Garnett v. Remedi Seniorcare of Va., LLC

• Decision Date: 11 June 2018
• Docket Number: No. 17-1890,17-1890
• Citation: 892 F.3d 140
• Parties: Sade GARNETT, Plaintiff-Appellant, v. REMEDI SENIORCARE OF VIRGINIA, LLC, Defendant-Appellee, and Aaron Try, Defendant.
• Court: U.S. Court of Appeals — Fourth Circuit

892 F.3d 140

Sade GARNETT, Plaintiff-Appellant,

v.REMEDI SENIORCARE OF VIRGINIA, LLC, Defendant-Appellee,andAaron Try, Defendant.

No. 17-1890

United States Court of Appeals, Fourth Circuit.

Argued: May 9, 2018

Decided: June 11, 2018

ARGUED: Richard F. Hawkins, III, THE HAWKINS LAW FIRM, PC, Richmond, Virginia, for Appellant. Elena D. Marcuss, MCGUIREWOODS LLP, Baltimore, Maryland, for Appellee. ON BRIEF: Adam T. Simons, MCGUIREWOODS LLP, Baltimore, Maryland, for Appellee.

Before WILKINSON, and NIEMEYER, Circuit Judges, and Richard M. GERGEL, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Niemeyer and Judge Gergel joined.

WILKINSON, Circuit Judge:

When Sade Garnett took off work to undergo a medical procedure, her coworker Aaron Try engaged in crude, baseless, and ignorant speculation about the reasons for her absence. Garnett filed this defamation suit against their mutual employer, Remedi SeniorCare of Virginia. The district court concluded that the statement was not defamatory and dismissed the suit. We affirm, but on different grounds. The alleged statement, while offensive and odious, will not support an action against Remedi under Virginia law because a company cannot be held liable for employee statements made outside the scope of employment.

I.

Remedi SeniorCare is an institutional pharmacy that ships medications to nursing homes and other long-term care facilities. Garnett worked at its Ashland, Virginia location, often alongside Try, a night supervisor.

On January 14, 2015, Garnett told Try she would be out the next day to undergo surgery. During that absence, Garnett alleges that Try told other Remedi employees that "Sade 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 that "Sade was having a biopsy of her vagina." J.A. 67.

Garnett filed suit against Remedi in the Circuit Court for the City of Richmond. Remedi removed the case to the United States District Court for the Eastern District of Virginia based on diversity jurisdiction.

The district court dismissed Garnett’s claims. Because Try’s statement was "clearly only Try’s opinion based on his faulty reasoning," and "no reasonable person would take Try’s statement to be anything more than pure conjecture," the court concluded that it was not actionable under Virginia law. J.A. 61. The court then denied Garnett’s request to amend her complaint on the grounds that it would "retain the same deficiencies as the one previously dismissed." Id .

This appeal followed. We "review de novo the grant of a motion to dismiss for failure to state a claim." Gerner v. County of Chesterfield , 674 F.3d 264 (4th Cir. 2012). We review for abuse of discretion a denial of leave to amend a complaint.

II.

In Virginia, "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." Hyland v. Raytheon Tech. Servs. Co. , 277 Va. 40, 46, 670 S.E.2d 746, 750 (2009). We are not willing to say at the motion to dismiss stage that Try’s statement was not defamatory. To do so would be to hold that no action could be brought against Try personally, and possibly that a plaintiff could never prevail against a supervisor who boasts of inside knowledge of the plaintiff’s sexual activities and medical history without any factual basis. But assuming arguendo that Try’s statements were defamatory, we must still consider whether those statements were within the scope of his employment and thus whether his employer can be held vicariously liable.

Ordinarily, "a federal appellate court does not consider an issue not passed upon below." Singleton v. Wulff , 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). However, where "the proper resolution is beyond any doubt" or "where injustice might otherwise result," we may affirm on alternate grounds. Id . at 121, 96 S.Ct. 2868 (citing Hormel v. Helvering , 312 U.S. 552, 556, 61 S.Ct. 719, 85 L.Ed. 1037 (1941) ). This case qualifies as an exception to the general rule. The outcome is not in doubt and a remand would work an injustice on the parties and the trial court by forcing them to undergo another round of pointless litigation. Moreover, as we shall explain, the parties were certainly aware of the scope of employment issue because it was asserted in the complaint, though without the benefit of any explanation. And the issue was taken up at some length at oral argument, where appellant was unable to provide any satisfactory answers. We therefore consider vicarious liability as an alternate ground for affirmance in this case.

A.

The deeply offensive nature of Try’s statement gives rise to an understandable temptation to hold his employer responsible in some way for what happened. After all, Try was in Remedi’s employ and he made the statement at work. To understand why we cannot pursue this course under law requires some discussion of the origins and purposes of the doctrine of respondeat superior and why limitations on employer liability in circumstances such as these are necessary.

Vicarious liability is somewhat different from most other forms of tort liability because one party is held responsible for the actions of another. See Restatement (Third) of Agency Law § 7.07. It is elementary that tort law aims to redress private wrongs and deter misconduct. See, e.g. , Ernest J. Weinrib, The Idea of Private Law 3-11 (2012). The goal of redressing private wrongs is based on principles of justice. An individual should be able to witness justice by bringing his wrongdoer to court and winning a monetary judgment or an injunction. Social welfare concerns justify the deterrent goal. In order to reduce social harms, tort liability makes wrongdoers pay a price for injuring another and thereby disincentivizes countless forms of careless or antisocial conduct.

Under a theory of vicarious liability, an employer may be held liable even though an individual employee is the actual tortfeasor. That makes sense when the employee action furthers the interests of the employer or when the individual tortfeasor uses his workplace responsibilities to facilitate the tort. 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.

There is thus little question that employers can be held liable when they order or actually ratify a tort. See, e.g. , Bishop v. Montague , Cro. Eliz. II (1600). Employers also bear legal responsibility when their own negligence facilitates the commission of a tort. See, e.g. , Fletcher v. Baltimore & P.R. Co. , 168 U.S. 135, 138, 18 S.Ct. 35, 42 L.Ed. 411 (1897). It is easy to assign responsibility in such circumstances because the employer’s wrongful conduct was directly related to the commission of the tort.

An employer can also sometimes be held liable even when it did not intend or sanction any wrongful conduct. In these cases, employer liability can still serve the deterrent purpose of tort law, because the employer might be able to implement policies that will reduce the likelihood that its employees will engage in tortious conduct. For that reason, the doctrine of vicarious liability can act as a useful deterrent.

B.

But this is not to say that the principle of vicarious liability is without limits. It is more problematic for states to impose legal liability on an employer for conduct that cannot possibly be connected to it. As a general matter, the employer can only be held responsible for an employee’s misconduct if that conduct falls within the "scope of employment." See Restatement (Third) of Agency Law § 2.04. This requirement limits vicarious liability to situations in which the employee was either (a) performing work assigned by the employer or (b) engaging in a course of conduct subject to the employer’s control. Id. § 7.07 (2006) ("An employee acts within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer's control."); see also Alan O. Sykes , The Boundaries of Vicarious Liability: An Economic Analysis of The Scope of Employment Rule and Related Legal Doctrines , 101 Harv. L. Rev. 563, 582 (1988). The employer may therefore avoid liability when an employee acts independently or in a manner that does not serve any goal of the employer. The "scope of employment" requirement thus ensures that vicarious liability remains tethered to the general goals of tort law: Liability will attach only if the employer (a) bears at least partial responsibility for the tortious conduct or (b) has some ability to limit the likelihood that the employee would commit a tort.

It 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.

Without the scope of employment requirement, employers such as the one here could hardly protect themselves from liability without proctoring the minutiae of a worker’s daily life or imposing draconian restrictions on employee speech. Workplace statements can be endlessly litigated: What was said? Was a given statement serious or in jest? In what context was it made and was it misunderstood? There is no reason to hold employers liable for an employee’s statements when those statements serve no plausible employer interest, the employee’s workplace responsibilities did not facilitate the tort, and only the most heavy-handed workplace policies would have stood a chance...