United States District Court, E.D. Virginia, Newport News Division
SHERYL T. McCRAY, Plaintiff,
INFUSED SOLUTIONS, LLC and JAMIE BAKER, Defendants.
G. DOUMER UNITED STATES DISTRICT JUDGE
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.
PROCEDURAL AND FACTUAL HISTORY
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.
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.
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).
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.
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.
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.
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.
Plaintiff Worked as a Civilian Receptionist at an Army
Recruiting Center in Hampton, Virginia
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.
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. 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.
Plaintiff and SFC Jancewicz had a Verbal Altercation, Which
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.
Plaintiff returned from lunch, Plaintiff and SFC Jancewicz
engaged in a verbal altercation. Plaintiff and Jancewicz each
admit swearing at the other person. 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
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.
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.
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.
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
Jamie Baker Investigated the Verbal Altercation at the
Request of COR Sprigler ...