Hyland v. RAYTHEON TECHNICAL SERVICES CO.

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.

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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

11
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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