Dragulescu v. Virginia Union University et al, No. 3:2016cv00573 - Document 30 (E.D. Va. 2016)
Court Description: MEMORANDUM OPINION. It is so ORDERED. Signed by District Judge Robert E. Payne on 12/08/2016. (walk, )
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Dragulescu v. Virginia Union University et al Doc. 30 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division IL DEC - 9 20!6 LUMINITA DRAGULESCU, PH.D., Plaintiff, v. Civil Action No. 3:16cv573 VIRGINIA UNION UNIVERSITY, et al., Defendants. MEMORANDUM OPINION This matter is before the Court on the MOTION TO DISMISS COUNT III OF THE FIRST AMENDED COMPLAINT No. 14) , ("Def. Mot."), filed by Defendants Virginia Union University, Davis, Ph.D., and Michael E. Orok, Ph.D. (ECF Evelyn ("Defendants"). For the reasons set forth below, the Defendants' motion will be granted. BACKGROUND A. Relevant Facts 2012, In Dragulescu, Luminita Plaintiff Ph.D., ("Dragulescu") was hired to be an Assistant Professor of English in the Department Virginia Social Union Sciences. of Languages University's (Am. and ("VUU") Comp!. CJ!CU 12, Literature School 17) . of She of Defendant Humanities served in and that position from 2012 to 2015, accepting renewed one-year offers of employment each year during that time. Id. Ph.D. Defendant Eva Davis, ("Davis"), served as Chair of the Languages and Literature Department until 2013. (Am. Compl. <JI 20}. Defendant Michael E. Dockets.Justia.com Orok, Ph.D. Humanities Compl. <JI ("Orok"), became Dean of the University's School of and 19). Social Sciences in the summer During her employment at VUU, that Davis and Orok, (Am. 2014. Dragulescu alleges acting as agents of VUU, defamatory statements" in, of and in relation to, made "false and a "disciplinary letter" authored by Davis in 2013 and through written and verbal comments allegedly made in relation to a "Student Paper Comments Incident" in May of 2015. (Am. Compl. <JI<JI 101-102) . She further alleges that these defamatory statements were "published [again] in October 2015 in such a manner as to create an entirely new publication of those statements." (Am. Comp. The first Complaint, alleged occurred in defamation, the fall of <JI 103). according 2013. to (Am. the Comp. Amended <JI 24). According to Dragulescu, it was then that she received a "harshand totally unfounded-disciplinary letter from her then-Chair, Dr. Davis." Id. The letter reads: Dear Dr. Dragulescu, In your first year in the department of Languages and literature, I attempted to work with you and tried to see your issues with the students and you 1 re [sic) not getting involved with the department as a learning curve. I tried to encourage you in your frustrations and felt that you would have become comfortable with the University, the department, and the students your second year. I was clearly mistaken, so this letter is to serve as a second warning regarding your behavior/conduct as it pertains to your actions in the department since the beginning 2 of the summer/academic year 2013-2014. For the record, your first letter dated May 22, 2013, was issued as a result of the deceptive scores you assigned the second reading of the diagnostics you were assigned to read. The specific issues in this letter are: failure to participate in the Constitution Day program held September 17, 2013; your attempt to undermine the department by speaking disparagingly to new faculty about the department and other faculty in the department, your "tantrum" in the hall when you found that your LC class could not be taught again until fall 2014, your failure to take the Aplia training and lastly, your inappropriate language used Friday regarding the Aplia training; you were overheard calling it ''f--ing bulls-t." Clearly, this is beyond acceptable. You were sent the link after you did not participate in the Webinar and as of yesterday, you still had not been on the website. Additionally, you sent our Cengage Representative an email and asked her about contacting someone about the "offensive misuse of your name twice." You could have informed the Representative of the correct spelling of your name without the provoking comments. The department has work [sic] to establish credulity [possibly sic] with this publisher, and if something like this happens again, please let me or the Admin Asst. know and we will get it corrected. While I realize that you had a doctor's appointment on September 17, 2013, you were in control of when you the appointment, and even though you were not there, you should have asked for participation from your students. I understand that you also disparaged the program as being an embarrassment and that you would not participate. You teach American Literature and the request I made was not unreasonable. Need I remind you that this is a HBCU and we are proud of our heritage; instructors, [sic] who elect to teach here must understand 3 mission and our heritage in order to convey information in a credible way. You have sent students to see me about inappropriate outburst [sic) in your class; what message did you send by ranting because you could not have your way? Faculty and students were present when you had the outburst. Lastly, we attempt to teach students to aspire to more sophisticated vocabulary in an attempt to verbalize their frustrations, and your use of profanity is unacceptable on any level. I have been on the other end of your vitriolic emails, the one you wrote regarding the book selection and the one about Aplia and I will not revisit this issue again. [sic) When I assign faculty to take training or participate in programs that enhance student learning, I expect the request to be fallowed; you were hired to help build the department and not to surreptitiously undermine its morale. I can only hope that you exercise better judgment in the future and that you will make a genuine attempt to become a better colleague by working with and not against the department. Sincerely, Eve Davis, Ph.D., Chair The Department of Languages and Literature (Def. Mot., Attach. Linda Schlichting Dragulescu' s A 1-2). The letter was (who preceded Orok as internal personnel file. also sent to Dean Dean), (Am. and placed Comp!. in '11 24} • Dragulescu alleges that the letter contained ''no factual basis whatsoever," and was instead issued 4 as a way of showing the 'white' professor [Dragulescu] who was in charge in the Department (i.e., the 'black' Chair) . " (Am. Comp!. '.ll 27) . According to the Complaint, letter be rescinded, and she Schlichting ordered that this sent a memorandum to Davis explaining that such letters should not be sent to an employee's personnel file. (Am. '.ll'.ll 2 8-30) . 1 Dragulescu alleges that Comp!. Schlichting advised Davis that the letter was "unwarranted and outside protocol," and that Schlichting told "actions were much more harsh than others Davis [sic] that her actions in the past, and where issues with faculty were much more serious." Id. Dragulescu further claims that Davis responded to this memorandum by issuing an "ultimatum" to the Vice-President of Academic Affairs at the time, ("VPAA"} Julius Scipio, Ph.D., to either fire Dragulescu and another employee or she would resign. (Am. '.ll Comp!. 33). Following the alleged ultimatum, defamation occurred Davis resigned in 2013. Id. The 2015, next and alleged involved instance a of written memorandum sent by in May Orok to Dragulescu regarding a "Student Paper Comments Incident." On May 4, 2015, Dragulescu interim Chair at the met with time, Orok and to discuss parent of one of Dragulescu' s a Shannan Wilson, complaint made the by a students about conunents made by 1 Dragulescu describes Schlichting' s memorandum and quotes from it extensively, but the letter is not part of the record and has not been attached to any of the pleadings. 5 Dragulescu on her Dragulescu to "apologize about conunents," her son's but paper. to At both she that the meeting, student "politely The forms Orok following the day, basis (hereinafter Orok of sent Dragulescu Dragulescu' s charge "Orok Memorandum" or and refused apology to either the parent or the student." (Am. the of Orok "asked" the to given Comp. '11 memorandum defamation This memo is sent regarding the meeting that you, your department chair, Ms. Shannan Wilson and I had in my office on May 4, 2015 regarding [STUDENT NAME OMITTED], a student in your English 102-01 course at Virginia Union University. [STUDENT] reported to his advisor Dr. Julie Molloy that you used language that were [sic] condescending as you graded his paper. I was also presented with the original student essay with your comments which included such words as 11 "ridiculous "ignorant" etc. These conunents have currently triggered serious concerns by [STUDENT's] mother. She is very upset and is desirous of a solution. I offered you various options for abating this situation before it spiraled out of control. The options included apologizing to the parent etc. You refused to comply. You were additionally non cooperative regarding any options that I offered for remedying the situation, recognizing that this was not the first time that students complained about your aberrant and negative behavior in the class. Clearly, you demonstrated an uncaring attitude and disregard for the repercussion that would accompany your demeanor. an 4 2) . that against "the memorandum") . body of the memorandum reads: 6 parent The I am, therefore reminding you that your refusal to follow my instructions is appropriate [sic] and amounts to insubordination, subsequent actions such as this will not be tolerated. As your Dean, I am responsible for upholding the reputation, and image of the University, among other things and ensuring that what we do support [sic] our efforts. Your continuous refusal to follow administrative directions is professionally irresponsible and may lead to additional personnel actions. {Def. Mot., Attachment Institutional B The 1-2). Effectiveness and Assistant Vice-President for listed as Senior Vice-President Program Academic carbon copy recipients Development Affairs were and for the apparently of the memorandum. Id; see also Am. Compl. en 50. The defamation alleged in that memorandum appears to be the assertion that {rather than mother. a Dragulescu request) Dragulescu also disobeyed to an apologize emphasizes instruction to {but the student does not sentence from the memorandum that "your comments . such words as "ridiculous" "ignorant" etc." or {Am. command and his quote) the . included Compl. c.nc.n 4 5- 47). Dragulescu argues that the letter "falsely indicat[ed] that Dr. Dragulescu had called the student "ridiculous" and ''ignorant. " (Am. Compl. en 4 5) • 2 2 Dragulescu admits to writing ""that's a ridiculous statement. How could you support it?! ! " in one section of the paper, and '' [ t l his shows your ignorance on the topic" in another. (Am. Comp 1. c.n 4 6) . 7 After receiving grievance letter President of challenging the (to the which VUU various Orok Memorandum, she Faculty actions attached Senate, taken Oragulescu Orok' s Peter against memo) Sutton, her, sent to a the Ph.D., including the Orok memo and a subpar (2.5/5) performance evaluation (Am. Comp. <JI<JI 54-59}. As part of the grievance process, formed a Committee (in May of 2016) the Faculty Senate which eventually met with the parties involved on June 16, 2016. (Am. Compl. 60-61). On <JI<JI June 30, Dragulescu met with the new Vice-President of Academic Affairs, Zakir Hossain, Ph.D., and "provided the documentation at issue." (Am. Compl. On hearing September on 2015, Dragulescu's September 18, resolution 16, 2015, the grievance. with all of 63). <JI full [her] Faculty (Am. Senate Compl. <JI held 64). a On the Faculty Senate voted unanimously for a recommending that the Orok Memorandum be stricken from Dragulescu's record and that she receive a new performance evaluation. (Am. Comp!. 65). <JI On September 25, sent Oragulescu a copy of the Senate Resolution. 2015, (Am. Hossain Compl. <JI 66}. On October 13, Dragulescu wrote Hossain an email asking him for an update, and "expressed her dismay on hearing, again, that there are rumors across the VUU campus that she calls students 'ignorant.'" (Am. Compl. get back to her soon. <JI (Am. 67) . Hossain Compl. c.!168.) 8 replied that he would Dragulescu asserted for the first time at oral argument that these "rumors" were actionable events of defamation attributable to Orok. On October 15, as its President. Hossain had 2015, (Am. the Faculty Senate re-elected Sutton Comp. received CJI new 69) . Sutton then announced that evidence Dragulescu's insubordination, from Davis concerning and that he therefore had decided that the Orok Memorandum would remain in Dragulescu's file. Id. The Faculty Senate drafted a letter in response to this decision standing by its original resolution, to the VUU administration (Arn. which Sutton in turn sent Comp!. CJI'Il 7 0, 7 5) . Dragulescu responded by requesting access to the new information, which she received the next business day. (Am. Compl. package of evidence contained the Davis letter 'IlCJI 73-74). (from 2013), The as well as attendance sheets from the VUU writing center "marking absences Comp!. CJI and tardies" that Dragulescu "had accumulated." (Am. 77) . According to Dragulescu, this series of events in October 2015 (as well as the circulating "rumors") constituted, "as part of the continuing grievance process," "an entirely new publication" of the allegedly defamatory statements of both Orok and Davis. these (Am. Comp. statements were CJI 103). made She also alleges that each of "intentionally, willfully, and maliciously." (Am. Comp!. 'Il 108). Finally, in the last paragraph of her Amended Complaint, Dragulescu 9 alleges that, '\in April 2016, Dr. Orok told a then-VUU employee that Dr. Dragulescu was a 'white trailer trash whore' that she falsely was claiming improper (Am. an he encounter Comp!. alleged having a affair with witnessed between '.lI 108) . as and even spread the false rumor That component of the Dr. another aftermath Dragulescu alleged the VUU of professor, an alleged and her colleague." statement, defamation however, is claim presented not in Count III. B. Procedural History The original complaint in this action was filed on July 7, 2016 (ECF No. 1). The Defendants filed an Answer {ECF No. August 24, 2016, as well as a Motion to Dismiss 4) on Count III {Defamation) on the grounds that it failed to state a claim and that it was barred by the statutes of limitations On August 19, 2016, the Plaintiff filed {ECF No. 6). an Amended Complaint against the Defendants (ECF No. 10) with new allegations related to the limitations period. Responding to this Court's order (ECF No. 11) Amended Answer to file Complaint (ECF No. any answer by October 16) on or motions 11, October the 6, with respect Defendants 2016. The to the a new day, the filed same Defendants filed this MOTION TO DISMISS COUNT III OF THE FIRST AMENDED COMPLAINT ('\Def. PLAINTIFF'S MEMORANDUM DISMISS ("Pl. Resp.") IN Mot."} {ECF No. OPPOSITION TO 14) . Dragulescu filed DEFENDANTS' MOTION TO on October 24, 2016 {ECF No. 19). A REPLY 10 MEMORANDUM OF DEFENDANTS IN SUPPORT OF MOTION TO DISMISS COUNT III OF THE FIRST AMENDED COMPLAINT November 7, 2016 (ECF No. heard on November 21, ("Def. Reply"} was filed on 25). Oral argument on the motion was 2016 (ECF No. 22), and the· motion is now ripe for adjudication. LEGAL STANDARDS A. Challenging the Sufficiency of the Amended Complaint Fed. R. Civ. Pro 8 "requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, quotation marks and citation omitted}; v. Maryland Dep' t of Transp., 555 (2007) (internal see also McCleary-Evans State Highway Admin., 780 F. 3d 582, 585 (4th Cir. 2015) . As the Supreme Court has recently made clear, this rule "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. contain "sufficient factual matter, Instead, a complaint must accepted as true, to 'state a claim to relief that is plausible on its face,' " such that it allows the defendant Igbal, Twombly, "court is 556 to liable U.S. draw for 662, the reasonable the misconduct 678 550 U.S. at 570). (2009) inference alleged." (emphasis that Ashcroft added) the v. (quoting In determining whether the plaintiff 11 has met its burden under Twombly and Igbal, the Court must "accept the facts alleged in the complaint as true and construe them in the light most favorable to the plaintiff." Coleman v. Maryland Court of Appeals, 626 F.3d 187, 189 {4th Cir. 2010). Typically, inquiry into a motion pursuant to Rule 12 {b) {6) the legal sufficiency of the "invites an complaint, not an analysis of potential defenses to the claims set forth therein." Brooks v. Cir. the City of Winston-Salem, 1996). Nevertheless, allegations of the complaint Richmond, Fredericksburg & Potomac R. 1993). may be give the (4th Cir. 85 F.3d 178, 181 (4th "[i]n the limited circumstances where defense, 250 defense N.C., raised rise to an affirmative under Rule Co. v. Forst, In reviewing such a motion, 12(b) {6) ." 4 F.3d 244, the Court may consider any documents "integral to and explicitly relied on in the complaint," even Int'l, Inc., 190 if not attached thereto. F.3d 609, 618 {4th Cir. Phillips v. 1999). Here LCI that includes the memoranda sent by Orok and Davis, both of which are cited and quoted from extensively in the Amended Complaint, but were attached only to this Motion to Dismiss and not the Amended Complaint itself. (See Am. Compl. 23-26, 45-50). B. Virginia Defamation Law The elements of defamation in Virginia are "(1) publication of ( 2) Jordan an actionable statement with v. Kollman, 269 Va. 569, 12 {3} the requisite intent." 575 (2005). To prove publication, it is generally "sufficient to show that, when the defendant another addressed person understood the Lion, the was defamatory present, statement Inc. v. Melton, as words heard the referring 250 Va. 144, to 150 to the words the plaintiff, spoken, and plaintiff." Food (1995). The "actionable statement" requirement is more strict. "To be actionable, defamatory." Kollman, potentially be 285 Va. only speaker's the statement must 269 Va. false, Saunders, the 476 it at 575. must (2013). opinion For a also Thus, and not be both be false and statement to even factual. Tharpe v. "[s]tatements that express matters of fact are not actionable as defamation because such statements cannot be shown to be false." Gov't Micro Res., Inc. v. Jackson, 271 Va. 29, (2006). Generally, "[s]tatements 40 are relative in nature and depend largely upon the speaker's viewpoint are expressions of opinion." Fuste v. (2003) . Riverside Healthcare Ass'n, 265 Va. 127, 132 In every case, however, "whether an alleged defamatory statement is one of fact or opinion is a question of law and is, therefore, Thus properly decided by a court instead of a jury." Id. courts must consider each "alleged defamatory statement . . . as a whole to determine whether it states a fact or non-actionable opinion." Jackson, 271 Va. at 40. In addition to the falsity requirement, actionable unless it is actually defamatory. 13 a statement is not In Virginia, this means that the allegedly requisite defamatory Bouffault, 290 Va. defamatory 'sting' 83, words must carry "the to one's reputation." Schaecher v. 92 (2015). "Defamatory words are those 'tend[ing] so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating Restatement or dealing (Second) of with Torts him.'" Id. § 559) (quoting added) . (emphasis the Such language is of the kind that "tends to injure one's reputation in the common estimation of mankind, or disgrace upon him, ridicule, or to throw contumely, shame, or which tends to hold him up to scorn, contempt, or which is calculated infamous, odious, or ridiculous." Id. 102 Va. 38 6, 392 ( 1904) {quoting to render him Moss v. Harwood, (emphasis added) . In determining whether words are actionable under these standards, "it is a general rule that (the] allegedly defamatory words are to be taken in their plain and natural meaning and to be understood by courts and juries as other people would understand them, and according to the sense in which they appear to have been used." Carwile v. Richmond Newspapers, 196 Va. 1, 5 (1954) {as courts "must statement allowing quoted is the decide in as Schaecher). a threshold reasonably capable matter be to Thus, of under matter defamatory presented to Schaecher v. Bouffault, 290 Va. 83, 94 (2015) 14 of a Virginia law whether meaning finder law, of a before fact." The third element of defamation is intent. Where public officials are not involved, the requisite intent in Virginia is negligence. (holding See Gazette, that Inc. defamation v. Harris, plaintiffs 229 Va. must belief, it to be true, lacked reasonable (1985) "that the to be false, grounds for or such or acted negligently in failing to ascertain the facts on which the publication was based."); v. 15 show defendant either knew [the published statement] believing 1, Melton, 250 Va. 144, 150 (1995) also Food Lion, (''(A] negligence Inc. standard applies."). The level of intent behind any alleged defamation is a question generally reserved for the finder of fact. Id. Even if all three elements of defamation are present in the complaint, a defamation claim can be defeated by a finding of privilege. Gazette, Inc. v. Harris, 229 Va. 1, 18 (1985). In the context of defamation, Id. The argument in Defendants privilege may be absolute or qualified. here for dismissal. Virginia attaches assert (Def. to qualified Mot. several 12-15). privilege which Smith, the 286 persons Va. 327, have 337 an types interest (2013). an Qualified privilege of communications, including those "(c] ommunications between persons on a in as or duty." subject Cashion A plaintiff may v. overcome qualified privilege only by adequately pleading "malice," Great Coastal Exp., 846 (1985). Inc. And, v. Ellington, 230 Va. 142, 151, 334 S.E.2d the Supreme Court of Virginia has held "that 15 employment matters absence of malice 568, 574 (Va. are occasions of privilege is presumed." Larimore v. 2000}. Whether a privilege in which Blaylock, has the 259 Va. attached is a question of law. Cashion, 286 Va. at 337. By contrast, whether a defendant has lost or abused a qualified privilege by acting outside it is a question of fact for the jury. Id. C. Statute of Limitations The statute of limitations for a defamation action is one year. Va. Code Ann. resulting from shall brought be accrues."} 8.01-247.1 § libel, slander, within Furthermore, one (\\Every insulting year after action words, the for injury or defamation cause of action "[a] ny cause of action that a plaintiff has for defamation accrues on the date that the def amatory acts occurred." Askew v. Collins, 283 Va. 482, 487 (2012}. The effect of successive publication or "republication" of defamatory statements is somewhat less clear under Virginia law, but, as a general principle, ''each of several communications to a third person by the same defamer is a separate publication." Restatement (Second) of Torts § 577A(l) (1977). This conclusion is consistent with the decision of the Supreme Court of Virginia in Weaver v. Beneficial Fin. Co., 199 Va. Court held that the "republication of a 196 (1957), where the libelous article by a third party" provides a new cause of action against the original defamer, so long as the republication 16 is "the natural and probable result of what the 201 (emphasis added}. old or preexisting (original] Thus, each defamatory wrongdoer did." Id. at successive publication of an statement gives rise to a new cause of action under Virginia law. By contrast, a single publication followed by successive or additional cause of readings action. subsequent of the publication gives This audiences defamatory} document, and Virginia. \\single read 909, 918 the See Restatement ( E. D. publication rule,' same rule" original applies (and when allegedly and is accepted by the majority of states see also Katz v. Odin, 2d publication rise to only one Va. (Second} Feldman Pittleman, & 2004) of Torts § 577A (\\Virginia P.C., follows (1977); 332 F. the Supp. 'single which permits only one cause of action to be maintained for any single publication, even if heard or read by two or more third persons.") DISCUSSION Under Virginia law, of defamation upon Dragulescu has failed to state a claim which relief can be granted against the Defendants. The allegedly defamatory statements contained in the Davis letter actionable, of 2013 lack the requisite and are otherwise opinions. is similarly defective; however, "sting" to be The claim against Orok it is not necessary to address the merit of the claim against Orok because it is barred by the statute of limitations. Because 17 the defamation claims against the University are wholly derivative of the claims against the individuals, they will also be dismissed. A. Defamation Claim Against Davis Dragulescu' s claim of defamation against Davis is limited to at most four statements that are contained in a 2013 letter of reprimand Comp!. attached to the motion before the (Am. Court. 25-26). None of these statements rise to the level of ':11':!1 defamation because actionable they opinion. lack Jordan "sting" v. and Kollman, are 269 otherwise Va. 569, non- 575-76 (2005) . Dragulescu alleges that Davis "falsely accused [her] of (i} talking disparagingly about the "mel tdowns 11 and temper tantrums; reference to a training and session. /1 Department, (iii) (Am. (ii) having using profanity in Comp!. ':11':!1 25) . With respect to the third (iii} claim, Dragulescu specifically denies that she called the training "f-ing bulls-t" as stated in the Davis letter. Id. She further alleges (although it is unclear if she claims this is defamation) that {iv} "Davis also falsely attacked [her] for not properly contributing to the HBCU mission of VUU by failing Program. /1 (Am. to attend the University's Constitution Day Comp!. ':II 27}. 3 Even assuming that all the facts 3 Dragulescu does not dispute the fact that she did not attend the program. (Am. Comp!. ':II 27}. 18 alleged are true, Dragulescu has not stated a claim for defamation against Davis. "Statements that express only the speaker's opinion and not matters of fact are not actionable as defamation because such statements cannot be shown to be false." Gov' t v. Jackson, opinion clear 271 and fact that the Va. 29, can be 40 (2006}. blurry, statements in While Virginia the the line precedent Davis exception of the allegation of profanity, Micro Res., letter, Inc. between makes it with the fall on the side of non-actionable opinion. The statements that Dragulescu spoke "disparagingly," had a "meltdown" or "temper tantrum," or did not "properly contribute to the HBCU mission" are "[s]tatements that are relative in nature and depend largely upon the speaker's viewpoint." Fuste v. Riverside Healthcare Ass'n, 265 Va. 127, 132 (2003). Therefore they "are expressions of opinion" and not actionable in a defamation suit. Id. Virginia precedent makes this clear. In Raytheon Tech. (2007), the statements Servs. Supreme Court contained in of an Co. v. Hyland, Virginia analogous 273 Va. analyzed context-a whether (reversing the lower court) five Notably, held that the following allegedly defamatory statement was non-actionable opinion: 19 306 performance evaluation-constituted fact or non-actionable opinion. that Court 292, Cynthia has also been inappropriately and openly critical of her leader, her peers, and other leaders in the company. This behavior is not only destructive to the team, it negatively impacts her image in the eyes of others, including customers. Id. at 305-06. While statement contained opinion," it the a Supreme "significant concluded, Court observed combination that of this fact and after "considering the statement as a whole," that "this statement falls into the category of opinion and should not have been submitted to the jury." Id. at 306. In reaching that conclusion, the Supreme Court of Virginia notably held apart from made (questions that, comments wholly had criticism accordingly been was inappropriate the statement evidentiary proof of whether is as its a truth a of open fact), matter whole or any critical \\[w)hether the opinion, and of cannot falsity." and be Id. subject The to Raytheon Court reached the same conclusion about a statement describing the plaintiff feedback," as as "unwilling well as a to accept and characterization of work the with plaintiff as \\frequently verbose and vocal in her opinions, to a degree that others stop participating in open dialogue." Id. at 305. Read contained as in a whole, the the 2013 allegedly letter defamatory written by statements Davis are distinguishable from the statements deemed opinion in Raytheon. To wit, whether Dragulescu spoke "disparaging to the department" 20 is indistinguishable from whether the plaintiff in Raytheon had been "inappropriately and open critical of her leader." Id. 306. Similarly, at whether her conduct in response to hearing her LC class could not be taught again until fall 2014 amounted to a "tantrum" is a fortiori opinion. Id. And whether Dragulescu "properly contributed to the HBCU mission," besides not being an actual statement made in the Davis letter, being proven Virginia law false. Id. requires), Read as these a is also incapable of whole and statements in (as therefore are context not actionable. 4 Of the various only was factual that bullsh-t." Davis statement (Am. Compl. letter, this actionable. 5 in identified by she was overheard calling being proven false, be statements made the Davis Dragulescu a training letter, as the defamatory session "f-ing 25). Unlike the other statements in the allegedly defamatory remark is capable of and therefore meets the first requirement to Nevertheless, this statement (as well as the 4 Dragulescu relies on a well-reasoned decision from this Court that is at odds with the analysis of the Supreme Court of Virginia in Raytheon. See, e.g., Echtenkamp v. Loudon Cty. Pub. Schs., 263 F. Supp. 2d 1043 (E.D. Va. 2003) (holding statement that plaintiff was "abrasive, unprofessional, and rude" to be actionable) . But, Raytheon was decided after Echtenkamp, and Raytheon is the controlling law on this substantive state law issue because it is a decision by Virginia's highest court on a factually indistinguishable set of facts. 5 Although whether something said is "profane" is typically opinion, here specific "unacceptable" words have been attributed 21 others in the letter) lacks the "requisite necessary to be actionable. Schaecher v. level of 'sting'" Bouffault, 290 Va. 83, 101 (2015). 6 "Defamatory words are those tending so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Id. at 101. (internal citation omitted). As a matter of law, nothing in the Davis letter rises to this level. Even if Davis completely made up the incident of profanity described, false statement that someone used coarse a language to describe workplace training on a single occasion is hardly inflammatory. And it is not the type of statement that "tends to injure one's reputation in the common estimation of mankind." Id. at 92 (quoting Moss v. Harwood, 102 Va. 386, 392 (1904)) . 7 to Dragulescu. Whether question of fact. Dragulescu uttered those words is a 6 Dragulescu also cites Reynolds v. Pionear, LLC, No. 3:15CV209, 2016 WL 1248866 (E.D. Va. Mar. 25, 2016), for the proposition that an asserted use of profanity can be actionable defamation. (Pl. Resp. 15). Reynolds is factually different than the alleged facts here because the statement provided context for other defamatory statements. Moreover, Reynolds did not consider the "sting" element of defamation because it was "raised for the first time on reply." Id. at *6, n. 15. 7 This conclusion is further evidenced by the fact that Dragulescu was re-hired by the University despite this allegedly defamatory incident. (Am. Compl. 12}. 22 As the Supreme Court of Virginia has noted, "reputation must be affected to a magnitude sufficient to render one odious, infamous, or or ridiculous, contempt." Id. at or subject to disgrace, 102. A statement that shame, an profanity is not enough to satisfy that test, scorn, employee used especially where it involves a supervisor speaking directly to an employee in the workplace over whom she has authority. Were the law otherwise, every testy encounter between employers and employees or between employees in which coarse language slipped out not have) would be actionable. For the foregoing plausible claim reasons, of (wher·e it should Virginia law does not go so far. Dragulescu defamation against has failed Davis, to and state the a claim against her will be dismissed. 8 B. Defamation Claims Against Orok Dragulescu' s claim against Orok suffers from many of the same defects as her claim against Davis. A step-by-step analysis of Orok's allegedly defamatory statements is unnecessary, however, because any claim arising from those statements expired before the filing of the Complaint in this case. Because it is apparent on the face of the Complaint that any viable defamation 8 Because the contents of the Davis letter are not defamatory, the Court need not decide whether the resurfacing of the Davis letter in October of 2015, which occurred during a grievance process initiated by the Plaintiff, constituted "re-publishing" sufficient to defeat Defendants' arguments that the statute of limitations bars the Plaintiff's claims. 23 claim against Orok is barred by the statute of limitations, the Defendant's motion to dismiss Count III as to Orok will be granted. The Orok Memorandum was sent on May 5, 2015. (P.m. Compl. ! 45) . Dragulescu herself initiated a grievance process on May 11, 2015, bringing attention of the the letter (and Faculty Senate, other the VPAA Office of Student Integrity and Conduct. Even Dragulescu's allegation that (Am. Orok matters) to the (Hossain), and the Compl. <JI'.11 54-59). a "white called her trailer trash whore," a statement that is not actually alleged as defamation in the complaint, April 2015." (Am. Comp!. The statute of <JI is alleged to have occurred "in 108) . limitations for defamation in Virginia one year from publication of the defamatory statement. Ann. § 8.01-247.1. Any potential claim against defamation therefore had to be filed by May 5, 2016 is Va. Code Orok for (one year after the Orok Memorandum) . The complaint in this case was filed on July 7, 2016 (ECF No. 1). Dragulescu' s claim is therefore time-barred. To avoid that necessary result, Orok Memorandum grievance was process," re-published and, "upon Dragulescu argues that the "as part information of the and continuing belief, has served as the basis for rumors that were circulating as late as October 2015 around the VUU campus that Dr. Dragulescu called a 24 student 'ignorant' and 'ridiculous.'" (Am. Comp. 103}. Her position is contrary to the law of defamation in Virginia. Under the well-accepted \\single publication" rule, subsequent viewings of one allegedly defamatory document do not constitute successive publications. See Restatement (Second) of Torts§ 577A (1977}; see also Katz v. Odin, Feldman & Pittleman, P.C., 332 follows F. the Supp. 2d 909, 918 (E.D. Va. 2004} ("Virginia 'single publication rule,' which permits only one cause of action to be maintained for any single publication, even if heard or read by two or more third persons."} Therefore, the repeated viewings of the Orok Memorandum by the Senate (which first received the letter in May of 2015) constitute new publications for purposes of the Faculty do not statute of limitations. See Katz v. Odin, Feldman & Pittleman, P.C., 332 F. Supp. 2d 909, 918 (E. D. Va. 2004) . More importantly, they did, those repeated viewings (and a fortiori \\rumors"} cannot be attributed to Orok. even if the alleged The grievance process was initiated by Dragulescu, and the Faculty Senate received the Orok Memorandum only because Dragulescu sent it to them. (Arn. Comp! 54). Any further publication of the Orok Memorandum that occurred as a result of the grievance process cannot therefore be attributed to Orok. Nor can the \\rumors" that Dragulescu called a student \\ignorant" or "ridiculous." (Am. Compl. 63). Under Virginia law, 25 a defendant may be liable in defamation for a third-party republication "if the republication was the natural and probable consequence of the original publication or if defendants actually or presumptively authorized its republication." Watt v. McKelvie, 219 Va. Finance Co., 645, 199 Va. (1978} (citing Weaver v. Beneficial ( 1957)) . Dragulescu argues that this 649 19 6 principle saves her defamation claim against Orok. It does not. To begin, Dragulescu has not properly alleged that these "rumors," mentioned only in paragraphs 67 and 103 of the Amended Complaint, constitute separate actionable claims of defamation. See Am. Compl. IJl 102 ("Dragulescu specifically statements has been referenced and defamed set by forth the in paragraphs 25, 45, and 48-49 herein") . 9 Nevertheless, even if the "rumors" had been properly identified as defamation (and they were not}, they are not attributable to Orok because they are neither "natural" a nor a "probable" consequence of Orok's original decision to send the memo to Dragulescu. See McKelvie, 219 Va. at 649. Indeed, the "rumors" for which Dragulescu blames Orok do not even match the substance of the Orok Memorandum. Dragulescu alleges that "rumors . . were circulating as late as October 2015 around the VUU campus that [she] had called a student 'ignorant' and 'ridiculous.'" 9 (Am. Compl. IJl 103} . Of Dragulescu asserted these alleged rumors as part of her defamation claims for the first time at oral argument on November 21, 2016. That is simply too late. 26 course, the Orok Memorandum does not state that Dragulescu referred to the student as "ignorant" or "ridiculous." Instead, Orok wrote that \\I was presented with the original student essay with your which comments 'ignorant' etc." already noted, (Def. included such words Mot. \\it is a Attach. as 'ridiculous' (emphasis B) added). As general rule that allegedly defamatory words are to be taken in their plain and natural meaning and to be understood by courts and juries as other people would understand them, and according to the sense in which they appear to have been used." Carwile v. Richmond Newspapers, 196 Va. 1, 5 (1954). The plain meaning of Orok's statement is that Dragulescu included words comments on Dragulescu an does such as essay, not \\ignorant" not deny "ignorant" or "ridiculous" Compl. 46). Therefore, defamatory content, rumors allegedly rumors were they cannot be \\ridiculous" describing that in her she her student. the in And "included" the words comments on the essay. (Am. not only does the Orok Memorandum lack also its content circulating VUU. Thus, properly but in and pled considered as separate a does even charges "re-publication" not if match the of the alleged defamation, of the Orok Memorandum, much less a \\natural and probable" re-publication of it. This the Orok conclusion Memorandum is further was strengthened by the originally 27 sent directly fact only that to Dragulescu and two other administrators. was Dragulescu herself, and not Orok, (Am. Comp!. '1I 50) . It who sent the memo to the Faculty Senate and initiated the "continuing grievance process" through which she 'Il'1I 54-65, Comp. republication alleges 103} . rule the letter was does not That applicable under "republished." fall Virginia within law. (Am. the Dragulescu has provided no authority that would permit such a ruling. Nor has the Court located such authority. 10 It is apparent on the face of the Amended Complaint that the statute of limitations ran on the defamation claim against Orok before this action was filed. Hence, the Defendants' motion to dismiss Count III as to Orok will be granted. c. The (VUU) Defamation Claims Against the University defamation claim against Virginia is wholly derivative of Dragulescu' s and Davis. (See Am. Comp!. '1I Union University claims against Orok 106). Because the individual claims of defamation against Orok and Davis fail to state a claim upon which relief can be granted, Count III of the Amended Complaint also fails to state a claim for relief against the University. Thus, Count III will be dismissed as to VUU, and the Defendants' motion will be granted in full. 10 In any event, Orok cannot be held responsible memorandum was leaked or its contents were disclosed member of the Faculty Sente. 28 if the by some CONCLUSION For the reasons stated herein, the Defendants' Motion to Dismiss Count III of the Amended Complaint will be granted, and Dragulescu's defamation claims will be dismissed with prejudice. It is so ORDERED. Isl Robert E. Payne Senior United States District Judge Richmond, Virginia Date: December ___...£.__, 2016 29
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