United States District Court, E.D. Virginia, Newport News Division
SHERYL T. McCRAY, Plaintiff,
INFUSED SOLUTIONS, LLC and JAMIE BAKER, Defendants.
OPINION AND ORDER
matter comes before the Court upon Infused Solutions, LLC and
Jamie Baker's ("Defendants") Motion to Dismiss
for Failure to State a Claim. ECF Nos. 38, 39. For the reasons
stated herein, Defendants' Motions to Dismiss are
PROCEDURAL AND FACTUAL HISTORY
3, 2013, Plaintiff brought an action in federal court against
Jonah Jancewicz, Ardelle Associates ("Ardelle"),
Infused Solutions, LLC ("Infused"), Jamie Baker,
the United States Army Recruiting Command, a John Doe, and a
Jane Doe, in connection with Plaintiffs reprimand and
termination. Case No, 4:13cv60, ECF No. 1. Ardelle filed a
Motion to Dismiss for Failure to State a Claim, id.,
ECF No. 3, which the Court granted without prejudice.
Id., ECF No. 27. After the Court dismissed Ardelle,
the United States Attorney General certified, pursuant to 28
U.S.C. § 2679(d)(2), that Jancewicz was acting within
the scope of his employment during his confrontation with
Plaintiff and substituted the United States as defendant.
Subsequently, Plaintiff moved to voluntarily dismiss her
claims against Jancewicz and the United States Army
Recruiting Command. Id. ECF Nos. 32, 37. The Court
granted Plaintiffs request for voluntary dismissal on March
26, 2014, id., ECF No. 41, and dismissed the
remaining claims for lack of jurisdiction on April 17, 2014,
id, ECF No. 45.
August 7, 2014, Plaintiff filed the second and present action
in Hampton Circuit Court. See ECF No. 1, Ex. 1 at 2-13.
Plaintiff brought defamation claims against Ardelle, Infused,
Baker, Jancewicz, a John Doe, and a Jane Doe, and brought a
wrongful termination claim against Ardelle and Infused. See
id By the end of October, 2014, Infused, Baker, and Ardelle
had each filed demurrers to Plaintiffs complaint for failure
to state a claim. Ardelle also argued Plaintiffs defamation
claim was barred by the applicable statute of limitations.
the state court could rule on the motions, however, on
December 2, 2014, the United States removed the case to this
Court pursuant to the United States Attorney's
certification that Jancewicz was acting within the scope of
his federal employment. ECF No. 1. The United States thus
substituted itself for Jancewicz, ECF No. 2, then moved to
dismiss itself pursuant to Federal Rule of Civil Procedure
12(b)(1), ECF No. 3. The Court dismissed the United States on
April 7, 2015, without opposition from Plaintiff. ECF No. 11.
After dismissing the United States, the Court remanded the
remainder of the case for lack of jurisdiction, but reversed
that action and retained jurisdiction upon Defendants'
motion for reconsideration. ECF No. 14 (retaining
jurisdiction pursuant to 28 U.S.C. § 2679).
23, 2015, this Court dismissed all claims against Ardelle.
ECF No. 23. Specifically, the Court converted Ardelle's
state-court Demurrer and Plea in Bar into a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6), which the
Court granted. Id. Plaintiffs counsel passed away in
2016, and on June 7 of that year, this Court stayed
proceedings to permit Plaintiffs new counsel to familiarize
himself with the case. ECF No. 29. On October 5, 2016,
Plaintiff moved to amend the complaint. ECF No. 30.
Defendants opposed amendment and requested that the Court
instead convert Defendants' state-court demurrers into
motions to dismiss under the federal rules and dismiss
Plaintiffs claims in their entirety, with prejudice. ECF No.
32, 33. At the October 26, 2016 hearing, this Court granted
Plaintiffs Motion to Amend/Correct the Complaint. ECF No. 36.
Plaintiff timely amended. ECF No. 37.
Amended Complaint eliminated a previous claim of wrongful
termination and added claims of defamation perse and
tortious interference with business expectancy. ECF No. 37.
The Amended Complaint also dropped the John and Jane Doe
defendants, only alleging claims against Infused and Baker.
Id. Both Defendants filed motions to dismiss, which
Plaintiff opposed. ECF Nos. 38, 39, 40. The motions are ripe
Facts Alleged in the First Amended Complaint
Amended Complaint alleges that in September 2012 Plaintiff
was employed by Ardelle as a General Clerk at a United States
Army Recruiting Center in Hampton, Virginia, and had been for
four months. Am. Compl., ECF No. 37, ¶ 6. Ardelle
provided administrative workers, like Plaintiff, to United
States Army Recruiting Centers under a subcontracting
agreement with Infused, the prime contractor with the United
States Government. Id. ¶¶ 6-7.
September 20, 2012, Plaintiff had a dispute with a colleague,
Sergeant First Class Jonah Jancewicz, after she asked that he
notify her prior to taking any lunch breaks. Id.
¶¶ 9-10. During this encounter, Plaintiff claims
that Jancewicz "angrily and profanely confronted
Plaintiff and . . . threatened Plaintiff by hinting that he
could get her terminated from her job." Id.
¶ 10. Both Jancewicz and Plaintiff then informed their
superiors at, respectively, Army Recruiting and Ardelle about
the incident, and both made complaints about the incident to
Army Recruiting Headquarters. Id. ¶¶
September 26, 2012, Jamie Baker, an employee of Infused,
called Plaintiff and told Plaintiff that the Army had
expressed frustration at the incident. Id. ¶
13. Plaintiff alleges Baker was "upset and angry with
Plaintiff' when she called because, Baker reported, a
person from United States Army Recruiting had "chewed
[Baker] out" about the complaints. Id. Both
Baker and another employee of Infused, Mr. Akbar, also told
Plaintiff to report any further incidents to Infused, rather
than Ardelle or Army Recruiting. Id. ¶¶
13, 15. The same day, Ms. Baker informed Plaintiff she would
be placed on a 90-day probationary period and told Plaintiff
that she had been warned about Plaintiffs behavior, to which
Plaintiff responded that no issues with her behavior had ever
been discussed with her. Id. ¶¶ 13-14.
That same day, Ms. Baker sent Plaintiff a "Final Warning
Notice, " placing Plaintiff on a 90-day probationary
period. Id. ¶ 16. The Warning stated
"[e]mployee is extremely confrontational and exhibiting
constant insubordinate behavior towards individuals at her
work location." Id., Ex. 1. The Warning also claimed
Plaintiffs alleged behavior "has been an issue for over
90 days and appears to be getting significantly worse instead
of improving." Id. Plaintiff refused to sign
the Notice, against Ms. Baker's request, "due to the
false statements made therein." Id. ¶ 17.
In her Amended Complaint, Plaintiff asserts that "[u]pon
reasonable and plausible information and belief, Defendants
published the false statements in the notice to the
subcontractor Ardelle with actual and/or common law
malice." Id. ¶ 18.
September 28, 2012, Plaintiff e-mailed Baker requesting
documentation to support the Notice. Am. Compl, ECF No. 37,
¶ 19. Baker refused to discuss the matter and warned
that if Plaintiff continued her behavior, she would be
subject to termination, Id. Ex. 3. On October 4,
2012, Ardelle sent Plaintiff a termination notice that stated
Plaintiff had been terminated because she violated the
workplace code of conduct regarding workplace violence.
Id. ¶ 20; Ex. 4.
also asserts that, in addition to the false statements in the
September 26, 2012 written notice, she believes Defendants
published additional false statements to Ardelle with actual
and/or common law malice in order to secure her termination.
Id. ¶ 22.