argument my client and her father both here in the courtroom today we are pleased to be here i will tell you i confess that i find myself in the most unfortunate position of being the last person standing between you and the end of the day but we're happy to be here nonetheless  want to explain in terms of how we examine this case reminds me of what senator daniel patrick moynihan said many years ago that every man is entitle to their own opinions but not their own facts and the supreme court has long acco the notion that there is no constitutional value to false state and we think what happened here is the district court conflated that actually reversed both of those sentiments and created a situation where remedy wasn't title to its own facts by calling them opinion and that's the central issue in this case which is whether or not the statements at issue or fact or our opinion we submit the district court made numerous errors below in terms of getting to its its  resolution we believe the district court improperly applied the rule twelve b six standard overview we believe the district court failed to properly appreciate what the average listener of these statements would believe them to be saying we believe the district related to what exactly is his job duties but the fact that it comes from him as a supervisor and we allege this in the complaint but rather that the supervisor not the statement still have to hold an employee or liable statement would have to be something that for the day employer's interest in it and it and again we said an hour earlier opinion in in blair is well established that the simple fact employer and it and it's a multi factor test but normally you do apply respond to the theory of responding it's a key area if what was done either whether it's an action or words was on behalf of the employer or even further runts of the employer's business interests and i can't see how  relationship between these two individuals acted on how less focused you know on the statement itself yes or how did that help the employer's business or how was it in furtherance of the employer's well the supervisor is talking about a subordinate employee being out of the office on medical leave essentially and i think in that context and we are not talking about people who are using sophisticated language in this regard but you are talking about an absent employee and the basis for that employee's absence that would further an employer's interest and in that respect i believe we are at the motion to dismiss state your honor and i think it with with that analysis provided and as is evident from the allegations on the plane i think it gets to the next step the question of and of course the employer did not raise the arguments you are now making the employer did not move to dismiss without a doubt your honor but the parties have obviously come to this court based on judge hudson's analysis of the statements at issue and of course if if this had been a concern for either judge hudson or the the helen or the that we have federal jurisdiction who will do whatever that's that's fine but you can you can certainly say revie individual but the the the difficulty i have is that you know you have fire there's a lot of crudity that takes place in the workplace we all know about that just a lot of there's just a lot of out of vulgar stuff but if standpoint of a president in blair and also from the reason that he's home trying to remember the name of it but in that respect they would be excluded and they would be on their face excluded but what we have here are allegations that a supervisor is talking about a reason for every human resources or something because no sir he was her supervisor he was her night supervisor so what how does a separate from gossip not doing the further into the house the further in the company's business being falsely ignorantly but how is that furthering the company's business  i take it from your question that the assumption is that gossip and never further the interest but don't i ask you how this particular gossip is but i think i think this particular gossip awful statements question is how does it basis for her being absent from work she was not there she was obviously having a medical procedure done and in that context to fellow employees to fellow other non supervisory employees he is telling them that she is not there mean i can't believe the statement would be believe a boy at all it was just well that's essentially what he said and i don't think that the more basic problem i have is   cross the country every single day and it's a shame it's really really too bad but ropey employer is let me say this rick perry said it did and we've carried it all the way here to the floor circuit but i will tell you if that argument had been raised as your honor is raising here today we would have had an opportunity to amend the complaint to address exactly those that has not happened the only thing that we have done is amend the complaint in order to address the statements at issue because those were the challenge state and and i say that because your honor even if you express the concerns that you are about i think the proper course of action is to analyze the issue is before the court and to send it back to allow the employer to raise that argument if that's something the employer wishes to do and to allow us a sufficient opportunity out of the federal rules to provide our evidence i can't sit here and tell you in a firm on any party against whom a ruling is based to make an argument and i submit that especially when we're talking about something like furtherance of the employer's interest we should be given an opportunity to provide a factual basis upon which the court can make it if that hasn't happened i have all of five seconds left i would like to make a point on judge hudson's analysis your honor you said that you thought it was unbelievable on its face we disagree i would invite the court my name's allana marcus and i'm here on behalf of remedy senior care the question before the court as it was before the district court is whether this statement reasonably be interpreted as stating actual facts are not the case law cited by the district court and by remedy squarely supports the district court's conclusion that the statement as a whole cannot reasonably be interpreted as stating that ms barnett actually had sexually transmitted disease and therefore is not actionable yeah she this statement one of the issues we are to address is whether a statement can dismiss one is that the statement must be considered as a whole and you can't isolate one portion of the statement from the other so we can't separate she got an s t d from the rest of the sentence that follows which is because that's the only reason a female has surgery on a bridge on a second the case law is clear that even want to say it can be verified as true or false it may still be protected if it can best be understood from the language in context to represent the personal view of the author or speaker who made it and that principle that principle that even when you have a statement that can be  correct absolutely and i think the rubric we have is whether it can reasonably in interpreted as stating an actual fact and that's where we come down to can't because it's a stupid statement i would submit your honor that and sexually assaulted behavior and ruth said you know we don't condone that in any way shape or form with the question is was it further the employer's business interest in any kind of tangible way and and  the fact that it was in the president blair says the fact that employees at a particular case in the secular specific time as a result of his employment is not were much more damage and the whole reason virginia law has a scope of employment than visit without it any statement or any misbehavior would lead to respond to disappear even if it has nothing to do with the employer's business interest and not just the last open liability  had a judge not and that would have been the first thing you would absolutely are on so i'd like to address a couple of other points less the court has some further thoughts on the i think the context is a focus of their  likely to be to state actual facts just saying that he was a supervisor certainly doesn't equate him to a human resources director or they don't allege any significance to that title they don't tell us that by supervisor he had access to her medical records in fact they tell us she didn't tell him what the medical procedure was and they also allege that they worked on two machines side by side so i'd submit that being a supervisor doesn't tell you anything about th statement or their claim that well you must be privy to private medical knowledge or some other information and others would assume as much my colleague is going forward you have some individual as it is not i agree or honor i mean that as a significant problem a moment on the twelve sixteen or because my colleague mentioned it when he was up here they cite a number of cases twamley under the old calmly versus gibson standard we know now under trauma in a ball that to survive a motion to dismiss the complaint must plead factual content that will allow the court to draw the reasonable inferences that they would like it to draw the court does not have to accept as true legal conclusions ashton factual allegations and i think that's relevant in this case on the arguments they've made in the  there is harm reputation among other possible harms including emotional distress loss of sleep loss of income and things like that lastly while i'm up i'd like to address an issue that was addressed in the briefing in the notion of he exception on your question when a statement is made an opinion is given based on facts that are disclosed that  contagious disease if true would exclude the party from society and we made the argument i firmly believe that having a disease whatever disease it is whether sexually compassionate and understanding of this situation upgrade your are and very briefly on the false facts we cited the cases and the support for our position that the whole false facts notion is not an exception but i wanted to add that i was reviewing the case law there's more support for our argument that the fact has to be both false and defamatory ort for this full statement to be actionable and that's the shape sure vs befall was the hawkins are used to hear from you thank your honour's i do have a few points that i'd like to raise in terms of both the scope of employment issue and the notion of these these statements are not amatory on their face of the first is a direct the court to join appendix page sixty nine which is the second amended complaint and it's paragraph twenty eight and i will tell you its  remedy participated in condoned ratified in authorize the actions of try by first providing to try any medical information related to our now and then by failing to take any significant discipline against fry and or by failing to probably cause the retraction of the false and defamatory state that's the kind of allegation that at least on a motion to dismiss assists in defeating any kind of facial challenge to the scope of the foreman and that's the kind of thing that we would have amplified and will amplify if we need to if the case goes back to go visit her grandmother because she has a of an s t d and the only reason that a female goes to visit her grandmother is because she has an s t d he said she was having surgery on her vagina and he said that that's the he and he said it doesn't affirmative declaratory state right then and there even coupled with the part that's not perfectly accurate at the end that tells the listener and this is the part that so important to rule well besides motion is that the average reasonable listener is going to connect all of those inflammatory parts of that comment and make the the conclusion that she's having treatment or a sexually transmitted disease and i direct the court again and this is this is important to the milk of each dish and justice rehnquist in the milk of its decision very specifically talked about the fact that they didn't need an exception for opinion statements but he talked about how people often couch their language in my opinion or in my view i think and he said that if a speaker says in my opinion john jones  he implies knowledge of facts which lead to the conclusion that jones told an untruth court went on to say even if the speaker states the facts on which he bases his opinion if those facts are either incorrect or incomplete or if his assessment of them is a rony as the statement may still imply a false assertion of fact and that's the rule of law that we're looking at here this isn't one thousand nine hundred to preen court decision that controls the analysis here and in that decision the court specifically said even if the assessment of facts is wrong it can still imply a false defamatory opinion or fact based pinions and that's what we have here again on a motion to dismiss construe in favor barnett construed in favor of an opinion or favor of a fact when there's a question as to whether or not it's back versus i also reiterate again that and we put this in our brief that this was slander ok this isn't libel this isn't a self of thing that you need testimony about hate about biology about how you say something and none of that has happened here we're looking at a cold second amended complaint and how do you interpret that and how to construe  commit you can have these defamation actions that exert such a chilling effect over any kind of things and statements every one of them or a great many of them this subject to argument endless argument about what was actually said that's subject to endless argument over contacts and inflection yes and that's right but if all of that is going to be you know the subject of litigation it's really don't understand well your honor i'll give you two limiting principles the first is that employers shouldn't say false defamatory things that's something that should be should be should not employees people should write but he's more like a co we would like the opportunity to further explain it if need be but in terms of what we're talking about here i think the limiting principle is is is as your honor has has emphasized would be the the the limits of respond when you're trying to level a no i'm trying to get into the courthouse doors to have testimony about that or to have an opportunity to make allegations are and i think that would be appropriate under the circumstance