Bezu v. Bank of America, N.A.
Filing
132
MEMORANDUM OPINION. Signed by District Judge Claude M. Hilton on 11/20/2015. (jlan)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
MESFIN BEZU,
Plaintiff,
v.
BANK OF AMERICA, N.A.,
Defendant.
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Civil Action No. 1:14-cv-01014
ORDER
THIS MATTER comes before the Court on Defendant's Motion
for Summary Judgment.
On July 25, 2014, Plaintiff filed this action against
Defendant in the Fairfax County Circuit Court, alleging two
counts of defamation per se arising out of statements that
Plaintiff contends were made to him and others during and after
his employment. On August 28, 2014, Defendant timely removed
this case to this Court based on diversity jurisdiction.
Defendant moved to dismiss the Complaint for failure to state a
claim based on lack of specificity, lack of publication, and
privilege. Plaintiff opposed the dismissal; Defendant replied;
and on October 27, 2014, this Court dismissed Plaintiff's
Complaint with leave to amend.
On November 12, 2014, Plaintiff filed an Amended Complaint,
1
in which he attempted to set forth more specifically the
allegations against Defendant. Plaintiff's Amended Complaint
contains three counts: Count I: "Negligence - Defamation Per
Se"; Count II: "Intentional or Negligent Infliction of Emotional
Distress Defamation Per Se"; and Count III: "Malice."
As of July 1, 2013,
Plaintiff was a Personal Banker at
Defendant's Arlington Court House Banking Center in Arlington,
Virginia.
On July 26,
employment.
Manager,
2013,
Defendant terminated Plaintiff's
Edward Roncoroni,
and Jerry Lotito,
Plaintiff's Consumer Market
another Consumer Market Manager,
communicated the termination decision to Plaintiff.
the termination meeting,
Following
Roncoroni reported to Defendant's
Protective Services Department that Plaintiff made threatening
statements during the meeting,
such as,
and "the company will pay for this."
"you will pay for this"
Later that day, Protective
Services received a report that Plaintiff returned to the
Arlington Court House Banking Center to obtain customer
information. Plaintiff was told that the police would be called
if he did not leave.
On July 27, 2013,
Plaintiff called Protective Services to
request permission to return to the Arlington Court House Banking
Center to clear out his safe deposit box.
Protective Services
employee Maggie Cash reported that when she mentioned
Roncoroni's name, Plaintiff stated that he could "punch him in
2
the face." Plaintiff was permitted to visit the banking center
to retrieve items from his safe deposit box that day.
Michael Bergbauer,
one of Defendant's Protective Services
managers, telephoned Plaintiff on July 29 to discuss the events
of July 27. On July 30,
Plaintiff sent a message to an email
address for Brian Moynihan, CEO of Defendant,
copying other
Bank executives. The email came from
mesfin@mybankofamericastory.com and attached a letter threatening
to sue Defendant.
On August 1, 2013,
Defendant sent Plaintiff letters
notifying him that his accounts were to be closed.
13, Mes say Degefu,
a
On August
Personal Banker at Defendant's Lake
Barcroft Banking Center,
reported to Protective Services that
Plaintiff requested a copy of a check that Plaintiff cashed,
then requested that the teller photograph the check. On August
14,
Defendant sent Plaintiff a letter notifying him that his
safe deposit box account would be closed.
On August 16,
2013,
Hilda Aparicio,
a Bank employee,
reported to Protective Services that Plaintiff visited the Lake
Barcroft Banking Center again. Aparicio reported that Plaintiff
asked about Defendant's procedures and attempted to cash a stale
money order from 2010. The same day, Alfredo Piedrahita,
Center Manager at the Arlington Main Banking Center,
to Protective Services that
Banking
reported
Plaintiff went to the Arlington
3
Main Banking Center, asked about the security guard's hours, and
attempted to cash a stale money order from 2010.
On August 22, 2013, Defendant wrote to Plaintiff informing
him that it would no longer conduct business with him and that
he was prohibited from entering or remaining on Defendant's
property.
On August 26, 2013, Chimedregzen Altandush, an employee at
Plaintiff's former Banking Center, reported to Protective
Services that she observed Plaintiff walking around outside the
Banking Center.
There were internal communications among Bank
employees regarding the reports to corporate security about
Plaintiff's actions following his termination and the decisions
to close Plaintiff's accounts and to no longer do business with
Plaintiff.
Abiy Emiru, Plaintiff's friend and fellow church member,
testified that at some point during the summer of 2013 he went
to the Arlington Court House Banking Center to visit Plaintiff.
Emiru was approached by a female employee, whom he told that he
was looking for Plaintiff. According to Emiru, the employee
said, "[h]e is not working anymore here." When Emiru asked what
she meant, she replied, "[h]e is fired." There was no further
conversation, and Emiru left the Banking Center.
On or about September 10, 2013, Plaintiff hosted a party
in his home. Emiru attended. Emiru saw one of Defendant's
4
letters addressed to Plaintiff that Plaintiff left out on his
table. Emiru recalls that the letter included the term
"arrested." Emiru stated in deposition that neither the statement
by the Defendant employee nor the letter affected his opinion of
Plaintiff.
On or about February 2014, Plaintiff filed a charge of
discrimination against Defendant with the Equal Employment
Opportunity Commission ("EEOC"). On June 10,
through counsel,
2014,
Defendant,
submitted a position statement to the EEOC in
response to the charge of discrimination filed by Plaintiff. On
or about October 23,
Director,
2014,
Reuben Daniels,
EEOC District
informed Plaintiff in writing that the Commission was
unable to identify a statutory violation.
Plaintiff testified that he has had many conversations with
individuals about his termination from Defendant in which he told
them "exactly what happened," and told them that Defendant
accused him of threatening associates and bringing a gun to
Defendant's banking center. No such accusations are verified in
the record.
Summary judgment is appropriate when "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary
judgment will be granted unless "a reasonable jury could return
a verdict for the nonmoving party" on the evidence presented.
5
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
An otherwise properly supported summary judgment motion will not
be defeated by the existence of a dispute as to immaterial
facts; only disputes over facts that might affect the outcome of
the trial will properly preclude the entry of summary judgment.
Id. at 248.
Plaintiff bears the initial burden of proof as to each and
every element of his claims. See United States ex rel. Berge v.
Bd. of Trustees of the Univ. of Alabama, 104 F.3d 1453, 1462
(4th Cir. 1997). "Conclusory or speculative allegations do not
suffice, nor does a mere scintilla of evidence in support of
[the nonmoving party's] case.u Thompson v. Potomac Elec. Power
Co., 312 F.3d 645, 649 (4th Cir. 2002)
omitted)
(internal citation
(internal quotation marks omitted); Hoschar v.
Appalachian Power Co., 739 F.3d 163, 169 (4th Cir. 2014).
In the case at hand, material facts are not in dispute. As
a matter of law, Defendant is entitled to summary judgment on
all three counts. There is no evidence that defamatory
statements were made; Plaintiff's arguments for both negligent
and intentional infliction of emotional distress fail as a
matter of law; and Plaintiff's "maliceu claim is not a
cognizable tort.
Count One brings a negligent defamation per se claim. Under
Virginia law, a plaintiff seeking to recover for defamation per
6
se must allege a publication of false information concerning the
plaintiff that tends to defame the plaintiff's reputation.
Hatfill v. New York Times Co., 416 F.3d 320, 330 (4th Cir.
2005) .
A false statement contains more than "minor or irrelevant
inaccuracies." Jordan v. Kollman, 269 Va. 569, at 576. Here,
nothing in the record demonstrates any inaccuracies in
statements made by Defendant's employees regarding Plaintiff's
firing. A defamatory statement tends to "harm the reputation of
another [so]
as to lower him in the estimation of the
community or to deter third persons from associating or dealing
with him." Chapin v. Knight-Ridder,
(4th Cir.
Inc.,
993 F.2d 1087, 1092
1993). There is no such evidence in the case at hand.
Defamatory words "make the plaintiff appear odious, infamous, or
ridiculous."
Id. Publication requires proof that a defendant
communicated the actionable statement to a
third party, without
a privilege to do so. Montgomery Ward & Co. v. Nance,
363,
165 Va.
379 (1935). Here, Defendant's only publication was private
correspondence to the EEOC in response to an action initiated by
Plaintiff; hardly unprivileged, and brought on by Plaintiff
himself.
In his Amended Complaint,
Plaintiff alleges that many
people heard or read the following statements by individuals at
Defendant:
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•
•
•
•
Statement I: "[Plaintiff] went to the Arlington Court
house banking center and threatened associates with his
gun." "After
[Plaintiff]
was terminated,
he went to
Arlington
Courthouse
Banking
Center
and
threatened
associates with his gun. Since [Plaintiff] is dangerous
who has weapons, if he comes to your banking center,
immediately call corporate security and law enforcement
officials."
Statement II: "[Plaintiff] was terminated for doing a bad
job and he was [sic] also made threatening statements
after he was terminated."
Statement III: " [Plaintiff]' s Bank of America accounts are
closed due to overdraft and fraud."
Statement IV: "[Plaintiff] were [sic] terminated after it
was determined that [Plaintiff] violated bank policies and
federal regulations after having been counseled throughout
his
long
tenure
regarding
such
violation
by
his
supervisors."
The record is void of evidence that these statements were made
by any of Defendant's employees.
Plaintiff testified in deposition that he believes that
Statement One was made by Roncoroni
supervisor)
(Plaintiff's second-level
in email; by Roncoroni and Charmaine Cheng
(Plaintiff's first- and second-level supervisors) to Bergbauer
(a Bank Protective Services Manager);
Plaintiff.
and by Bergbauer to
Despite Defendant's production of emails, there is
no evidence that the alleged statement was emailed by any of
Defendant's employees. No one testified to the existence of the
statement. Though Plaintiff alleges that he recorded a
conversation with a Bank employee in which she allegedly
described the email, and despite a court order, Plaintiff failed
or refused to produce the recording.
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Regarding Statement II,
Plaintiff alleges Defendant told
four individuals that Plaintiff "was terminated for doing a bad
job and he also made threatening statements after he was
terminated." No one confirmed Plaintiff's allegation. To the
contrary, one of the four people Plaintiff identified, Zeeshan
Elahi, swore under penalty of perjury that he has "never been
told by any individual that Mr.
Plaintiff was terminated for
doing a bad job or that he made threating statements to
anyone." Likewise,
Tadewos Beyene,
another alleged witness,
states in his declaration that he went to the Banking Center
and was told only that Plaintiff was "no longer working
[t]here." The third alleged witness, Abiy Emiru, testified in
deposition that he
anymore
was told that Plaintiff "is not working
[ t] here'" and was "fired," but heard nothing further.
As Plaintiff was, indeed, fired, the statement's truth renders
it inactionable. No evidence was presented that the fourth
individual, Marcie Dicallo, ever heard such a message.
Likewise, there is no evidence of Statement III, allegedly
made to Chex System that Plaintiff's accounts were closed "due
to overdraft and fraud."
In fact,
Plaintiff testified in
deposition that his only basis for the allegation that he
called the Chex System, gave his social security number and
date of birth, asked whether there was any information from
Defendant,
and was told,
"there is negative information
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from
Defendant." Plaintiff presents no evidence regarding the
content of this purported negative information.
Finally,
Statement IV, which Plaintiff contends Defendant
made to the EEOC,
statement.
is not addressed in Defendant's position
Plaintiff's basis for his allegation is the EEOC's
letter to him explaining that it was unable to conclude that a
violation of the statute occurred.
Even then, the language
differs from that which Plaintiff quotes. Consequently,
in evidence supports
nothing
Plaintiff's claims.
Count Two brings a claim for intentional or negligent
infliction of emotional distress. The facts alleged to support
the claim are the same as those alleged in support of Count I.
As a result, Count II should be dismissed for the same reasons
as Count I.
Whether Count II is construed as a claim for intentional or
negligent infliction of emotional distress, the claim fails as a
matter of law. Plaintiff presents no evidence of intentional or
reckless conduct, conduct that was outrageous or intolerable, or
any severe distress necessary to sustain a claim for intentional
infliction. Likewise, Plaintiff cannot meet the more stringent
standard for negligent infliction because he presents no
evidence of negligent conduct, emotional disturbance, or
physical injury.
Plaintiff's claim for intentional infliction of emotional
10
distress fails as a matter of law. "Under Virginia law,
intentional infliction of emotional distress requires that (1)
the wrongdoer's conduct was intentional or reckless;
(2) the
conduct was outrageous and intolerable in that it offends
generally accepted standards of decency and morality;
(3) the
wrongdoer's conduct caused the emotional distress; and (4) the
emotional distress was severe." Baird ex rel. Baird v. Rose, 192
F.3d 462, 472
(4th Cir. 1999)
(citing Womack v. Eldridge, 215
Va. 338 (1974)). This standard is not met in the case at hand.
First,
to demonstrate Defendant's intentional or reckless
conduct, Plaintiff must allege that defendant acted "for the
specific purpose of inflicting emotional distress upon [him] or
that [Defendant] intended [its] specific conduct and knew or
should have known that emotional distress would likely result."
Ely v. Whitlock, 238 Va. 670, 677 (1989)
(citing Womack, 215 Va.
at 342). Here, the record contains no evidence that Defendant's
employees acted with the purpose or intent to cause Plaintiff
emotional distress.
Second, outrageous and intolerable conduct must be "so
outrageous in character,
and so extreme in degree,
beyond all possible bounds of decency,
atrocious,
Russo,
as to go
and to be regarded as
and utterly intolerable in a civilized community."
241 Va. at 27
(internal citation omitted). Plaintiff
does not present evidence of any such conduct by Defendant's
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employees.
Indeed,
the alleged statements here pale in
comparison to the types of conduct necessary to be outrageous
and intolerable. See,
~'
Baird ex rel. Baird v. Rose, 192
F.3d 462, 472-73 (4th Cir. 1999)
(finding sufficiently pled
facts of outrageous conduct in case of teacher intentionally
humiliating student known to suffer from depression) .
Third,
Plaintiff cannot establish that he suffered
extreme emotional distress "so severe that no reasonable person
could be expected to endure it." Russo, 241 Va. at 27. Plaintiff
has not proffered evidence suggesting that he suffered from
severe emotional distress.
Generalized allegations of
depression and anxiety are insufficient. See id.
Likewise, Plaintiff's argument for negligent infliction of
emotional distress fails as a matter of law. "When conduct is
merely negligent, not willful, wanton or vindictive, and
physical impact is lacking, there can be no recovery for
emotional disturbance alone." Womack, 215 Va. at 340. Virginia's
standard requires proof of a physical injury that was "the
natural result of fright or shock proximately caused by the
defendant's negligence." Myseros v. Sissler, 239 Va. 8, 8 (1990)
(citing Hughes v. Moore, 214 Va. 27, 34 (1973)). Plaintiff must
show "clear and convincing evidence of 'symptoms' or
'manifestations' of physical injury, not merely of an underlying
emotional disturbance." Id. at 12 (emphasis in original).
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Plaintiff
presents
no
evidence
of
negligent
conduct
makes no mention of emotional disturbance or physical
and
injury.
Summary judgment for Defendant is appropriate on Count II.
Count Three brings a claim for malice. The amended
complaint does not specify whether the claim is brought within
the context of defamation or as a separate claim. Regardless,
summary judgment in favor of Defendant is appropriate.
Common law malice is "defined in the context of defamation
as behavior actuated by motives of personal spite, or ill-will,
independent of the occasion on which the communication was
made." Fuisz v. Selective Ins. Co. of Am., 61 F.3d 238, 243 (4th
Cir. 1995) (internal citation omitted) .
The record does not support a finding that any of
Defendant's employees' actions suggested malice. Employees'
statements were neither insulting, violent,
nor stronger than
necessary, and there is no evidence that any of Defendant's
employees harbored personal spite or ill will toward
Plaintiff. Instead, the record demonstrates that Defendant took
appropriate steps in response to Plaintiff's post-termination
conduct and did not make any statements that were unsupported by
the truth, or publicized beyond a group of individuals who had
a common interest in knowing about Plaintiff's actions.
Plaintiff's conclusory claim is insufficient in the absence of
supporting evidence.
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Alternatively, construing Plaintiff's action as an attempt
to bring a separate claim for "malice," no such claim exists.
"Under Virginia law, there is no cognizable cause of action for
malice or punitive damages." Augustin v. SecTek, Inc., 807 F.
Supp. 2d 519, 526 (E.D. Va. 2011)
(J. Hilton), citing Albright
v. Burke & Herbert Bank & Trust Co., 249 Va. 463, 457 S.E.2d
776, 778 (1995)
(affirming a dismissal of a claim for actual and
constructive malice).
For the foregoing reasons, Defendant's Motion for Summary
Judgment should be granted.
Defendant also moved that this Court strike Exhibit 31 and
not consider the exhibit in its decision. However, Exhibit 31 is
relevant evidence to this motion and is considered.
An appropriate order shall issue.
CLAUDE M. HILTON
UNITED STATES DISTRICT JUDGE
Alexandria, Virginia
November ~O, 2015
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