Libel Suit by D.C. Saloon Employee Who Said She Wouldn't Serve Some Government Officials Can Go Forward

From Van Rooy v. ANB 623 LLC, decided today by Judge Amy Berman Jackson (D.D.C.):

According to the complaint, … plaintiff [Suzannah Van Rooy] was … "social media manager" at Beuchert's [Saloon] …. In November 2024, after the most recent presidential election, plaintiff used her personal Instagram account to reply to a post by a food editor from the Washingtonian "asking servers in the District if they would feel comfortable serving officials in the new Trump administration that had committed criminal offenses." Plaintiff agreed to be interviewed in her personal capacity, and after the interview, the Washingtonian quoted plaintiff in an article entitled, "Clashes Are Coming for Trump Officials Dining Out in DC—'I have the power to make you wait 20 minutes to get your entrée'":

'This time around, there is kind of a sense of defeat and acceptance, but I hope people still do stand up to this administration and tell them their thoughts on their misbehavior,' says Suzannah Van Rooy, a server and manager at Beuchert's Saloon in Capitol Hill. 'I personally would refuse to serve any person in office who I know of as being a sex trafficker or trying to deport millions of people. It's not, Oh, we hate Republicans. It's that this person has moral convictions that are strongly opposed to mine, and I don't feel comfortable serving them.'

Following the article's publication on December 11, 2024, Beuchert's received a flood of negative comments by phone and through its social media accounts. Plaintiff used Beuchert's account to respond to several of the social media comments surrounding the article, with varying degrees of hostility. For example, to one comment on Facebook stating, "Has this staff member been disciplined for their statement?? There should be consequences for the inappropriate comments. Was just getting ready to never ever enter the door of your restaurant and to encourage others to do the same," plaintiff responded, "everyone has a right to refuse service to sex traffickers. You're safe, unless you're a sex trafficker. Are you a sex trafficker?"

Plaintiff was fired, and sued, alleging that Beuchert's posted two social media posts about the controversy containing seven statements that defamed her (emphasis added to reflect the statements as to which the court allowed the claim to go forward):

1. " Recent comments made by a member of our staff who had no authority to speak on behalf of the entire restaurant have been quite rightly, flagged as inappropriate, hostile, intolerant and unacceptable."
2. "We tried to take the night to review Ms. Van Rooy's full comments, and any other interviews she may have given, to make an informed decision as to her continued employment based on our employee contracts."
3. " Van Rooy's comments clearly violate our zero-tolerance policy on discrimination. "
4. " [H]er decision to sign into our social media account in the middle of the night to post her rhetoric in wildly offensive responses to comments is a further breach of conduct and protocol. "
5. "[W]e as a restaurant are simply horrified to be associated with base prejudice."
6. " [W]e would welcome any opportunity to clarify that Ms. Van Rooy is not a manager at our restaurant but instead a part time server. "
7. " [S]he had no authority or permission to act as spokesperson or hijack our social media accounts. "

She also alleged that "the widespread negative public reaction to Beuchert's December 12 and 13 social media posts and the subsequent national and international media coverage." led to her being fired from her day job (at a place other than Beuchert's).

The court held that statement 5 was nonactionable opinion, as was the "have been quite rightly, flagged as inappropriate, hostile, intolerant and unacceptable" part of statement 1. It also held that statement 2 was nonactionable because it didn't "convey any defamatory meaning," in the sense of a meaning that would damage Van Rooy's reputation. But the other statements, the court held, were factual assertions that did convey defamatory meaning, and thus could be libelous if they were factually false:

The rest of the statements concern whether plaintiff had authority to access and use Beuchert's social media accounts or to act as a spokesperson, whether she was a manager, whether her conduct constituted a "breach of conduct and protocol," and whether she violated the restaurant's "zero-tolerance policy on discrimination." These do not pertain to defendants' state of mind or their opinion of plaintiff; they are posited as facts that could be verified by reviewing the terms and conditions of plaintiff's employment and determining whether she did or did not have certain permissions or job titles….

The parties dispute the existence of the "employee contract," the "zero-tolerance policy on discrimination," and any "protocol," and they do not agree as to whether plaintiff had authority to speak on behalf of Beuchert's and whether she was a manager. Defendants ask the Court to find that their statements were true as a matter of law, and they rely on multiple documents, including a copy of the Beuchert's server manual that "[e]very staff member … signed," which includes the restaurant's "Policy Against Harassment":

It is the policy of Beuchert's that it will not tolerate or condone any form of harassment, whether verbal, non-verbal, or physical, that is based on race, color, creed, religion, gender, sexual orientation, gender identity, national origin, age, disability, citizenship status, marital status, medical condition or status as a veteran. Beuchert's is committed to enforcing the requirements of the law with respect to harassment.

But this is a motion to dismiss, which must be decided solely on the face of the complaint and any documents incorporated therein. The Court is required to assume the truth of the allegations and to draw all inferences in favor of the plaintiff. Plaintiff alleges that she never had an employment contract, that Beuchert's did not have a zero-tolerance policy on discrimination, and that it did not have a "conduct and protocol" to breach, and further that she was a manager at the restaurant and did have authority to speak on Beuchert's behalf as the social media manager.

The question of whether defendants' statements about these matters were false will be more appropriately resolved at the summary judgment stage….

The court also held that Van Rooy was a limited purpose public figure, because she voluntarily "chose to respond to the inquiry from a journalist and went on the record with her name and title" and "the opinions that triggered the backlash." She therefore had to allege that the defendants knew the statements about her were false (or at least were likely false)—the "actual malice" standard—but that she had adequately alleged such knowledge. And the court held that she had adequately alleged damages, because she "alleges that plaintiff was terminated from her second job at Potomac Wave consulting 'based on the widespread negative public reaction to Beuchert's December 12 and 13 social media posts and the subsequent national and international media coverage.'"

But the court rejected plaintiff's infliction of emotional distress claim:

To state a claim for intentional infliction of emotional distress in the District of Columbia, a plaintiff must allege "(1) extreme and outrageous conduct on the part of the defendants, which (2) intentionally or recklessly (3) causes the plaintiff severe emotional distress." Extreme and outrageous conduct is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Liability is not imposed for "mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities."

Plaintiff argues that defendants' decision to name her explicitly in their December 13 social media posts was extreme and outrageous. But while defendants' attempts to distance themselves from plaintiff were not necessarily constrained or measured, it cannot be said that they crossed the line from mere insult to atrocity, or that posts were so extreme as to go beyond all possible bounds of decency.

The restaurant was under public attack and its reputation was at stake, and without expressing a view as to how the employers [went] about it, their attempt at damage control and their public announcement of her termination, the Court finds that the decision to name plaintiff in the post can hardly be considered extreme when plaintiff had already permitted herself to be named in the Washingtonian article. The District of Columbia Court of Appeals has warned that "[c]alling pure speech about an issue of public concern 'extreme and outrageous' conduct is clearly reserved for the rarest of cases," and this is not the "rare" case where the speech met the level necessary for intentional infliction of emotional distress.

The court also allowed plaintiff to move forward on her separate claim that "[b]etween January 12, 2024 and December 6, 2024, twenty-four of [plaintiff]'s paychecks … did not clear because of insufficient funds," that she "had to wait more than two weeks to receive her regular paycheck from Beuchert's," and "that following her termination from Beuchert's, plaintiff had to wait ten days before receiving her final paycheck," all in violation of D.C. employment law.

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