Present: All the Justices
RAYTHEON TECHNICAL SERVICES
COMPANY, ET AL.
v. Record No. 060400 OPINION BY JUSTICE ELIZABETH B. LACY
March 2, 2007
CYNTHIA HYLAND
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Arthur B. Vieregg, Jr., Judge
In this appeal of a defamation case, Raytheon Technical
Services Company (RTSC) and Bryan J. Even ask us to reverse
the judgment of the trial court in favor of plaintiff Cynthia
L. Hyland and enter final judgment on a number of grounds. In
our review of the case, we agree that the judgment must be
reversed because three of the five alleged defamatory
statements are statements of opinion, not fact, and,
therefore, should not have been submitted to the jury.
Nevertheless, we do not enter final judgment here because the
record does not reflect which statement or statements formed
the basis of the jury verdict and the other grounds for
reversal raised by RTSC and Even are not dispositive in the
posture of this case.
FACTS
In accordance with well-established principles of
appellate review, we consider the evidence and all reasonable
inferences fairly deducible therefrom in the light most
favorable to Hyland, the prevailing party below. Xspedius
Mgmt. Co. of Va., L.L.C. v. Stephan, 269 Va. 421, 425, 611
S.E.2d 385, 387 (2005). Additionally, we recite only those
facts relevant to the issues presented in this appeal.
Hyland was employed by RTSC and its predecessor for
approximately 21 years. RTSC is a wholly owned subsidiary of
Raytheon Company (Raytheon). Even, the President of RTSC, was
Hyland's immediate supervisor at the times relevant here. As
part of his management responsibilities, Even conducted annual
performance evaluations of Hyland and other RTSC executives.
In 2000, Hyland was the Senior Vice President and General
Manager of the Installation and Integration Services (I&IS)
division of RTSC. That year, Hyland led I&IS as it competed
for a large government contract known as the Technical Support
Services Contract (TSSC). I&IS was not successful, and was
notified it had lost the contract bid in December 2001.
Despite the fact that I&IS had lost the TSSC contract, Hyland
received a positive evaluation from Even for 2001.
In February 2002, Hyland's unit submitted a proposal for
a contract with the Federal Transportation Security
Administration (TSA). In May 2002, I&IS was notified that the
contract had been awarded to another company. The following
month, Even reorganized RTSC and made Hyland the Senior Vice
President and General Manger of a larger business unit called
the System and Product Support and Services division (SPSS).
2
SPSS included both the I&IS unit and two additional units not
previously under Hyland's management. At the time of the
reorganization, new financial targets were set for the SPSS
unit for the remainder of the 2002 calendar year.
As a result of several contract losses, including the TSA
and TSSC contracts, RTSC hired a consulting firm to assess
RTSC's contract proposals. The firm prepared a lengthy report
focusing on RTSC's performance as an organization and released
the report to Raytheon management in August 2002. The report
did not specifically reference Hyland.
In late 2002, RTSC hired another consulting firm,
Heidrick & Struggles, Inc., to perform an executive assessment
of Even. As part of this assessment, two Heidrick & Struggles
consultants interviewed Hyland on December 6, 2002 regarding
her impression of Even's leadership abilities. The
consultants repeatedly assured Hyland that her comments would
be completely confidential. Hyland provided a candid
assessment of Even's leadership, which included both positive
and negative comments.
On February 13, 2003, Heidrick & Struggles met with Even
to give him the results of the assessment. During that
meeting, the consultants provided Even with a "Coaching and
Development Feedback Form" which contained both positive and
negative assessments of Even's leadership. The Form stated
3
that there was a significant amount of conflict exhibited by
at least one team member, which was impeding the formation of
a "high performance" team at RTSC. Heidrick & Struggles also
cautioned "the relationship conflict issue is manifesting into
instances of passive-aggressive behavior, which, if left
unchecked, could poison the RTSC culture and potentially
undermine Even's position as a leader." The Form suggested
that Even "address his team issues immediately and make some
tough personnel decisions on the operating side of the
business."
Despite Heidrick & Struggles' assurances of "complete
confidentiality," the consultants informed Laura B. Miller,
the Vice President of Human Resources at RTSC, of Hyland's
negative comments regarding Even. Miller, in turn, shared
Hyland's comments with Even.
On February 28, 2003, shortly after Even learned of
Hyland's comments to Heidrick & Struggles, Even met with
Hyland. Even warned Hyland the meeting was not "going to be
pleasant and it is not going to be easy." Even used a
document entitled "Talking Points – Cynthia Hyland" in his
discussion with Hyland. This document had a section labeled
"Examples of talking negatively about leader, peers, other RTN
businesses, strategy, etc" and under that heading there was a
bullet stating "Feedback from Heidrick & Struggles that she
4
talks negatively to others about BJE." Even admitted that
this bullet contained "what Ms. Miller communicated to [him]"
regarding the feedback she received from Heidrick & Struggles.
At the meeting, Even also provided Hyland with her 2002
performance and development summary. Although Hyland had
never received negative comments about her leadership from
Even prior to this meeting, the performance evaluation
contained several statements that were critical of Hyland.
Even discussed the evaluation, stating that Hyland had been
"openly critical of him, [her] peers, Raytheon's vision and
strategy, and that this behavior was unbecoming of a leader in
the organization." The evaluation further referenced Hyland's
"refusal to listen to feedback from customers, the Beacon
Group report, and [her] peers, and [Even]." When Hyland
pressed Even for examples of the behavior described in the
assessment, Even "finally blurted out Heidrick and Struggles
told me what you said about me. They said that you made
negative and destructive remarks about me and the team." Even
told Hyland that he would not hesitate to present the 2002
evaluation to Raytheon's management.
Even and other Raytheon leadership participated in a
Human Resources review meeting on May 29, 2003. At the
meeting, Even discussed the content of Hyland's 2002
performance evaluation with William H. Swanson, the Chief
5
Executive Officer of Raytheon, and other company executives.
On July 3, 2003, Swanson sent Even a memorandum which stated,
"We are at the decision point. If she recognizes her issues
and wants to work to improve, let's do everything we can to
support her. If she continues in denial, we'll need to make a
change." Even considered this memorandum to be a "green
light" to fire Hyland.
On July 23, 2003, Even and Miller met with Hyland. Even
told Hyland she had refused to accept the feedback he gave her
and that this had created a problem with her peers. He then
terminated Hyland's employment.
PROCEEDINGS
Hyland commenced litigation against Even, Miller, RTSC,
Raytheon, and Heidrick & Struggles raising a number of claims.1
This appeal concerns only her defamation claim against RTSC
and Even (collectively "RTSC"). In her second amended motion
for judgment, Hyland identified certain statements which she
alleged were defamatory. RTSC filed a demurrer asserting,
with regard to the defamation claim, that the alleged
statements were not defamatory, did not constitute defamation
per se, that certain statements had previously been ruled to
1
Claims of actual fraud, fraud in the inducement,
tortious interference with a business expectancy and Hyland's
defamation claim against Miller were resolved prior to or
during the trial of this case.
6
be opinion, that others were not actionable opinion, and that
still others were not pled with sufficient specificity.2 Based
on the briefs and argument of counsel, the trial court denied
RTSC's demurrer to Hyland's defamation count.
After discovery was completed, RTSC filed a motion for
summary judgment asserting that, of the allegedly defamatory
statements, 1) several were not actionable because they were
contained in an initial version of Hyland's 2002 evaluation
which only Hyland published; 2) some were true; 3) others were
"largely opinion" and even if provably false or true, they
were "demonstrably true"; and 4) others were "inactionable
opinion." Finally, RTSC asserted that Hyland could not prove
that the allegedly defamatory statements were made
maliciously, and therefore could not defeat the qualified
privilege afforded the statements. After a hearing, the trial
court granted in part and denied in part RTSC's motion for
summary judgment, limiting Hyland's defamation claim to those
allegedly defamatory statements appearing in Hyland's final
2002 evaluation.
During the seven-day jury trial, the trial court denied
RTSC's motions to strike and submitted Hyland's defamation
2
RTSC also demurred to two additional statements alleged
by Hyland as defamatory. Although these statements were not
addressed in the trial court's opinion letter or any ruling in
7
claim to the jury on five allegedly defamatory statements.
Hyland's punitive damage claim based on the alleged defamation
was also submitted to the jury. The jury returned a verdict
against RTSC and in favor of Hyland and awarded Hyland $1.5
million in compensatory damages and $2.0 million in punitive
damages. The trial court denied RTSC's post-trial motions to
strike, to set aside the verdict, and for remittitur, but
reduced the punitive damage award to the statutory limit of
$350,000. Code § 8.01-38.1. We awarded RTSC an appeal.3
DISCUSSION
1. Defamation Per Se
We first address RTSC's assignment of error which states
that "[t]he trial court erred in ruling as a matter of law
that plaintiff's 2002 performance evaluation was defamatory
per se." (Emphasis added.) In its ruling on whether the
alleged defamation constituted defamation per se, the trial
court held that "[s]ince the defamatory statements alleged by
Hyland are contained in a report evaluating her performance as
an officer and employee of RTSC, it is plain that false
statements made about her performance may constitute
the record, those statements were not presented to the jury
and we do not consider them in this opinion.
3
RTSC's original petition for appeal was denied by a
panel of three justices. This Court granted RTSC's petition
for rehearing but limited the appeal to consideration of
RTSC's first three assignments of error.
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defamation per se unless they are privileged." (Emphasis
added.) Neither this ruling nor any other ruling by the trial
court held the 2002 performance evaluation of Hyland to be
defamatory per se. Because RTSC's assignment of error does
not address any ruling made by the trial court, we will not
consider it further. Rule 5:17(c).
2. Malice
In another assignment of error, RTSC asserts that the
evidence was insufficient to meet the clear and convincing
standard of malicious publication of the defamatory
communications. RTSC argues that because of this deficiency,
no abuse of the privilege was shown and Hyland's defamation
claim must fail. Government Micro Res., Inc. v. Jackson, 271
Va. 29, 43, 624 S.E.2d 63, 71 (2006) (qualified privilege
defeated upon showing of malice by clear and convincing
evidence).
The jury was instructed that the privilege was abused if
Hyland established by clear and convincing evidence any one of
a number of circumstances.4 As relevant to our discussion
4
Instruction J provided, in relevant part, that "[t]he
privilege is abused when the plaintiff proves by clear and
convincing evidence that:
(1) the defendant knew the statement was false or made it
with reckless disregard of whether it was false or not; or
(2) the statement was deliberately made in such a way
that it was heard by persons having no interest or duty in the
subject of the statement; or
9
here, one of those circumstances was that "the defendant knew
the statement was false or made it with reckless disregard of
whether it was false or not." A virtually identical finding
was required for the imposition of punitive damages. The jury
was instructed that it could award punitive damages if it
found by clear and convincing evidence that the statements at
issue were made "knowing they were false" or "so recklessly as
to amount to a willful disregard for the truth." RTSC has not
assigned error to the award of punitive damages and has made
no argument before this Court claiming that award should be
set aside for insufficient evidence of malice.5 RTSC's
arguments address only the sufficiency of the evidence of
malice necessary to defeat the qualified privilege.
We addressed a similar situation in Government Micro
Resources, 271 Va. at 43-44, 624 S.E.2d at 70-71. In that
defamation case, the defendants assigned error to the award of
punitive damages, arguing that the evidence was insufficient
to support a finding of actual malice by clear and convincing
evidence, and to the failure to instruct the jury on qualified
(3) the statement was unnecessarily insulting; or
(4) the language used was stronger or more violent than
was necessary under the circumstances; or
(5) the statement was made because of hatred, ill will,
or a desire to hurt the plaintiff rather than as a fair
comment on the subject."
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privilege. After determining that the evidence was sufficient
to support the punitive damage award, we held that the failure
to give a qualified privilege instruction was harmless error
because the jury in awarding punitive damages "was required to
and did find that the statements were made with actual
malice." Id. at 44, 624 S.E.2d at 71. Similarly in this
case, regardless of RTSC's challenge to the sufficiency of the
evidence to establish an abuse of the privilege, the jury
found by clear and convincing evidence that the statements at
issue were made "knowing they were false" or made "so
recklessly as to amount to a willful disregard for the truth"
when it awarded punitive damages, and that finding stands
unchallenged in this appeal.6 Accordingly, we do not further
consider this assignment of error.
3. Statements of Fact or Opinion
We now turn to RTSC's remaining assignment of error in
which they assert that the trial court erred "in ruling as a
5
RTSC did make this argument before the trial court in
its post-trial motion to set aside the verdict, but did not
repeat it here.
6
As discussed infra, RTSC also does not challenge the
sufficiency of the evidence supporting the jury finding that
Hyland proved, by a preponderance of evidence, that the
statements at issue were defamatory. Under the jury
instruction, this finding necessarily included a determination
that the statements were false and that Even made the
statements knowing they were false or, believing them to be
true, he lacked reasonable grounds for such belief or acted
11
matter of law" that the five statements contained in Hyland's
2002 performance evaluation that were submitted to the jury
"could form the basis of a defamation action." Although RTSC
argued on brief and in oral argument that the statements were
not actionable as defamation because the evidence showed that
the statements were true, their assignment of error does not
challenge the sufficiency of the evidence.7 Furthermore, RTSC
did not challenge the sufficiency of the evidence establishing
that the statements were false or otherwise not defamatory at
trial or in its post-trial motions. Compare American Commc'ns
Network, Inc. v. Williams, 264 Va. 336, 339-41, 568 S.E.2d
683, 685-86 (2002) (statements held not actionable because
true where defendants assigned error to sufficiency of
evidence that statements were false). Therefore, in reviewing
this assignment of error we consider only the legal question
whether the statements are statements of fact or statements of
opinion, not whether the evidence was sufficient to show that
the statements were true or false or otherwise defamatory.
In support of their argument that the statements were not
actionable opinions, RTSC first asserts that a performance
review, by its nature, sets forth the opinions of the
negligently in failing to ascertain the facts on which the
statements were based.
7
None of the assignments of error upon which this Court
did not grant an appeal raised this issue.
12
evaluators, implying that such reviews cannot be the subject
of a defamation action. We agree that performance reviews
normally will contain the evaluators' opinions, but we
disagree with RTSC's suggestion that performance reviews
should therefore be immune from claims of defamation. False
statements of fact made maliciously in a performance review
remain subject to claims of defamation. As we stated in
Larimore v. Blaylock, 259 Va. 568, 575, 528 S.E.2d 119, 123
(2000),
The rule of qualified privilege that we adopted
years ago continues to encourage open
communications on matters of employment while not
shielding the use of such communications for an
individual's personal malicious purposes.
Turning to the merits of this assignment of error, we
first review the principles applied when determining whether
statements are opinions or potentially actionable facts.
"Statements that are relative in nature and depend largely
upon the speaker's viewpoint are expressions of opinion."
Fuste v. Riverside Healthcare Ass'n, 265 Va. 127, 132, 575
S.E.2d 858, 861 (2003). Additionally, "[s]peech that does not
contain a provably false factual connotation is sometimes
referred to as 'pure expressions of opinion.' " WJLA-TV v.
Levin, 264 Va. 140, 156, 564 S.E.2d 383, 392 (2002). "It is
firmly established that pure expressions of opinion are
protected by both the First Amendment to the Federal
13
Constitution and Article I, Section 12 of the Constitution of
Virginia and, therefore, cannot form the basis of a defamation
action." Williams v. Garraghty, 249 Va. 224, 233, 455 S.E.2d
209, 215 (1995).
While pure expressions of opinion are not actionable,
"[f]actual statements made to support or justify an opinion
. . . can form the basis of an action for defamation." Id.;
WJLA-TV, 264 Va. at 156, 564 S.E.2d at 393; American Commc'ns
Network, 264 Va. at 340, 568 S.E.2d at 686 (quoting Williams,
249 Va. at 233, 455 S.E.2d at 215); see also, Richmond
Newspapers, Inc. v. Lipscomb, 234 Va. 277, 298 n.8, 362 S.E.2d
32, 43 n.8 (1987) (finding the trial court was correct to
submit opinions "laden with factual content" to the jury in a
defamation action); Restatement (Second) of Torts § 566 cmt. a
(1977) (false statement of fact "expressly stated or implied
from an expression of opinion" subject to defamation under
common law).
As the United States Supreme Court noted in Milkovich v.
Lorain Journal Co., 497 U.S. 1 (1990), "expressions of
'opinion' may often imply an assertion of objective fact."
Id. at 18. The Supreme Court went on to state, "[s]imply
couching . . . statements in terms of opinion does not dispel
these implications." Id. at 19. Accordingly, the Supreme
Court refused to "create a wholesale defamation exemption for
14
anything that might be labeled 'opinion,' " id. at 18, instead
holding that opinions may be actionable where they "imply an
assertion" of objective fact. See id. at 21.
"Whether an alleged defamatory statement is one of fact
or of opinion is a question of law to be resolved by the trial
court." WJLA-TV, 264 Va. at 156-57, 564 S.E.2d at 392. In
making this determination we do not isolate one portion of the
statement at issue from another portion of that statement.
See American Commc'ns Network, 264 Va. at 341-42, 568 S.E.2d
at 686 (alleged defamatory statements considered "in
relationship to the opinions and facts contained in the
paragraphs at issue").
Because determination of whether a statement is a
statement of fact or opinion is an issue of law, we conduct a
de novo review of the five statements in question. Government
Micro Res., Inc., 271 Va. at 40, 624 S.E.2d at 69. We
reiterate that, in our review of this case, we are not
considering whether the statements at issue are true or false;
only whether they are capable of being proved true or false.
We will address each of the allegedly defamatory
statements sequentially. The first statement is:
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%.
15
Whether the business unit missed its goals by the stated
percentages is a fact that may be proved true or false.8 The
word "significantly" in the first phrase, in this context, is
defined by the identified percentages and is not merely the
view of the writer. Accordingly, the trial court properly
determined that this statement could form the basis of a
defamation claim.
The second statement submitted to the jury is also a
statement which contains provably false factual connotations
and is "laden with factual content." Richmond Newspapers,
Inc., 234 Va. at 298 n.8, 362 S.E.2d at 43 n.8. That
statement is:
Cynthia lead [sic] RTSC 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.
The negative import of this statement is that Hyland was
responsible for certain losses that adversely affected the
company. Whether Hyland led the protest of the TSSC contract
award and the TSA procurement and was responsible for "[t]hese
8
The record reflects that RTSC did not assert that this
statement was a statement of opinion in motions to strike,
demurrer, or motion for summary judgment and there is no
record of the hearings on these latter motions; however, the
trial court held this statement was factual, not an opinion,
in its letter opinion and in denying RTSC's motions to strike.
16
visible losses" is susceptible to empirical proof. Similarly,
whether losses from those projects created gaps in the
company's plans and the financial performance of business
units which she oversaw can be established through the
production of evidence. The adjective "significant" may be a
matter of opinion, but the operative part of the statement
involves Hyland's responsibility for the losses, not their
size. Therefore, the trial court did not err in holding that
this statement was not a statement of opinion and could be the
basis for a claim of defamation.
The third statement, however, should not have been
submitted to the jury as a basis for Hyland's defamation
claim:
Cynthia is frequently verbose and vocal in her
opinions, to a degree that others stop
participating in open dialogue.
The allegedly defamatory aspect of this statement is that
certain conduct by Hyland, her frequent verbosity and vocal
opinions, was negative and led to a specific result, lack of
participation by others in open dialogue. Whether the result
in fact occurred is only relevant if Hyland's negative conduct
was its cause. However, the negative conduct, and whether and
how often it occurred, is a matter of the speaker's
perspective and, as such, constitutes opinion, not fact.
Because the negative conduct cited as the reason for others
17
not "participating in open dialogue" is a matter of opinion
which is not subject to proof, this statement should not have
been submitted to the jury.
Similarly, the fourth statement is also one of opinion:
She has received specific feedback from her
customers, the Beacon group study, her employees,
and her leader on her need to listen and learn
from others, yet she has appeared to be unwilling
to accept and work with this feedback.
While evidence could be introduced to establish whether Hyland
received certain feedback from the identified entities, the
negative impact of this statement is the description of Hyland
as unwilling to respond to feedback. Such "unwillingness" is
not stated as a fact, but instead is conveyed from the
perspective of the writer, stating that Hyland "appeared to
be" unresponsive. As such, the statement is opinion not
susceptible to proof as a matter of fact.
The final allegedly defamatory statement is:
Cynthia has also been inappropriately and openly
critical of her leader, her peers, and other
leaders in the company. This behavior is not
only destructive to the team, it negatively
impacts her image in the eyes of others,
including customers.
This statement contains a significant combination of fact and
opinion. The negative connotation in the statement is the
allegation that Hyland engaged in open and inappropriate
criticism of others. The second sentence in the statement
18
could not be true if the alleged conduct did not occur.
Whether Hyland's statements are critical of others and made
openly are facts that are subject to evidentiary proof;
however, whether such statements were inappropriate is clearly
a matter of opinion.
In considering the statement as a whole, we conclude that
this statement falls into the category of opinion and should
not have been submitted to the jury. In order for Hyland's
criticism to have the alleged effect, it must be both open and
inappropriate. Neither element alone is sufficient. Whether
the criticism was inappropriate is a matter of opinion, and
accordingly the statement as a whole cannot be subject to
evidentiary proof of its truth or falsity. Therefore, the
trial court erred in concluding that this statement was a
statement of fact and submitting it to the jury.
CONCLUSION
Although some of the statements at issue were properly
submitted to the jury, our conclusion that three of the five
statements should not have been submitted requires that the
judgment of the trial court be set aside. The jury
instructions allowed a verdict in favor of Hyland on any
single statement the jury found defamatory. However, the jury
instructions did not require the jury to identify which
statement or statements it found defamatory. Under these
19
circumstances, the verdict must be set aside and the matter
remanded to the trial court for a new trial consistent with
this opinion.
Affirmed in part,
reversed in part,
and remanded.
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