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Van Vleck v. Sallyport Global Holdings, Inc.

United States District Court, E.D. Virginia, Alexandria Division

May 28, 2019

KATHRYN E. VAN VLECK, Plaintiff,
v.
SALLYPORT GLOBAL HOLDINGS, INC. ET AL., Defendants.

          MEMORANDUM OPINION

          CLAUDE M. HILTON UNITED STATES DISTRICT JUDGE.

         THIS MATTER comes before the Court on Defendants', Crowell & Moring and Trina Barlow, Motion to Dismiss.

         This 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 comments.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         In her 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.

         On 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) .

         Plaintiff's 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.

         Plaintiff's 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.

         Second, 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 court agrees.

         Third, 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.

         Additionally, 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.

         The 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 ...


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