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Western District Finds Insulting Words Claim Actionable

Published by on April 6, 2010

The U.S. District Court for the Western District of Virginia recently found that a plaintiff had stated a claim under Virginia’s “insulting words” statute based on an accusation by her former employer that she had engaged in criminal conduct.  The opinion can be found here.  More after the break. In 2008, employees at General Dynamics’ […]

The U.S. District Court for the Western District of Virginia recently found that a plaintiff had stated a claim under Virginia’s “insulting words” statute based on an accusation by her former employer that she had engaged in criminal conduct.  The opinion can be found here.  More after the break.

In 2008, employees at General Dynamics’ manufacturing facility in Marion, Virginia, went on a labor strike over the terms of a collective bargaining agreement.  The plaintiff, Melissa Trail, was recording secretary for the union and was actively involved in the strike.  During the strike, the union posted a list containing names, salary information, and social security numbers of General Dynamics employees outside the plants.  General Dynamics reported this activity to the police, who opened an investigation.  The police questioned Trail about an allegation that some General Dynamics employees had seen her with the employee lists at a baseball game.  This allegation was brought up again eight months after the police had closed the investigation into the matter, prompting the police to reopen the case.  Trail was then indicted on a charge of felony identity theft based on her possession of the lists at the baseball game.  The local newspaper published an inaccurate story about Trail, stating that she had been indicted for distributing employees’ private information during the strike and that she was possibly involved in the posting of the list.  General Dynamics managers and employees distributed the article to other company employees and suspended Trail without pay until she was exonerated of all charges.  The prosecutors in Trail’s case then obtained a nolle prosequi, and assured General Dynamics that Trail would not be further prosecuted on the charge.  General Dynamics then fired Trail. 

In its termination letter to Trail, the company stated that Trail had violated Virginia Code section 59.1-443.2, which prohibits “intentional communication of another individual’s social security number to the general public.”  Trail then brought suit against General Dynamics, alleging malicious prosecution, defamation, and a violation of Virginia Code section 8.01-45, referred to as the “insulting words” statute.  The statute states that “words shall be actionable which from their usual construction and common acceptance are construed as insults and tend to violence and breach of the peace.”  A claim under this statute is similar to a defamation claim, but it does not require publication to a third party.  In ruling on General Dynamics’ motion to dismiss the insulting words claim, the district court stated that the Virginia Supreme Court has held that a false accusation of criminal conduct may be actionable under the statute.  The court held that under the federal pleading standard, Trail’s complaint alleged sufficient facts to allow a reasonable inference that General Dynamics “uttered words which tend to violence of breach of the peace.”  The court stated that the company’s distribution of the newspaper story and the statements in the termination letter could be construed as statements which could lead to violence, especially when considered in the context of a union strike.  The court rejected General Dynamics’ argument that the statute should only apply to a verbal utterance as contrary to case law precedent and not in line with the plain language of the statute.

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