In $2002,$ Hyland$$s division lost another large government contract bid. After this loss, Even reorganized Raytheon and appointed Hyland as senior vice president and general manager of a larger business unit, which was comprised of Hyland$$s former division and two additional units.

Raytheon later hired Heidrick & Struggles $($H & S$),$ a consulting firm, to conduct assessments of the job performance of certain executive$-$level employees. As part of these assessments, Hyland provided both positive and negative comments about Even$$s leadership skills. The H & S report concluded that there was a least one member of Even$$s team who exhibited $$passive$-$aggressive$$ behavior that could $$poison RTSC culture and $...$ undermine Even as a leader.$$ Although the consulting firm had assured Hyland that her comments would be kept confidential, her critical comments were shared with HR$,$ and HR then shared them with Even. At the time of Hyland$$s next performance evaluation, Even, for the first time, gave Hyland a negative performance review, using findings from the H & S report that identified her as critical of management. Even then terminated Hyland. The suit then began.

The jury returned a verdict in favor of Hyland, and the circuit court later entered final judgment awarding Hyland $$1,850,000,$ which included $$350,000$ in punitive damages. The Virginia Supreme Court reversed the decision because of errors in the jury instructions and the resulting possible failure by the jury to distinguish statements of fact from statements of opinion. On remand for retrial with proper jury instructions, the court granted Raytheon a summary judgment. Hyland appealed again.

Judicial Opinion

BARBARA MILANO KEENAN, Justice

The first statement that we held actionable $[$from the performance evaluation$]($the first statement$)$ was:

$$Cynthia lead $[$sic$][$Raytheon$]$ in the protest of the FAA$$s evaluation selection process for the TSSC contract and through a difficult procurement for the TSA, both of which demanded her constant attention. These visible losses created significant gaps in our strategic plans and in her business unit financial performance.$$

We concluded that this statement was actionable for defamation because it was subject to empirical proof. We explained that although the adjective $$significant$$ may be a matter of opinion, the operative part of the statement addressed Hyland$$s responsibility for the losses, not the size of the losses.

The second statement $[$in the performance evaluation$]$ that we held actionable $($the second statement$)$ was:

$$Cynthia and her team met their cash goals, but were significantly off plan on all other financial targets including Bookings by $25\%,$ Sales by $11\mathrm{.}5\%,$ and profit by $24\%.$

With regard to this statement, we explained that $[$w$]$hether the business unit missed its goals by the stated percentages is a fact that may be proved true or false.$$ We also stated that the word $$significantly$$ in the first phrase is defined by certain percentages and is $$not merely the view of the writer.$[$W$]$e set aside the jury verdict and remanded the case to the circuit court for a new trial on the claim of defamation limited to consideration of these two statements in their entirety.

Defamatory words that cause prejudice to a person in her profession are actionable as defamation per se$.$ Defamatory statements may include statements made by inference, implication, or insinuation.

Expressions of opinion, however, are constitutionally protected and are not actionable as defamation. Therefore, before submitting a defamation claim to a jury, a trial judge must determine as a matter of law whether the allegedly defamatory statements contain provably false factual statements or are merely statements of opinion.

The statements classified as opinions:

$$Cynthia is frequently verbose and vocal in her opinions, to a degree that others stop participating in open dialogue.$$

$$She has received specific feedback from her customers, the Beacon group study, her employees, and her leader on her need to listen and learn from others, yet she has appeared to be unwilling to accept and work with this feedback.$$

$$Cynthia has also been inappropriately and openly critical of her leader, her peers, and other leaders in the company. This behavior is not only destructive to the team, it negatively impacts her image in the eyes of others, including customers.$$

Factual statements made in support of an opinion, however, can form the basis for a defamation action. $[$T$]$he factual portions of an allegedly defamatory statement may not be evaluated for truth or falsity in isolation, but must be considered in view of any accompanying opinion and other stated facts.

The circuit court improperly limited its analysis to the separate factual portions of the alleged defamatory statements and excluded the necessary consideration of each statement as a whole, including any implications, inferences, or insinuations that reasonably could