USCA4 Appeal: 25-1933 Doc: 34 Filed: 06/09/2026 Pg: 1 of 24
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 25-1933
IAN LEWIS AUCKLAND,
Plaintiff – Appellant,
v.
GILEAD SCIENCES, INC.; HILARY ZACHRY, in her individual capacity and professional capacity,
Defendants – Appellees.
Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Thomas T. Cullen, District Judge. (7:24-cv-00501-TTC-CKM)
Submitted: March 16, 2026 Decided: June 9, 2026
Before WILKINSON, HARRIS, and BENJAMIN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished opinion. Judge Harris wrote the opinion, in which Judge Benjamin joined. Judge Wilkinson wrote a separate opinion concurring in part and dissenting in part.
ON BRIEF: Thomas E. Strelka, VIRGINIA EMPLOYMENT LAW, Roanoke, Virginia, for Appellant. Jonathan M. Albano, Laura A. Saracina, MORGAN, LEWIS & BOCKIUS LLP, Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 25-1933 Doc: 34 Filed: 06/09/2026 Pg: 2 of 24
PAMELA HARRIS, Circuit Judge:
Ian Auckland was fired by his former employer, Gilead Sciences, Inc., after a female
co-worker, Hilary Zachry, alleged he made an unwelcome, sexually explicit comment to
her at a work conference. Auckland then sued Gilead and Zachry in federal court in
Virginia, bringing state-law defamation claims. According to Auckland, Zachry
knowingly made false accusations against him, and Gilead, as her employer, was
vicariously liable for her actions. The district court dismissed the claims against both
defendants, finding that it lacked personal jurisdiction over Zachry – who lived and worked
in California – and that Auckland failed to state a claim for vicarious liability against
Gilead.
We agree that the district court lacked personal jurisdiction over Zachry. But we
conclude that Auckland sufficiently stated a claim for vicarious liability against Gilead
under Virginia law, which recognizes a presumption in favor of vicarious liability under
conditions satisfied at this stage in the case. We therefore affirm in part, vacate in part,
and remand for further proceedings.
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I.
A.
Ian Auckland worked for Gilead Sciences, Inc. (“Gilead”), a biopharmaceutical
company, for over nine years. 1 Gilead is headquartered in California, but Auckland lived
in Southwest Virginia and worked remotely from his home.
In 2023, Gilead started a preceptorship program with its Key Accounts Team, a
group that worked to secure partnerships and increase the market for Gilead’s cancer drugs.
Employees accepted into this program would shadow members of the Key Accounts Team
to gain experience with the team’s work, and participation in the preceptorship program
was viewed as a good stepping-stone to a full-time position on the team. Auckland’s
colleague Buffy Moran, a member of the Key Accounts Team who also lived and worked
in Virginia, recommended Auckland for the preceptorship program, and Auckland applied.
Later that summer, Auckland attended a work conference in Nashville, Tennessee.
There, he met Hilary Zachry, a member of the Key Accounts Team who lived and worked
in California and served as a mentor for the preceptorship program. Auckland and Zachry
had one brief conversation, during which Auckland told Zachary that he had applied for
the preceptorship program. As Auckland tells it, nothing about the conversation was
remarkable, and the two did not speak again.
1 Because the district court dismissed this case at the pleading stage, we describe the facts as alleged in the complaint. See E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011).
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Auckland was accepted into the preceptorship program in October 2023. But a few
weeks later, he was invited to a call with Gilead Human Resources, where he learned he
was being investigated for allegedly telling Zachry “I want to rip your panties off” during
their conversation at the conference in Nashville. He denied making any such comment.
Nevertheless, Auckland was soon informed that his employment at Gilead was terminated.
After his termination, Auckland spoke with Moran, who told him that Zachry did
not want him to receive the preceptorship position because she “favored other parties for
the position.” J.A. 80. According to Auckland, this led Zachry to devise a plan to remove
him from consideration so that her preferred candidates would be chosen instead. To carry
out this plan, he alleged, Zachry falsely told another co-worker that Auckland made the
sexually explicit comment to her at the conference in Nashville, and then directed this co-
worker to report her false accusation to Gilead.
B.
Auckland sued Zachry and Gilead in the Western District of Virginia, bringing one
count of defamation and one count of defamation per se against each defendant. His
complaint asserted that Zachry’s accusations against him were false and defamatory and
that Gilead, as her employer, was vicariously liable for this conduct.
The district court dismissed Auckland’s first complaint in part, finding that it lacked
personal jurisdiction over Zachry. See Auckland v. Gilead Scis., Inc., 2025 WL 314029, at
*3 (W.D. Va. Jan. 28, 2025). But the district court granted Auckland leave to amend his
complaint to supplement his jurisdictional allegations. Id.
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Auckland filed an amended complaint alleging the same two counts against both
defendants, who again moved to dismiss. Zachry reprised her argument that the district
court lacked personal jurisdiction over her. Gilead contended that the amended complaint
failed to state a claim for vicarious liability against the company because it did not explain
how Zachry’s alleged defamation was within the scope of her employment. After allowing
limited discovery on the personal jurisdiction issue, the district court granted the motion to
dismiss as to both defendants and dismissed the amended complaint in full. Auckland v.
Gilead Scis., Inc. (“Auckland II”), 2025 WL 1924386 (W.D. Va. July 14, 2025).
The district court first found that it lacked personal jurisdiction over Zachry, who
was domiciled in California. See id. at *1, 4–5. Because the Virginia long-arm statute
authorizes personal jurisdiction co-extensive with the Due Process Clause, the district court
explained, the only question was whether Zachry had sufficient minimum contacts with
Virginia to permit the exercise of jurisdiction under the Constitution. Id. at *4. Before
jurisdictional discovery, Auckland had relied in part on allegations that Zachry
communicated her defamatory accusations in Virginia, sharing them with third parties,
including at least one Gilead employee, in the state. Id. But after discovery revealed those
allegations to be “without basis in fact,” Auckland relied solely on a single, different
contact: a text-message conversation between Zachry and Moran (who, recall, lived in
Virginia) regarding Auckland’s acceptance into the preceptorship program. Id. at *4–5.
And that contact, the district court held, was insufficient to support personal jurisdiction
over Zachry in Virginia. See id. at *5.
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Next, the district court found that Auckland failed to state a claim that Gilead could
be held vicariously liable for Zachry’s conduct. Id. at *5–7. Here, the district court
explained, the “sole question” was whether Zachry was acting within the scope of her
employment when she made the allegedly false accusation against Auckland. Id. at *5.
The district court recognized that under Virginia law, “[t]he existence of an employment
relationship gives rise to a rebuttable presumption that the employee was acting within her
scope of employment,” but also noted that a plaintiff “can plead h[imself] out of court” by
alleging facts that clearly and irrefutably rebut that presumption. Id. (quoting Parker v.
Carilion Clinic, 819 S.E.2d 809, 822 (Va. 2018)). Turning to the amended complaint, the
district court found that Auckland had not sufficiently pled that Zachry was acting within
the scope of her employment, in part because he did not allege that Gilead had a policy
encouraging or providing guidance on the reporting of sexual harassment by employees.
Id. at *6–7.
Auckland timely appealed the dismissal of his amended complaint.
II.
We review de novo the dismissal of Auckland’s claims against Zachry for lack of
personal jurisdiction. Consulting Eng’rs Corp. v. Geometric Ltd., 561 F.3d 273, 276 (4th
Cir. 2009). Where the parties “were given a fair opportunity to develop the record
regarding personal jurisdiction” – here, through jurisdictional discovery – the plaintiffs
must “establish[] personal jurisdiction by a preponderance of the evidence.” Sneha Media
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& Ent., LLC v. Associated Broad. Co., 911 F.3d 192, 197 (4th Cir. 2018); see also Grayson
v. Anderson, 816 F.3d 262, 269 (4th Cir. 2016).
Our familiar test for specific personal jurisdiction “requires satisfying the standards
of the forum state’s long-arm statute and respecting the safeguards enshrined in the
Fourteenth Amendment’s Due Process Clause.” Tire Eng’g & Distrib., LLC v. Shandong
Linglong Rubber Co., 682 F.3d 292, 301 (4th Cir. 2012). As the district court recognized,
“[b]ecause Virginia’s long-arm statute extends personal jurisdiction to the outer bounds of
due process,” this test collapses into one question: whether exercising personal jurisdiction
complies with the requirements of due process. Id.; see Auckland II, 2025 WL 1924386,
at *4.
To answer that question, we ask whether the defendant – California resident
Zachry – had sufficient “minimum contacts” with the forum state such that requiring her
to litigate there would not “offend traditional notions of fair play and substantial justice.”
Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotation marks omitted).
Specifically, we consider three factors: “(1) the extent to which the defendant purposefully
availed [her]self of the privilege of conducting activities in the State; (2) whether the
plaintiff[’s] claims arise out of those activities directed at the State; and (3) whether the
exercise of personal jurisdiction would be constitutionally reasonable.” UMG Recordings,
Inc. v. Kurbanov, 963 F.3d 344, 351–52 (4th Cir. 2020). To find that specific personal
jurisdiction exists, the defendant must have had “contacts with” the forum state, and those
contacts must be “the basis for the suit.” Shandong Linglong, 682 F.3d at 301.
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On appeal, Auckland identifies two types of activities that, in his view, show that
Zachry purposefully directed activities at Virginia. First, he contends that Zachry had
regular, work-related contact with Moran, who she knew to be a resident of Virginia. And
second, he points to a specific text message conversation between Zachry and Moran,
arguing that in this conversation, Zachry communicated with Moran about her allegedly
defamatory accusations.
The first class of activities – general work communications with Moran – cannot
support specific personal jurisdiction over Zachry in this case. As noted above, the relevant
question is not only whether the defendant directed activities at the forum state, but also
whether those “contacts with the forum state form the basis of the suit.” Consulting Eng’rs
Corp., 561 F.3d at 278–79 (emphasis added). As the Supreme Court has made clear,
specific personal jurisdiction requires “an affiliation between the forum and the underlying
controversy.” Bristol-Myers Squibb Co. v. Superior Ct. of Cal., 582 U.S. 255, 264 (2017)
(internal quotation marks omitted). “When there is no such connection, specific
jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in
the State.” Id. Zachry’s general work-related communications with Moran are
unconnected to, and in no way form the basis of, Auckland’s defamation claims against
Zachry – and are thus irrelevant to the personal jurisdiction inquiry here.
For similar reasons, the specific text conversation identified by Auckland does not
establish personal jurisdiction over Zachry. Auckland does not claim that this is a
conversation in which Zachry shared her purportedly defamatory accusation with Moran.
Instead, Auckland acknowledges that Zachry told Moran about her allegations while both
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women were in Nashville, which could not create personal jurisdiction in Virginia. See
Walden v. Fiore, 571 U.S. 277, 285 (2014) (“[The] ‘minimum contacts’ analysis looks to
the defendant’s contacts with the forum State itself, not the defendant’s contacts with
persons who reside there.”). But Auckland now claims that Zachry continued discussing
the topic with Moran via text message when Moran returned home to Virginia.
The problem for Auckland is that the single conversation he relies on contains no
mention of the allegedly defamatory statements at issue, as evidence from jurisdictional
discovery established. See J.A. 209. Instead, the brief discussion concerned only
Auckland’s acceptance to the preceptorship program, with Zachry expressing her objection
to that outcome. See id. But Zachry did not make any accusation against Auckland or refer
in any way to the alleged episode at the Nashville conference. Id. Because the purportedly
defamatory statements were not discussed, this conversation could not “form the basis” for
Auckland’s defamation suit. Consulting Eng’rs Corp., 561 F.3d at 278–79. So even
assuming the text conversation was a contact Zachry purposefully directed at Virginia, that
conversation could not establish personal jurisdiction over Zachry. See id.; Bristol-Myers
Squibb, 582 U.S. at 264.2
2 The district court doubted that the conversation could qualify as a minimum contact with Virginia and found personal jurisdiction lacking for that reason. See Auckland II, 2025 WL 1924386, at *5. We need not address that analysis, given our affirmance on the ground described above.
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Because Auckland did not establish that Zachry had sufficient minimum contacts
with Virginia related to this case, we affirm the district court’s dismissal of the claims
against Zachry for lack of personal jurisdiction.
Next, we consider Auckland’s claims against Gilead, which seek to hold the
company vicariously liable for Zachry’s allegedly defamatory statements. We review de
novo the district court’s dismissal of these claims for failure to state a claim. Meridian
Invs., Inc. v. Fed. Home Loan Mortg. Corp., 855 F.3d 573, 580 (4th Cir. 2017).
In Virginia, an employer is vicariously liable for the tortious act of its employee if
the employee was (1) “performing [her] employer’s business” and (2) “acting within the
scope of [her] employment.” Parker, 819 S.E.2d at 819. 3 Vicarious liability does not exist,
however, when the employee’s act was “unauthorized” and arose “wholly from some
external, independent, and personal motive.” Id. at 821.
Importantly, plaintiffs claiming vicarious liability under Virginia law “benefit from
a unique presumption” that is triggered “once [the] complaint alleges the existence of an
employment relationship at the time of the employee’s tort.” Our Lady of Peace, Inc. v.
Morgan, 832 S.E.2d 15, 25 (Va. 2019). At that point, the law recognizes “a rebuttable
presumption that facts exist” – even if “not specifically pleaded” – that would satisfy the
test for vicarious liability. Parker, 819 S.E.2d at 822. This presumption “shifts the burden
of production to the employer to present facts sufficient to permit the factfinder to conclude
3 The parties agree that Virginia law governs Auckland’s claims against Gilead.
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that the employee was not acting within the scope of [her] employment at the time of [her]
tortious conduct.” Morgan, 832 S.E.2d at 25 (emphasis added). And it “applies at the
outset of the case, beginning with the complaint.” Id. (internal quotation marks omitted).
Once triggered, this presumption can be rebutted in two ways. First, as noted above,
the employer can present facts sufficient to rebut it. See id. But because courts do not
resolve factual disputes at the motion to dismiss stage, this process would occur only later,
through discovery and summary judgment. See Bosiger v. U.S. Airways, 510 F.3d 442,
450 (4th Cir. 2007); Parker, 819 S.E.2d at 823 (noting that “none of [the defendant’s]
factual contests can be addressed at the pleading stage”). The presumption can also be
rebutted earlier in the litigation by “the very complaint that triggers it,” if the plaintiff
“affirmatively alleg[es] facts that rebut” it. Morgan, 832 S.E.2d at 25. But for that to
happen at the motion to dismiss stage, “the self-refutation must be clear, not conjectural,
and irrefutable rather than debatable.” Parker, 819 S.E.2d at 822.
Here, the district court acknowledged this state-law presumption. See Auckland II,
2025 WL 1924386, at *5. But it seems not to have actually applied it; the court did not ask
whether Auckland’s amended complaint triggered the presumption and, if so, whether the
presumption was rebutted. Instead, the court jumped directly to whether “[r]eporting
sexual harassment” could fall within the scope of Zachry’s employment and concluded that
it could not – in part because Auckland did not allege that Gilead encouraged its employees
to report sexual harassment. Id. at *6. But the point of the presumption, again, is that it
presumes facts that are not specifically alleged. And the district court’s analysis, we
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conclude, effectively negated the presumption in favor of vicarious liability, which should
have applied in Auckland’s favor at this stage of the litigation.
First, it is clear that Auckland’s amended complaint triggered the presumption in
favor of vicarious liability. At multiple points, the amended complaint alleges that Zachry
was a Gilead employee at the time of the alleged defamation and that the defamatory
statements were made as part of Zachry’s employment with the company. See, e.g., J.A.
78, 79, 83, 84. Those allegations are sufficient to bring the presumption into play. See
Morgan, 832 S.E.2d at 25; Parker, 819 S.E.2d at 822.
At that point, the only question the district court should have asked is whether the
presumption had been rebutted. See Morgan, 832 S.E.2d at 25. As explained above, at the
motion to dismiss stage, Gilead had not yet had the opportunity to rebut the presumption
through the proffer of factual evidence. See Bosiger, 510 F.3d at 450; cf. Parker, 819
S.E.2d at 823. Thus, the presumption could be rebutted only through “self-refutation”: if
the complaint’s allegations themselves “categorically rebut[ted] any presumption that
[Zachry’s alleged] offenses could ever be within the scope of employment for vicarious
liability purposes.” Morgan, 832 S.E.2d at 25. We see nothing in the complaint that could
meet this high bar.
First, as the district court itself acknowledged, Zachry’s allegedly defamatory
accusation may well have been within the scope of her employment if a Gilead policy
encouraged employees to report sexual harassment, or if Gilead otherwise “provided []
guidance on when or how to report sexual harassment.” Auckland II, 2025 WL 1924386,
at *6 (discussing and distinguishing Brown v. United States, 933 F. Supp. 2d 780, 785 (E.D.
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Va. 2013)). It is true, as the court noted, that Auckland does not allege the existence of
such a policy in his amended complaint. See id. But at this stage in the application of
Virginia’s presumption, a court presumes the existence of facts – including those not
pleaded – that would put an employee’s actions within the scope of her employment. The
only question at this step is whether anything that is pleaded in Auckland’s complaint
categorically forecloses the possibility that Zachry made her accusation within the scope
of her employment – for instance, pursuant to a Gilead policy on sexual-harassment
reporting – and nothing in the complaint rules out that hypothesis. See Morgan, 832 S.E.2d
at 25 (framing inquiry as whether it is “possible to hypothesize,” consistent with the
complaint, that employee conduct could have occurred within the scope of employment).
Even apart from any company policy on sexual harassment, the allegations in
Auckland’s complaint make it “possible to hypothesize” that Zachry’s alleged defamation
– her accusation against Auckland – occurred “while [she] was . . . performing a specific
job-related service.” Id. In his amended complaint, Auckland alleges that Zachry was “a
mentor in the preceptorship program” to which he had applied. J.A. 80. It is easy to
imagine that preceptors had some role in selecting program participants. And if that is so,
then the conduct alleged by Auckland – making a false accusation in order to oppose a
disfavored candidate and to advance more favored candidates – would fall squarely within
this portion of Zachry’s job responsibilities. Zachry’s alleged method, to be sure, would
not be in her employer’s interest. But that is generally true for all intentional torts, and it
does not preclude vicarious liability under Virginia law. See Parker, 819 S.E.2d at 822.
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Virginia’s Morgan case is instructive here. In Morgan, a plaintiff sought to hold a
nursing home vicariously liable for the acts of an employee, a nursing assistant who had
allegedly sexually abused and raped a resident. 832 S.E.2d at 19. Applying “the unique
pleading presumption applicable to respondeat superior claims,” the Supreme Court of
Virginia found that the plaintiff’s complaint adequately stated a claim for vicarious liability
at the pleading stage. Id. at 25–26. The defendant argued that the presumption was refuted
by the complaint itself, because offenses like the alleged molestation and rape were
necessarily based on a wholly personal motive and were outside the scope of employment.
Id. at 25. But the court disagreed. It was “possible to hypothesize” that the alleged abuse
overlapped with the performance of the nursing assistant’s job-related duties, which
included bathing and changing the clothes of residents, and therefore that the employee
acted from a “mixed motive” – both performing his job and committing the alleged abuse
– “and not wholly from some external, independent, and personal motive.” Id. at 25. And
given Virginia’s presumption, that was enough to preclude dismissal at the pleading stage
of the case. Id. at 26. We think the same reasoning applies in this case, where Auckland’s
complaint does not “irrefutab[ly]” negate the possibility that Zachry was acting within the
scope of her employment when she purportedly made her false accusation against
Auckland. See Parker, 819 S.E.2d at 822.
Our court’s decision in Garnett v. Remedi Seniorcare of Va., LLC, 892 F.3d 140
(4th Cir. 2018), on which the district court relied, does not require a different result. In
that case, we concluded that offensive statements made by one employee to another could
not support a claim for vicarious liability against the employer, because the statements fell
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outside the scope of employment. See id. at 142, 145–46. But crucially, Garnett was
decided before the Virginia Supreme Court clarified the scope and operation of the
presumption in favor of vicarious liability in Parker and Morgan. And perhaps for that
reason, the presumption was neither raised nor considered in Garnett. See generally 892
F.3d 140. Here, however, as we have explained, the presumption applies in Auckland’s
favor at this stage of the litigation, requiring us to presume that Auckland can satisfy the
requirements for establishing vicarious liability.
To be clear, we do not decide today (and should not be understood to suggest) that
Zachry was in fact acting within the scope of her employment when she made her
accusation against Auckland. Virginia’s rebuttable presumption is just that: rebuttable.
Gilead has not yet had the chance to meet its burden of production by presenting facts that
would allow for a finding that Zachry was acting outside the scope of her employment at
the time of her allegedly tortious conduct. See Morgan, 832 S.E.2d at 25. And “[f]acts
that come to light later might affirm or disaffirm the presumption,” which “disappears in
the face of positive facts to the contrary.” Parker, 819 S.E.2d at 822. Gilead will have its
opportunity to marshal “positive facts” to rebut the presumption. We hold only that in light
of Virginia’s rebuttable presumption and at this early stage of the litigation, Auckland’s
amended complaint adequately states a claim for vicarious liability against Gilead. We
therefore vacate the dismissal of Auckland’s claims against Gilead and remand for further
proceedings on these claims.
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III.
For the foregoing reasons, we affirm the district court’s dismissal of the claims
against defendant Hilary Zachry for lack of personal jurisdiction, vacate the dismissal of
the claims against defendant Gilead Sciences, Inc., and remand for further proceedings.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
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WILKINSON, Circuit Judge, concurring in part and dissenting in part:
I would affirm in its entirety the district court’s dismissal of the defamation claim
against Gilead Sciences, Inc. ∗ According to Ian Auckland’s meager complaint, Hilary
Zachry falsely accused him of telling her “I want to rip your panties off.” Gilead did not in
any way encourage Zachry to report this alleged harassment, nor was she at all motivated
by her employer’s interests in so doing. Just take Auckland’s word for it: “Zachry [accused
him] to fulfill her own personal desire that Auckland not get the preceptorship position.”
Opening Br. at 21. Respondeat superior has limits, and this case is a textbook example of
where they apply.
But the majority keeps this doomed lawsuit on life support. In the process, it forgives
the entirely perfunctory nature of Auckland’s complaint; contravenes directly on-point
Fourth Circuit precedent; and undermines a recent effort by the Virginia Supreme Court to
emphasize the bounds of respondeat superior. In the majority’s view, employers must
paternalistically supervise every conversation between their employees, regardless of
subject, or else risk going out of business. Virginia tort law does not require such an
authoritarian workplace.
To see where the majority goes awry, recall the elementary principles of respondeat
superior. Generally speaking, this doctrine applies only when “the employer (a) bears at
least partial responsibility for the tortious conduct or (b) has some ability to limit the
∗ I concur in the majority’s personal jurisdiction analysis.
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likelihood that the employee would commit a tort.” Garnett v. Remedi SeniorCare of Va.,
LLC, 892 F.3d 140, 144 (4th Cir. 2018).
In other words, respondeat superior is not boundless. Sometimes, an employee
commits misconduct so wholly disconnected from his employment that the employer both
had nothing to do with the tort and cannot rectify matters for the future. To be sure, it may
be tempting in these situations to hold the employer liable: someone has been wronged,
after all, and the employee at fault often lacks sufficient resources to make the victim
whole. Blindly expanding respondeat superior in service of plaintiffs, however, forgoes
entirely tort law’s aims to deter and efficiently distribute risk. Compensation by any means
necessary threatens the functional operations of the innocent employer to no good end.
Take the setting of this case. In virtually every workplace, employees interact with
each other around the clock, conversing among themselves about a wide array of topics.
Certainly, some of these discussions pertain to work. But plenty of others concern the better
parts of life, be it vacations, sports, or movies. Respondeat superior cannot possibly render
employers liable for all of the above. Gone would be the casual chitchat at the watercooler
and the friendly exchange at the office door. In their stead would be a sterile atmosphere
in which the employer closely monitors every little thing about its shop, lest a wayward
comment be the impetus for a bankruptcy-inducing lawsuit. “For all its undoubted value,
respondeat superior and the resultant fear of liability should not propel a company deep
into the lives of its workers whose privacy and speech interests deserve respect.” Id.
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In practically every jurisdiction, then, respondeat superior requires more than just
the fact that the tortfeasor-employee was on the clock at the time he committed the tort.
Rather, the wrong must have occurred while the employee was “performing work assigned
by the employer or engaging in a course of conduct subject to the employer’s control.”
Restatement (Third) of Agency § 7.07(2) (A.L.I. 2006). In addition, vicarious liability is
generally unavailable when the employee’s tort “occurs within an independent course of
conduct not intended by the employee to serve any purpose of the employer.” Id.
Virginia has long been part of each consensus. It confirmed as much less than a
decade ago in Parker v. Carilion Clinic, 819 S.E.2d 809 (Va. 2018). There, the Virginia
Supreme Court reiterated, as a first, objective inquiry, that “no [vicarious] liability can be
imposed if the tortious act did not arise out of the ‘very transaction,’ or service or task, that
the employee was being paid to perform.” Id. at 819 (citation omitted) (quoting Manuel v.
Cassada, 59 S.E.2d 47, 50 (Va. 1950)). It added, as a second, subjective inquiry, that
“respondeat superior liability cannot extend to an employer for an unauthorized tortious
act by an employee arising ‘wholly from some external, independent, and personal motive
on the part of the [employee] to do the act upon his own account.’” Id. at 821 (alteration in
original) (quoting Smith v. Landmark Commc’ns, Inc., 431 S.E.2d 306, 307–08 (Va.
1993)). In order for respondeat superior to apply, the employee must not have been acting
from some personal motive quite disconnected from the employer’s business. Id. at 822.
The majority ignores both steps of this analysis. Let’s consider each in turn.
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As to the objective inquiry, Gilead is a biopharmaceutical company focused on the
research and development of antiviral drugs. Consistent with this goal, Zachry worked in
sales as an account director to increase the market for Gilead’s cancer drugs, such as by
partnering with pharmacies and cancer centers. To state the obvious, she was not paid by
Gilead to report sexual harassment or to spread false accusations. The complaint does not
suggest otherwise.
This dooms Auckland’s claim. Even if Zachry tendered her allegedly defamatory
remarks while on the job, “the service itself, in which [her purported] tortious act was done”
fell outside “the ordinary course of [Gilead’s] business.” Id. at 819 (quoting Gina Chin &
Assocs., Inc. v. First Union Bank, 537 S.E.2d 573, 578 (Va. 2000)). Put differently, the
attested defamation did not occur while Zachry was “‘performing a normal function’ of
h[er] assigned job.” Id. (quoting Gina Chin, 537 S.E.2d at 579). Perhaps things would be
different if Zachry was an employee in human resources. But just as depositing checks has
nothing to do with the functions of a janitor, id. at 820, reporting sexual harassment has
nothing to do with the functions of an account director.
Auckland overlooks this dispositive point. Indeed, his complaint dedicates just two
sentences to the topic of vicarious liability, asserting in conclusory fashion both times that
“Ms. Zachry and others acted within the scope of their employment, resulting in liability
for [Gilead] on the basis of respondeat superior.” J.A. 83–84. To be clear, this quotation is
not an excerpt. It is the entirety of the complaint’s discussion about respondeat superior.
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As to the subjective inquiry into employee motive, Auckland alleges numerous
times that Zachry defamed him not to benefit Gilead, but to serve her own interests.
Consider the following: “Ms. Zachry favored other parties for the [preceptorship] position
over Mr. Auckland. At all times, Ms. Zachry was motivated by this desire. In order to
effectuate a result favorable to her, she intended to harm Mr. Auckland. . . . Ms. Zachry at
all times acted with malice against Mr. Auckland.” J.A. 80.
At the motion-to-dismiss stage, we must take Auckland at his word. And his word
is that Zachry’s alleged defamatory remarks were never meant to benefit Gilead, not even
in part. Instead, she was always fueled by ill-defined favoritism spiced with ill-defined
spite toward Auckland. Even on appeal, Auckland repeats—as a “fact”—“that Zachry
made the [defamatory] statement to fulfill her own personal desire that Auckland not get
the preceptorship position.” Opening Br. at 21 (emphasis added).
As already explained, the alleged defamation in this case formed a “marked and
unusual” deviation from Gilead’s biopharmaceutical business and from Zachry’s position
as an account director. Parker, 819 S.E.2d at 822 (quoting Gina Chin, 537 S.E.2d at 578).
This basic observation, combined with Auckland’s tireless insistence that Zachry defamed
him purely out of self-interest, readily justifies dismissal. See id.
The majority contends Auckland triggered a presumption of vicarious liability by
alleging merely that Zachry defamed him while employed at Gilead. See Maj. Op. at 12.
In understating Auckland’s simultaneous allegations about Zachry’s motive, however, the
majority converts a rebuttable presumption into an irrebuttable presumption. This wholly
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distorts Virginia law because it enlarges vicarious liability to a per se point where
respondeat superior must always and invariably apply. In order to avoid liability under the
majority’s regime, the employer, to repeat, must now become an all-spying eye. This is
hardly an environment in which any employee would care to work, and it is hardly an
environment in which any employer can cultivate wholesome employee morale. The facts
here, as Auckland’s complaint reveals, border on the frivolous. If his complaint does not
count as one “affirmatively alleg[ing] facts that rebut” the presumption, id. at 11 (quoting
Our Lady of Peace, Inc. v. Morgan, 832 S.E.2d 15, 25 (Va. 2019)), no complaint does.
The majority’s engagement with our own case law is even more disquieting. In
Garnett v. Remedi SeniorCare of Virginia, LLC, 892 F.3d 140, a woman sued her employer
for defamation after a coworker, while on the job, allegedly told other coworkers that she
was having surgery on her vagina because of a sexually transmitted disease. Id. at 142–43.
Applying Virginia law, this court held—“beyond any doubt,” no less—that the complaint
failed to state a claim for vicarious liability. Id. at 142 (quoting Singleton v. Wulff, 428 U.S.
106, 121 (1976)). It reasoned that the plaintiff had “hardly made any attempt to connect
[her coworker’s] remarks to [the employer’s] business interests or to explain how the
offensive statements otherwise fell within the scope of his employment.” Id. at 146.
On both the law and facts, the dismissal of Auckland’s case is even easier. After
Garnett, the Virginia Supreme Court has only more explicitly reaffirmed its commitment
to “the ‘first principles’ of respondeat superior.” Our Lady of Peace, 832 S.E.2d at 22–23
(quoting Parker, 819 S.E.2d at 819). Again, these first principles require sensibly cabining
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vicarious liability to tortious acts arising out of the job that the employee was paid to do.
Id. Thus, even if there were doubts about the limits of respondeat superior in Virginia at
the time of Garnett, the Virginia Supreme Court has since dispelled these “doctrinal
vagaries.” Id. at 23 (quoting Parker, 819 S.E.2d at 819). Moreover, the complaint here
gives even less thought to vicarious liability than the one in Garnett. Compare J.A. 83–84
(two conclusory sentences), with Garnett, 892 F.3d at 146 (five conclusory paragraphs).
It should come as little surprise, then, that the majority does not attempt to reconcile
its holding with this binding precedent. Rather, it claims Virginia’s rebuttable presumption
of vicarious liability “was neither raised nor considered” there because the Virginia
Supreme Court “clarified” its doctrine only after Garnett. Maj. Op. at 15. Between the lines
is speculation that that the panel missed or did not anticipate the rebuttable presumption’s
existence, or else its decision would have come out differently. The rub is that Garnett does
govern bind cases, like this one, where the issue is adequately argued.
Such sleight of hand is no way to handle circuit precedent. And it is further flat-out
wrong. The panel in Garnett cited, both at oral argument and in its opinion, precedent
recognizing a rebuttable presumption of vicarious liability. See Garnett, 892 F.3d at 145
(citing Lacasse v. Didlake, Inc., 712 F. App’x 231, 235–36 (4th Cir. 2018) (per curiam));
Oral Argument at 18:13–19:02, Garnett, 892 F.3d 140 (No. 17-1890). And long has the
Virginia Supreme Court applied the presumption. See, e.g., Gina Chin, 537 S.E.2d at 577–
78. The path to affirmance is brightly lit, and I regret the majority’s reluctance to follow it.
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IV.
To recap, the majority downplays the half-baked nature of Auckland’s complaint,
in stark violation of the Supreme Court’s pleading requirements in Iqbal. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). It disregards our own precedent in Garnett. See Garnett,
892 F.3d at 143–46. And it ignores the Virginia Supreme Court’s recent delineation of the
carefully drawn bounds of respondeat superior, which came after—and aligned with—
Garnett. See Parker, 819 S.E.2d at 818–22. It is unusual for my esteemed friends in the
majority to commit this trifecta of transgressions, but its disposition here does exactly that.
All to make way for more intrusive employers and more oppressive worksites. I
respectfully dissent.