Several years ago, this blog covered Garnett v. Remedi SeniorCare of Virginia, LLC, 892 F.3d 140 (4th Cir. 2018), in which the Fourth Circuit held that an employer could not be held vicariously liable for a coworker’s crude and offensive remarks because they fell outside the scope of the speaker’s employment. The apparent lesson was that a Virginia employer is not a guarantor of everything its employees say, and that a defamation plaintiff who cannot connect the statement to the employee’s job responsibilities will not survive a motion to dismiss. A recent unpublished Fourth Circuit decision, Auckland v. Gilead Sciences, Inc., complicates that lesson. Applying a pleading-stage presumption that the Supreme Court of Virginia developed after Garnett, the court vacated the dismissal of a vicarious-liability defamation claim and, over a pointed dissent from Judge Wilkinson, held that the plaintiff’s complaint had pleaded sufficient facts to proceed.
Ian Auckland worked remotely from Southwest Virginia for Gilead Sciences, a California-based biopharmaceutical company, for more than nine years. In 2023, he applied for a preceptorship program associated with Gilead’s Key Accounts Team, a role viewed as a stepping-stone to a full-time position on the team. Hilary Zachry, a California employee who served as a mentor for the preceptorship program, allegedly favored other candidates. According to Auckland, Zachry falsely told a coworker that Auckland had said “I want to rip your panties off” during a brief conversation at a work conference in Nashville, and then directed that coworker to report the fabricated accusation to Gilead. Auckland was accepted into the program, but was soon investigated and terminated. He sued both Zachry and Gilead in the Western District of Virginia, asserting claims of defamation and defamation per se, and sought to hold Gilead vicariously liable for Zachry’s conduct.
The district court dismissed the claims against Zachry for lack of personal jurisdiction and dismissed the claims against Gilead for failure to state a claim, reasoning that Auckland had not adequately alleged that Zachry acted within the scope of her employment. The Fourth Circuit affirmed the jurisdictional dismissal, agreeing that a single text-message exchange between Zachry and a Virginia-based colleague could not supply the requisite minimum contacts. On the vicarious-liability question, the court applied the presumption articulated in Parker v. Carilion Clinic, 819 S.E.2d 809 (Va. 2018), and Our Lady of Peace, Inc. v. Morgan, 832 S.E.2d 15 (Va. 2019). Under those decisions, once a complaint alleges an employment relationship at the time of the employee’s tort, Virginia law recognizes a rebuttable presumption that facts exist placing the conduct within the scope of employment. The presumption shifts the burden of production to the employer and applies from the outset of the case. Because a court does not resolve factual disputes on a motion to dismiss, an employer ordinarily cannot rebut the presumption until summary judgment. The lone exception is self-refutation: the presumption may be defeated by the complaint that triggers it, but only where the plaintiff’s own allegations make the refutation “clear, not conjectural, and irrefutable rather than debatable.” (See Parker, 819 S.E.2d at 822.)
Measured against that framework, the court held that Auckland’s amended complaint triggered the presumption by alleging that Zachry was a Gilead employee when she made the accusation. The district court had acknowledged the presumption but failed to apply it, moving directly to whether reporting sexual harassment could fall within the scope of Zachry’s employment and faulting Auckland for not alleging the existence of a Gilead policy encouraging such reports. That approach inverted the presumption, which exists precisely to supply facts the plaintiff has not pleaded. The proper question was whether anything in the complaint categorically foreclosed the possibility that Zachry acted within the scope of her employment, and nothing did. Drawing on Morgan, the court found it “possible to hypothesize” that a preceptorship mentor played some role in selecting program participants, such that a false accusation made to oppose a disfavored candidate could fall within her responsibilities.
The court distinguished Garnett on the ground that it predated the Supreme Court of Virginia’s clarification of the presumption in Parker and Morgan, and that the presumption was neither raised nor considered there. Because the presumption now applied in Auckland’s favor at the pleading stage, Garnett did not compel dismissal. The court was careful to note the limits of its holding: it did not decide that Zachry acted within the scope of her employment, only that the complaint did not irrefutably negate that possibility. Gilead remains free on remand to marshal positive facts to rebut the presumption, which “disappears in the face of positive facts to the contrary.” (Parker at 822.)
Judge Wilkinson dissented from the vicarious-liability holding. He would have affirmed dismissal, emphasizing that Auckland’s complaint repeatedly alleged that Zachry acted from personal spite and favoritism (i.e., “wholly from some external, independent, and personal motive”) which, in his view, is exactly the self-refutation that rebuts the presumption. He also disputed the majority’s treatment of Garnett, observing that Garnett had cited authority recognizing a rebuttable presumption and that the Supreme Court of Virginia had long applied it. On his reading, the majority effectively converted a rebuttable presumption into an irrebuttable one and expanded respondeat superior toward a per se rule.