Labor & Employment Law Daily Wrap Up, COVERAGE, LIABILITY—4th Cir.: Lower court’s failure to apply Virginia presumption on vicarious liability supports revival of Gilead employee’s defamation claim, (Jun 12, 2026)

By Kathleen Kapusta, J.D.

The employee alleged that a colleague accused him of making a sexually explicit comment to her at a conference so that he would be removed from consideration for a prestigious position because she favored another party.

Although the Fourth Circuit agreed that the district court lacked jurisdiction over an individual defendant whom an employee alleged had falsely accused him of sexually harassing her, it vacated the dismissal of the employee’s defamation claims against Gilead Sciences, finding he sufficiently stated a claim for vicarious liability under Virginia law. While the district court acknowledged that Virginia recognizes a rebuttable presumption in favor of vicarious liability, rather than applying that presumption, it effectively negated it, said the appeals court in an unpublished opinion. Dissenting in part, Judge Wilkinson argued that the majority’s opinion “keeps this doomed lawsuit on life support” (Auckland v. Gilead Sciences, Inc., No. 25-1933 (4th Cir. June 9, 2026, unpublished)).

The employee worked for the biopharmaceutical company for over nine years. Although Gilead is headquartered in California, he lived in Virginia and worked remotely from his home.

Preceptorship program. In 2023, the company started a preceptorship program with its Key Accounts Team, which works to secure partnerships and increase the market for Gilead’s cancer drugs. The employee’s coworker, who also lived and worked in Virginia, and who was a member of the Key Accounts Team, recommended him for the program and he applied.

Work conference. Sometime after that, the employee attended a work conference in Nashville where he met a colleague who lived and worked in California, who was also a member of the Team, and who served as a mentor for the preceptorship program. According to the employee, he had one brief, unremarkable conversation with her in which he mentioned he had applied for the program.

Termination. The employee was accepted into the program in October 2023. A few weeks later, however, HR informed him that he was being investigated for allegedly telling his colleague during their conversation at the conference that “I want to rip your panties off.” Although he denied making the comment, he was fired. According to the employee, he then spoke to his coworker in Virginia who told him the colleague did not want him to be accepted into the preceptorship program because she “favored other parties for the position.”

Lower court proceedings. The employee then sued Gilead and the colleague in federal court in Virginia for defamation and defamation per se. Dismissing his lawsuit, the district court found that it lacked personal jurisdiction over the colleague, who was domiciled in California, and that the employee failed to state a claim that Gilead could be held vicariously liable for the colleague’s conduct.

Personal jurisdiction. Addressing first the lower’s court jurisdictional holding, the Fourth Circuit explained that in order to find the existence of personal jurisdiction, the defendant must have had “contacts with” the forum state and those contacts must be the “basis for the suit.” Though the employee argued that the colleague had regular, work-related contact with his Virginia coworker, those general work communications, said the court, were not sufficient to support specific personal jurisdiction as they were unconnected to, and did not form the basis of, his defamation claims against the colleague.

Nor was a specific text conversation between the colleague and coworker sufficient as it did not contain any mention of the allegedly defamatory statements. Rather, it concerned the employee’s acceptance into the preceptorship program and the colleague’s objection to that. Thus, the court affirmed the dismissal of the claims against the colleague for lack of personal jurisdiction.

Presumption. Turning to the employee’s defamation claims against Gilead, the court explained that in Virginia, an employer is vicariously liable for the tortious act of its employee if the employee was performing their employer’s business and acting within the scope of their employment. “Importantly,” said the court, “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.’”

At that point, the court continued, the law recognizes a rebuttable presumption that facts exist, even if not specifically pleaded, that would satisfy the test for vicarious liability. This presumption shifts the burden of production to the employer to present facts sufficient to permit the factfinder to conclude the employee was not acting within the scope of their employment at the time of the tortious conduct.

Rebutting the presumption. While the employer can present sufficient facts to rebut the presumption, because courts do not resolve factual disputes at the motion to dismiss stage, this process would occur later. The presumption can also be rebutted by the complaint itself if the plaintiff affirmatively alleges facts that rebut it. This “self-refutation,” said the court “must be clear, not conjectural, and irrefutable rather than debatable.”

Though the district court acknowledged the presumption, it did not actually apply it, said the appeals court. Rather than asking whether the employee’s complaint triggered the presumption and, if so, whether the presumption was rebutted, the district court asked whether reporting sexual harassment could fall within the scope of the colleague’s employment and concluded that it could not, in part because the employee did not allege that Gilead encouraged its employees to report sexual harassment.

“But the point of the presumption,” said the court, “is that it presumes facts that are not specifically alleged,” and the district court’s analysis “effectively negated the presumption in favor of vicarious liability, which should have applied in [the employee’s] favor at this stage of the litigation.”

Triggered. Finding the employee’s complaint triggered the presumption, the court noted he alleged multiple times that the colleague was a Gilead employee at the time of the alleged defamation and that the defamatory statements were made as part of her employment with the company. “Those allegations are sufficient to bring the presumption into play.”

At that point, the court stated, the district court should have asked whether the presumption had been rebutted through self-refutation. Her allegedly defamatory accusation, the court observed, could have been within the scope of the colleague’s employment if Gilead had a policy encouraging employees to report sexual harassment. And while the employee did not allege the existence of a policy, the court presumes the existence of facts, including those not pleaded, that would put an employee’s actions within the scope of their employment.

Even apart from any company policy, said the court, the employee alleged that his colleague was a mentor in the preceptorship program and if preceptors had a role in selecting program participants, the conduct alleged by the employee—making a false accusation to oppose a disfavored candidate and to advance a more favored one—would fall squarely within that portion of her job responsibilities.

Morgan. The court found instructive the Virginia Supreme Court’s 2019 decision in Our Lady of Peace, Inc. v. Morgan in which the state high court determined it was “possible to hypothesize” that the alleged sexual abuse of a patient by a nursing assistant 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 nursing assistant acted from a “mixed motive”—both performing his job and committing the alleged abuse—“and not wholly from some external, independent, and personal motive.” “We think the same reasoning applies in this case,” said the court, “where [the employee’s] complaint does not ‘irrefutab[ly]’ negate the possibility that [his colleague] was acting within the scope of her employment when she purportedly made her false accusation against [him].”

Nor did its 2018 decision in Garnett v. Remedi Seniorcare of Va., LLC, on which the district court relied and in which it 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 outside the scope of employment, require a different result. Not only was Garnett decided before Morgan, the Garnett court did not raise or consider the presumption.

Explaining that it was not deciding that the colleague was in fact acting within the scope of her employment when she made the allegedly defamatory accusation, the court emphasized that it was holding only that, in light of Virginia’s rebuttable presumption and at this early stage of the litigation, the employee’s complaint adequately stated a claim for vicarious liability against Gilead. Accordingly, it vacated the dismissal of his claims against Gilead and remanded.

Partial dissent. In a partial concurrence and dissent, Judge Wilkinson would have affirmed the dismissal of the employee’s defamation claim against Gilead. The majority’s opinion, he argued, “forgives the entirely perfunctory nature of [the employee’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.”

The case is No. 25-1933.

Judge: Harris, P.

Attorneys: Thomas E. Strelka (Virginia Employment Law) for Ian Lewis Auckland. Jonathan M. Albano (Morgan, Lewis & Bockius) for Gilead Sciences, Inc., and Hilary Zachry.

Companies: Gilead Sciences, Inc.

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