Statements in Performance Evaluation Not Defamatory

A former law firm associate sued four of the firm's partners for defamation, based on comments they made in her annual performance evaluation. The trial court dismissed the complaint, and the lawyer appealed. The California Court of Appeal affirmed the dismissal, concluding that because all of the statements were expressions of the partners' opinions, they could not serve as the basis of a defamation lawsuit. Such suits require allegations that the defendants made false statements of fact, not opinion.

The plaintiff began working as a litigation associate in the Los Angeles office of a national law firm in February 2012. She had her first annual performance review in November 2012, during which four of the firm's partners provided written comments on her performance.

In August 2013, the chair of the litigation department told her that she should find a new job by the end of the year. She was fired on Dec. 31. On July 16, 2014, the plaintiff filed a lawsuit against the four partners, claiming that the comments in her 2012 performance review were defamatory.

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The court first noted that to prove a defamation case, a plaintiff must show that a false statement of fact was made and that the statement was likely to harm the plaintiff's reputation. Courts distinguish between statements of fact and statements of opinion for purposes of defamation liability, the appeals court noted.

To determine if a statement was a factual assertion or an opinion, courts consider the total circumstances. This includes a review of the language of the statement and the context in which the statement was made.

The comments made by the partners included the following:

• Although the plaintiff demonstrated professionalism, she needed improvement in writing and analysis.
  
• The plaintiff was inefficient. Not only did her writing need work, she took too much time to complete it.
  
• The plaintiff needed to improve her research skills and bring "far greater analytical heft" to the legal problems on which she was asked to assist.
  
• The plaintiff needed to significantly improve the quality of her analytical and research skills and her legal brief writing, and she needed to become more efficient in completing her assignments.
  

The court concluded that these were all opinions and as such could not serve as the basis for a defamation action. The partners made the statements in the context of communicating, as part of regular employee reviews, the firm's evaluation of the plaintiff's performance, expectations for her work product and suggestions for how she could improve.

None of the partners' evaluations accused her of committing a crime, lying, behaving inappropriately or producing incompetent work—assertions that prior court opinions have found to be defamatory, the court said. The partners simply said that in their opinions, the plaintiff's work was not good enough.

The plaintiff argued that the partners' reviews essentially accused her of incompetence, but the court rejected this claim. Nothing in the partners' statements, in context, suggested the plaintiff was incompetent, unqualified to practice law, or incapable of doing litigation work at the firm, the court said. Even at their harshest, the evaluations expressed the possibility, and often the hope, that the plaintiff would improve certain skills, the court said.

Therefore, because the alleged statements were expressions of the partners' subjective opinions and judgments made in the context of regular performance evaluations, the trial court did not err in dismissing the defamation action against the four partners, the court concluded.

Avetisyan v. McTigue, Calif. Ct. App., No. B275931 (March 27, 2018)

Professional Pointer: A critical part of a workplace defamation claim is demonstrating that the language used by the employer was an assertion of fact and not an opinion. An assessment of an employee's strengths and weaknesses done in the context of a performance review will generally be considered an opinion.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.

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