed
in this opinion. 2
For these reasons, we will reverse the circuit court’s
judgment and remand the case for a jury trial consistent with
the principles expressed in this opinion.
Reversed and remanded.
2
Based on this holding, we do not address Hyland’s
remaining assignments of error.
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