Under the theory of vicarious liability, employers can be held responsible for an employee’s wrongful conduct provided he is acting within the scope of his employment. But as the Fourth Circuit Court of Appeals reminded us this week, not all workplace conduct which gives rise to a lawsuit against an employee, gives rise to one against his employer as well. Garnett v. Remedi Seniorcare of Virginia, LLC, No. 17-1890 (6/11/18).
In this case, plaintiff Garnett filed a defamation lawsuit against her employer, Remedi Seniorcare, based on allegations that a colleague, Try, told other employees she took leave for treatment for an STD. The case was first dismissed by a Virginia federal court which held Garnett couldn’t state a claim for defamation because no reasonable person would believe the offensive statements to be true. The Fourth Circuit affirmed the dismissal, but for different reasons, finding Remedi couldn’t be liable for Try’s comments made outside the scope of his employment.
To start, said the Court, the fact that Try’s comments were made at work was “hardly dispositive” of whether the offensive remarks were made within the scope of employment. Context, it explained, was only one factor of the analysis, and the law requires more to hold Remedi responsible. In this case, there was no more. As the Court noted:
Try was not carrying out any task on Remedi’s behalf. He was not giving instructions to subordinates, or even having a conversation that related in any way to Remedi’s commercial interest. Nor … did Remedi ever direct or encourage or condone the alleged offense.
Indeed, there were no allegations that Try’s work responsibilities included gossip about coworkers. Thus, the Fourth Circuit concluded the statements did not fall within the scope of Try’s employment, and Remedi could not, under these circumstances, be held vicariously liable for Try’s actions.