On July 7, 2022, the United States District Court for the Western District of Virginia, Harrisonburg Division, held that Plaintiff John Doe alleged the necessary elements of his defamation claims, denying Shenandoah University’s motion to dismiss.
Doe, formerly a student in the Physician Assistant Studies Program (“PA Program” or “Program”), informed University faculty that he had been diagnosed with Social Anxiety Disorder (“SAD”). He requested school accommodations and expected to receive them. However, according to Doe, he did not.
Plaintiff, an African American student, was born in Nigeria and emigrated to the United States, eventually becoming a permanent resident. While living in the U.S., Doe attended graduate school and began working as an epidemiologist before enrolling in Shenandoah University’s PA Program in July 2018.
According to the former Shenandoah student, the University made four separate attempts to dismiss him from the Program, due to what he believed to be related to his SAD diagnosis and request for accommodations. Once the University dismissed him, Doe claimed that the University “began to post-hoc justify its dismissal of Doe on ‘patient safety’ grounds.”
The University rationalized that Doe’s dismissal from the PA Program was due to his alleged failure to pass an Objective Structured Clinical Exam (“OSCE”), which “is a time-limited practical exam conducted at the end of certain semesters in the PA program and consists of a set of predefined stations related to patient care.” The University advised Doe that he failed at least one sect of the exam twice, and Doe appealed. Doe took the exam a third time, and according to Doe, the University failed to provide him the necessary accommodations he previously requested. After failing the exam again, the University dismissed Doe a fourth, and final, time.
Upon the appeal of his dismissal from the Program, Doe claimed that Dean Karen Abraham, the Dean of the School of Health Professions at the University, stated that she denied his appeal because “‘[r]eading for accuracy in a clinical environment is required for patient safety.’”
Doe then appealed to Provost Bloss who upheld Abraham’s determination, writing: “While I applaud the significant improvement you have made in your didactic courses, I cannot overlook the ongoing concerns regarding safety and critical decision making that were raised in your final OSCE attempt.”
Doe again appealed, this time to University President Tracy Fitzsimmons. She similarly denied Doe’s appeal, writing that “Doe’s dismissal was due solely to concerns for patient safety.” Doe alleges that these comments, like Dean Abraham’s and Provost Bloss’s, were forwarded to “one or more [University] employees, including [the University’s] registrar, similarly causing the correspondence to be published in Doe’s permanent academic file.” At that time, Doe’s dismissal from the PA Program became final as no further appeal was made available by the University.
As a result of his dismissal from the Program, Doe brought suit against the University, asserting a claim of race discrimination under Title VII of the Civil Rights Act (Count I), a violation of the Americans with Disabilities Act (Count II), a violation of the Rehabilitation Act (Count III), defamation (Count IV), and defamation per se (Count V).
The University then “moved to dismiss the defamation counts (IV and V), arguing that the statements in question were never published, that the statements are neither defamatory nor do they contain any defamatory implication, and that they are, in any event, subject to a qualified privilege.”
In Virginia, a Plaintiff must prove the following to substantiate a claim for defamation: (1) publication of (2) an actionable statement, which is both false and defamatory, with (3) the requisite intent. A defamatory statement, which may be made by “inference, implication or insinuation” is one that injures a person’s reputation, deterring others from associating with that individual. It “must have the requisite defamatory ‘sting’ to one’s reputation.”
“The requisite intent a plaintiff must prove in a defamation action depends upon the plaintiff’s status as a public or private figure and the damages sought.” Where the defamation action involves a private person, like Doe, the requisite intent is “essentially negligence—that the defendant ‘either knew [the statement] to be false, or believing it to be true, lacked reasonable grounds for such belief, acted negligently in failing to ascertain the facts on which the publication was based.”
Doe expressly alleged that the comments of Abraham, Bloss, and Fitzsimmons “were malicious, not made in good faith, and/or the result of ill will toward, personal spite against, and a desire to harm Doe including but not limited [to] discriminatory animus toward Doe’s race and disability.”
Despite the University’s attempt to defend itself, the Court entirely disagreed with its arguments, stating, “[T]hese statements reasonably imply that Doe is unfit in his chosen profession and may therefore form the basis of a cause of action for defamation and defamation per se.” The Court further added that “Doe has adequately alleged statements that, if uttered, could be proven false and might contain the necessary “sting” required to make out claims for defamation and defamation per se.”
Furthermore, the Court could not conclude, at this stage in the litigation, “that all communication of the allegedly defamatory statements was among ‘persons [who] have an interest or duty’ related to Doe’s appeal” nor whether the University was actuated by malice, has abused a privileged communication, and has exceeded its privilege, if any. It is a question of fact to be decided by a jury, according to the Court, which added that it would be inappropriate to consider the University’s affirmative defense at this early stage.
In consideration of the above, the Court held that Doe adequately alleged that the University officials made and published statements that may be provably false and that contain the requisite “sting” of defamation, denying the University’s motion to dismiss.