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McCray v. Infused Solutions, LLC

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

May 25, 2018

SHERYL T. McCRAY, Plaintiff,



         This matter comes before the Court upon the Motions for Summary Judgment filed by Infused Solutions, LLC ("Infused"), and Jamie Baker (collectively, the "Defendants"). ECF Nos. 48, 54 (the "Motions"). At the hearing in this matter, the Court granted Defendants' Motions. This Memorandum OP1nion further explains the Court's reasoning.


         A. Procedural History

         Plaintiff initially sued seven defendants. Only two remain. On May 3, 2013, Plaintiff brought an action in federal court against Sergeant First Class Jonah Jancewicz ("SFC Jancewicz"), Ardelle Associates, Inc. ("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. No. 4:13cv60, ECF No. 1. Ardelle filed a Motion to Dismiss for Failure to State a Claim, No. 4:13cv60, ECF No. 3, which the Court granted without prejudice, No. 4:13cv60, 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, SFC 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 SFC Jancewicz was acting within the scope of his federal employment. ECF No. 1. The United States thus substituted itself for SFC 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 previous 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. On September 15, 2017, this Court denied the motions to dismiss. ECF No. 41. On October 6, 2017, both Defendants filed answers to the Amended Complaint. ECF Nos. 42, 43.

         On April 18, 2018, Defendants filed Motions for Summary Judgment. ECF Nos. 48-56. Before Plaintiffs responses were due, on April 30, 2018, this Court held the final pretrial conference as scheduled. ECF No. 58. Because trial in this case was scheduled for May 15, 2018, the Court scheduled a hearing on the Motions for May 7, 2018. Plaintiff timely filed her opposition to the Motions on May 2, 2018. ECF No. 60. Defendants replied on May 4, 2018. ECF No. 61. The Court heard argument from both parties on May 7, 2018, granted both Motions, and entered summary judgment in favor of the Defendants. ECF No. 62. This Memorandum OP1nion further explains the Court's reasoning.

         B. Undisputed Facts

         1. Plaintiff Worked as a Civilian Receptionist at an Army Recruiting Center in Hampton, Virginia

         From May 14, 2012 to October 4, 2012, Plaintiff worked as a civilian receptionist at the U.S. Army Recruiting Command (USAREC) Center in Hampton, Virginia. Final Pretrial Order, Stipulated Facts ("Stipulated Facts"), ECF No. 59 at 1. The Hampton USAREC Center served as a headquarters for holding USAREC meetings, and as a location to receive, without an appointment, anyone interested in joining the Army. P1. Dep., ECF No. 60-1 at 6:19-7:23. When Plaintiff began working at the Hampton USAREC Center she worked with Company Commander Jennifer Jones, First Sergeant Christopher Brown, and SFC Jancewicz. Id. at 7:24-8:24. Sometime in June 2012, Company Commander Jennifer Jones was replaced by Jack Irby. Id. at 8:8-12, 25:14-23.

         From May 14 until early July of 2012, Plaintiff was employed by government contractor Sof Tec Solutions and supervised by Lisa Barcelona. Stipulated Facts, ECF No. 59 at 1. In early July of 2012, Infused took over the USAREC staffing contract and began providing staffing services to the Hampton USAREC Center through its subcontractor, Ardelle. Id. at 1-2. Thereafter, Ardelle hired Plaintiff to continue working at the Hampton USAREC Center, and Plaintiff signed an at-will employment agreement with Ardelle on July 5, 2012. Id. at 2; Undisputed Fact ("UF") 7, ECF No. 49 at 3, ECF No. 60 at 5.[1] Thus, Plaintiffs job continued; only her employer and supervisor changed. Id. at 1-2. Sof Tec Solutions and Barcelona stopped having any involvement with the Hampton USAREC center. Id. Instead, Yolanda Green-Wilson of Ardelle became Plaintiff's direct supervisor, and Jamie Baker-an employee of Infused- became the Program Manager overseeing the USAREC contract. Id. at 2.

         2. Plaintiff and SFC Jancewicz had a Verbal Altercation, Which Both Reported

         On September 20, 2012, Plaintiff and SFC Jancewicz were the only two people present at the Hampton USAREC Center. PL Opp., ECF No. 60 at 2. Around noon, without telling Plaintiff, SFC Jancewicz left the office for lunch. P1. Dep., ECF No. 60-1 at 43:17-44:13. Realizing SFC Jancewicz had left for more than a short break, Plaintiff locked the door to the office. P1. Statement re Incident, ECF No. 55 at 44. SFC Jancewicz returned to the office around 1:00 p.m. and knocked on the door. Id; P1. Dep., ECF No. 60-1 at 44:9-12. Plaintiff knew SFC Jancewicz did not have a key to the office, but took several minutes before unlocking the door. P1. Statement re Incident, ECF No. 55 at 44. After letting SFC Jancewicz into the office, Plaintiff asked or told him to-in the future-let her know when he was going to take his lunch break. Id. at 44:9-13. Plaintiff then left for her lunch break and returned one hour and twenty minutes later. Id. at 44:14-15.

         When Plaintiff returned from lunch, Plaintiff and SFC Jancewicz engaged in a verbal altercation. Plaintiff and Jancewicz each admit swearing at the other person.[2] Plaintiff and Jancewicz dispute only who initiated and was more aggressive during the altercation. In an affidavit, SFC Jancewicz testified "As soon as [Plaintiff] came back in the office she began at 4-9. screaming at me. She called me all kind of names and used constant profanity. She called me a bitch, an asshole, and that I was broken down." Jancewicz Aff., ECF No. 53 at 3. Plaintiff admits calling SFC Jancewicz a "bitch" and "broken down, " but claims it was because he called her a bitch first. P1. Dep., ECF No. 60-1 at 78:9-12, 79:1-5; see also Id. at 45:5-9 ("[H]e just said . . . you don't tell me what to do, and he called me a fucking bitch, and I called him a fucking bitch. We had an exchange of words."). Each claims the other acted in a physically intimidating way.[3] SFC Jancewicz left the office following the verbal altercation. P1. Dep., ECF No. 60-1 at 45:22-23; Jancewicz Aff, ECF No. 53 at 3. Both individuals reported the incident.

         After leaving the Hampton USAREC Center on September 20, 2012, SFC Jancewicz immediately went to a separate Army recruiting office and typed up an official report, which ran five pages. Jancewicz Aff, ECF No. 53 at 4. SFC Jancewicz sent the report up his chain of command to First Sergeant Brown and to Captain Irby. Id. He then had a verbal conversation about the incident with both men that same day. Id. Also on September 20, 2012, SFC Jancewicz typed up a separate email, which he sent to Plaintiffs previous supervisor, Lisa Barcelona. Id. Barcelona informed SFC Jancewicz that she no longer supervised Plaintiff and recommended he email the Contracting Officers Representative ("COR"), James Sprigler. Id. SFC Jancewicz did so, sending COR Sprigler both his official complaint and the email SFC Jancewicz had drafted and sent to Barcelona. Id.

         Meanwhile, on September 20, 2012, Plaintiff reported the incident by phone to her supervisor at Ardelle, Yolanda Green Wilson. P1. Dep., ECF No. 60-1 at 45:24-25. At some point thereafter, Green-Wilson asked Plaintiff to-in the future-email her when Plaintiff left the office for lunch. Id. at 60-1 at 50:17-25. Plaintiff also received a call from Captain Irby, who asked her about the incident. Id. at 46:2-5. After Plaintiff provided Captain Irby with her side of the incident, he told her not to come in the next day, Friday, September 21. Id. Plaintiff returned to work on Monday, September 24, 2012 and, on or about that day, First Sergeant Brown asked Plaintiff to give a statement about the incident to COR Sprigler. Id. at 46:15-47:19. The next day, September 25, 2012, Captain Irby and First Sergeant Brown met with Plaintiff in person and asked her what had occurred the day of the incident. Id. at 47:20-24. Also on September 25, 2012, Plaintiff also provided her statement to COR Sprigler. Id. at 50:3-9.

         In her statement regarding the September 20, 2012 incident, Plaintiff told SFC Jancewicz she would lock the door in the future and "if [he] gets locked out that's too bad, " admits to calling SFC Jancewicz a "fucking bitch, " admits to asking him "what's he going to do" multiple times, admits to calling him "broken down, " and admits to calling him "worthless." P1. Statement re Incident, ECF No. 55 at 44. The statement maintains, however, that Plaintiff swore and otherwise confronted SFC Jancewicz only because SFC Jancewicz started it. See id

         3. Jamie Baker Investigated the Verbal Altercation at the Request of COR Sprigler ...

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