Taylor v. Republic Services, Inc. et al

Filing 198

MEMORANDUM OPINION and ORDER granting 117 MOTION for Summary Judgment on Count V of the Amended Complaint by Jason Callaway, Ronald Krall, Douglas Murphy, Christopher Rains. (See Memorandum Opinion and Order for details). Signed by District Judge Gerald Bruce Lee on 1/28/2013. (stas)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

JENNIFER TAYLOR,
Plaintiff,
Case No. 12-cv-00523-GBL-IDD

REPUBLIC SERVICES, INC., et al.,
Defendants.

MEMORANDUM OPINION AND ORDER

This matter is before the Court on the Motion for Summary Judgment on Count V of the

Amended Complaint (Doc. 117) filed by Individual Defendants Jason Callaway, Ronald Krall,
Douglas Murphy and Christopher Rains ("Defendants").
In this action, Plaintiff Jennifer Taylor seeks damages against her former employer and
colleagues for wrongful termination of employment for opposing or resisting criminal conduct;
tortious interference with business expectancy; gender discrimination; sexual harassment; hostile

work environment; retaliation; and retaliatory discharge pursuant to Title VII of the Civil Rights
Act of 1964. Defendants move for summary judgment on Count V of the Amended Complaint
seeking damages for tortious interference with business expectancy.

Specifically, Plaintiff

alleges that she had a significant probability of continuing employment with her former
employer, and but for Defendants' alleged actions she would have continued her employment.
The issue before the Court is whether Plaintiff has established a prima facie claim for tortious
interference with business expectancy against Defendants, her former colleagues.

The Court holds that Defendants are entitled to summary judgment because Plaintiff

cannot establish a. primafacie claim for tortious interference with business expectancy. She has

not demonstrated that Defendants were acting outside the scope of their employment or that they

used illegal or independently tortious conduct which contributed to or otherwise led to her
separation with her former employer.
BACKGROUND

Plaintiff began her employment with Republic Services Waste Industries, Inc. ("Republic
Services") as employee for Allied Waste Industries, Inc. ("Allied") in June 2007 (Doc. 1-4, ffi[
47, 65, 80). While at Allied, Plaintiff set her own work schedule, she did not punch a time clock,
and came and went as she deemed appropriate (Doc. 118-2, p. 290). Following a merger between

Allied and Republic Services of Virginia ("Republic"), Plaintiff relocated to Virginia to assume
the position of Region Director of Municipal Services (Doc. 1-4, f 77). At Republic, Plaintiff
reported to a new management team - one with a very different management style than what
she had been used to at Allied (Doc. 118-2, pp. 325-326). Plaintiffs new immediate
supervisor was East Region Vice President of Sales, Doug Murphy ("Murphy"), who reported to
East Region Senior Vice President, Ron Krall ("Krall") (Docs. 1-4, | 80; 118-5, pp. 107-08,
110). Before the merger, both Murphy and Krall had been executives at Republic, not Allied,
and, according to accounts from both male and female employees, were "micromanagers" who
preferred legacy Republic over legacy Allied employees (Docs. 1-4, ^ 86; 118-2, pp. 325-326).

Shortly after accepting her new job assignment, Plaintiff and Murphy clashed over many
issues, including Plaintiffs job performance and Murphy's expectation that she spend less time
"on the road" and more time physically working in the East Region Office (Docs. 1-4, fl[ 92, 97;
118-2, pp. 160-162; 153; 542-543).

In June 2010, Chris Rains became East Region Vice

President of Sales and, shortly after he began supervising Plaintiff, he also noticed issues with

her performance(Doc. 118-5, pp. 98-99,101,120,151,168-69,191,198, 205-206). In February

2011, Rains communicated his concerns to Taylor in her annual review, where he rated her

overall performance as not meeting expectations (Doc. 118-5, pp. 199-200).

In August 2011, Plaintiff contacted Catharine EUingsen, Senior Vice President of Human
Resources (previously the Company's Deputy General Counsel) and complained about Rains,
Krall and some other managers (Doc. 118-2, pp. 124-128, 131-132).

At the end of their

discussion, EUingsen proposed three options: (1) Plaintiff could stay in her job; (2) Plaintiff
could transfer to some position outside the East Region; or (3) Plaintiff could exit the Company,
with EUingsen helping her to do so in a respectful way (Doc. 1-4,1158).
The facts surrounding Plaintiffs ultimate separation with Republic are in dispute.

Nonetheless, Plaintiff alleges that based upon her performance and experience at Republic up
until she complained about Rains, Krall, Calloway and Murphy, she had every reason to believe
that she would remain employed by Republic (Doc. 1-4, ff 244-249). She contends that Rains,

Murphy, Callaway and Krall acted outside of the scope of their employment and conspired to
employ improper means to interfere with her business expectancy. Id.
STANDARD OF REVIEW

Under Rule 56(c) of the Federal Rules of Civil Procedure, the Court must grant summary

judgment if the moving party demonstrates that there is no genuine issue as to any material fact,
and that the moving party is entitled to judgment as a matter of law. In reviewing a motion for
summary judgment, the Court views the facts in a light most favorable to the non-moving party.

Anderson v. Liberty Lobby, Inc., All U.S. 242, 255 (1986). Once a motion for summary
judgment is properly made and supported, the opposing party has the burden of showing that a

genuine dispute exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat

an otherwise properly supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact." Anderson, All U.S. at 247-48.
A "material fact" is a fact that might affect the outcome of a party's case. Id. at 248; see

also JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
Whether a fact is considered to be "material" is determined by the substantive law, and "[o]nly

disputes over facts that might affect the outcome of the suit under the governing law will
properlyprecludethe entry of summaryjudgment."Anderson, All U.S. at 248; see also HoovenLewis v. Caldera, 249 F.3d 259,265 (4th Cir. 2001).

A "genuine" issue concerning a "material" fact arises when the evidence is sufficient to
allow a reasonable jury to return a verdict in the non-moving party's favor. Anderson, All U.S.

at 248. Rule 56(e) requires the non-moving party to go beyond the pleadings and by her own
affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, All U.S.
317,324(1986).
ANALYSIS

Defendants Murphy, Rains, Krall and Calloway are entitled to summary judgment on
Plaintiffs claims for tortious interference with business expectancy because (1) the claims

against Defendant Murphy are time-barred and (2) Plaintiff cannot demonstrate that Defendants

Rains, Krall and Calloway acted outside of the scope of their employment or used illegal or
independently tortious conduct which contributed or otherwise led to her separation with
Republic.

A.

Plaintiffs Compliance with Local Rule 56(b)

Defendants contend that Plaintiffs Opposition does not comply with Local Rule 56(b)

because "her opposition concedes every fact necessary to grant summary judgment because she
does not provide any evidence to contestthe statement of facts identified in Defendants' motion"
(Doc. 148, p. 2).
Local Rule 56(b) provides in relevant part:

Each brief in support of a motion for summary judgment shall include a
specifically captioned section listing all material facts as to which the moving
party contends there is no genuine issue and citing the parts ofthe record relied on
to support the listed facts as alleged to be undisputed. A brief in response to such
a motion shall include a specifically captioned section listing all material facts as
to which it is contended that there exists a genuine issue necessary to be litigated
and citing the parts of the record relied on to support the facts alleged to be in
dispute. In determining a motion for summary judgment, the Court may assume
that facts identified by the moving party in its listing of material facts are
admitted, unless such a fact is controverted in the statement of genuine issues
filed in opposition to the motion.

While Plaintiffs opposition contains a section entitled "Statement of Material Facts Genuinely in
Dispute," that section does not identify which of the material facts asserted by Defendants as
undisputed were thought by Plaintiff to be in dispute. Nor did that section set out citations
showing why there was dispute as to the facts that Defendants asserted to be undisputed. Instead,
that section of Plaintiffs opposition consists of 20 pages of mixed factual assertions and
argument. And, indeed, many of the factual assertions in that section were not in dispute but

instead, were facts that Defendants asserted to be undisputed which Plaintiff merely recast in
argumentative style. That approach, predictably, made it difficult and time-consuming to sort
out what, if any, facts really were in dispute and whether any asserted dispute was genuine or
related to material facts.

B. Count V Fails as a Matter of Law

In Virginia, a plaintiff must prove four elements in order to establish a claim for tortious
interference: (1) the existence of a valid contractual relationship or business expectancy; (2)
knowledge of the relationship or expectancy on the part of the interferor; (3) intentional
interference inducing or causing a breach or termination of the relationship or expectancy; and

(4) resultant damage to the party whose relationship or expectancy has been disrupted.
DurrettBradshaw, P.C. v. MRC Consulting, L.C., 670 S.E.2d 704, 706 (Va. 2009) (citing Chaves

v. Johnson, 335 S.E.2d 97, 102 (Va.1985)). Where, as here, the contract at issue is an at-will

employment contract, the plaintiff must also prove that the acts or methods used were
"improper." Storey v. Patient First Corp., 207 F.Supp.2d 431, 447 (E.D.Va. 2002) (citing
Maximus v. LockheedInfo. ManagementSys. Co., Inc., 493 S.E.2d 375 (Va.1997)).
Generally, the alleged interferor cannot be a party to the business expectancy. Beall v.
Abbott Labs., 130 F.3d 614, 621 (4th Cir. 1997). Rather, a tortious interference claim requires

the existence of three actors - two parties to the contract and a third party who interferes with, or
induces one of the parties to breach the contract. Storey, 207 F.Supp.2d. at 448 (collecting
cases). "However, if it can be shown that an agent of a party to the contract was acting outside

of the scope of his employment in tortuously interfering with such contract, then the aggrieved
party may be entitled to recover . . ." Id. (citing Wuchenich v. Shenendoah Memorial Hospital,
No. 99-1273,2000 WL 665633, at *17 (4th Cir. May 22,2000)).
A.

Murphy

Plaintiff alleges that Murphy disliked her immediately and treated her different than other
males who also worked in the office (Doc. 134 at pp. 24-25).

She contends that Murphy

"scrutinized her comings and goings and falsely accused her of lying about her whereabouts" and

"even attempted to PIP Ms. Taylor on multiple unsubstantiated bases." Id. Plaintiffs claims
however, are time-barred. The applicable statute of limitations in a case for tortious interference

with business expectancy is two years. Va. Code. Ann. 58.01-243(A).

Plaintiff filed her

Amended Complaint on April 20, 2012, therefore, the applicable statutory period is between
April 20, 2010 and April 20, 2012. Murphy was replaced as Plaintiffs supervisor in June 2010,
as a result, Plaintiff reported to Murphy for only 41 days within the statutory period.
In her opposition, Plaintiff does not point to a single act that Murphy allegedly engaged
in during that 41-day time period.

Instead, she broadly accuses Murphy of "disliking" her,

scrutinizing her "comings and goings," questioning her whereabouts during working time and
threatening to place her on a "Performance Improvement Plan."

See Doc. 134 at p. 25.

Plaintiff, however, cites to no evidence establishing that any of these alleged acts occurred

during the relevant 41-day time period. Rather, she relies solely on evidence that establishes that
many of these events may have occurred in 2009, outside of the statutory period. Id. at pp. 4-5.
Consequently, Plaintiffs claim against Murphy is barred by the statute of limitations.
B.

Rains

Plaintiffs claim against Rains is based solely on her allegation that Rains tortiously

interfered with her employment by copying Calloway on emails and allegedly fabricating

performance issues (Doc. 134 at pp. 24-25). Viewing the allegations in the light most favorable
to Plaintiff, the claim fails as a matter of law. Plaintiff has not demonstrated that Rains was

acting outside the scope of his employment under Virginia law.
Generally, an act is within the scope of the employment if (1) it was expressly or

impliedly directed by the employer, or is naturally incident to the business, and (2) it was
performed, although mistakenly or ill-advisedly, with the intent to further the employer's interest,

or from some impulse or emotion that was the natural consequence of an attempt to do the
employer's business, and did not arise wholly from some external, independent, and personal
motive on the part of the employee to do the act upon his own account." Newport News

Industrial v. Dynamic Testing, 130 F.Supp.2d 745, 750 (E.D. Va. 2001). Plaintiff testified that
all of Rains's emails to her were work related (Doc. 118-2 at p. 134). She further admitted that

she did not know if Rains knowingly participated in any retaliation. Id. at pp. 430-431. The fact

that Rains copied Calloway on an email does not amount to illegal or independently tortious acts,

and thus cannot support a claim for tortious interference. See Lewis-Gale Medical Center, LLC

v. Alldredge, 710 S.E.2d 716, 721 (Va. 2011)(citing Duggins v. Adams, 360 S.E.2d 832, 836-37
(Va. 1987)). In Duggins, the Supreme Court of Virginia stated
Methods of interference considered improper are those means that are illegal or
independently tortious, such as violations of statutes, regulations, or recognized
common-law rules.
Improper methods may include violence, threats or
intimidation, bribery, unfounded litigation, fraud, misrepresentation or deceit,
defamation, duress, undue influence, misuse of inside or confidential information,
or breach of a fiduciary relationship....

Methods also may be improper because they violate an established standard of a
trade or profession, or involve unethical conduct. Sharp dealing, overreaching, or
unfair competition may also constitute improper methods.
Duggins, 360 S.E.2d at 227. "Improper means" do not include "actions motivated by spite, ill
will and malice" toward plaintiff. Dunn, McCormack & MacPherson v. Connolly, 760 S.E.2d
867 (Va. 2011).

Additionally, Plaintiff has provided no evidence that Rains "fabricated" the performance
issues leading to her separation from Republic. The fact that Plaintiff disagreed with Rains's
appraisal of her work does not create a disputed issue of material fact sufficient to overcome a

motion for summary judgment. Accordingly, Plaintiffs claim against Rains fails.

C.

Callaway

Plaintiff alleges that Calloway engaged in an intentional "campaign to falsely portray her
as having performance issues," sought to "drive her out of Republic," and conspired to "engineer
her dismissal" because she rejected his sexual advances and reported his conduct to a colleague
in Human Resources (Doc. 134 at p. 24). Despite Defendants contentions, Plaintiff argues that
Calloway remained very involved with her employment after 2009 by fabricating false

performance issues that ultimately led to her separation with Republic. Id. at 22. Plaintiff,
however, relies on portions of the record that provide little support for her claims. See Docs. 134

at p. 11; 138, Attach. 24 (8/25/11 email from Rains to EUingsen and Krall regarding Plaintiffs
performance issues. Calloway is copied on the email but provides no response); Attach. 25
(8/9/10 email from Calloway to Rains stating that he had been "hearing some rumblings about

[Plaintiffs] timeliness and engagement"); Attach. 26 (8/10/10 email from Krall to Rains
regarding Plaintiffs performance and whereabouts. Calloway is copied on the mail but provides
no response); Attach. 27 (8/10/10 Calloway responds to the email referenced in Attach. 26. He
states that the out-of-state interview Plaintiff attended in person could have been conducted by
video).

While these documents clearly demonstrate that Calloway continued to observe
Plaintiffs employment after EUingsen's investigation in 2009, there is no evidence to support
Plaintiffs allegation that Calloway falsely portrayed Plaintiff as having performance issues or

that he was otherwise conspiring to "drive her out of Republic." Rather, these documents
demonstrate that, as the Vice President of Human Resources for the Eastern Region, Calloway

was aware of concerns about her work performance.

There is no evidence to support an

inference that Calloway somehow orchestrated an elaborate conspiracy to "engineer" Plaintiffs
separation from Republic.
Plaintiff further contends that Callaway is responsible for her not receiving a synergy
bonus. While the evidence demonstrates that Callaway was involved in the synergy process,

Plaintiff fails to demonstrate a genuine issue of material fact as to whether Callaway was
involved in determining whether Plaintiff was eligible for a synergy bonus (Doc. 118-2 , pp. 25,
31, 33, 37). Furthermore, each of the alleged acts Plaintiff relies upon in support of her claim for
tortious inference falls squarely within the scope of Callaway's employment and does not
constitute an illegal or independently tortious act. Plaintiffs claim against Calloway, therefore,
fails.
D.

Krall

Plaintiff alleges that Krall acted outside the scope of his employment "in denying

[Plaintiff] a synergy bonus, fabricating performance criticisms of her, and in attempting to drive
her out of Republic" (Doc. 134 at p. 23). In support, Plaintiff points to email messages from
Krall asking about her whereabouts, requiring her to use a travel calendar to track her workrelated travel, and the fact that he asked an assistant to check on her (Doc. 118-2, pp. 467-468).
Further, Plaintiff points to one email she believes was retaliatory in nature, because Callaway
was copied on the email.
Assuming Plaintiffs allegations are true, her claim fails as a matter of law. Plaintiff has

pointed to no evidence to indicate that Krall acted outside of the scope of his employment or

used improper methods to cause Plaintiffs separation from Republic. Krall's email messages to
Plaintiff regarding her work travel and her whereabouts were work-related and within the scope

of Krall's employment.

Moreover, the evidence shows that Krall's email messages were

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consistent with his treatment of other employees. Plaintiff, herself, testified that all employees

within the region were required to use the travel calendar, and that Krall sent an email message
to everyone reminding them to use it (Doc. 118, pp. 8,16).
Furthermore, Plaintiffs claims that Krall often made condescending comments about her

bid review by questioning the field's "proper pricing and research they had done on a bid," such
comments are clearly work-related and within the scope of Krall's position as Senior VicePresident of Eastern Operations. Plaintiff has not pointed to any evidence that these alleged

comments adversely affected her employment or interfered with her business expectancy.
Additionally, Plaintiff has no evidence that Krall chose not to give her a synergy bonus. Even if
there were evidence of such, "[a] decision by an employer and supervisors involving an

employee's work is not the type of 'interference' made actionable under this tort." Douglas v.
Dabney S. Lancaster Community College, 990 F.Supp. 447, 467 (4th Cir. 1997); see also
Shirvinski v. U.S. Coast Guard, 673 F.3d 308, 322 (4th Cir. 2012) (a claim for tortious

interference with business expectancy "provides redress for acts akin to violence, threats or

intimidation, bribery, [or] unfounded litigation, not the ordinary interpersonal conflicts of the
workplace."). Thus, Plaintiffs claim against Krall fails.
CONCLUSION

The Court GRANTS Defendants' Motion for Summary Judgment as to Plaintiffs claims

for tortious interference with business expectancy alleged in Count V of the Amended Complaint
(Doc. 117) because Plaintiff cannot establish a primafacie claim for tortious interference against
Defendants Jason Callaway, Ronald Krall, Douglas Murphy and Christopher Rains. Plaintiff has

not demonstrated that Defendants Callaway, Krall or Rains acted outside the scope of their
employment or used illegal or independently tortious conduct which contributed or otherwise

11

lead to her separation with Republic. Furthermore, Plaintiffs claims against Defendant Murphy
are time-barred.
IT IS SO ORDERED.

ENTERED this 28th day ofJanuary 2013.
Alexandria, Virginia
1/28/2013

Gerald Bruce Lee

JsL

United States District Judge

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