Shirley Shaheen v. Wellpoint, Incorporated, No. 11-2317 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-2317 SHIRLEY SHAHEEN, Plaintiff Appellant, v. THE WELLPOINT COMPANIES, INC., d/b/a WellPoint, Inc., Defendant Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, District Judge. (3:11-cv-00077-JRS) Submitted: May 17, 2012 Decided: August 3, 2012 Before AGEE, DAVIS, and DIAZ Circuit Judges. Affirmed by unpublished per curiam opinion. Richard F. Hawkins, III, HAWKINS LAW FIRM, PC, Richmond, Virginia, for Appellant. Karla Grossenbacher, Taron K. Murakami, SEYFARTH SHAW LLP, Washington, D.C., for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: After her termination, Shirley Shaheen filed suit against her former employer, alleging defamation in the context of her termination. The district court entered summary judgment in favor of Shaheen s employer and denied as moot her motion to compel production of certain privileged documents. For the reasons that follow, we affirm. I. A. Shaheen ( WellPoint ) in October 2010. WellPoint's of The capacities WellPoint from Companies March 2004 until In March 2006, Shaheen was named a manager of quick insureds for various NurseLine, provide and a 24/7 immediate Anthem subsidiary). responsible worked Blue call-in advice Cross for supervising from Blue Appellant s Br. 5. operation nurse Shield designed to associates to (a WellPoint As a manager, Shaheen was approximately twenty NurseLine associates. Shaheen remained in this position until October 15, 2010, when she was leading her termination to incident associate. between terminated Shaheen by began and WellPoint. with Linda a The September Taylor, a chronology 11, 2010 NurseLine According to Shaheen, she asked Taylor to switch to 2 a cubicle with a Click to Talk extension, a call feature that Taylor needed to perform her job. Taylor protested, responding I don t understand why the hell I have to move, and adding that after previously using a cubicle not equipped with Clickto-Talk, why the hell is it so important that I move now? J.A. 315. The exchange continued. Ultimately Shaheen asked, [I]s it really an ordeal to move?, and according to Shaheen, Taylor responded, [I]t f-king is. Shaheen subsequently Id. participated in a previously- scheduled online conference with other NurseLine managers and WellPoint personnel, NurseLine, and representative Lohmeyer advised of termination. Whitney for her Shaheen including Kelli Ingle, the NurseLine. encounter that WellPoint Shaheen with this Lohmeyer, Taylor. behavior Human informed of Resources Ingle and Ingle Lohmeyer grounds was and for Taylor's To this end, Ingle and Lohmeyer instructed Shaheen to submit a written description of the incident. Shaheen, Director Ingle specifically what the curse words were. requested Id. 81. a According to statement regarding Shaheen s subsequent memo indicated that Taylor responded in a verbally hostile matter, used the f-word, associates Tammy incident. and DeGroft that at and least Pamela Id. 149. 3 two other NurseLine Roepke witnessed the In response to Ingle s instruction, Shaheen and Barbara Wetzler, another NurseLine manager, informed Taylor that she was being terminated based on during the September 11 incident. prepared for Ingle summarizing her behavior and language According to a memo Shaheen the conversation with Taylor, Taylor felt that she did nothing wrong, she did not curse, was Id. 155. not hostile and was not inappropriate. memo again mentioned least associates, two that the incident identifying was DeGroft Shaheen s witnessed and by Roepke, at and noting that both associates were standing with [Taylor] and I [sic] when the incident occurred. Id. And Shaheen added that three other associates including Charlyn Harrison were also on the unit in [the] area to potentially [Taylor s] comments and behavior. overhear and see Id. Days later, Taylor contacted Ingle to challenge her termination, insisting that she never used the f-word during her exchange with Shaheen. In light of Taylor s protestations, Ingle and Lohmeyer opened an investigation into the incident. Initially, they contacted the witnesses identified in Shaheen s memo including DeGroft, Roepke, and Harrison asking if they had overheard or seen anything inappropriate. Id. 458. These witnesses, however, were unable to confirm that Taylor used the f-word. In fact, Harrison stated that she was not at work when the incident occurred. Unable to confirm the details of 4 the alleged incident via Shaheen s asserted witnesses, Ingle and Lohmeyer scheduled a meeting with Shaheen. During their meeting with Shaheen, Ingle and Lohmeyer requested a verbatim account of the incident, specifically asking about Taylor s cursing and why no other employees heard the exchange. Shaheen responded that although she could not say why no one overheard Taylor s words, Shaheen never said that she and Taylor were yelling. Apparently dissatisfied with Shaheen s responses, at a meeting on October 15, 2010, Ingle and Lohmeyer terminated Shaheen. Explaining the decision, Ingle and Lohmeyer indicated that they felt that Shaheen had misrepresented the severity of the situation between her and Taylor. Id. 326. Specifically, they emphasized that they had to prompt [Shaheen] four times before Shaheen restated that Taylor used the fword. Id. In Shaheen s personnel file, misconduct was noted as the reason for termination. Id. 437. B. Shaheen filed a diversity action alleging defamation and defamation compensatory and per se punitive against WellPoint, damages. 1 1 Shaheen and requesting challenged the Shaheen s complaint also included a breach of contract claim that was subsequently dismissed and is not challenged on appeal. 5 following six statements: during the October (1) Ingle and Lohmeyer s statements 13 and 15 meetings that Shaheen misrepresented and lied about the facts related to the incident with Taylor; (2) Ingle and Lohmeyer s statement during the October 15 meeting with Shaheen that she misrepresented the severity of Taylor's conduct; (3) a note in Shaheen s personnel file that she was terminated for misconduct ; (4) a that Shaheen violated WellPoint's ethics statement policy by misrepresenting facts related to a company investigation; (5) Lohmeyer's statement in an email to Ingle that Shaheen did not offer any alternatives to terminating Taylor; and (6) Lohmeyer's statement in an email to Ingle that Shaheen decided to Shaheen v. terminate, or recommended termination for, Taylor. WellPoint Companies, Inc., No. 3:11 CV 077, 2011 WL 5325668, at *2 (E.D. Va. Nov. 3, 2011). WellPoint moved responding in opposition. for summary judgment, with Shaheen Shaheen subsequently moved to compel the production of documents related to WellPoint s investigation of the incident, including communications between WellPoint employees and counsel, and to reopen the depositions of Ingle and Lohmeyer. The district court found that the statements were protected by a qualified privilege that Shaheen had not defeated and therefore, that Shaheen failed to show the existence of a genuine dispute as to whether the challenged statements were 6 defamatory or defamatory per se. Id., 2011 WL 5325668, at *6. Accordingly, the district court granted WellPoint s motion for summary judgment and denied Shaheen s motion to compel as moot. Shaheen timely appealed. II. We review the district court s grant of summary judgment de novo, viewing the facts and drawing all reasonable inferences therefrom in the light most favorable to the nonmovant. PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d 111, 119 (4th Cir. 2011). Summary judgment is proper only if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. district court s denial of a motion to Id. compel We review the discovery for Lone Star Steakhouse & Saloon, Inc. v. abuse of discretion. Alpha of Va., Inc., 43 F.3d 922, 929 (4th Cir. 1995). III. A defamation action under Virginia law requires (1) publication, (2) requisite intent. Va. 1992). defamatory. of an actionable statement, and (3) the Chapin v. Greve, 787 F. Supp. 557, 562 (E.D. To be actionable, a statement must be both false and Id. Defamatory statements must be more than merely unpleasant or offensive; rather, they must make the 7 plaintiff appear odious, infamous, (internal quotation omitted). or ridiculous. Id. Certain statements are considered defamatory per se, including those that impute an unfitness to perform the duties of a job or lack of integrity in the performance of duties, or prejudice the party in her profession or trade. Echtenkamp v. Loudon County Pub. Sch., 263 F. Supp. 2d 1043, 1061 (E.D. Va. 2003). In the context of a defamation action, Virginia recognizes a qualified privilege for [c]ommunications between persons on a subject in which the persons have an interest or duty. 2 Larimore v. Blaylock, 528 S.E.2d 119, 121 (Va. 2000). The qualified privilege, however, is lost if a plaintiff proves by clear and convincing evidence that the defamatory words were spoken with common-law malice. 805, 808 (Va. 1991). Smalls v. Wright, 399 S.E.2d To defeat the privilege, a plaintiff must 2 As noted by the district court, the publication element of a defamation action requires dissemination of the statement to a third party in a nonprivileged context and [i]n this regard, it is well settled . . . that communications between persons on a subject in which the persons have an interest or duty are occasions of privilege. Shaheen, 2011 WL 5325668, at *4. (quotation and alteration omitted). In concluding that Shaheen could not defeat WellPoint s qualified privilege, the district court determined that WellPoint was entitled to summary judgment on Shaheen s claims of defamation and defamation per se. See Food Lion, Inc. v. Melton, 458 S.E.2d 580, 584 (Va. 1995) (noting, in the context of a claim of defamation per se, that in addition to proving negligence, a plaintiff further must prove that there was publication of the defamatory words ) (emphasis added). 8 show that the communication was actuated by some sinister or corrupt motive such as hatred, revenge, personal spite, ill will, or desire to injure the plaintiff, or what, as a matter of law, is equivalent to malice, that the communication was made with such gross indifference and recklessness as to amount to a wanton or wilful disregard of the rights of the Southeastern Tidewater Opportunity Project, Inc. v. plaintiff. Bade, 435 S.E.2d 131, 132-33 (Va. 1993). Shaheen statements at does least not seriously initially are dispute covered that by privilege, and we readily conclude that they are. the qualified See Larimore, 528 S.E.2d at 121 (noting that Virginia courts have applied the privilege in a number of cases involving defamatory statements made between co-employees employee disciplinary however, the or existence of and employers discharge a in the matters ). genuine dispute course She on an of asserts, issue of material fact as to whether WellPoint lost the privilege through its malicious actions. Specifically, she argues that WellPoint lost the privilege via its (1) reckless disregard for the truth in terms incident, of (2) its gross[ly] use of deficient investigation disproportionate and/or of the exaggerated language when describing the facts it believes supported its defamatory statements, and (3) lack of reasonable cause or belief for believing the allegations 9 against Shaheen to be Appellant s Br. 34, 36 (citing Great Coastal Exp., Inc. true. v. Ellington, 334 S.E.2d 846, 853-54 (Va. 1985)). We find that Shaheen fails to raise a genuine dispute on the issue of WellPoint s alleged malice. conducted an investigation of the Ingle and Lohmeyer incident in response to Taylor s challenge to her termination, including her denial of using the f-word. This investigation included interviews of Shaheen and all associates identified by Shaheen as witnesses or potential witnesses. Shaheen s attempts to discredit the investigation as grossly inadequate, Appellant s Br. 3, are themselves lacking. if the For example, Shaheen argues that in asking associates inappropriate, J.A. had 458, overheard rather than or seen anything specifically inquiring about the f-word or about Taylor, Ingle and Lohmeyer failed to ask the right questions, Appellant s Br. 36. As Ingle explained, however, it is her practice not [to] ask leading questions when . . . conduct[ing] an investigation. I wanted to get open and honest answers about . . . what they may or may not have observed. J.A. 458-59. In another example, Shaheen asserts that Ingle did not include in her talking points with Shaheen that DeGroft said that Taylor was talking loudly, was agitated, and left at some point and did not hear the end of the conversation. doing, Shaheen argues that Ingle 10 "downplayed" and In so "omitted" certain facts supportive of Shaheen's account. 18-19. Appellant s Br. While it is true that DeGroft indicated that she heard Taylor speaking loudly (adding that Taylor often spoke at a similar volume), J.A. 410, Taylor was not terminated for raising her voice, word, id. but predominantly 444. And on for this allegedly point, using DeGroft the offered fno corroboration for Shaheen s version of events. WellPoint s investigation stands in contrast to the incomplete or nonexistent investigations in the cases on which Shaheen relies. See, e.g., A.B.C. Needlecraft Co. v. Dun & Bradstreet, 245 evidence nothing Inc., that more F.2d defendant to go on 775, 777 published (2d than a Cir. 1957) (finding false information misunderstood casual with remark, with no effort to verify the facts, though to have done so would have been a simple matter was clearly sufficient to support a [jury] finding that the defendant acted in wanton and reckless disregard of the plaintiff's rights (emphasis added)); Wirig v. Kinney Shoe Corp., 461 N.W.2d 374, 380 (Minn. 1990) (rejecting claim of qualified privilege where no investigation occurred to substantiate the charges that [the terminated plaintiff- employee] had stolen merchandise, but rather [t]he managerial personnel who repeated the accusations simply believed sources without further investigation (emphasis added)). 11 their The investigation that led to Shaheen s termination did not suffer from the same failings and thus, Shaheen has failed to raise a genuine dispute on an issue of material fact sufficient to Accordingly, we ruling. 3 defeat affirm WellPoint s the district qualified court s privilege. summary judgment See, e.g., Taylor v. CNA Corp., 782 F. Supp. 2d 182, 202-03 (E.D. Va. 2010) (granting summary judgment to defendants on defamation claim where plaintiff asserted malice but the record provides no basis for a reasonable jury to make such a conclusion by th[e] elevated [clear and convincing] standard ). IV. Shaheen further contends that the district court erred in denying her motion to compel as moot. Having reviewed the record and considered Shaheen s argument, we find no abuse of discretion and affirm. See Lone Star, 43 F.3d at 929 (observing that we afford[] a district court substantial discretion in managing discovery ). 3 Because we affirm the district court s conclusion that WellPoint was entitled to summary judgment based on its qualified privilege, we do not address Shaheen s additional argument that the court erred in suggest[ing] that the challenged statements were not defamatory per se. Appellant s Br. 39. 12 Moreover, even were we to conclude that the district court erred, any error was harmless. sought to compel attorney-client production privilege, of but Shaheen concedes that she documents argues that warranted under the at issue doctrine. the at-issue exception to the protected by the disclosure was According to Shaheen, attorney-client privilege applies because (1) the privilege was asserted as a result of some affirmative act by WellPoint; (2) through the affirmative act, WellPoint put the protected information at issue by making it relevant to the case; and (3) application of the privilege would deny Shaheen access to vital information. See Billings v. Stonewall Jackson Hosp., 635 F. Supp. 2d 442, 446 (W.D. Va. 2009). We disagree, as WellPoint never counsel as an affirmative defense. Lohmeyer indicated that or asserted advice of Indeed, neither Ingle nor they relied on in making advice the of alleged counsel terminating Shaheen, statements. Thus, the at issue doctrine does not apply. in defamatory See, e.g., Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 863 (3d Cir. 1994) ( Advice is not in issue merely because it is relevant . . . . The advice of counsel is placed in issue where the client asserts a claim or defense, and attempts to prove that claim or defense by disclosing or describing an attorney client communication. ); Billings, 13 635 F. Supp. 2d at 446 ( [Defendant] does not assert the defense of advice of counsel in this case; thus, the narrow at-issue exception does not apply. ); Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wa. 1975) (noting that cases finding a waiver of attorney-client privilege share a common denominator in that the party asserting the privilege placed information protected by it in issue through some affirmative act for his own benefit ). V. For the foregoing reasons, we affirm the judgment of the district court. facts and materials legal before We dispense with oral argument because the contentions are adequately the and argument court presented would not in the aid the decisional process. AFFIRMED 14
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