United States District Court, E.D. Virginia, Alexandria Division
KATHRYN E. VAN VLECK, Plaintiff,
SALLYPORT GLOBAL HOLDINGS, INC. ET AL., Defendants.
M. HILTON UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Defendants', Crowell
& Moring and Trina Barlow, Motion to Dismiss.
case arises from Plaintiff Kathryn Van Vleck's employment
with Sallyport Global Holdings, Inc. ("Sallyport").
In April 2018, she complained to Sallyport's Human
Resources ("HR") Director that a high-ranking
Sallyport employee "was spreading false information and
defaming her." Specifically, she alleges she complained
that Sallyport's Robert Rathbun was telling people that
she was an alcoholic. She alleges that Rathbun implied that
she was incompetent, dishonest, unethical in the performance
of her job responsibilities and duties, or that she lacked
integrity and trustworthiness. She alleges that Rathbun
implied that she was leaving work inebriated and was
therefore intoxicated during work hours. She alleges that she
considered these statements "serious" and
"defamatory." Plaintiff alleges that about a week
after she brought her concerns about Rathbun to HR, she was
asked by Sallyport to meet with two attorneys from Crowell
& Moring, one of which was Trina Barlow, who is a partner
at Crowell & Moring. Plaintiff alleges the HR Director
told her that Sallyport had engaged Crowell & Moring to
investigate her complaint regarding Rathbun's defamatory
alleges that during the interview with Crowell & Moring
attorneys, she was asked what basis Rathbun had for his
statement about her alleged drinking habit or if she had ever
been intoxicated at a work event. Plaintiff further alleges
Crowell & Moring attorneys conducted interviews with a
handful of other Sallyport employees and asked them
questions. Plaintiff alleges that the questioning of the
other employees extended to topics Plaintiff thought was
unrelated to her defamation complaint, including about
whether she had a sexual relationship with a subordinate and
about an incident in which she reportedly removed her
underwear in front of coworkers in a public place.
alleges that on or about May 14-16, 2018, Trina Barlow
contacted her to tell her the Sallyport investigation was
completed, and the results indicated that the Plaintiff
needed someone in leadership to mentor her. Plaintiff alleges
that she continued working at Sallyport for another four
months after Crowell's investigation concluded.
filed her current suit on January 15, 2019 against Sallyport
Global Holdings, Inc., Caliburn International, LLC, Jim Van
Dusen, Robert Rathbun, Sarita Chauhan, Trina Fairley Barlow,
and Crowell & Moring. She subsequently filed an amended
complaint on February 8, 2019. Plaintiff alleges six counts,
four of which are against Crowell & Moring and Trina
Barlow: 1) Defamation and Defamation per se (count III); 2)
Tortious Interference with Business Expectancies (count IV);
3) Common Law Conspiracy (count V); and 4) Intentional
Infliction of Emotional Distress (count VI). The other two
counts not at issue in the current motion before the court
are Discrimination and Hostile Work Environment in the Course
of Employment in Violation of Title VII and Retaliation and
Retaliatory Termination in Violation of Title VII.
Amended Complaint, Plaintiff bases her legal claims against
Crowell on the questions the Crowell lawyers asked witnesses.
Plaintiff alleges that her coworkers were asked
inappropriate, humiliating, and misleading questions by
Crowell; the Crowell lawyers spread false and defamatory
claims, innuendo, and inferences about her by virtue of the
strong and serious implications created by the nature of the
questions they posed; the Crowell lawyers had no right to ask
these highly person and defamatory questions; the nature of
the questions posed to her colleagues was further
discriminatory, damaging, and defamatory; she was embarrassed
by the questions her subordinates and coworkers were asked
about her; and the fact that an outside law firm had been
retained to ask these questions added unfounded and false
credence to the accusations made about her.
March 19, 2019, Crowell & Moring and Trina Fairley Barlow
(together "Crowell defendants") moved to dismissed
the four counts alleged against them in the Amended
Complaint. A motion to dismiss tests the sufficiency of the
complaint. See Republican Party of N.C. v. Martin,
980 F.2d 943, 952 (4th Cir. 1992). In a Rule 12(b)(6) motion
to dismiss, the court must accept all well-pled facts as true
and construe those facts in the light most favorable to the
plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The complaint must provide a short and plain
statement showing that the pleader is entitled to relief,
Fed.R.Civ.P. 8(a)(2), and it must state a plausible claim for
relief to survive a motion to dismiss, Iqbal, 556
U.S. at 679. The court does not accept as true any
"unwarranted inferences, unreasonable conclusions, or
arguments." E. Shore Markets, Inc. v. J.D.
Associates Ltd., 213 F.3d 175, 180 (4th Cir. 2000). If
the complaint does not state a plausible claim for relief,
the court should dismiss the claim. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007) .
claims against Crowell Defendants are barred by
Virginia's "absolute privilege" for anticipated
or actual litigation statements. Communications by lawyers
that are "material, relevant or pertinent to the
judicial process" are absolutely privileged from civil
liability. Mansfield v. Bernabei, 284 Va. 116, 125
(2012) (quoting Penick v. Ratcliffe, 149 Va. 618,
635 (1927)). The absolute privilege applies "to
pre-filing communication" when 1) a judicial proceeding
is "contemplated in good faith and under serious
consideration," 2) "the communication...relates to
that anticipated proceeding," and 3) the communication
is "made to persons with an interest in the proposed
proceeding." Id. at 125.
Amended Complaint alleges that Plaintiff had complained that
a Sallyport employee had committed the tort of defamation
against her, which provoked the company to retain outside
counsel, Crowell. Plaintiff alleges that she felt it was a
very serious matter. Crowell questioned witnesses about the
Plaintiff's complaint. Based on Plaintiff's
allegations, a judicial proceeding was "contemplated in
good faith and under serious consideration."
Mansfield, 284 Va. at 125. She accused Sallyport of
committing a tort that harmed her, she said it was "very
serious," and the company hired outside counsel because
of her defamation complaint. Furthermore, Plaintiff
subsequently filed the defamation claim that she had
threatened against Sallyport.
Crowell's questioning of witnesses related to the
anticipated defamation proceeding. The elements of defamation
include 1) whether the allegedly defamatory statement about
Plaintiff's excessive drinking was true or false, and 2)
whether the defamatory statement had been spread among
co-workers. Jordan v. Kollman, 269 Va. 569, 576
(2005) . Crowell argues that the questioning of witnesses
were proper in learning what Plaintiff's colleagues
thought about her prior to Rathbun's comments and were
completely relevant; to the anticipated proceeding. This
Crowell's allegedly tortious communications were
"made to persons with an interest in the proposed
proceeding." Mansfield, 284 Va. at 125. The
questioning and communications were employees of Sallyport,
who were also potential witnesses. For the foregoing reasons,
the Court finds Crowell's questions of witnesses in
response to Plaintiffs defamation allegations are absolutely
privileged under Virginia law.
qualified privilege also bars Plaintiff s claims against the
Crowell defendants. "Communications between persons on a
subject in which the persons have any interest or duty are
occasions of privilege," and cannot form the basis of a
defamation claim. Larimore v. Blaylock, 259 Va. 568,
572 (2000). Virginia's qualified privilege bars tort
claims in a broad array of contexts where individuals were
communicating on matters of shared interest or duty.
Crowell's allegedly defamatory questions were qualified
privilege because they occurred in the context of
communications between a corporate client and its attorneys
about alleged employee wrongdoing. It is well-established
that the qualified privilege applies to "cases involving
defamatory statements made between co-employees and employers
in the course of employee disciplinary or discharge
matters." Id. Under the qualified privilege,
the Amended Complaint fails to state claims against Crowell.
Amended Complaint also fails to state viable legal claims
against Crowell. To state a claim for defamation under
Virginia law, a plaintiff must plead three elements: 1)
publication of 2) an actionable statement with 3) the
requisite intent." Va. Citizens Def. League v.
Couric, 910 F.3d 780, 783 (4th Cir. 2018) (quoting
Schaecher v. Bouffault, 290 Va. 83, 91 (2015)). The
Amended Complaint fails to allege the second element ...