
    CIRCUIT COURT OF CHESTERFIELD COUNTY
    Cobbs v. Commonwealth of Virginia et al.
    January 31, 2001
    Case No. CL98-1079
   BY JUDGE HERBERT C. GILL, JR.

The parties, by counsel, were before die Court on October 27,2000, upon the defendants’ demurrer to all counts of the plaintiff’s motion for judgment The Court took this matter under advisement and granted the defendants’ request to file transcripts from the October 27, 2000, and July 28, 2000, hearings. The Court requested the transcripts within ten days. The Court received the transcripts on December 5 and December 7,2000. The Court thanks all parties for their thorough and comprehensive memoranda of the issues. After review and consideration of die applicable case law, memoranda and arguments of counsel, transcripts and file, the Court rules as follows.

Plea in Bar: Statute of Limitations

Defendant Commonwealth filed a plea in bar claiming the statute of limitations bars plaintiff’s defamation and insulting words claims under the applicable statute of limitations and the Virginia Torts Claim Act. Defendant Commonwealth disputes that it is liable under the Virginia Tort Claims Act. See Br. in Supp. of Commonwealth of Virginia’s Dem. and Special Pleas, p. 4.

According to both Virginia Code §§ 8.01-247.1 and 8.01-195.6, the applicable statute of limitations for a defamation claim is one year after fee cause of action accrues. Since fee plaintiff filed her Motion for Judgment on November 3, 1998, fee Court cannot consider any alleged claims of defamation before November 3, 1997. Moreover, if fee Commonwea'fe is liable under fee Virginia Torts Claim Act, fee Court cannot consider any alleged instances of defamation before November 3,1997. Plaintiff states in her Mem. “Pl.’s Opp’n to Def. Commonwealth of Virginia’s Dem. and Special Pleas,” feat fee appropriate Notice required by fee Virginia Tort Claims Act was mailed on November 3,1998.

Demurrer Standard of Review

A demurrer tests fee sufficiency of factual allegations to determine whether fee plaintiffs pleadings state a valid cause of action. See Riverview Farm v. Board of Supervisors, 259 Va. 419, 427, 528 S.E.2d 99 (2000); Fun v. Virginia Military Inst., 245 Va. 249, 252, 427 S.E.2d 181 (1993). When ruling on a demurrer, the applicable standard of review is for fee Court to determine whether fee factual allegations in fee pleadings are sufficient to state a cause of action. The Court is required to accept the truth of material facts feat are properly pleaded, impliedly alleged, and facts which may be fairly inferred from fee alleged facts. See Plummer v. Center Psychiatrists, 252 Va. 233, 476 S.E.2d 172 (1996).

Plaintiffs motion for judgment contains nine different counts for relief. The Court shall consider each count separately.

Count I: Defamation

In paragraph 18 of fee Motion for Judgment, plaintiff alleges “faculty members” called her a “troublemaking Republican” and “traitor to her race.” Plaintiff does not allege fee defendants made these statements, but merely references fee statements. The Court finds these two statements are factually insufficient to state a valid cause of action against fee defendants. Therefore, fee Court sustains the demurrer as to these two statements.

Virginia recognizes two types of actionable defamation: defamation per se and defamation wife proof of special damages. At common law, defamatory words are actionable per se if (1) they impute to a person fee commission of some criminal offense involving moral turpitude, (2) they impute to a person infection of some contagious disease, (3) they impute to a person unfitness to perform a job, and (4) they prejudice a person in his profession or trade. See Fleming v. Moore, 221 Va. 884, 275 S.E.2d 632 (1981). Words that do not rise to the level of defamation per se are still actionable based on the context in which they were uttered. See id. at 889 and 894.

In Yeagle v. Collegiate Times, 255 Va. 293, 497 S.E.2d 136 (1998), the Virginia Supreme Court addressed whether a trial court had correctly dismissed a defamation action when the phrase at issue could not have reasonably been interpreted as stating actual facts about the plaintiff as a matter of law. See Yeagle, 255 Va. 293 at 294, 497 S.E.2d 136 (1998). The Court reiterated that it is the trial judge’s responsibility to determine, as a matter of law, whether the words at issue “fall within the type of speech which will support a state defamation action” (Yeagle, 255 Va. at 296) and whether tire words are defamatory per se because they fall within one of the defamation per se categories. See id. Speech which does not contain a provably false factual connotation, or which cannot be reasonably interpreted as stating actual facts about a person, cannot form the basis of a common law defamation action. See id., quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 16-17, 20, 110 S. Ct. 2695, 111 L. Ed. 2d 1 (1990).

The plaintiff alleges Hayes defamed her by stating the following: “you don’t know this woman (Dr. Cobbs],” “she is uncooperative,” “she has more trouble with me than anyone else in the department,” “she is always doing what she wants to do,” “let me tell you about her,” “in detail, what Mrs. Cobbs is really like,” mid plaintiff was “mean.” Hayes allegedly uttered these words at tiie School of Liberal Arts and Education Honors Recognition program and reception in the presence of a parent, students, and the Interim Dean, defendant Creighton.

The plaintiffs second alleged instance of defamation is defendant Diggs’s statement to Dr. Darrell Talley, National President of the Alpha Delta Mu Social Work Honor Society, that the plaintiff was “crazy.” Diggs allegedly uttered this statement while on a National Association of Social Workers trip to Africa.

Viewing all the facts in favor of the plaintiff, tire Court finds both statements could constitute the basis for a defamation claim. Unlike the statement in Yeagle, tire statements in the case at bar appear to be factual statements capable of a defamatory meaning. The statements in their ordinary meaning convey information that may impugn plaintiffs reputation as a professor, especially in the context in which they were uttered.

Therefore, the Court finds the statements of Hayes and Diggs in Count I of plaintiffs Motion for Judgment legally sufficient to proceed with a defamation claim. The Court overrules the defendants’ demurrer as to these statements.

Count II: Insulting Words

The Virginia Code requires two criteria for an action for insulting words: (1) the words are construed as insults from their usual construction and common acceptance and (2) die words tend toward violence and breach of the peace. Va. Code Ann. § 8.01-45 (Michie 2000). In Allen and Rocks v. Dowell, 252 Va. 439, 477 S.E.2d 741 (1996), the Virginia Supreme Court held an action for insulting words cannot be maintained absent proof that such words tend toward violence and breach of die peace. See Dowell, 252 Va. 439 at 442, 477 S.E.2d 741 (1996).

Plaintiffs Count n simply states that the words used by the named defendants are construed as insults and tend toward violence and breach of the peace. The Court finds the plaintiffs pleadings satisfy the first criteria of § 8.01-45 of the Virginia Code. After reviewing the facts in the light most favorable to the plaintiff, however, the Court finds the pleadings do not satisfy the second criteria of § 8.01-45. The factual allegations in the pleadings are not sufficient to state a cause of action for insulting words. Therefore, die Court sustains the defendants’ demurrer to Count n.

Count III: Tortious Interference with Employment and Economic Opportunities

In Chaves v. Johnson, 230 Va. 112, 335 S.E.2d 97 (1985), the Court stated the right to perform a contract is a property right entitled to protection in the courts. See Chaves, 230 Va. 112, 335 S.E.2d 97 (1985). The four elements for a prima facie claim of tortious interference are: (1) existence of a valid contractual relationship or business expectancy; (2) knowledge of die relationship or expectancy on the part of the interferor; (3) intentional interference inducing or causing a breach or termination of die relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted. See Chaves, 230 Va. at 113.

Co'unt HI alleges the defendants, Moore, Dawson, Creighton, Hayes, Diggs, and McClenney, conspired to tortiously interfere with the plaintiffs Virginia State University (VSU) employment contract as to proximately cause the plaintiff damage.

The defendants, in their memorandum, state three reasons why the plaintiff’s allegations foil to state a claim for tortious interference as a matter of law. First the defendants state the alleged actions are not subject to judicial review. Defendants allege the complained of actions were simply administrative and personal decisions by fee defendants, not subject to judicial review. The Court rejects this argument. The Motion for Judgment states fee defendants “utilized improper methods in their tortious interference with Plaintiff’s employment and employment opportunities including, but not limited to, civil conspiracy, defamation, misuse of confidential information, intimidation, misrepresentation.” PL’s Mot for J., paragraph 62. The plaintiff clearly states various actions which are not “administrative and personal decisions.” Moreover, whether all the actions of fee defendants were administrative is a question for fee finder of feet and not wife fee Court at this stage on demurrer. The Court may only consider whether the factual allegations, taken as true, allege sufficient facts to proceed with a valid cause of action.

The defendants’ second reason why fee plaintiff cannot recover is fee claim feat fee plaintiff has not suffered any damages. Again, fee Court rejects this argument. The plaintiff alleges various damages including loss of income and loss of employee benefits. Although plaintiff has not lost her job, her action alleges other damages fee defendants caused by tortiously interfering wife her ability and capacity to do her job. PL’s Mot. for J., paragraph 64.

Lastly, fee defendants’ argue they could not interfere wife their own contract because only a third party can tortiously interfere wife another’s contract or employment opportunity. Plaintiff alleges defendants were agents of VSU and working within the scope of their employment in paragraphs 4 through 9 and 43. The plaintiff, however, states in paragraph 22 that the defendants were working outside fee scope of their employment “by using improper methods to intentionally interfere with plaintiff’s expectation of continued employment wife the VSU.” PL’s Mot. for J., paragraph 62. The defendants contend fee plaintiff cannot plead inconsistent theories and contradicting allegations and, therefore, cannot go forward on her Motion for Judgment.

Making all reasonable inferences to fee plaintiff’s facts, fee Court rejects the defendants’ third argument. The Court finds it reasonable to infer the defendants were acting within fee scope of their employment when the defendants made various administrative decisions, which negatively affected fee plaintiff. However, plaintiff’s allegations of improper methods against defendants, such as civil conspiracy, defamation, misuse of confidential information, are not within the scope of defendants’ employment The Court must take as the truth plaintiffs allegation that defendants were acting outside the scope of their employment when they employed such improper methods. Although the plaintiff’s pleadings are conflicted, the reasonable inference of die plaintiff’s pleading is clear. Therefore, die Court finds plaintiff’s Count HI of her Motion for Judgment is sufficient and overrules the defendants’ demurrer to this count.

Count IV: Common Law Conspiracy

Common law conspiracy consiste of two or more persons combined to accomplish, by some concerted action, some criminal or unlawful purpose or some lawful purpose by a criminal or unlawful means. See Commercial Business v. BellSouth, 249 Va. 39, 453 S.E.2d 261 (1995). The question of whether a conspiracy caused damage to the plaintiff is a question for the juiy. Id., see also Middlesboro v. Campbell, 179 Va. 693, 20 S.E.2d 479 (1942). Common law conspiracy also recognizes a cause of action even when one of the alleged conspirators is a party to the contract. See CaterCorp, Inc. v. Catering Concepts, Inc., 246 Va. 22, 431 S.E.2d 277 (1993).

Virginia Code §§ 18.2-499 and 18.2-500 govern claims based on a conspiracy to injure another in reputation, trade, business, or profession. For a plaintiff to recover under § 18.2-499 and § 18.2-500, he must prove that a combination of two or more persons, “for the purpose of willfully and maliciously injuring another in his reputation, trade, business, or profession,” injured him in his reputation, trade, business, or profession by such conspiracy. Va. Code Ann. §§ 18.2-499 and 18.2-500 (Michie 2000).

Plaintiff alleges defendants, Moore, Dawson, Creighton, Hayes, Diggs, and McClenney conspired among themselves to terminate her employment and interfere with her employment at VSU. Pl.’s Mot. for J., paragraph 21. Plaintiff also alleges the defendants conspired as agents of VSU. PL’s Mot. for J., paragraph 43. The plaintiff lists various instances of alleged conspiracy, specifically in paragraphs 21,34,36,37, and 43.

The defendants argue that the plaintiff’s claim for conspiracy fails because it represents a legal impossibility, die allegations fail to establish a prima facie case, and the plaintiff fails to plead with requisite particularity. See Defs. Memo. “Memo, of Law in Supp. of Dem.,” pp. 22-24.

As to the defendants’ argument that conspiracy among the defendants represents a legal impossibility, the reasonable inference that the defendants were working outside the scope of their employment is clear. See PL’s Mot. for J., paragraph 65. Whether or not the defendants were actually working in or outside the scope of their employment is not a question for the Court at this stage.

The Court rejects the defendants’ second argument and finds the plaintiff’s allegations are sufficient to survive a demurrer. The plaintiff alleges various actions the defendants undertook to interfere wife her employment at VSU in a concerted manner.

The defendants cite to Bowman v. State Bank of Keysville, 229 Va. 534, 331 S.E.2d 797 (1985), and state fee plaintiff must plead specific facts supporting each element of his or her claim. See Bowman, 229 Va. 534, 331 S.E.2d 797 (1985). The Bowman Court held that plaintiffs’ Motion for Judgment was devoid of any factual allegations to support a conspiracy theory and feus insufficient to survive a demurrer. The Court did not conclude feat all conspiracy claims must be pleaded wife particularity but feat the case before them was conclusory and could not support a conspiracy claim, even based on inferences fairly and justly drawn from fee facts. See Bowman, 229 Va. at 541. Moreover, in CaterCorp, Inc. v. Catering Concepts, Inc., 246 Va. 22, 431 S.E.2d 277 (1993), fee Court in consideration of a conspiracy claim stated fee following:

When a motion for judgment or a bill of complaint contains sufficient allegations of material facts to inform a defendant of fee nature and character of fee claim, it is unnecessary for the pleader to descend into statements giving details of proof in order to withstand demurrer. And, even though a motion for judgment or a bill of complaint may be imperfect, when it is drafted so that fee defendant cannot mistake fee true nature of fee claim, fee trial court should overrule fee demurrer; if a defendant desires more definite information, or a more specific statement of fee grounds of fee claim, fee defendant should request fee court to order fee plaintiff to file a bill of particulars.

CaterCorp, Inc., 246 Va. 22 at 24, 431 S.E.2d 277 (1993) (citations omitted).

The Court finds Count IV of plaintiff’s Motion for Judgment is sufficiently pleaded to allege a cause of action for common law conspiracy. The Court overrules fee demurrer to Count IV.

Count V: Intentional Infliction of Emotional Distress

To recover damages under a claim of intentional infliction of emotional distress, fee plaintiff must plead fee following wife fee requisite degree of specificity: (1) defendant’s conduct is intentional or reckless; (2) the conduct is outrageous and intolerable; (3) the alleged conduct and emotional distress are causally connected; and (4) the distress is severe. See Russo v. White, 241 Va. 23, 400 S.E.2d 160 (1991).

The defendants’ argue the plaintiff failed to sufficiently allege the requirements for an intentional infliction of emotional distress claim. First, defendants contend the defendants’ conduct was not intentional or reckless because “every day, people are demoted or removed from positions in which they have invested a great deal of time, energy, and emotion.” Defs.’ Mem. in Supp. of Dem., p. 29. Second, defendants contend plaintiff’s allegations, taken as true, “simply suggest that the Individual Defendants treated the plaintiff improperly based on her political beliefs and political affiliation” and there is no “outrageous and intolerable” element Id. Third, defendants argue the plaintiff’s emotional distress is not severe.

The Court finds the plaintiff’s claim for intentional infliction of emotional distress is sufficient to withstand a demurrer. The plaintiff’s allegations do not constitute mere employment actions, but various actions to specifically interfere with plaintiff’s employment and ability to perform her contract because she was a “black Republican employee.” Pl.’s Mot for J., paragraph 82. Taking the plaintiff’s allegations as true, the Court finds that continually harassing a co-worker because of one’s race and political beliefs is outrageous and intolerable.

As to whether the plaintiff suffered severe emotional distress, plaintiff alleges she sought and received psychological and medical treatment as a result of the defendants’ actions. PL’s Mot. for J., paragraph 46. She also alleges a loss of income and employment opportunities. Thus, this Court can conclude that plaintiff’s allegation of the emotional distress is sufficient to satisfy the fourth element for a claim of intentional infliction of emotional distress.

Defendant Commonwealth argues that, under the doctrine of respondeat superior, the Commonwealth is not liable for its employees unless the plaintiff alleges facts demonstrating the employer ratified the alleged intentional acts of its employees. See Cain v. Commonwealth, 1997 WL 1070529 (Va. Cir. 1997). The Court finds that the plaintiff’s allegations fail to allege that die Commonwealth ratified such acts and thus sustains only defendant Commonwealth’s demurrer to Count V.

Count VI: Negligent Hire and Retention of Employment

In Southeast Apartments Management v. Jackman, 257 Va. 256, 513 S.E.2d 395 (1999), the Court considered both negligent hiring and negligent retention of an employee. See Jackman, 257 Va. 256, 513 S.E.2d 395 (1999). The liability of both these torts are predicated on whether the defendant knew or should have known that its employees would pose an unreasonable risk of harm to others.

Taking all of the plaintiffs allegations as true, the Court finds that Count VI is insufficient to withstand a demurrer. Specifically, the plaintiff fails to allege how the defendant Commonwealth knew or should have known that the defendants had “a long histoiy of inappropriate retaliation against those with differing political views.” Pl.’s Mot for J., paragraph 76. Simply stating that the defendant failed to adequately investigate defendant employees’ background is insufficient to withstand a demurrer. Therefore, the Court sustains the demurrer to Count VI.

Count VII: Title VII Violations

Plaintiff contends the individual defendants, as agents of the defendant Commonwealth, engaged in discriminatory conduct based upon her race and political affiliation. PL’s Mot. for J., paragraph 17. Defendants argue plaintiffs allegations arise strictly because of her political affiliation, which Title VII does not protect. Whether or not the defendants discriminated against plaintiff because she was black or because she was a Republican is a question for the finder of feet, not for the Court.

The Court finds plaintiffs factual allegations state a sufficient cause of action and therefore overrules the defendants’ demurrer.

Count VIII: Constitutional Claims

Plaintiff asserts a damages claim under 42 U.S.C. § 1983 for the deprivation of rights against the individual defendants for actions the defendants took under color of state law and not in their official capacities. PL’s Memo, in Op. to the Dem., pp. 5-6. Defendants claim that any actions were taken in their official capacities and they are therefore immune under 42 U.S.C. § 1983. Whether the defendants are entitled to qualified immunity is not a question for the Court at this stage on demurrer.

The defendants also argue the claims are time barred because of the two year statute of limitations for such claims. The plaintiff argues defendants’ conduct was serial and/or systematic, and thus a continuing violation. Plaintiffs Motion for Judgment alleges various actions by the defendants for which she provides no dates. See PL’s Mot. for J., paragraphs 27,28,29, and 33. Many of the alleged instances begin in 1996 and continue to the filing date of Hie Motion for Judgment. Any sort of serial or systematic pattern of alleged discrimination began in 1996. Therefore, the Court bars any alleged instances before 1996.

The Court finds that plaintiffs claims under 42 U.S.C. §§ 1981 and 1983 are factually sufficient to withstand a demurrer.

Count IX: Freedom of Information Act

Virginia Code § 2.1-346 details the proceedings when one is denied a request under tiie Freedom of Information Act Va. Code Ann., Title 2.1, Chapter 21 (Michie 2000). The Code states that a petition for mandamus or injunction, supported by an affidavit showing good cause, may be filed to proceed to enforce such rights and privileges. See id. The affidavit signals to the Court whether or not good cause exists. If the affidavit is not filed with petition, the Court is not in a position to evaluate and to enforce the petition for mandamus or injunction. Therefore, the Court finds that the plaintiffs claim under Count IX must be overruled for her failure to comply with the enforcement proceedings for Title 2.1, Chapter 21, of the Virginia Code.

Conclusion

In summary, tire Court sustains defendants’ statute of limitations plea with reference to statements uttered before November 3, 1997. It overrules tire demurrer to Count I of defendants Hayes’ and Diggs’s statements. The Court sustains the demurrer to all of Count n, Count VI, and Count IX. The Court overrules the defendants’ demurrer to Count HI, Count IV, Count V, Count VII, and Count VIII.  