Opinion
Civil Case No. 3:01CV302
October 12, 2001
Cathy B. Branch, Pro Se.
Steven L. Micas, Stylian Parthemos Wendell Charles Roberts (Chesterfield County Attorney's Office) for Defendant.
MEMORANDUM OPINION
This matter is before the Court by consent of the parties ( 28 U.S.C. § 636(c)(1)) on the Defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56. The Plaintiff, proceeding pro se, has alleged race and age discrimination as well as retaliation and a pendent claim of defamation in conjunction with the Defendants' refusal to employ her. Specifically, the Plaintiff alleges race discrimination in violation of Title VII of the Civil Rights Act and the Due Process and Equal Protection clauses of the Fourteenth Amendment (actionable under 28 U.S.C. § 1983) resulting from Defendant County's decision not to hire her for one of two initial job opportunities (Count I); age discrimination in violation of the Age Discrimination in Employment Act (ADEA) for the same activity involving an applicant over forty years of age (Count I); retaliation in violation of the First Amendment, Title VII, and the Equal Protection Clause due to the Defendant County not hiring her for a third available position after she pursued a related complaint before the Equal Opportunity Commission (EEOC) (Counts II and II); a pendent claim for defamation based on the allegation that a county official stated to a third party or parties that the Plaintiff had initiated litigation against the County with the EEOC (Count IV); and a claim against the Defendant County for allegedly destroying relevant documents in violation of the record-keeping requirements of Title VII (Count V).
For the reasons set forth herein, the Defendants' motions are GRANTED.
Standard of Review
Summary judgment is only to be granted when there is no genuine dispute as to any issue of material fact when all justifiable inferences are drawn in favor of the non-moving party and the movant is entitled to judgment as a matter of law. Celotex v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, unsupported conclusory allegations by the non-moving party are not sufficient to create a genuine dispute of material fact so as to withstand the granting of relief. Celotex Corp. v. Catrett, 477 U.S. at 327 (White, J., concurring). In essence, the Court must decide if the evidence when viewed in the light most favorable to the non-moving party "presents a sufficient disagreement to require submission to the [factfinder] or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. at 251-252.
Undisputed Material Facts and Justifiable Inferences
The Court deems the following to be the relevant and undisputed facts and permissible inferences on which the resolution of the pending motions must be based:
1. In August 1999 there were two vacancies in the Chesterfield County Department of Building Inspection's New Construction Section for full-time positions as customer service representatives. (Am. Compl., Exs. 15, 17; Defs.' Mem., Shearer Aff. ¶ 3).
2. These positions concerned new construction and required, among other things, employees to accept and coordinate applications for building permits, coordinate the scheduling of construction inspections between contractors and subcontractors and County building inspectors and, after the inspections are performed, to type the handwritten inspection notes of the County's inspectors into the Department's computer database. (Shearer Aff. ¶ 3).
3. There were sixty-seven applicants for the positions. (Id., Aff. ¶ 5).
4. A team of four individuals (Rebecca Summers, Customer Service Supervisor of the customer service representatives and three other employees) reviewed the applications and selected the six candidates to be interviewed for the positions. (Defs.' Mem., Summers Aff. ¶ 6).
5. The team was not authorized to hire the new customer service representatives; rather they were to make recommendations to the Defendant, Brenda Shearer, Chief of Administration for the Department, who was responsible for hiring. (Id. ¶ 7; Shearer Aff. ¶ 8).
6. The Plaintiff, a former customer service representative with the Permits and Inspections Bureau of the City of Richmond's Building Inspection Department, was among the six applicants selected to be interviewed. (Summers Aff. ¶ 5).
7. The Plaintiff submitted an application on which she indicated the Defendant could not contact her immediate post employer for a reference, even though it could contact another former employer. (First Am. Compl. (Am. Compl.) Ex. 10 at 3-5).
8. The Plaintiff had worked in the City's Building Inspections Department receiving and processing tenant/landlord complaints, performing property maintenance inspections, generating building code "notices of violation," and performing similar landlord/tenant inspection functions. (Id. ¶ 24).
9. The Plaintiff had some experience and specialized training "in new construction," including "development and updates of new codes which included the Virginia Uniform Statewide Building Codes (VUSBC for both New Construction and Existing Structures known as Volume I and II)" but the designated responsibility of her prior employment with the City involved Volume II Maintenance Code responsibilities concerning, by definition, existing structures. (Pl.'s Opp'n to Def.'s Mot. for Summ. J., Mem. in Supp. and Resp. (Pl.'s Opp'n) at 4; Exs. 10, 20).
10. Branch was interviewed on September 23, 1999, by Summers and by the three other members of the interview team. (Summers Aff. ¶ 6).
11. The interview team, Summers in particular, was concerned that the Plaintiff was overqualified and that they "could not check reference." (Am. Compl., Ex. 6).
12. The team recommended to Shearer that two applicants other than Branch be hired for the customer service representative positions: a forty-eight-year-old, white female (Olsen) and a thirty-year-old, white female (Farley). (Id.; Summers Aff. ¶ 7).
13. Shearer understood County policy to require prior employment references to be checked. (Am. Compl., Ex. 17 at 5).
14. Olsen and Farley were both already employed by the New Construction Section of the Department in a part-time capacity and each had been evaluated as having satisfactorily performed work similar to, if not the same as, the work that the full time customer service representatives were being hired to perform. (Id.; Summers Aff. ¶ 7).
15. Olsen and Farley were offered the positions on September 24 and 27, 1999, respectively. (Summers Aff. ¶ 8).
16. Olsen and Farley accepted the offers and began full time employment as customer service representatives on October 4, 1999. Within a few days after Olsen and Farley began their new jobs, two other members of the customer service staff announced that they would be taking leaves of absence. (Am. Compl., Ex. 17 at 5; Summers Aff. ¶ 9).
17. The Department decided to hire an additional replacement as quickly as possible because otherwise low staffing levels would prevent the Department from performing its work in a timely fashion. (Am. Compl., Ex. 17 at 5; Summers Aff. ¶ 10; Shearer Aff. ¶ 11).
18. In order to expedite the process, Shearer decided to hire a third person from the same applicant pool in which the Plaintiff was included because if a new applicant was hired from the same pool it would not be necessary to re-advertise the positions as otherwise required by county policy. (Shearer Aff. ¶ 11).
19. Summers indicated that the Plaintiff might be an acceptable candidate for the additional position. (Summers Aff. ¶ 10).
20. The Plaintiff was re-interviewed by Shearer and Summers on October 14, 1999, in order to determine if she would be a suitable replacement if authority to hire someone from the existing candidate pool was forthcoming. (Shearer Aff. ¶ 13).
21. During the interview, the Plaintiff was informed that county policy required a satisfactory reference from her most recent employer before she could be hired. (Id., ¶ 14; Summers Aff. ¶ 12).
22. The Plaintiff told Shearer and Summers during the interview when she was told they needed permission to contact her immediate past employer (the City) for a favorable reference that she doubted any reference would be satisfactory because she had been involved in an employment dispute or disputes and had been fired. (Shearer Aff. ¶¶ 14-15; Summers Aff., Ex. B).
23. The Defendant admits the Plaintiff made the statement in truthful response to the question asked. (Pl.'s Opp'n at 11-12).
24. The Plaintiff did not give permission at that time for her prior employer to be contacted for a reference, but she did the following day during a follow-up telephone conversation with Shearer who confirmed the need for "more information" by letter dated October 15, 1999. (Am. Compl., Ex. 16; Shearer Aff. ¶ 16).
25. Summers attempted to contact the particular person (Dyett Ellis) in the City Department to whom the Plaintiff had directed her, but she was unsuccessful in doing so and she left a message as to her request for a reference on the Plaintiff. (Summers Aff. ¶ 15).
26. Summers' standard procedure in checking on prior employment references was to ask the source "what they can about the person" and "if they would re-hire the person." (Am. Compl., Ex. 18 at 6).
27. When Summers still had not heard from the City in response to her message, Shearer consulted with her superior, the Defendant William Dupler (Dupler), who then attempted to call his counterpart in the City Administration (Claude Cooper). (Shearer Aff. ¶ 18; Defs.' Mem., Dupler Aff. ¶ 6).
28. Dupler was told by Pat Murphy, Cooper's chief assistant, that the City Attorneys' Office would have to be contacted about any reference involving the Plaintiff. Later, Cooper told Dupler without elaboration that the Plaintiff had performance problems while she was employed in the City Department. (Dupler Aff. ¶ 6).
29. Being unable to obtain the reference, Shearer wrote the Plaintiff upon instruction from the County Attorneys' Office and requested that the Plaintiff obtain a copy of her entire personnel file in lieu of the required reference. (Shearer Aff. ¶ 20).
30. Shearer requested the entire personnel file because she wanted "to verify Branch's knowledge, skills and ability to perform satisfactorily, in the position for which she applied" and because she was instructed to request the file by the County Attorney's Office. (Am. Compl., Ex. 4; Ex. 17 at 6).
31. Shearer had not requested an entire personnel file for any applicant on any prior occasion. (Am. Compl., Ex. 7 at 9).
32. The Plaintiff responded by forwarding Shearer selected documents related to her prior employment and training certifications that Shearer and Summers felt to be unresponsive, if not evasive. (Am. Compl., Ex. 18 at 6; Shearer Aff. ¶¶ 21, 22).
33. The Plaintiff subsequently wrote Shearer and objected to the disclosure of her personnel file on the mistaken belief that it was prohibited by law. (Am. Compl. ¶ 23; Compl. Ex. 12).
34. The Plaintiff requested on more than one occasion that the County use an employment verification form in communicating with the City, but the County persisted in its demand for the Plaintiffs entire personnel file. (Pl.'s Opp'n at 9-10 and referenced exs.).
35. The decision was made to hire temporary help to fill the position and a permanent replacement was not hired until June, 2001. (Shearer Aff. ¶ 23).
36. Handwritten interview notes regarding one of the applicants for the temporary position (Donna Campbell) were discarded without knowledge that the information needed to be retained on an approved form that was available. (Summers Aff. ¶ 21).
37. There is no evidence to suggest that the notes were purposely discarded to avoid any record retention requirement. (Id. ¶ 20).
38. The Plaintiff filed a complaint with the EEOC in January 2000 alleging racial discrimination and retaliation. (Compl. ¶ 11).
39. Dupler stated in a conversation with Cooper in the fall of 2000 that the Plaintiff had "filed suit against the County" with the EEOC. (Dupler Aff. ¶ 81).
40. One-half of the persons (three of six) hired by the same County department during the general time period before the Plaintiff applied for the subject positions (September 1998) to the time she filed her complaint with the EEOC (January 2000) were at least forty years-of-age at the time they became employed. (Summers Aff. ¶ 23; Ex. A).
The Court agrees with and therefore adopts with some modification the Defendants Statement of Uncontested Facts that was submitted in compliance with local rule for such a purpose. (Defs.' Mem. in Supp. of the Defs.' Mot. for Summ. J. (Defs.' Mem.), Ex. A).
ANALYSIS Race Discrimination Claims
The Plaintiff, an African-American, alleges that her federal constitutional and statutory rights were violated by the Defendants on the basis of racial discrimination when members of an unprotected class (white race) were hired by the Defendants for positions for which she asserts she was better qualified. (Am. Compl. (Compl.), Count I). The Plaintiff argues alternatively that such illegal activity that was committed by the individual defendants as state "actors" under "color of state law" violated her constitutional rights to due process and equal protection of the law so as to be actionable pursuant to 42 U.S.C. § 1983. Id. Whichever theory is utilized, an analysis must be conducted on the basis of the test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), because the Plaintiff does not assert that there is direct evidence of discrimination. See Spratley v. Hampton City Fire Dept., 933 F. Supp. 535, 539 (E. D. Va. 1996) (holding that Title VII race discrimination claims and § 1983 discrimination claims based on the Equal Protection Clause are analyzed using the sameMcDonnell Douglas test).Under the McDonnell Douglas test involving a failure to hire, a plaintiff must first establish a prima facie case of race discrimination by proving: (1) that the plaintiff is a member of a protected class; (2) that the plaintiff applied and was qualified for the position in question; (3) that despite being qualified, the plaintiff was not hired; and (4) the position was given to a member outside the protected class under circumstances that give rise to a reasonable inference of discrimination. If a plaintiff applicant is able to make the required prima facie showing, the burden of persuasion shifts to the defendant employer to articulate a legitimate, nondiscriminatory reason for declining to hire the plaintiff. EEOC v. Clay Printing Co., 955 F.2d 936, 941 (4th Cir. 1992). The burden then is placed back upon the plaintiff applicant to prove that any reason(s) provided are merely pretextual and the factfinder can consider any reason offered by the employer that it finds to be false as evidence of underlying discriminatory intent. Evans v. Techs Applications Serv. Co., 80 F.3d 954, 958-959 (4th Cir. 1996); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000).
Such a circumstance includes the employer continuing to seek applicants in the unprotected class after rejecting the plaintiff who have comparable qualifications to the plaintiff. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 508 (1993).
As an African-American, the Plaintiff is a member of a protected class. Defendants dispute that Plaintiff was qualified for the positions. However, the Court finds she was qualified for the minimum requirements of the positions because she was recommended by an initial screening process for further consideration. However, there is no genuine issue of disputed material fact as to the circumstances under which the Plaintiff was denied the positions that give rise to even an inference that the refusal to hire involved race discrimination and that the Defendant's explanation in rebuttal to any prima facie showing is merely pretextual.
See supra Undisp. Material Facts and Justifiable Inferences ¶¶ 3-8 (hereinafter Findings).
At the same time, that is not to say that the decision-maker could not conclude for nondiscriminatory reasons that other applicants were more qualified for the particular positions involved so as to justify their ultimate selection.
The Plaintiff specified on her application for the first two positions that her most recent employer for whom she worked for almost three years (April 1996 to February 1999) was not to be contacted for a reference. (Am. Compl., Ex. 10 at 3-4; Findings ¶¶ 7-8). At the same time, in the same application, she authorized contact with the only other employment references listed (Sacred Heart Center and a printing business) with whom she had been employed in unrelated capacities (bookkeeper/accounting clerk) no less than three and one-half to over four years before submission of her application for the positions. (Am. Compl., Ex. 10 at 4-6). The screening committee was concerned whether the Plaintiff had the particular experience and skills needed for the positions (not whether she was basically qualified) to the extent that concern was expressed that she may have been overqualified. (Findings ¶ 11). of particular and understandable concern was the Plaintiffs refusal to allow contact with her immediate past employer with whom she was employed for an appreciable length of time in a capacity that she asserts now (and presumably did then) made her more qualified than others for the positions. (Id.). The two individuals who were recommended for the two positions had been employed with the Defendant, even though briefly in one instance (Farley), and had been evaluated in their respective positions satisfactorily. They were therefore "known quantities" with the added advantage of knowing "in-house" personnel and procedures. (Findings ¶ 14). Clearly, such facts do not permit even an inference of discriminatory motive, and if there be any debate, it is conclusively resolved by the undisputed fact that the Plaintiff was recommended to be re-interviewed and was re-interviewed in regard to the additional position that then became available. (Findings ¶¶ 16-19). Obviously, such an opportunity would not have been afforded the Plaintiff if there was a scintilla of racial animus on anyone's part.
The Plaintiff's repeated reference to and reliance on a general authorization provision at the conclusion of the application in support of her argument that she did consent to having her immediate past employer contacted — contrary to the explicit directive in the section specifically addressed to the issue not to do so — is, at best, disingenuous and certainly not worthy of reliance.
The Plaintiff also asserts as part of her claims involving the denial of employment for the first two positions that she was denied due process because she was not given notice that an employment reference was required and she was not notified that she had been eliminated as a candidate. (Amend. Compl., ¶¶ 17, 19, 63). Suffice it to say, even aside from whether there is a basis to even make the claim about not being told about the necessity for an employment reference given the express provision in the application form, neither claim even approaches the realm of a constitutional deprivation so as to justify possible relief so that no further attention need be given either issue.
Age Discrimination
The Plaintiff also asserts that she was denied the positions because of her age. To prevail, she must first make a prima facie showing that (1) she is at least 40 years old; (2) that she applied for and was qualified for the subject positions; (3) that despite her qualifications, she was rejected; and (4) that she was rejected under circumstances that give rise to an inference of age discrimination such as the employer hiring someone outside her protected class (under forty) with less or comparable qualifications. McDonnell Douglas, 411 U.S. 792 (1973); Henson v. Liggett Group, Inc., 61 F.3d 270, 274 (4th Cir. 1995); Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 239 (4th Cir. 1982). As with the analysis of racial discrimination, the Plaintiff can satisfy several of the elements, but she cannot make even a prima facie showing of discrimination because she was not hired as a result of the County being unable to obtain a satisfactory past-employment reference. Perhaps more important is the undisputed fact that half of the employees in the particular section where the positions were located were over forty when they were hired during the relevant timeframe. Smith v. Flax, 618 F.2d 1062, 1066 (4th Cir. 1980); Findings ¶ 39. That circumstance alone sufficiently rebuts the allegation of age discrimination.
Retaliation
To sustain a claim of retaliation, a plaintiff must initially establish a prima facie showing that he or she was engaged in protected activity and suffered an adverse employment action for which there is a causal connection sufficient to conclude that the adverse action resulted from the protected activity. Hopkins v. Baltimore Gas Elect. Co., 77 F.3d 745, 754 (4th Cir.), cert. denied 519 U.S. 818 (1996). Even then, the defendant may present a legitimate, non-retaliatory explanation for its actions to defeat the claim if it is not demonstrated to be merely pretextual (by proving "both that the reason was false, and that (retaliation)was the real reason for the challenged conduct"). Beall v. Abbott Labs., 130 F.3d 614, 619 (4th Cir. 1997).
The Plaintiff asserts that she suffered retaliation in violation of the First Amendment, Title VII, and the Due Process as well as Equal Protection guarantees of the Fourteenth Amendment because the Defendant refused to hire her for a third available position after she pursued actions against the City alleging racial discrimination and retaliation. However, the undisputed facts and reasonable inferences that can be deduced from them demonstrate otherwise.
The Plaintiff's First Amendment claims are clearly insufficient just as they were in the different context of her earlier effort against her former employer related to the same series of events because the subject matter of any "speech" for which she seeks protection pertains to "matters of private, not public concern, that could not have any impact on the efficiency, discipline and proper administration of the workplace." Branch v. City of Richmond, 2001 WL 288583, at *1 (4th Cir. (Va.)) (unpublished) (citing cases); Connick v. Myers, 461 U.S. 138, 147 (1983).
Upon re-interview at the instigation of the Defendant, the hiring authority (Shearer) told the Plaintiff of what she understood in a good faith belief, whether right or wrong, to be the County's requirement for employment references and accordingly asked the Plaintiff why she had previously declined permission to contact her most recent employer as noted in her application for the initial positions. (Findings ¶ 21). In response, the Plaintiff admitted that she had not authorized inquiry because she had been involved in various employment disputes with the employer and had been terminated as a result so that she assumed any reference would be unfavorable. (Findings ¶ 22). Mention may also have been made that the nature of the "disputes" involved pursuing discrimination claims, including a formal complaint with the EEOC, but in any event the interviewers still pressed the Plaintiff for permission to pursue the matter. (Findings ¶ 24).
The Defendant insists that the session of October 14, 1999, when the Plaintiff met at their request with Summer and Shearer, was intended as only an opportunity for Shearer to meet the Plaintiff and decide if she could be a suitable candidate who could be considered without having to re-advertise the position and not a formal interview. However the Defendant characterizes the session, it was part of the sequence of relevant events and can provide the basis for asserting retaliation.
It is a reasonable inference from these undisputed facts that if there was a basic discriminatory motivation not to hire the Plaintiff, she would not have been invited back for the interview. The interview and whole sequence would have come to an abrupt conclusion by the time she reaffirmed her refusal to allow contact with her prior employer and the reason why, and no effort would have been made — let alone the very next day — to follow-up on the repeated requests for permission to contact the prior employer even after the Plaintiff continued to resist as of the end of the interview. (Findings ¶ 24). Thereafter, upon inquiry, Dupler was told by a representative of the prior employer that the Plaintiff had "performance problems" while employed and that any additional inquiries had to be directed to counsel which obviously suggested that formal action was involved even if such a circumstance was not explicitly expressed. (Findings ¶ 28). Yet, the Defendant's agents persisted and requested, on advice of counsel, that the Plaintiff consent to disclosure of her entire personnel file from the previous employer. In response, the Plaintiff forwarded selective materials that clearly did not address the legitimate issues and concerns that had been raised and the Plaintiffs effort was therefore understandably viewed as an unresponsive, if not evasive reaction. (Findings ¶ 32). The Plaintiff also firmly objected to disclosure of her personnel file and insisted that an available form be used to simply confirm the basics of her prior employment such as dates of employment and position held. (Findings ¶¶ 33-34). The Defendant did not utilize the form; however, it was not restricted to using just the form or asking only for the information it was designed to elicit. Rather, the Defendant could seek more detail as it wished through whatever legitimate means as long as it did not commit an adverse employment action based on protected activity. (Findings ¶ 34).
Counsel for the Defendant represented at oral argument on the motion that the reason the advice was given to obtain the entire file was for the benefit of the Plaintiff in order to determine if any adverse criticism by the prior employee was or was not justified. As logically appealing as such an explanation is, there is no evidentiary substantiation in the record for that explanation and therefore it cannot be considered as a factor, at least at this juncture.
Including contacting someone other than the person the Plaintiff had specified.
The Defendant was alerted that the Plaintiff had an undesirable experience with her prior employer and that the situation involved allegations of discrimination that the Plaintiff pursued as she was entitled to do without threat of retaliation by her present or future employer. At the same time, the Defendant had a pre-existing policy of checking employment references by seeking more information than just "name, rank, and serial number" and it had legitimate concerns whether the Plaintiff had the particular skills for the intended position. (Findings ¶ 26). It was therefore reasonable and appropriate for the Defendant to insist on a favorable reference from the Plaintiffs prior employment, especially since — as the Plaintiff herself urges — the prior employment was in an area of general relevance to the available position. (Pl.'s Opp'n at 3-5). Therefore, when the reference was not forthcoming for whatever reason and the Defendant went to the apparently unprecedented step of seeking access to the Plaintiff's personnel file which was rebuffed, there was nothing left for it to do. (Findings ¶ 29-31). Even then, the Plaintiff did not continue to seek applicants outside the protected class with comparable or less qualifications than the Plaintiff, it simply secured temporary assistance for an appreciable length of time before starting the process anew. (Findings ¶ 35). At the very least, even if the Plaintiff were able to meet her burden of establishing a prima facie case on the basis that there is at least a genuine dispute as to whether the Defendant failed to hire her because of the protected activity in which she had engaged, there is no genuine dispute, apart from the Plaintiff's self-serving conclusory allegations, that the Defendant's explanation of the non-discriminatory reasons for the adverse employment action is not pretextual.
Defamation
The final issue to be addressed concerns the Plaintiff's pendent claim that she was defamed by the Defendant agent's statement to a third party that she had "sued" the Defendant by pursuing an EEOC claim. (County IV). The thrust of the Plaintiff's charge appears to be that she was labeled as a trouble-maker for engaging in protected activity and that she was unable to find alternative employment as a result of the "rumor" of her protected activity being cast about. (County IV).
The issue regarding the destruction of documents (interview notes) in violation of record-keeping requirements of Title VII is readily resolved for the reason that such an act (that involved materials related to a third party, not the Plaintiff) does not provide the basis for a private cause of action; rather only the basis for injunctive relief by the EEOC. 42 U.S.C. § 2000(e)-8(c).
As pointed out by the Defendant: "It makes no difference whether a claim such as the one Branch filed with the EEOC is considered to be a "lawsuit" or not. Under Virginia law, a statement is considered true, and therefore not defamatory, if it is substantially true." (Def.'s Mem., n. 15 at 21) (citing authority).
To sustain a claim for common law defamation in Virginia, a plaintiff must demonstrate that a defamatory statement about her was made and published to a third party. LeMond v. Viamac, Inc., 2001 WL 660678, at *2 (Va.Cir.Ct. June 4, 2001) (holding where a plaintiff has alleged the statements that were made, by whom, to whom., and when, he has sufficiently pled the facts informing the defendant of the nature and character of the claim). In this case, the Plaintiff complains that Dupler defamed her by stating to Cooper at a meeting of the State Department of Housing and Community Development in October of 2000 that Plaintiff was "suing Chesterfield County." (Compl. Ex. 12, Dupler Aff. ¶ 8). The Plaintiff has satisfied the element of sufficiently alleging and establishing by undisputed fact the publication of a statement and the issue is therefore whether the statement was defamatory.
Under Virginia law, there is no distinction between libel (written defamation) and slander (oral defamation). Fleming v. Moore, 221 Va. 884, 889, 275 S.E.2d 632, 635 (1981).
Plaintiff had lodged a complaint with the EEOC. (Findings ¶ 38).
An accusation of litigiousness may constitute defamation if it "`make[s] the plaintiff appear odious, infamous, or ridiculous,'" however "[m]erely offensive or unpleasant statements are not defamatory." Fuller v. Edwards, 180 Va. 191, 22 S.E.2d 26 (1942). For the purposes of the motion to dismiss, it is undisputed that Dupler made this statement and it is undisputed that Plaintiff had filed an EEOC complaint. In this context, Dupler's statement does not make Plaintiff appear odious, infamous, or ridiculous. In fact, to state a true fact that Plaintiff was engaged in an action against the County in front of the EEOC does not even rise to the level of offensive or unpleasant to the reasonable person. Therefore, the claim of defamation in Count IV is meritless.
Conclusion
For the foregoing reasons, the Defendant's motion for summary judgment is GRANTED and the case is DISMISSED.
It is so Ordered.
ORDER
This matter is before the Court on the Defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons set forth in the accompanying Memorandum Opinion, the motion is hereby GRANTED and the case is DISMISSED.
Let the Clerk forward a copy of this Order and the accompanying Memorandum Opinion to all counsel of record.
It is so Ordered.