Grounds for termination, or ‘fighting words?’

By DANIEL GILBERT/Media General News Service

A federal judge Monday indicated that he would let stand all three counts in a $10.35 million lawsuit filed by a Smyth County woman against the company that fired her.
General Dynamics sought to dismiss the one count that alleges that the company’s termination letter, issued to Melissa Trail in September, amounted to “insulting words” that could lead a reasonable person to react with violence or disturb the peace.
General Dynamics contended that the “insulting words” statute is restricted to a face-to-face confrontation, and that the accusations in the letter “are not statements that could reasonably be construed as insults or which tend to violence and breach of peace,” the defense contractor states in its motion to dismiss the third count of Trail’s lawsuit, which also alleges malicious prosecution and defamation.
Trail, a former union official, became the subject of a criminal investigation that grew out of a spring 2008 union strike in which the names, salaries and Social Security numbers of management employees were displayed on strike shacks. The identity theft charge against Trail was dropped in September, and a Marion man pleaded guilty to the charge in November.
U.S. District Court Judge James P. Jones on Monday took General Dynamics’ motion under advisement but indicated he is leaning against it.
Trail cites two communications in her claim that General Dynamics wronged her with insulting words: sending her the termination letter, and circulating a Smyth County News & Messenger article that had mischaracterized her indictment. Trail has separately sued the weekly newspaper – which shares a corporate parent with the Bristol Herald Courier – for defamation.
Craig Wood, a McGuire Woods lawyer who represents General Dynamics, argued Monday that neither the letter nor the newspaper article consisted of a statement the company made directly to Trail, and that the manner and style of the communication would not provoke violence. Focusing almost exclusively on the letter, Wood described it as “carefully, thoughtfully and neutrally worded” – and necessary for explaining why Trail was being fired.
The letter describes Trail’s actions as “unlawful and improper” and asserts that they “negatively affected your relationship to your job, your fellow employees and supervisors.”
Jones revealed some skepticism of the company’s position as he quizzed Wood.
“If you say a person is a criminal in a sweet-enough way, that’s OK?” he asked the attorney.
Richard Hawkins, a Richmond lawyer who represents Trail, argued that the context of the termination letter – stretching back to the union strike and extending to the commonwealth’s attorney’s decision to drop the criminal charge against Trail – heightened the insult of maintaining that his client committed a crime. Hawkins claims that a Smyth County prosecutor informed General Dynamics it would not refile charges against Trail, and that the company’s position that the state could still do so was “disingenuous.”
Wood affirmed Monday that General Dynamics still believes Trail committed a crime.
At the end of the hearing, Jones announced his “tentative conclusion” that Trail’s claim for relief under the insulting words statute “passes muster,” and will issue a written opinion.
Noting that the judge has yet to officially rule, Wood said, “even judges change their minds.”
Hawkins, also nodding to the judge’s pending opinion, said, “We are cautiously optimistic.”

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