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Dao v. Faustin

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

August 29, 2019

MELANEY DAO, et al, Plaintiffs,
v.
PAUL M. FAUSTIN, et al, Defendants.

          MEMORANDUM OPINION

          T. S. ELLIS, III UNITED DISTRICT JUDGE

         This case arises from the alleged workplace harassment of plaintiffs Dao and Khan, former employees of defendant Infused Solutions, LLC ("Infused"), by defendant Faustin, the Chief Financial Officer of defendant Infused. In the Second Amended Complaint, plaintiffs bring various state law claims against defendant Faustin, including assault and battery, intentional infliction of emotional distress, negligent infliction of emotional distress, breach of fiduciary duty, and negligence. Plaintiffs also allege that defendant Infused is vicariously liable for certain of these state law claims under the doctrine of respondeat superior and that defendant Infused is also liable for hostile work environment and retaliation under Title VII and negligent retention under Virginia law. At issue in this matter are defendants' motions to dismiss plaintiffs' Second Amended Complaint for failure to state a claim. For the reasons that follow, defendants' motion to dismiss must be granted in part and denied in part.

         I.

         The well-settled motion to dismiss standard does not require extensive elaboration. As the Supreme Court has made clear, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Importantly, in making this determination the district court must "accept as true all well-pled facts in the complaint and construe them in the light most favorable to [the plaintiff]." United States v. Triple Canopy, Inc., 775 F.3d 628, 632 n.l (4th Cir. 2015). But the district court is not bound to "accept as true a legal conclusion couched as a factual allegation." Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014).

         II.

         In his motion to dismiss, defendant Faustin argues that dismissal is warranted with respect to the state law claims brought against him (i) because the claims are time-barred and (ii) because the claims fail to state a claim under Virginia law. Each of these arguments is addressed in turn.

         A.

         Defendant Faustin first argues that plaintiffs' state law claims are barred by the applicable statute of limitations. Under Virginia law, actions for personal injury and for breach of fiduciary duty must be brought within two years after the cause of action accrues. See Va. Code §§ 8.01-243(A), 8.01-248. Thus, as the parties agree, each of plaintiffs' state law claims against defendant Faustin is subject to a two-year statute of limitations.[1] This two-year statute of limitations period began to run for plaintiffs' personal injury claims "when the wrong [was] committed" and for their breach of fiduciary duty claims on "the date of the alleged breach." Castillo v. Emergency Med. Assocs., P.A., 372 F.3d 643, 646 (4th Cir. 2004); Informatics Applications Grp., Inc. v. Shkolnikov, 836 F.Supp.2d 400, 424 (E.D. Va. 2011). Here, the initial Complaint bringing plaintiffs state law claims against defendant Faustin was filed by plaintiffs on June 27, 2018. Accordingly, to be timely, plaintiffs' state law claims must be based on alleged wrongful acts or breaches of fiduciary duty that occurred between June 27, 2016 and June 27, 2018.

         Defendant Faustin goes one step further, however, arguing that plaintiffs' state law claims are time-barred in full because they are based in part on alleged actions by defendant Faustin that occurred before June 27, 2016. In support of this argument, defendant Faustin relies entirely on Wheeler v. Virginia, No. 7:17CV00337, 2018 WL 325202, at *2 (W.D. Va. Jan. 8, 2018). But that decision did not reach the holding that defendant Faustin contends. Rather, the district court in Wheeler held that the claim at issue there was "partially time-barred to the extent that it is based on acts that fall outside the limitations period." Id. (emphasis added). The Wheeler court did not, contrary to defendant Faustin's assertion, hold that the claim was time-barred in its entirety simply because the claim was based on alleged conduct occurring both before and after the statute of limitations began to run. See Id. at *2-3 (granting the defendant's/?#/*##/ motion to dismiss and dismissing Count II of the plaintiffs complaint in part as time-barred). Accordingly, Wheeler does not stand for the proposition for which it is cited by defendant Faustin, and the fact that plaintiffs' claims are based on alleged conduct occurring both before and during the limitations period does not render plaintiffs' claims time-barred in full. Instead, as plaintiffs correctly recognize, plaintiffs' state law claims against defendant Faustin are time-barred in part only to the extent that such claims are based on alleged conduct by defendant Faustin that occurred before June 27, 2016.[2]

         Here, it is clear that plaintiffs' claims are based at least in part on alleged conduct by defendant Faustin occurring after June 27, 2016.[3] Thus, to the extent that plaintiffs' claims are based on conduct occurring after that date, such claims are timely and may proceed.

         B.

         Defendant Faustin next argues that dismissal of plaintiffs' state law claims is warranted on the ground that plaintiffs have not pled sufficient facts to state any claim upon which relief can be granted. Each of plaintiffs' state law claims against defendant Faustin is analyzed separately below.

         In Counts 1 and 2 of the Second Amended Complaint, plaintiffs each bring a cause of action against defendant Faustin for assault and battery. Importantly, although assault and battery "go together like ham and eggs," they are considered to be "two independent torts" under Virginia law. Koffinan v. Garnett, 265 Va. 12, 16 (2003). As the Supreme Court of Virginia has explained, the elements of assault are (1) "an act intended to cause either [(a)] harmful or offensive contact with another person or [(b)] apprehension of such contact" (2) "that creates in that other person's mind a reasonable apprehension of an imminent battery." Id. (citing Restatement (Second) of Torts § 21 (1965)). In contrast, battery requires a showing of (1) "an unwanted touching which is neither consented to, excused, nor justified" (2) that is "offensive" and (3) that is "done in a rude, insolent, or angry manner." Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 411 (4th Cir. 2013) (quoting Koffinan, 265 Va. at 16; Restatement (Second) of Torts § 18; and Crosswhite v. Barnes, 139 Va. 471, 477 (1924)). It is settled that "[a] bodily contact is offensive if it offends a reasonable sense of personal dignity ... judged by an objective standard, not by whether the plaintiff found the act offensive." Id. (citing Restatement (Second) of Torts §§ 18, 19).

         Plaintiffs have alleged sufficient facts to state claims of battery against defendant Faustin. Plaintiff Dao alleges that on one occasion in the beginning of 2017, defendant Faustin grabbed plaintiff Dao's hand while they were riding in a car together for a work-related matter. Second Am. Compl. ¶ 45. Plaintiff Dao shook her hand away from defendant Faustin and told him not to touch her. Id. Plaintiff Dao further alleges that on numerous other occasions, indeed "on a near daily basis," defendant Faustin would instruct plaintiff Dao to come close to him and would "forcibly pull" her towards himself and hug her. Id. ¶ 42. Often, defendant Faustin "forcibly held [plaintiff] Dao in a hug for an extended period of time." ¶ 43. Plaintiff Dao alleges that she "frequently resisted," that she was "reluctant[]" to come close to defendant Faustin, and that she "tried to physically force him away from her." Id. ¶¶ 42-43. Importantly, prior to the occurrence of these hand grabbings and forced hugs, Dao had told defendant Faustin "not to touch her and that she does not like to be touched, especially by men, due to past sexual abuse." Id. ¶ 40.

         These allegations, viewed in the light most favorable to plaintiff Dao, are sufficient to state a claim for battery upon which relief can be granted. First, it is clear that the touchings of plaintiff Dao by defendant Faustin were unwanted and were not consented to, excused, or justified. As the above allegations reflect, plaintiff Dao made clear to defendant Faustin that she did not want to be touched by him and that she resisted his attempts to hug her and grab her hand. Second, under an objective standard, these incidents of bodily contact "offend a reasonable sense of personal dignity" and are thus "offensive" for purposes of the battery claim. See Balas, 711 F.3d at 411. The facts alleged demonstrate that defendant Faustin's repeated contact with plaintiff Dao's body was done in blatant disregard of plaintiff s Dao's obvious discomfort with and resistance to his physical advances. Third, for similar reasons, these allegations reflect that defendant Faustin's alleged touchings were done in a "rude" or "insolent" manner. See Id. According to the Second Amended Complaint, defendant Faustin's contact with plaintiff Dao's body was forcible and was done in disregard of plaintiff Dao's attempts to resist and in disregard of her clear distress caused by defendant Faustin's behavior. Thus, plaintiff Dao has pled sufficient facts to state a claim of battery against defendant Faustin.

         Plaintiff Khan has also pled sufficient allegations to state a claim of battery against defendant Faustin. Like plaintiff Dao, plaintiff Khan alleges that "each day" defendant Faustin would instruct plaintiff Khan to come close to him and then would "forcibly hug her." Second Am. Compl. ¶ 69. On numerous occasions, plaintiff Khan "tried to resist," refused to come see defendant Faustin in person, cried in front of defendant Faustin, and asked him to leave her alone. Id. ¶¶ 69, 71. For the same reasons discussed above with respect to plaintiff Dao, when viewed in the light most favorable to plaintiff Khan, these allegations are certainly sufficient to state a claim of battery against defendant Faustin.

         Seeking to avoid this result, defendant Faustin argues that the Fourth Circuit's decision in Balas compels the conclusion that defendant Faustin's alleged conduct was not objectively offensive. This argument fails because the facts in Balas are plainly distinguishable from those alleged here. In Balas, the Fourth Circuit affirmed summary judgment in favor of the defendant on the plaintiffs battery claim, holding that a reasonable person could not find a hug by the defendant that made the plaintiff uncomfortable to be objectively offensive. Balas, 711 F.3d at 411. In support of this holding, the Fourth Circuit observed that before the defendant hugged the plaintiff, the plaintiff had just given the defendant a Christmas gift and the defendant had "thanked her and told her that she never ceased to amaze him." Id. Accordingly, the Fourth Circuit concluded that the challenged conduct, i.e. a hug in response to receiving a Christmas gift, was not "unwarranted by the social usages prevalent at the time and place at which it is inflicted," as is required for a touching to constitute battery. And importantly, the plaintiff "never told [the defendant] to stop or that the hug was unwelcome." Id. Here, by contrast, both plaintiffs repeatedly told defendant Faustin not to hug them and expressed clear distress when defendant Faustin continued to do so. And there is no basis on which to conclude that defendant Faustin's allegedly forcible contact with plaintiffs' bodies against their will was warranted by any prevalent social usages. Therefore, Balas is distinguishable and does not preclude the result reached here.

         Defendant Faustin also argues that the allegations in the Second Amended Complaint show that the alleged touchings of plaintiffs' bodies by defendant Faustin were intended to be friendly in nature and thus were not done in a rude or insolent manner. In support of this argument, defendant Faustin observes that the Second Amended alleges that in certain instances when he made physical contact with plaintiffs, defendant Faustin made comments such as "You know I care about you, right?" or that "it was his job to desensitize [plaintiff Dao] to male touch and that [the hugs were] her therapy to help her get over her childhood sexual abuse." See Second Am. Compl. ¶¶ 40, 45. Although one conceivable inference from these allegations is that defendant Faustin's touchings of plaintiffs' bodies were amiable in nature and not rude or insolent, the Second Amended Complaint must be construed "in the light most favorable to [plaintiffs]" at the motion to dismiss stage. See Triple Canopy, 775 F.3d at 632 n.l. In this respect, a finder of fact could certainly draw the opposite inference based on plaintiffs' allegations that defendant Faustin touched plaintiffs despite being told not to touch them and plaintiffs' clear distress when he did so anyway. Accordingly, plaintiffs have alleged sufficient facts to show defendant Faustin touched plaintiffs in a rude or insolent manner.

         It is also clear that plaintiffs have alleged sufficient facts with respect to their assault claims to survive the motion to dismiss stage. As stated above, plaintiffs can state a claim of assault under Virginia law by alleging facts to show (1) "an act intended to cause . . . offensive contact with another person" (2) "that creates in that other person's mind a reasonable apprehension of an imminent battery." Koffman, 265 Va. at 16. The factual allegations in the Second Amended Complaint discussed above clearly allege several acts by defendant Faustin that were intended to cause, and in fact did cause, offensive contact with both plaintiffs. In addition, the Second Amended Complaint includes facts showing that such conduct created in plaintiffs' minds a reasonable apprehension of an imminent battery. See, e.g., Second Am. Compl. ¶ 42-44, 69, 71, 101, 113 (alleging that plaintiffs tried to resist defendant Faustin's attempts to touch them in an offensive manner, and that such conduct by defendant Faustin's "threatening conduct" caused plaintiffs to fear "offensive sexual misconduct"). Accordingly, plaintiffs have pled sufficient facts to state claims of assault against defendant Faustin.

         In Counts 5 and 6 of the Second Amended Complaint, plaintiffs each bring a cause of action against defendant Faustin for intentional infliction of emotional distress. The Supreme Court of Virginia has made clear that such causes of action "are not favored in the law." Russo v. White, 241 Va. 23, 26 (1991). To establish a claim of intentional infliction of emotional distress, plaintiffs must show that "the wrongdoer's conduct is intentional or reckless; the conduct is outrageous and intolerable; the alleged wrongful conduct and emotional distress are causally connected; and, the distress is severe." Id. A defendant's conduct may be deemed "outrageous and intolerable" only if it is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. at 27. The Supreme Court of Virginia has held that "[i]t is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery." Womack v. Eldridge, 215 Va. 338, 342 (1974). But if "reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability." Id.

         Here, plaintiffs fail to state claims of intentional infliction of emotional distress because the Second Amended Complaint does not allege facts from which a jury could reasonably find that defendant Faustin's conduct was sufficiently extreme or outrageous. To be sure, as already discussed, defendant Faustin's alleged forcible physical contact with plaintiffs' bodies despite plaintiffs telling him not to and their clear anguish when he did so anyway is offensive, unacceptable, and wrongful. Nonetheless, such alleged actions by Faustin do not meet the high threshold of conduct that is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." See Russo, 241 Va. at 27. Indeed, the outrageous and intolerable "prong is seldom met by plaintiffs under Virginia law." Crittendon v. Arai Americas, Inc., No. 2:13-CV-567, 2014 WL 31490, at *6 (E.D. Va. Jan. 3, 2014). The rare cases in which a plaintiffs intentional infliction of emotional distress claim has survived threshold scrutiny involved conduct by a defendant that was far more severe and appalling than defendant Faustin's conduct toward plaintiffs here.[4] Accordingly, plaintiffs have not made the demanding showing of outrageous and intolerable conduct by defendant Faustin that is required to support their intentional infliction of emotional distress claims under Virginia law.[5]

         In Counts 7 and 8 of the Second Amended Complaint, plaintiffs each bring claims of negligent infliction of emotional distress against defendant Faustin. Such a cause of action is quite limited under Virginia law. In this regard, the Supreme Court of Virginia has held that "where conduct is merely negligent . . . and physical impact is lacking, there can be no recovery for emotional disturbance alone." Hughes v. Moore, 214 Va. 27, 34 (1973). Thus, to sustain a claim of negligent infliction of emotional distress in the absence of "physical impact," the plaintiff must show that he or she suffered a "physical injury" and that the "physical injury was the natural result of fright or shock proximately caused by the defendant's negligence." Id; see also Goffv. Jones, 47 F.Supp.2d 692, 695 (E.D. Va. 1999) ("[A] party may recover for negligent infliction of emotional distress where there is a clear and unbroken chain of causal connection between the negligent act, the emotional disturbance, and the physical injury.").

         Here, the parties dispute whether plaintiffs have alleged facts showing they suffered any "physical injury" resulting from the emotional distress caused by defendant Faustin's conduct. In 2016) (Commonwealth's Attorney took a series of actions to abuse a defense attorney, including assaulting the defense attorney during court, swearing out a warrant for larceny against the defense attorney that he knew lacked probable cause, and releasing documents to a trade publication to damage the defense attorney's reputation). this respect, it is settled that "typical symptoms of an emotional disturbance" do not constitute "physical injury" for purposes of a negligent infliction of emotional distress claim. Myseros v. Sissler, 239 Va. 8, 12 (1990). Rather, "the plaintiff must allege and prove that he suffered a physical injury that differs from the symptoms of an emotional disturbance, not... a physical ailment caused by emotional distress." Klar v. Fed. Nat. Mortg. Ass'n, No. 3:13CV00462-JAG, 2014 WL 412533, at *7 (E.D. Va. Feb. 3, 2014). These principles, applied here, point persuasively to the conclusion that plaintiff Khan has failed to allege facts showing she suffered any physical injury as a result of emotional distress caused by defendant Faustin's conduct. In this respect, plaintiff Khan emphasizes that she alleged defendant Faustin's conduct caused her to suffer migraines, see Second Am. Compl. ¶ 94, 185, but the Supreme Court of Virginia and other courts have concluded that such an ailment is merely a physical manifestation of emotional distress, not a physical injury. See, e.g., Myseros, 239 Va. at 12 (holding that the plaintiffs headaches were only physical manifestations of anxiety and did not support a claim for negligent infliction of emotional distress); King v. City of Chesapeake, 478 F.Supp.2d 871, 874 (E.D. Va. 2007) (holding that the plaintiff's headaches were only physical manifestations of stress and did not support a claim for negligent infliction of emotional distress). Accordingly, plaintiff Khan has failed to state a claim of negligent infliction of emotional distress under Virginia law.

         In contrast, plaintiff Dao has pled sufficient allegations of physical injury to support her negligent infliction of emotional distress claim. Specifically, plaintiff Dao alleges that defendant Faustin's harassing conduct caused her to suffer "colds, sinus infections, upper respiratory infections" and "severe knots in her back." Second Am. Compl. ¶¶ 92, 175. These alleged physical injuries and illnesses differ from the typical symptoms of emotional distress and thus, if proven, are sufficient to allow a jury to find that plaintiff Dao suffered "physical injury" resulting from the emotional distress caused by defendant Faustin's conduct. Accordingly, plaintiff Dao's claim of negligent infliction of emotional distress alleges adequate facts to survive threshold scrutiny.

         In Counts 9 and 10 of the Second Amended Complaint, plaintiffs each bring claims of breach of fiduciary duty against defendant Faustin. Under Virginia law, "[t]he elements of a claim for breach of fiduciary duty are (1) a fiduciary duty, (2) breach, and (3) damages resulting from the breach." Informatics Applications Grp., Inc. v. Shkolnikov, 836 F.Supp.2d 400, 424 (E.D. Va. 2011) (citing Carstensen v. Chrisland Corp., 247 Va. 433, 444 (1994)). A fiduciary duty exists "when special confidence has been reposed in one who in equity and good conscience is bound to act in good faith and with due regard for the interests of the one reposing the confidence." H-B Ltd P'ship v. Wimmer, 220 Va. 176, 179 (1979). Virginia courts recognize common law-based fiduciary relationships between an attorney and client, an agent and principal, a trustee and cestui que trust, parent and child, siblings, and caretaker and invalid. Martin v. Phillips, 235 Va. 523, 527-28 (1988), overruled on other grounds by Friendly Ice Cream Corp. v. Beckner, 268 Va. 23 (2004); Rossman v. Lazarus, No. 1:08-CV-316 (JCC), 2008 WL 4181195, at *9 (E.D. Va. Sept. 3, 2008).

         Here, it is clear that defendant Faustin owed no fiduciary duty to plaintiff Dao or plaintiff Khan. As plaintiffs concede, no Virginia court has recognized the existence of a common-law fiduciary duty owed by a supervisor to a subordinate employee. Indeed, Virginia courts have held that an employer owes no fiduciary duty to its employees. See Wynn v. Wachovia Bank, N.A., No. 3:09CV136, 2009 WL 1255464, at *5 (E.D. Va. May 6, 2009) ("[W]hile an employee owes a fiduciary duty to an employer, no corresponding duty is imposed on the employer.") (citing Williams v. Dominion Tech. Partners, LLC, 265 Va. 280, 289 (2003)); Starks v. McCabe, 49 Va. Cir. 554, 560 (1998). Similarly here, it is clear that defendant Faustin, plaintiffs' supervisor, did not owe plaintiffs any fiduciary duty. At most, the allegations in the Second Amended Complaint show that plaintiffs trusted defendant Faustin and that he exercised authority over plaintiffs as their supervisor. These allegations are insufficient to show the existence of a fiduciary relationship. It is well-settled that "[t]rust alone ... is not sufficient" to create a confidential or fiduciary relationship. Ayers v. Shaffer,286 Va. 212, 225 (2013). And the influence exercised by Faustin over plaintiffs in the workplace is no different from the authority of an employer over an employee, which ...


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