United States District Court, E.D. Virginia, Richmond Division
A. Gibncy, Jr. United States District Judge
Stout, an occupational therapist, brings this suit against
her former part-time employer, Allstar Therapies, Inc.
("Allstar"). Stout alleges that Allstar fired her
and then convinced her second part-time employer, Medi Home
Health & Hospice ("Medi"), to also fire her so
that Medi could hire Allstar for its occupational therapist
needs. Stout brings a claim for tortious interference with a
prospective contract and a claim for intentional infliction
of emotional distress. Allstar moved to dismiss the complaint
under Rule 12(b)(6), and the Court grants the motion because
Stout fails to show that Allstar (1) used improper methods to
interfere with her at-will employment with Medi or (2)
engaged in outrageous conduct. The Court grants Stout leave
to amend her tortious interference claim.
about October 8, 2015, Stout received and accepted an offer
as a part-time occupational therapist with Allstar, a
provider of home health care services. On October 13, 2015,
Stout received and accepted a second part-time position as an
occupational therapist with Medi, who also provides home
health services. Stout began employment with both Allstar and
Medi on October 19, 2015, although it remains unclear exactly
when she reported for work. Stout had at-will employment
contracts with both employers.
October 21, 2015, Allstar's Therapy Region Director and
Team Leader for the Commonwealth, James Bell, fired Stout.
Stout sent Bell text messages in which she called his actions
unexpected and baseless. Bell then contacted Medi's Human
Resources Department in South Carolina to inform Medi of
Stout's termination from Allstar. Bell also forwarded
Stout's text messages to Medi. On October 26, 2015, Medi
also fired Stout.
Medi fired Stout, Allstar solicited Medi to provide the same
occupational therapy work that Stout had been hired to
perform. Stout expected to receive approximately
$83, 000 in her first year with Medi. She says that
Allstar's actions resulted in severe emotional and mental
stress and injury. Specifically, Stout has suffered
"symptoms of constant anxiety, anger, panic attacks,
lack of concentration, and significant insomnia." (Dk.
No. 12 ¶ 43.)
brings two counts in her complaint: (I) tortious interference
with a prospective contract and (II) intentional infliction
of emotional distress. Both claims fail, but Stout may amend
her complaint as to Count I.
state a valid claim for tortious interference with a
contract, a plaintiff must allege: (1) a valid contractual
relationship; (2) knowledge of the relationship by the
defendant; (3) intentional interference inducing or causing
breach of contractual relationship; and (4) resulting damage
to relationship. Lewis-Gale Med. Ctr., LLC v.
Alldredge, 282 Va. 141, 149, 710 S.E.2d 716, 720 (2011).
To tortiously interfere with an at-will employment contract,
the defendant's actions must involve "improper
methods." Id. at 149-50, 710 S.E.2d at 720;
see also Frank Brunckhorst Co., LLC v. Coastal Ail,
Inc., 542 F.Supp. 452, 463 (E.D. Va. 2008) (ruling that
Virginia law "provides no protection from the mere
intentional interference with a contract terminable at
will"). Improper methods include actions that are
illegal or independently tortious. Duggin v. Adams,
234 Va. 221, 228, 360 S.E.2d 832, 837 (1987). Improper
methods also include violations of an established standard of
a trade, unethical conduct, sharp dealing, overreaching, or
unfair competition. Id. In sum, "the law
provides a remedy in tort only where the plaintiff can prove
that the third party's actions were illegal or fell so
far outside the accepted practice of that
'rough-and-tumble world' as to constitute improper
methods." Lewis-Gale Med. Ctr., LLC, 282 Va. at
153, 710 S.E.2d at 722.
case, Stout sufficiently alleges a valid contractual
relationship with Medi, Allstar's knowledge of that
relationship, and intentional interference by Allstar that
caused her termination. Stout fails, however, to adequately
allege that Allstar used improper methods to interfere with
Stout's at-will contract with Medi. First, Stout argues
that Allstar acted improperly by contacting Medi in violation
of Virginia Code Section 40.1-27, which prohibits prior
employers from inhibiting a former employee from
"obtaining employment." Va. Code §
40.1-27 (emphasis added). The Court could not find, nor did
Stout present, any case interpreting the statute to apply to
a former employee who already obtained employment, and the
Court finds no grounds for using Section 40.1-27 to show
improper methods. Virginia also recognizes tortious
interference claims with at-will contracts that involve sharp
dealing, overreaching, and unfair competition, but Stout does
not show any of these factors in her amended complaint. Stout
claims that Allstar interfered with her contract in to later
solicit Medi to provide the same services that Medi hired
Stout to perform, but she does not allege any specific facts
showing that Allstar's conduct involved fraud or deceit,
violated a standard or trade practice, constituted
overreaching, or involved unfair competition. Stout alleges
only that Allstar contacted Medi, forwarded text messages,
and presented Medi with a business opportunity to fire an
at-will employee and instead use Allstar to fulfill its
needs. Consequently, the facts outlined merely represent the
rough and tumble world of market competition and Stout fails
to state a plausible claim for tortious interference. The
Court grants her leave to amend her complaint to address the
deficiencies described above.
Intentional Infliction of Emotional Distress
establish a claim for intentional infliction of emotional
distress, a plaintiff must prove that: (1) the defendant
acted intentionally or recklessly; (2) the conduct was
outrageous and intolerable; (3) a causal connection between
the defendant's conduct and emotional distress; and (4)
severe emotional distress. Eldib v. Bass Pro Outdoor,
LLC, 654 Fed.Appx. 620, 621 (4th Cir. 2016) (citing
Harris v. Kreutzer, 271 Va. 188, 624 S.E.2d 24, 33
(2006)). In Virginia, the tort of intentional infliction of
emotional distress is "not favored" in the law,
"because of the inherent problems in proving a claim
alleging injury to the mind or emotions in the absence of
accompanying physical injury." Almy v. Grisham,
273 Va. 68, 77, 639, S.E.2d 182, 186 (2007). Stout's
claims fail the second and fourth elements, and the Court
dismisses her claim.
claim requires outrageous and intolerable conduct that
amounts to more than "insensitive and demeaning"
behavior. Eldib, 654 Fed.Appx. at 621. The conduct
alleged must be "so outrageous in character, and so
extreme in degree as to go beyond all possible bounds of
human decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community." Id; Burke v.
AT&T Technical Services Co., Inc.,55 F.Supp.2d 432,
441 (E.D. Va. 1999) (determining that insidious and
unacceptable racial discrimination that led to the plaintiffs
termination did not constitute "atrocious"
conduct); see also Karpel v. Inova Health Sys. Servs.,
Inc., No. 96-347-A, 1997 WL 38137, at *7 (E.D.Va. Jan.
27, 1997) affdsub nom. Karpel v. Inova Health Sys.
Servs.,134 F.3d 1222 (4th Cir.l998J (causing the
plaintiffs firing was not outrageous). Stout merely alleges
that Allstar, in an effort to gain business for itself,
sought to get her fired by forwarding text messages ...