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McCray v. Ardelle Associates Inc.

United States District Court, E.D. Virginia, Newport News Division

September 15, 2017

SHERYL T. McCRAY, Plaintiff,


         This 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.[1] For the reasons stated herein, Defendants' Motions to Dismiss are DENIED.


         A. Procedural History

         On May 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.

         On 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.

         Before 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).

         On June 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.

         The 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 for decision.

         B. Facts Alleged in the First Amended Complaint

         Plaintiffs 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.

         On 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. ¶¶ 11-12.

         On 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.

         On 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.

         Plaintiff 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.

         II. ...

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