Jackson v. Middle Peninsula Northern Neck Community Services Board et al

Filing 27

MEMORANDUM OPINION. Signed by District Judge John A. Gibney, Jr on 01/18/2017. (tjoh, )

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

HARVEY E. JACKSON,
Plaintiff,
Civil Case No. 3:16-cv-00337-JAG

V.

MIDDLE PENINSULA NORTHERN NECK

COMMUNITY SERVICES BOARD,
CHARLES R. WALSH, JR., and
WILLIAM F. WALLACE,
Defendants.
OPINION

Middle Peninsula Northern Neck Community Services Board (the "CSB") fired Harvey

Jackson for having a sexual relationship with a CSB client. Jackson did not know that his sexual

partner was a client of the CSB. Jackson sued, alleging violations of various due process rights
and defamation. The defendants have moved to dismiss all but one of the claims. Because the

CSB's actions neither shock the conscience nor tend to incite violence, the Court GRANTS the

defendants' motion to dismiss Counts II and IV. Because the termination-related letters sent by

the CSB may contain false information, however, the Court DENIES the defendants' motion to
dismiss Counts III and V.
I. BACKGROUND

The CSB serves the needs of individuals within its region who have issues associated
with mental health, substance abuse, intellectual disabilities, and developmental disabilities. The

CSB hired Jackson in 2011 as a Residential Facility Technician. In 2013, Jackson met Olivia

Russell through a friend from church. Unbeknown to Jackson, Russell was a client of the CSB.
In early 2015, Jackson and Russell began a consensual sexual relationship.

On June 4, 2015, the CSB Director of Human Resources, William Wallace, met with

Jackson and asked him about his relationship with Russell. Jackson admitted to having a sexual
relationship with Russell and to giving her money when she ran short.

During this meeting,

Wallace instructed Jackson to stay away from Russell. Wallace never informed Jackson that

Russell was a client of the CSB. Later that day, Wallace called Jackson and fired him.
That same afternoon, the CSB Executive Director, Charles Walsh, Jr., sent a letter to

Jackson confirming his termination. Walsh copied three other CSB employees on the letter, the
Residential Services Coordinator, the District Manager, and the Residential House Manager.
The letter stated in part:
I am taking this action based on the interview you had with Mr.
Wallace today wherein you admitted to having had a consensual
sexual and otherwise inappropriate relationship with a CSB client.
These actions are in direct violation of the [CSB] Policy Manual,
paragraph 5.4D5 that prohibits relationships with clients of the
nature you had admitted to have had. Your relationship with this
client and the manner in which it was conducted is sufficiently
egregious that I am left with no alternative but to remove you from
CSB employment.

(Am. Compl. ^ 39, Ex. C) (the "Termination Letter"). CSB Policy Manual H 5.4(D)(5) prohibits
any employee from having "any inappropriate involvements and/or relationships" with clients.
{Id. at H 40, Ex. D.) The policy defines this term to include "dual relationship, fraternization,
[and] sexual contact." {Id.)

In the days that followed, the CSB conducted an investigation into Jackson's relationship

with Russell, interviewing Russell in the process. During this interview, Russell stated that she
never told Jackson that she was a CSB client. At the end of the investigation, Walsh concluded
that while Jackson had not exploited or abused Russell, his conduct violated CSB policy. On

June 11, 2015, Walsh sent a letter to Russell (the "Russell Letter") informing her of the results of

the investigation and that the CSB had taken "appropriate action." (Am. Compl. ^ 46, Ex. E.)
After his termination from the CSB, Jackson applied for a job at Pamunkey Regional Jail.

As part of the application process, the jail required Jackson to sign an "Authorization to Obtain
Information" form to send to former employers. Jackson alleges that the CSB has a practice of

releasing personnel files—including information regarding the reasons for termination—^to all

inquiring employers. Pamunkey Regional Jail did not hire Jackson, nor did a number of other
potential employers.

II. discussion'

Jackson alleges five counts in his complaint: (I) violation of procedural due process under
the Fourteenth Amendment, 42 U.S.C. § 1983; (II) violation of substantive due process under the

Fourteenth Amendment, specifically his right to privacy, 42 U.S.C. § 1983; (III) common law

defamation; (IV) violation of Virginia's insulting words statute, Va. Code § 8.01-45; and (V)
violation of substantive due process under the Fourteenth Amendment, specifically his liberty
interest in his reputation, 42 U.S.C. § 1983. The defendants have moved to dismiss Counts II
through V.

' A Rule 12(b)(6) motion to dismiss gauges the sufficiency of a complaint. Republican Party of
N.C. V. Martin, 980 F.2d 943, 952 (4th Cir. 1992). In considering the motion, a court must

accept all allegations in the complaint as true and draw all reasonable inferences in favor of the
plaintiff. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)
(citing Edwards v. City ofGoldsboro, 178 F.3d 231, 244 (4th Cir. 1999)). "The tenet that a court
must accept as true all of the allegations contained in a complaint[, however,] is inapplicable to
legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a Rule 12(b)(6)
motion to dismiss, a complaint must state facts that, when accepted as true, "state a claim to
relief that is plausible on its face." /d. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).

Count II: Violation ofthe Right to Privacy

In Count II, Jackson alleges that the CSB and Walsh infringed on "the right to privacy of
employees of the CSB to engage in private, consensual, sexual relationships with individuals that
they are unaware are clients and/or consumers of the CSB," violating the right to liberty
protected by the Due Process Clause. (Am. Compl. H 88.) The parties argue about whether a

constitutional right to privacy exists. The Court need not decide this question, however, because
even if such a right does exist, the CSB's actions do not meet the standard for deprivation of the
right.

As a general matter, the "core concept" of substantive due process entails protection of

fundamental rights and liberties against arbitrary governmental action. County ofSacramento v.
Lewis^ 523 U.S. 833, 845 (1998). In determining what constitutes arbitrary governmental action,
a court must first determine if the claim challenges executive action or legislative action. Id. at
846. In a challenge to executive action like in this case, "the threshold question is whether the
behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to
shock the contemporary conscience." Id. at 847 n.8. Conduct shocks the conscience when it is

"intended to injure in some way unjustifiable by any government interest...." Id. at 849 (citing

Daniels v. Williams, 474 U.S. 327, 331 (1986)). If the government action does not shock the
conscience, then the due process claim fails. Hawkins v. Freeman, 195 F.3d 732, 738 (4th Cir.
1999). Only if the conduct passes this threshold test does the court look at the nature of the
asserted interest. Id.

In this case, the CSB serves vulnerable members of society. The fact that it fired an
employee who had a sexual relationship with one of these vulnerable members does not shock
anyone's conscience. The fact that the CSB did not wait to determine whether Jackson knew

that Russell was a client of the CSB, while possibly unfair or hasty, still does not rise to the level
of shocking the conscience. Accordingly, Jackson has failed to state a claim under Count 11.
Count III: Defamation

In Count III, Jackson alleges that the defendants defamed him in the Termination Letter
and the Russell Letter. To state a claim for defamation, Jackson must allege: (1) publication of

(2) an actionable statement with (3) the requisite intent. Jordan v. Kollman, 269 Va. 569, 575,

612 S.E.2d 203, 206 (2005). To qualify as actionable, the statement must be both false and
defamatory. Id. Opinions generally do not meet the falsity requirement because a plaintiff
cannot prove an opinion either true or false. An opinion may be actionable, however, "if the

opinion can be reasonably interpreted to declare or imply untrue facts." Biospherics, Inc. v.
Forbes, Inc., 151 F.3d 180, 184 (4th Cir. 1998) (citing Milkovich v. Lorain Journal Co., 497 U.S.

1, 20 (1990)).^ In determining whether a statement contains implied actionable facts, courts
should consider "whether a reasonable listener would take the speaker to be basing his or her

opinion on knowledge of facts of the sort than can be evaluated in a defamation suit." Reynolds
V. Pionear, LLC, No. 3:15CV209, 2016 WL 1248866, at *4 (E.D. Va. Mar. 25, 2016) (alterations

accepted and internal quotation marks omitted) (quoting Baylor, 2011 WL 1327396 at *11).
In this case, the alleged actionable statements rest on the borderline between fact and
opinion. Even if the statements are opinions, however, the Court finds that they plausibly imply

underlying facts. Taken in the context of the entire letter, the statements plausibly imply that
Jackson's relationship with Russell was egregious or inappropriate for more sinister reasons than

^See also Reynolds v. Pionear, LLC, No. 3:15CV209, 2016 WL 1248866, at *4 (E.D. Va. Mar.
25, 2016) ("[DJefendants can be held liable for defamation when a negative characterization is
coupled with a clear but false implication that the [speaker] is privy to facts about the person that
are unknown to the general [listener]." (internal quotations and citation omitted)); Hyland v.
Raytheon Tech. Servs. Co., Ill Va. 40, 47, 670 S.E.2d 746, 751 (2009) ("[D]efamatory
statements may be made by implication, inference, or insinuation.").

the true reason for Jackson termination. For example, a reasonable observer could plausibly
conclude from the statements in the Termination Letter that Jackson knew Russell was a client—

and perhaps was involved in her treatment—and exploited her vulnerabilities in the course of
their relationship. These implied facts could be proven true or false, making the statements

actionable for defamation. Accordingly, Jackson has plausibly stated a claim for defamation.^
The CSB also asserts qualified privilege as to the Termination Letter because the CSB

only published it to other relevant CSB employees.

While Virginia law does recognize a

qualified privilege for defamatory statements made between employees regarding disciplinary

and termination matters,"* a plaintiff can overcome this privilege in a number of ways, including
by showing actual malice or publication to a person with no interest in the subject matter.
Echtenkamp v. London Cty. Pub. Sck, 263 F. Supp. 2d 1043, 1061-62 (E.D. Va. 2003). On this
defense, this case needs more factual development, so the Court will not make a determination at
this time.

Count IV: Insulting Words

In Count IV, Jackson alleges that the CSB and Walsh violated a Virginia statute that
prohibits insulting words by sending the Termination Letter. Section 8.01-45 of the Virginia
Code reads in full: "All words shall be actionable which from their usual construction and

common acceptance are construed as insults and tend to violence and breach of the peace." Va.
Code Ann. § 8.01-45. While similar to defamation, a cause of action for insulting words requires

While the Court finds that Jackson's claim meets the lenient plausibility standard of a motion to
dismiss, the Court has great doubts about his ability to discover facts sufficient to bolster his
claim enough to overcome the higher bar at summary judgment.

^See Larimore v. Blaylock, 259 Va. 568, 572, 528 S.E.2d 119, 121 (2000); see also Echtenkamp
V. Loudon Cty. Pub. Sck, 263 F. Supp. 2d 1043, 1061 (E.D. Va. 2003) ("[T]he privilege applies
broadly to all statements related to 'employment matters,' provided the parties to the
communication have a duty or interest in the subject matter.").

that the statements tend to incite violence.^ Allen & Rocks, Inc. v. Dowell, 252 Va. 439, 441, 477
S.E.2d 741,742-43 (1996).

In this case, Jackson points to the Termination Letter as the insulting words that "greatly

upset Plaintiff." (Am. Compl. H124.) These facts do not plausibly allege any tendency to incite
violence. In a similar case, Allen & Rocks, Inc. v. Dowell, the Supreme Court of Virginia held

that words used in a telephone conversation about an employee termination did not tend to

violence or breach of the peace. 252 Va. at 443, 477 S.E.2d at 743. While the Termination

Letter may have upset Jackson, nothing indicates that the words used would prompt a violent
reaction, from Jackson or any other reasonable person. Consequently, Jackson has failed to state
a claim for insulting words.
Count V: Violation ofthe Liberty Interest in Reputation

Finally, in Count V, Jackson alleges that the defendants violated his liberty interest in his

reputation. The Due Process Clause of the Fourteenth Amendment protects a person's "liberty to
engage in any of the common occupations of life" and ensures "the right to due process where a

person's good name, reputation, honor, or integrity is at stake because of what the government is
doing to him." Sciolino v. City of Newport News^ 480 F.3d 642, 646 (4th Cir. 2007) (citations
omitted). The government deprives an individual of this liberty interest without due process
when statements made by the employer "(1) placed a stigma on his reputation; (2) were made

public by the employer; (3) were made in conjunction with his termination or demotion; and

^See Goulmamine v. CVS Pharmacy, Inc., 138 F. Supp. 3d 652, 668 (E.D. Va. 2015) ("[IJnsult
alone is not sufficient under the insulting word statute: a plaintiff must also plead sufficient facts
such that a reasonable juror could find that the words have a 'clear and present tendency to incite
violence.'"); Thompson v. Town of Front Royal, No. CIV. A. 5:98CV00083, 2000 WL 2>2922>1,
at *4 (W.D. Va. Mar. 16, 2000) (stating that the insulting words statute "only penalize[s] words
used in a verbal attack directed at a particular individual in a face to face confrontation that
presents a clear and present danger of a violent physical reaction" (citing Hutchins v. Cecil, 44
Va. Cir. 380, 1998 WL 972093, at *4 (1998)).

(4) were false." Id. (citing Stone v. Univ. ofMd. Med. Sys. Corp., 855 F.2d 167, 172 n.5 (4th Cir.
1988)). To meet the publication requirement, the plaintiff need only show that inspection of his

personnel file by a prospective employer is likely, proof of actual dissemination is not required.
Id. at 650. A plaintiff can show likelihood of dissemination in two ways. First, the plaintiff can
prove that his former employer "has a practice of releasing personnel files to all inquiring
employers."

Id.

Alternatively, the plaintiff can prove that "although his former employer

releases personnel files only to certain inquiring employers, that he intends to apply to at least
one of these employers." Id.

In this case, for the same reasons Jackson plausibly alleged a false statement in Count III,

he has plausibly alleged the falsity requirement here. As to the publication requirement, Jackson
has alleged that the CSB likely released his personnel file to Pamunkey Regional Jail.

Accordingly, Count V survives the defendants' motion to dismiss.^
III. CONCLUSION

For these reasons, the Court GRANTS IN PART and DENIES IN PART the defendants'
motion to dismiss.

The Court will enter an appropriate order.

Let the Clerk send a copy of this Opinion to all counsel of record.

John A. Gibney, Jr.

Date: Januarv 18. 2017

United States Distriot Ju

Richmond, VA

^The Court declines to dismiss Count V based on qualified immunity at this time.
8