basis for concluding that Comparator 3 is a valid comparator. There is no reason to believe that Comparator 3 should
have been disciplined simply for having "poor interpersonal skills" or a "rigid" personality. Taylor was accused of far more.
Comparator 4 currently serves as CNA's Vice President for Domestic Research. Prior to his promotion to vice president, one of Comparator 4's subordinates stated Comparator 4 had bullied and intimidated him, and that Comparator 4 had yelled at him in public meetings. The subordinate did not lodge a formal complaint, but defendant Hayes did conduct a brief investigation. When she confronted Comparator 4, he admitted to the truth of the allegations. Hayes recommended that Comparator 4 work with an executive coach and attend an introspective workshop on leadership. Hayes made other recommendations as well, but could not recall the details, and Taylor identifies no other facts in the record to indicate the disciplinary actions taken in Comparator 4's case. In any event, Comparator 4's case differs markedly from Taylor's in that only one person made complaints about Comparator 4, and Comparator 4, when confronted, admitted the allegations and accepted the recommended coaching. On these facts, Comparator 4 is not a valid comparator.
Finally, Taylor points to CNA's treatment of Comparator 5, who served as CNA's Director of Contracts and Procurement. A female, African-American subordinate of Comparator 5 complained that he had spoken down to her in a manner that, to her, suggested racial discrimination. She felt Comparator 5 addressed her in an inappropriate tone and set harsh, unreasonable deadlines for her work. She compared these demands to "chains," adding that it reminded her of "that scene" from "In the Heat of the Night." Simpson investigated the complaints by speaking to others who had been in the room at the time the discussion in issue had occurred, and these witnesses stated that the deadlines had been reasonable and the tone of Comparator 5's comments had been appropriate. Accordingly, no disciplinary action was taken in his case. Taylor, on the other hand, received multiple complaints, and an investigation revealed multiple witnesses who corroborated many of the allegations.
While Taylor has focused his claim of disparate discipline on the five foregoing non-African-American comparators, he attempts to bolster his case by suggesting that CNA also discriminated against an African-American former vice president, James Collins (Comparator 6). Comparator 6, who was deposed in this matter, has accused CNA of terminating him based on his race. He has indicated that CNA officially told him he was terminated for declaring his intention to discuss performance and expectations with his team chiefs, who were also his subordinates, conversations which were seen as unwelcome and unwarranted reviews by a superior. Comparator 6 believes this stated reason for his termination is pretextual. He admits, however, that several employees, including multiple Caucasians and African Americans, had lodged complaints against him. Although Comparator 6 was terminated without first being placed on a performance improvement plan, he admits that Simpson informally discussed with him the ways in which he could improve his performance. Ultimately, Comparator 6 believes that racial bias played a role in his termination.
Indeed, Comparator 6 claims he has sued CNA in a separate, pending matter, alleging racial discrimination.
The differences between Comparator 6 and Taylor are manifest. Comparator 6 never received complaints of intimidating behavior or sexual harassment, as Taylor had. Additionally, the two men reported to different supervisors, and ultimately the decisions in each of their cases were made by different individuals at CNA. These two facts-different complaints and different decision-makers — render Comparator 6 inappropriate for comparison to Taylor. Notably, Comparator 6 also stated that he was treated fairly by Gunn and Simpson, the two key figures in the decision-making process in Taylor's case. Finally, the complaints against Taylor came from both Caucasian and African-American employees. In all, the many differences between Taylor and Comparator 6 far outweigh any similarities, and he is thus not a valid comparator for the purposes of this analysis.
Any case of employee discipline will involve unique circumstances that require an individualized examination by the employer. In reviewing an employee's conduct, an employer must carefully consider a wide range of factors, including the credibility of the complainants, the employee's commitment to improvement, the employee's disciplinary history, the impact of the proposed discipline on the employee's future, and the company's historical approach to similar disciplinary problems. Such a complex decision will inevitably result in variations from case to case, but these variations are often nothing more than the appropriate consequence of reasonable and nuanced deliberation by the employer. Where not-insignificant variations in discipline show a correlation with the variations in the races of the employees to be disciplined, an inference of discrimination may be appropriate. But that is not the case here. In sum, a reasonable jury examining the comparators cited by Taylor could not conclude that he has established a prima facie case of discriminatory discipline against CNA.
Even assuming, arguendo, a prima facie case of discrimination, CNA has articulated a "legitimate, nondiscriminatory reason" for the discipline imposed on Taylor. McDonnell Douglas, 411 U.S. at 802. The disciplinary action imposed on Taylor was a reasonable response to the specific complaints made against him and the facts disclosed in the investigation of those complaints. Taylor's assertion that CNA should not have believed the complaints from Langlitz and Casey because the two were at risk of termination is not supported by the record, and even if that were a closer question, several other individuals at CNA also complained of Taylor's conduct. In reviewing the complaints, it is not necessary to decide whether the incidents did or did not occur as described by the complainants; the fact finder need only determine that CNA had "a legitimate, nondiscriminatory reason" for its response to such complaints. Id. On this record, no reasonable jury could find, that CNA lacked a reasonable basis for its actions.
Accordingly, even assuming Taylor has established a prima facie case of discrimination, which he has not, CNA would certainly satisfy its responsive burden under McDonnell Douglas, and the burden would shift back to Taylor to demonstrate that this explanation is false or pretextual. McDonnell Douglas, 411 U.S. at 804; Reeves, 530 U.S. at 142. Taylor has not produced any evidence tending to show that CNA's stated basis for disciplining Taylor was false, nor has Taylor shown evidence of intentional discrimination. Indeed, Taylor's own admissions belie his claim that the decision-makers in this case acted with racial animus. Ultimately, all of the decisions concerning Taylor's discipline fell to Gunn. Not only has Taylor conceded that Gunn acted without racial bias, but Taylor has repeatedly noted that Gunn had treated him fairly from the moment Taylor was hired. Additionally, Taylor admits that Gunn personally recruited Taylor to work at CNA. It is unlikely that a supervisor would hire an individual, knowing full well the person's race, only to force the employee out at a later date based on racial animus. Cf. Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991) ("[I]n cases where the hirer and the firer are the same individual and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer.").
Additionally, Simpson, who played a major role in investigating the complaints against Taylor and recommending remedial action, is African-American. Simpson's race is relevant in this case because an allegation of discrimination loses persuasiveness when a key player in the disciplinary process falls within the same protected class as the plaintiff. See Coggins v. Gov't of D.C., No. 97cv2263, 1999 U.S. App. LEXIS 2603, at *11 (4th Cir. Feb. 19, 1999) (unpublished) ("The fact that both Krull and Gibbons, first and third in Coggins' chain-of-command, are both Caucasian makes any anti-Caucasian bias unlikely."); Elrod v. Sears, Roebuck Co., 939 F.2d 1466, 1471 (11th Cir. 1991) ("[I]t is difficult for a plaintiff to establish discrimination when the allegedly discriminatory decision-makers are within the same protected class as the plaintiff.").
In spite of these facts, Taylor argues that racial animus is clear from two instances where persons directly referenced race when speaking about Taylor. First, Taylor points to a statement that Casey made to another coworker that she believed "Mr. Taylor has a problem with middle aged white women." As an initial matter, this statement on its face merely accuses Taylor of racial bias, rather than revealing racial bias in Casey. In any event, this "mere scintilla" of evidence, Celotex, 477 U.S. at 324, does not give rise to a triable issue of fact concerning any racial animus of Casey. Notably, Casey was not a decision-maker in Taylor's investigation or discipline, meaning that her own bias is not legally relevant to the ultimate question of whether CNA imposed discriminatory discipline. See Hill v. Lockheed Martin Logistics Mgmt., 354 F.3d 277, 287 (4th Cir. 2004) ("The discrimination statutes, however, do not make employers vicariously liable for the discriminatory acts and motivations of everyone in their employ, even when such acts or motivations lead to or influence a tangible employment action."). Second, Taylor notes that Simpson told Dr. Teel, with whom Taylor would have met for counseling consistent with the November 16 Memorandum had he not resigned, that "race was important" to Taylor and that "white women are his scorn." As with Casey's statements, the statements made by Simpson accuse Taylor of racial animus rather than revealing any animus on the part of Simpson. In any event, Dr. Teel recalled that when Simpson made these comments, Simpson was explaining that Taylor tried to "identity with her as an African American, but she didn't
really share those same sentiments." As such, Taylor's argument that Simpson acted with racial animus in making the statements is meritless.
As this analysis demonstrates, a reasonable jury could not conclude, based on the record viewed in a light most favorable to Taylor, that CNA is liable for discriminatory discipline pursuant to 42 U.S.C. § 1981.
2. Constructive Discharge on the Basis of Race
As part of his § 1981 claim, Taylor also claims he was constructively discharged from CNA on the basis of his race. Again, because there is no record evidence of direct discrimination, to establish his claim Taylor must rely on the McDonnell Douglas/Burdine proof scheme. First, Taylor must make out a prima facie case by showing (i) that he is a member of a protected class; (ii) that he was qualified for the job and performed the job satisfactorily; (iii) that in spite of his qualifications and performance, he was constructively discharged; and (iv) that the position remained open to similarly qualified applicants after Taylor's dismissal or was filled by a person outside the protected class. Alba v. Merrill Lynch Co., 198 Fed. Appx. 288, 294 (4th Cir. 2006); Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994); see also Pa. State Police v. Suders, 542 U.S. 129, 141 (2004) ("Under the constructive discharge doctrine, an employee's reasonable decision to resign because of unendurable working conditions is assimilated to a formal discharge for remedial purposes.")
As for the third prong of this framework — establishing a constructive discharge-plaintiff must show two elements. First, the plaintiff must show that the conditions were "intolerable." Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985). This intolerability must be evaluated objectively, not on the basis of an employee's unusual sensitivities. Id. For example, a demotion, which ordinarily is not sufficient to amount to a constructive discharge, could amount to a constructive discharge where "the demotion is essentially a career-ending action or a harbinger of dismissal." Carter, 33 F.3d at 459. Second, the employers' actions must be "deliberate"; that is, the employer's actions must have been "intended by the employer as an effort to force the plaintiff to quit." Matvia v. Bald Head Island Mgmt., 259 F.3d 261, 272 (4th Cir. 2001) (citing Taylor v. Va. Union Univ., 193 F.3d 219, 237 (4th Cir. 1999) (en banc), cert. denied, 528 U.S. 1189 (2000)). Such intent "may be inferred through circumstantial evidence, including a failure to act in the face of known intolerable conditions." Bristow, 770 F.2d at 1255.
These principles, applied here, compel the conclusion that Taylor had failed to establish a prima facie case of constructive discharge. The undisputed facts show neither objectively intolerable conditions, nor any deliberate intent by CNA, particularly Gunn, to induce Taylor to quit. In this case, the facts Taylor relies upon to show that the environment at CNA was "intolerable" are virtually indistinguishable from the facts relevant to his discriminatory discipline claim. For example, he notes that when he was placed on administrative leave following complaints that he had bullied and intimidated two employees, the leave was indefinite, and CNA was vague in explaining the situation to Taylor's coworkers, leaving them to wonder whether Taylor had done something inappropriate. He further claims that African-American employees at CNA are treated as "guilty until proven innocent" when accused of infractions.
Of course, if CNA's investigatory and disciplinary actions with respect to Taylor are not attributable to racial bias, then this claim for constructive discharge under § 1981 fails as matter of law. As the prior discussion of Taylor's discriminatory discipline claim makes clear, no reasonable jury could find discriminatory discipline on the basis of this record. Accordingly, these acts cannot support a finding that discrimination made Taylor's employment "intolerable" for the purposes of a constructive discharge claim.
In setting forth facts relevant to constructive discharge, Taylor attempts to argue that working conditions at CNA were intolerable in part because other employees who engaged in similar conduct were not disciplined in a similar manner. While the premise of his argument — that CNA engaged in discriminatory discipline — lacks a sufficient basis in fact, it is worth noting that Taylor's argument is also wrong as a matter of law. In a constructive discharge claim, the only conditions that are relevant to intolerability are those deliberately generated to induce the employee to resign. Matvia, 259 F.3d at 272. As such, it is the negative treatment itself, and not the fact that the treatment is disparate, that would be relevant to an allegation of intolerable conditions. One exception might be a situation where the perpetrators of the negative treatment intended for the employee to recognize the treatment as disparate, thereby making the employee feel "singled out" and unwelcome. Such brazen conduct might support a showing of intolerable conditions, but this would be the rare case and the record here supports no such inference.
More fundamentally, Taylor's claim fails because he has not cited sufficient evidence to support his belief that he would have been terminated had he completed the course of discipline imposed by CNA. In essence, Taylor claims he was constructively discharged because the requirement that he meet with a mental health counselor would have resulted in the loss of his security clearance, which, in turn, would compel his termination from CNA. Taylor's clearance was indeed a requirement of continued employment, but Taylor cites no evidence to indicate that meeting with a mental health counselor would jeopardize his clearance. While a mental health evaluation may well be relevant to a government security clearance, it does not follow that a meeting with a counselor would, by itself, lead to revocation. Indeed, Taylor had already met with Dr. Crowley for a fitness-for-duty evaluation, at which time Dr. Crowley recommended Taylor see another counselor as a condition of continued employment. No reasonable jury could conclude, therefore, that these disciplinary measures left Taylor no alternative but to leave CNA.
Accordingly, for the purpose of this summary judgment motion, Taylor's bare assertion in this regard is unpersuasive. See Rule 56(e)(2), Fed.R.Civ.P. ("When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must — by affidavits or as otherwise provided in this rule — set out specific facts showing a genuine issue for trial."); Local Civil Rule 56(B) ("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.").
Accordingly, because there is no genuine issue of fact as to Count I of Taylor's complaint, and because the record viewed in a light most favorable to Taylor demonstrates no violations of § 1981, defendants must be granted summary judgment on this count.
Taylor also asserts a claim for hostile work environment within Count I of his Complaint, but he cites no evidence in support of this claim apart from that which he already cites in support of his discriminatory discipline claim. In any event, for the reasons already stated in analyzing his other § 1981 claims, Taylor has not established a genuine dispute of material fact over whether "the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [Taylor's] employment and create an abusive working environment." Harris v. Forklift Sys., 510 U.S. 17, 21 (1993) (citations and quotations omitted).
B. Defamation
In Count II of his complaint, Taylor alleges that defendants made defamatory statements about him, such as the accusations that Taylor engaged in "sophistry," "challeng[ed] subordinates as to [his] effectiveness as a manager," and "encourag[ed] subordinates to talk about their personal lives." He accuses defendants of fabricating the statements or reciting them while knowing them to be false with the intent to defame him. Most forcefully, Taylor claims defamation in the statement in the original draft of the November 16 Memorandum from Gunn referencing multiple complaints of sexual harassment, when in fact there had only been one formal complaint on this ground.
Under Virginia law, a plaintiff claiming defamation must show (i) publication (ii) of an actionable statement with (iii) the requisite intent. Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1092 (4th Cir. 1993). To be "actionable," the statement must not only be false, but defamatory, that is, it must "tend 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. In other words, "merely offensive or unpleasant statements" are not defamatory; rather, defamatory statements "are those that make the plaintiff appear odious, infamous, or ridiculous." Id. (citation omitted). Furthermore, "speech which does not contain a provably false factual connotation, or statements which cannot reasonably be interpreted as stating actual facts about a person cannot form the basis of a common law defamation action." Yeagle v. Collegiate Times, 255 Va. 293, 295, 497 S.E.2d 136 (1998). Such speech is sometimes referred to as "pure expressions of opinion." Id. at 295 n. 1. As to intent, the requisite standard varies based on the status of the plaintiff as a public or private figure. Where, as here, the plaintiff is a private individual, the defendant may be found liable if the defendant knew the statement to be false or negligently failed to ascertain whether the statement was false. Gazette, Inc. v. Harris, 229 Va. 1, 325 S.E.2d 713, 725 (1985).
A statement is defamatory per se if it (i) imputes the commission of a crime of moral turpitude for which a party may be convicted, (ii) imputes that the person is infected with a contagious disease which would exclude the person from society, (iii) imputes an unfitness to perform the duties of a job or lack of integrity in the performance of duties, or (iv) prejudices the party in her profession or trade. Yeagle, 255 Va. at 297 n. 2 (citing Fleming v. Moore, 221 Va. 884, 889, 275 S.E.2d 632 (1981)). Whether a statement is actionable as defamatory and whether it is defamatory per se are matters of law for the trial judge to determine. Id. at 296; Chapin, 993 F.2d at 1092.
The publication requirement for defamation requires a dissemination of the statement to a third party where that dissemination does not occur in a privileged context. See Montgomery Ward Co. v. Nance, 165 Va. 363, 379, 182 S.E. 264 (1935). In this regard, it is well-settled under Virginia law that "communications between persons on a subject in which the persons have an interest or duty are occasions of privilege," and that "statements made between co-employees
and employers in the course of employee disciplinary or discharge matters are privileged." Larimore v. Blaylock, 259 Va. 568, 572, 528 S.E.2d 119 (2000); see also Southeastern Tidewater Opportunity Project, Inc. v. Bade, 246 Va. 273, 275, 435 S.E.2d 131 (1993) (holding that a letter was privileged because it "was written in the context of his employment relationship"). Thus, the 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. Larimore, 259 Va. at 574-75. And, employees have a general duty "to inform management of adverse or improper actions by fellow employees," just as management has a duty "to investigate and make decisions regarding matters of continued employment." Id. at 575. It is also settled that this privilege is qualified and is lost "if a plaintiff proves by clear and convincing evidence that the defamatory words were spoken with common-law malice." Southeastern Tidewater, 246 Va. at 276; see also Larimore, 259 Va. at 572. Common-law malice, in turn, is "behavior actuated by motives of personal spite, or ill-will, independent of the occasion on which the communication was made." Southeastern Tidewater, 246 Va. at 276. In other words, to avoid the qualified privilege plaintiff must show that "the communication was actuated by some sinister or corrupt motive such as hatred, revenge, personal spite, ill will, or desire to injure the plaintiff." Id.
As these principles make clear, the statements by individuals at CNA cited by Taylor are not actionable for defamation. To begin with, most of the statements are matters of opinion, such as those statements from Langlitz and Casey calling Taylor "intimidating" and "bullying." As to the underlying facts asserted in the complaints against Taylor, the statements concern firsthand accounts by the complainants, and Taylor cites no evidence in the record that could lead a reasonable jury to conclude that any of the complainants acted with malice in reporting their stories. The remaining statements concern the investigation and disciplinary action at CNA, which are subject to qualified privilege. For example, Taylor alleges that the November 16 Memorandum was defamatory, but the statements in that memorandum were clearly "made between co-employees and employers in the course of employee disciplinary or discharge matters."
It is worth noting here that a showing of malice to overcome qualified privilege requires more than simply that the statement is critical of the plaintiff. Were it otherwise, qualified privilege would essentially always raise a jury question, and the exception would swallow the rule. Cf. Southeastern Tidewater, 246 Va. at 276 (malice requires evidence that the "behavior [be] actuated by motives of personal spite, or ill-will, independent of the occasion on which the communication was made."). More importantly, however, Taylor disputes very little of these accounts except whether his conduct was offensive. Of course, whether his conduct was indeed harassing, bullying, or otherwise inappropriate is irrelevant to the defamation claim since these are matters of opinion. See Yeagle, 255 Va. at 295 (statements of opinions are not actionable as defamation).
In opposing summary judgment, Taylor does not contest the application of the qualified privilege, instead arguing that the privilege was lost because the statements were made maliciously. Importantly, however, such a claim must be proven by clear and convincing evidence, Southeastern Tidewater, 246 Va. at 276, and the record provides no basis for a reasonable jury to make such a conclusion by this elevated standard. Furthermore, Taylor's emphasis on the reference to "two" sexual harassment complaints in the November 16 Memorandum is misplaced. The facts do not support an inference that defendants had the requisite intent to defame Taylor when incorrectly writing "two" in the first draft of this memorandum. While technically speaking, Langlitz was the only employee to charge Taylor formally with sexual harassment, Patel reported that Taylor had made comments implying that she was a prostitute. Patel's report did not constitute a formal complaint for sexual harassment, but it explains why the November 16 Memorandum would reference two such complaints. Moreover, Taylor was presented with a copy of the memorandum, and when he objected to the
word "two," it was stricken from the draft. Such facts further dispel the argument that defendants acted knowingly or negligently with regard to the truth. Accordingly, defendants must be granted summary judgment on Count II.
Additionally, since the individuals who were privies to the first draft of the memorandum were also privies to the correction, any injury from the false statement would be trivial at best.
This result is consistent with the earlier analysis of Taylor's discriminatory discipline claim, where it was held that the undisputed facts (i) demonstrate an articulable, legitimate, nondiscriminatory basis for CNA's actions and (ii) do not support a showing of pretext.
C. Breach of Contract
Count III alleges that CNA breached its contract with Taylor by failing to pay him a bonus for calendar year 2009. Taylor's claim fails for the fundamental reason that he has established no contractual obligation for CNA to provide him a bonus on any criteria that can be judicially reviewed. When a bonus is tied to vague, discretionary criteria, there can be no enforceable contractual obligation to provide such a bonus because a fact finder would have no standard to apply. See Degirolamo v. Sanus Corp. Health Sys., 1991 U.S. App. LEXIS 12281 (4th Cir. June 17, 1991) (affirming summary judgment to an employer where the employment contract gave the employer discretion in setting criteria for the bonus).
Taylor adduces no evidence to show that CNA made an enforceable promise to Taylor regarding his annual bonuses. See Rule 56(e)(2), Fed.R.Civ.P. (requiring opponents to summary judgment to provide factual support for any assertions); Local Civil Rule 56(B) (same). Taylor may have been awarded bonuses in the past, but these bonuses apparently included an element of discretion, as is typical of incentive-based compensation. For example, Gunn noted in his affidavit that Taylor's 2008 bonus was significantly less than his 2007 bonus because of "less than stellar earnings of his division and other performance factors." While no official calculation was made for Taylor's 2009 bonus because he left the company before bonuses would ordinarily be calculated, Gunn testified that Taylor's 2009 bonus would have been close to zero based on the poor overall performance of Taylor's division and the "challenging aspects of [Taylor's] professional behavior." Past discretionary bonuses do not furnish a basis for claiming bonuses as a matter of right. Given the discretionary nature of the bonuses, Taylor has not demonstrated an enforceable obligation on the part of CNA, and therefore Count III fails as a matter of law.
Taylor suggests that he should have received a bonus because another employee, Walter Munnikuysen, received a substantial bonus as part of his severance package. This argument is unpersuasive. As discussed previously, the facts concerning Munnikuysen demonstrate that he does not serve as an appropriate comparator to Taylor. See supra Part III.A. 1 (discussing "Comparator 3"). In any event, the fact that another employee received a bonus after leaving CNA is irrelevant to whether CNA had an enforceable obligation to provide a bonus to Taylor.
D. Tortious Interference with Business Expectancy
In Count IV, Taylor alleges tortious interference with his employment relationship at CNA by the individual defendants, namely, Langlitz, Casey, and Hayes. Taylor claims that these defendants "conspir[ed] to injure [his] reputation, portray[ed] [him] in a false and defamatory light, claim[ed] that [he] had sexually harassed and acted in a threatening and/or intimidating manner . . ., and engag[ed] in deception and dishonesty in their dealings" both with Taylor and with others at CNA about Taylor. Compl. ¶ 192. He further alleges that absent this interference, he would have realized "continued and significant future economic benefit with CNA including a realization of salary and bonuses, health and life insurance, pension and savings plans, and retirement benefits." Id. ¶ 188.
Under Virginia law, to establish tortious interference with a prospective business relationship, a plaintiff must show
(1) the existence of a business relationship or expectancy, with a probability of future economic benefit to plaintiff; (2) defendant's knowledge of the relationship or expectancy; (3) a reasonable certainty that absent defendant's intentional
misconduct, plaintiff would have continued in the relationship or realized the expectancy; and (4) damage to plaintiff.
Commercial Bus. Sys., Inc. v. Halifax Corp., 253 Va. 292, 484 S.E.2d 892, 896 (1997) (quoting
Glass v. Glass, 228 Va. 39, 321 S.E.2d 69, 77 (1984)). The first and third elements of this tort require objective proof, not the mere hope or possibility of future benefit.
Id. at 897.
The most glaring problem with Taylor's tortious interference claim is that he alone made the decision to resign from CNA. It is axiomatic that a plaintiff cannot sustain a claim of tortious interference with business expectancy when he willingly surrendered his right to those expectancies. Of course, if conditions at CNA had become so intolerable that Taylor were effectively left no practical choice other than quitting, then it would be unfair to characterize his decision as willingly made. But Taylor alleged precisely this scenario in Count I when he asserted that he was constructively discharged from CNA, and for the reasons stated supra, Taylor's claim for constructive discharge fails. Accordingly, Taylor's claim for tortious interference must be denied.
E. Common Law Conspiracy
In Count V, Taylor alleges that Langlitz and Casey engaged in an unlawful civil conspiracy to injure Taylor. In Virginia, the elements of a common law civil conspiracy claim are (i) an agreement between two or more persons (ii) to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means, which (iii) results in damage to plaintiff. Glass v. Glass, 228 Va. 39, 47, 321 S.E.2d 69 (1984). "[I]n Virginia, a common law claim of civil conspiracy generally requires proof that the underlying tort was committed." Almy v. Grisham, 273 Va. 68, 80 (2007). This is so because "[t]he gist of the civil action of conspiracy is the damage caused by the acts committed in pursuance of the formed conspiracy and not the mere combination of two or more persons to accomplish an unlawful purpose or use unlawful means." Gallop v. Sharp, 179 Va. 335, 338, 19 S.E.2d 84, 86 (1942). Thus, where "there is no actionable claim for the underlying alleged wrong, there can be no action for civil conspiracy based on that wrong." Citizens for Fauquier County v. SPR Corp., 37 Va. Cir. 44, 50 (1995); see also Firestone v. Wiley, 485 F. Supp. 2d 694, 703 (E.D. Va. 2007).
Because none of the substantive torts alleged by Taylor survive summary judgment, this count, too, must fail. Furthermore, the record here is insufficient to allow a reasonable jury to conclude that Casey and Langlitz had an "agreement" to injure Taylor. Other than the mere fact that the two defendants spoke often, Taylor's only proof of a coordinated scheme comes from an email from Langlitz to Casey discussing a "plan" for Taylor when he returns to work after administrative leave. The message, however, came at the end of an email exchange that originally included Hausmann, Gunn, Hayes, and Simpson, and which had referred to strategies for avoiding any awkwardness or hostility upon Taylor's return. There is no basis to conclude that the "plan" referred to something other than these positive and productive measures. Accordingly, defendants are entitled to summary judgment on Taylor's conspiracy claim.
F. Intentional Infliction of Emotional Distress
In Taylor's final count, he alleges that because of defendants' conduct, Taylor suffered insomnia, paranoia, anxiety, depression, and a severe ulcer requiring exploratory surgery, thus giving rise to a claim for intentional infliction of emotional distress.
To recover on such a claim in Virginia, a plaintiff must show, by clear and convincing evidence, that "1) the wrongdoer's conduct was intentional or reckless; 2) the conduct was outrageous or intolerable; 3) there was a causal connection between the wrongdoer's conduct and the resulting emotional distress; and 4) the resulting emotional distress was severe." Supervalu, Inc. v. Johnson, 276 Va. 356, 370, 666 S.E.2d 335 (2008); see also Almy v. Grisham, 273 Va. 68, 77, 639 S.E.2d 182 (2007); Womack v. Eldridge, 215 Va. 338, 342, 210 S.E.2d 145 (1974). Each of these elements must be proven by clear and convincing evidence because the tort is "not favored" due to the "inherent problems in proving a claim alleging injury to the mind or emotions in the absence of accompanying physical injury." Supervalu, 276 Va. at 370. With respect to the first element, a plaintiff must show that "the wrongdoer had the specific purpose of inflicting emotional distress or where he intended his specific conduct and knew or should have known that emotional distress would likely result." Womack, 215 Va. at 342. To establish the second element, the conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Russo v. White, 241 Va. 23, 27, 400 S.E.2d 160 (1991) (quotations omitted). As to the final element, "liability arises only when the emotional distress is extreme, and only where the distress inflicted is so severe that no reasonable person could be expected to endure it." Id. (quotations omitted).
Taylor's claim fails because he cannot show "outrageous conduct" by defendants. As discussed supra, the record cannot support his claims for discriminatory discipline, defamation, and tortious interference, and it is this conduct on which the claim for intentional infliction of emotional distress relies. Thus, Taylor's claim of intentional infliction of emotional distress falls short of his burden to show, by clear and convincing evidence, "outrageous" character on the part of the defendants so as to survive summary judgment on this count. Russo, 241 Va. at 26.
IV.
In sum, plaintiff has not demonstrated a genuine issue of material fact that supports the need for a trial. As to his § 1981 claim (Count I), plaintiff has not adduced sufficient evidence to allow a reasonable jury to find discriminatory treatment or constructive discharge. Additionally, defendants have established a legitimate, nondiscriminatory basis for their actions, and plaintiff has not provided sufficient evidence of pretext to overcome this showing. Plaintiff's defamation claim (Count II) fails because the statements are either (i) subject to a qualified privilege, (ii) statements of opinion, or (iii) were not made with the requisite intent to defame. Plaintiff's contract claim (Count III) fails because he has demonstrated no enforceable obligation by his employer to pay him a bonus on any standard that a fact finder could apply. The claim for tortious interference with business expectancy (Count IV) fails because plaintiff left the company on his own accord, not pursuant to a forced or constructive discharge, and he cannot recover from others for expectancies he voluntarily abandoned. Plaintiff cannot succeed on his common law conspiracy claim (Count V) because Taylor has not shown either an underlying tort or an underlying agreement. Finally, the claim for intentional infliction of emotional distress (Count VI) fails because Taylor has failed to show "outrageous" conduct by defendants. Accordingly, defendant is entitled to summary judgment on all counts.
An appropriate Order will issue.