• Eastern District of Virginia: Alleged Expletive Does Not Warrant Claim Against Former Employer
  • April 16, 2008 | Author: Jonathan E. O'Connell
  • Law Firm: Holland & Knight LLP - McLean Office
  • A federal court in Northern Virginia has dismissed a slander counterclaim filed by a former employee who alleged someone at his old company had called him a “buddy f---er” in the heat of litigation.

    District Judge Claude M. Hilton, of the U.S. District Court for the Eastern District of Virginia, held the alleged statement by a person at the offices of the defendant, SRA International, Inc., was non-actionable hyperbole. The judge dismissed the counterclaim as to all other allegedly defamatory statements as well.

    The legal dispute began when SRA filed a lawsuit against one of its former employees, James R. McLean, and his wife’s company, Horizontal Fusion, LLC, asserting a variety of claims. SRA is a Virginia-based corporation providing technology and strategic consulting services and solutions to clients in the national security, civil government, and health care and public health sectors. McLean had been the program director at SRA’s operations in Fayetteville, North Carolina. In the lawsuit, SRA seeks injunctive relief and damages from McLean and Horizontal Fusion, alleging that McLean breached his employment agreement and his fiduciary duties by soliciting SRA employees and customers, and that he misappropriated SRA’s confidential and trade secret information. SRA also alleges in the lawsuit that Horizontal Fusion tortiously interfered with McLean’s employment agreement and misappropriated SRA’s confidential and trade secret information taken by McLean.

    In addition to denying liability, the defendants responded by filing multiple counterclaims against SRA, including two counts of slander each against SRA. McLean’s first count of slander alleged that an SRA employee called McLean a “buddy f---er” who was attempting to “derail” SRA’s business. McLean’s second slander counterclaim was based on alleged statements of an SRA employee, following an injunction hearing in the case, that: McLean had “violated his employment contract by trying to recruit various SRA employees”; McLean had “lost” the injunction hearing; and that McLean’s efforts to harm SRA were “egregious.” Horizontal Fusion’s two counts of slander were also based on the same alleged statements.

    In its motion to dismiss the counterclaim, SRA asserted that the alleged “buddy f---r” comment was rhetorical hyperbole and did not constitute an actionable statement of fact. In his response, McLean argued that the term “buddy f---er” was not rhetorical hyperbole because this phrase has a particularly negative and potentially defamatory connotation in the military community in the region where the comment allegedly was made. The court rejected McLean’s argument, finding that the alleged statement was not actionable:
    While it may be considered offensive, it is nothing more than “rhetorical hyperbole” describing the speaker’s opinion of McLean and his opinion of McLean’s motives and competitive activities.

    The court also ruled that the alleged statement that McLean was attempting to “derail” SRA’s business was also a non-actionable opinion and “does not contain a ‘provably false factual connotation’” or “state ‘actual facts’ about McLean.”

    In analyzing the alleged statements made by an SRA employee after the injunction hearing, the court reasoned that when viewed in their context, the comments about a violation of McLean’s employment contract were merely restatements of the allegations contained in SRA’s complaint and thus not slanderous. The court also noted that the alleged statement that McLean had “lost” the injunction hearing, and that his conduct was “egregious,” were clear statements of opinion and also not actionable.

    The court also rejected Horizontal Fusion’s contention that the comments referred to the company in addition to McLean. The court held the statements were simply not “of or concerning” Horizontal Fusion because they made “no reference or intimation” to that entity.

    The court dismissed the entire counterclaim.