Phillips v. Lynchburg Fire Department et al

Filing 43

MEMORANDUM OPINION. Signed by Judge Norman K. Moon on September 26, 2017. (sfc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF VIRGINIA
LYNCHBURG DIVISION

09/26/2017

RUTH ANNE LOUISE PHILLIPS,
Plaintiff,
v.

CASE NO. 6:16–cv–00063

MEMORANDUM OPINION

LYNCHBURG FIRE DEPARTMENT AND CITY
OF LYNCHBURG, VA.,

JUDGE NORMAN K. MOON

Defendants.
This case is before the Court on Plaintiff’s motion for leave to amend her complaint to
add a defamation claim. Previously, the Court dismissed that claim with prejudice because the
Complaint failed to identify the allegedly defamatory statements. In support of the motion,
Plaintiff now attaches the allegedly defamatory “Confidential Professional Reference Report”
(Report), statements in which about Plaintiff are arguably attributable to one of the City’s
employees, Lynchburg Fire Department Captain Darrel Hamlett. Viewed in Plaintiff’s favor, the
Report is a record of statements made by Captain Hamlett to someone denominated by the
proposed amendment as a consultant. Yet the motion fails because the proposed amendment is
futile. The claim is barred by sovereign immunity; the Report contains statements of opinion
rather than fact; and performance reviews are protected by a qualified privilege.
I.

STANDARD OF REVIEW
Leave to amend a pleading should be freely given “when justice so requires.” Fed. R.

Civ. P. 15(a). The Supreme Court has declared that “this mandate is to be heeded.” Foman v.
Davis, 371 U.S. 178, 182 (1962). “[L]eave to amend a pleading should be denied only when the
amendment would be prejudicial to the opposing party, there has been bad faith on the part of the

moving party, or the amendment would be futile.” Balas v. Huntington Ingalls Indus., Inc., 711
F.3d 401, 409 (4th Cir. 2013) (emphasis in original, internal quotations omitted).
II.

DELAY EVINCING BAD FAITH
The City—which is the only remaining defendant in the case (dkt. 33 at 5–6)—contends

that the motion should be denied due to bad faith. This argument is based on the fact that, by the
motion’s own admission, Plaintiff possessed the Report by at least June 2017, if not earlier.
(Dkt. 41 at ECF 2; dkt. 42 at 7–8). Yet she waited several weeks, until September 7, 2017, to
move for leave to amend. (Dkt. 41).
As dilatory as Plaintiff’s actions may have been, delay is not tantamount to bad faith as a
matter of law. See Johnson v. Oroweat Foods Co., 785 F.2d 503, 509–10 (4th Cir. 1986).
“Delay alone is an insufficient reason to deny leave to amend.”

Int’l Paper Co. v.

Schwabedissen Maschinen & Anlagen GMBH, 206 F.3d 411, 420 (4th Cir. 2000). “Rather, the
delay must be accompanied by prejudice, bad faith, or futility.” Edwards v. City of Goldsboro,
178 F.3d 231, 242 (4th Cir. 1999). Because the City does not posit any indicators of bad faith
apart from delay, the Court proceeds to its arguments on futility.
III.

FUTILITY
A.

Sovereign Immunity Bars the Claim.

A municipality in Virginia “is immune from liability for intentional torts committed by
an employee during the performance of a governmental function.” Niese v. City of Alexandria,
264 Va. 230, 239 (Va. 2002). State and federal courts in Virginia have applied this principle to
dismiss defamation claims against localities, a result which seems apt here. See Conley v. Town
of Elkton, No. CIV.A. 5:04CV00030, 2005 WL 415897, at *10 (W.D. Va. Feb. 22, 2005)
(applying sovereign immunity to statements by police chief about former officer’s conspiratorial

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plans to disrupt department); Lohdi v. Fairfax Cty./Bd. of Sup’rs, No. 1:12-CV-1108 JCC/JFA,
2012 WL 6691539, at *3–4 (E.D. Va. Dec. 21, 2012); Shumate v. City of Martinsville, 90 Va.
Cir. 122, at *1 (Martinsville Cir. Ct. 2015), aff’d, No. 151285, 2016 WL 5327477 (Va. Sept. 22,
2016); Shumate v. City of Martinsville, No. 151285, 2016 WL 5327477, at *4 (Va. Sept. 22,
2016) (Mims, J., concurring in relevant part).
The only issue is whether Captain Hamlett’s statements were made in the performance of
a governmental function.
A function is governmental if it is directly tied to the health, safety, and welfare of
the citizens. Stated another way, a governmental function involves the exercise of
an entity’s political, discretionary, or legislative authority.
Niese, 264 Va. at 239 (internal quotations and citations omitted).

Niese reveals that

governmental functions are broadly defined. It held that “the maintenance of a police force is a
governmental function” and that human resource matters are “an integral part of the
governmental function of maintain a police force,” id. at 240, conclusions which equally hold for
a fire department.
The facts alleged in the proposed amendment are scant. But they, like the Report, refer to
Hamlett specifically in an official capacity, as “Captain” of the “Lynchburg Fire Department.”
(Dkt. 41-1 ¶ 79; see id. ¶ 80). The Report likewise is concerned with Plaintiff’s performance
during her employment with the Fire Department. The Court holds that, where a supervisor is
contacted in his official capacity to provide a performance review of a former employee, the
supervisor is executing a governmental function. See Shumate, 90 Va. Cir. 122, at *1; see also
McBride v. Bennett, 288 Va. 450, 456 (Va. 2014)
B.

The Report Contains Opinions, Not Facts.

Additionally, the Report cannot support a defamation claim on the merits. “[P]ure

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expressions of opinion are constitutionally protected and cannot form the basis of a defamation
action. Statements that are relative in nature and depend largely upon the speaker’s viewpoint
are expressions of opinion.” Tharpe v. Saunders, 285 Va. 476, 737 (Va. 2013). The Report
contains merely opinions, not fact. Assuming the statements in the Report upon which the
defamation claim is based (¶ 84) actually came from Captain Hamlett (a point the City does not
conceded, dkt. 42 at 8 n.1), they fail the Tharpe test. They reflect Captain Hamlett’s personal
beliefs about Plaintiff’s interpersonal, planning, decision-making, and crisis management skills,
beliefs no doubt turning upon Captain Hamlett’s unique viewpoint. Like beauty’s dependence
on the beholder, squishy concepts like those on which Plaintiff was poorly ranked are not
verifiable facts, but opinions. See Raytheon Tech. Servs. Co. v. Hyland, 273 Va. 292, 302 (Va.
2007) (agreeing that “performance reviews normally will contain the evaluators’ opinions”)
C.

Qualified Privilege for Performance Reviews Applies.

Finally, even if Captain Hamlett’s purported statements were facts, they would be
protected by Virginia’s qualified privilege governing performance reviews. Raytheon, 273 Va.
at 302. The privilege is meant “to encourage open communications on matters of employment
while not shielding the use of such communications for an individual’s personal malicious
purposes.” Id.; see Larimore v. Blaylock, 259 Va. 568, 573, 528 S.E.2d 119, 121 (Va. 2000)
(expanding on policy justifications for qualified privilege). Thus, statements in a performance
review must be not only false, but maliciously so. Raytheon, 273 Va. at 302. Because the
proposed amendment does not show Captain Hamlett’s malice, the claim fails.
SUMMARY
The motion for leave to amend will be denied. An appropriate order will issue. The Clerk
of Court is requested to send a copy of this Opinion and the accompanying Order to the parties.

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26th

Entered this _____ day of September, 2017.

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