Via v. Commc'ns Corp. of Am.

311 F.Supp.3d 812

Santa Marie VIA, Plaintiff,

v.COMMUNICATIONS CORPORATION OF AMERICA, INC. and Steven R. Fisher, Defendants.

Civil Action No. 3:17CV00047

United States District Court, W.D. Virginia, CHARLOTTESVILLE DIVISION.

Signed April 26, 2018

Mitchell J. Rotbert, Pro Hac Vice, Rotbert Business Law P.C., Gaithersburg, MD, Robert Olin Wilson, Wilson Law PLC, Harrisonburg, VA, Plaintiff.

Susan Childers North, Naomh Maire Hudson, LeClair Ryan, Williamsburg, VA, for Defendant.

MEMORANDUM OPINION

Glen E. Conrad, Senior United States District Judge

Santa Marie Via filed this action against Communications Corporation of America, Inc. (CCA) and Steven R. Fisher, asserting claims under the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101 – 12213, and Virginia law. The case is presently before the court on the defendants' partial motion to dismiss the second amended complaint. For the reasons set forth below, the motion will be granted in part and denied in part.

Background

The following factual allegations, taken from the second amended complaint, are accepted as true for purposes of the pending motion. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) ("[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.").

CCA is a Virginia corporation engaged in the business of producing and issuing mass mailing campaigns. Fisher is the president of CCA. He maintains final decisionmaking authority over the hiring and firing of the company's managerial employees.

Via and her wife, S. Gail Morris, are former employees of CCA. Via began working for CCA in 1983 and eventually held several managerial roles. Morris most recently served as a data processing manager.

In February of 2016, Via was diagnosed with fibromyalgia and major depressive disorder. Her rheumatologist recommended that she take between one and three months off from work to address her symptoms. By letter dated February 25, 2016, CCA granted Via twelve weeks of leave under the Family and Medical Leave Act (FMLA). The letter indicated that Via was expected to return to work on May 9, 2016.

While on medical leave, Via responded to all of CCA's requests for updates on her conditions. Via advised Fisher that she wanted to eventually return to work. Fisher assured Via that her position would remain available even if she were unable to return immediately following the expiration of her FMLA leave.

On April 26, 2016, Via's psychologist opined that she would not be ready to return to work on May 9, 2016. That same day, the psychologist issued a notice to that effect. On May 3, 2016, Via's family physician issued a similar notice. Both notices recommended that Via remain on medical leave for an additional eight-week period.

On May 6, 2016, Via met with Fisher and Kelli Drumgoole, CCA's human resources director. Via advised them that her health care providers had recommended that she remain on leave through the beginning of July. At the conclusion of the meeting, Fisher hugged Via and told her that " ‘it will all work out.’ " 2d Am. Compl. ¶ 26. Neither Fisher nor Drumgoole suggested that taking additional leave would place Via's job in jeopardy.

On May 12, 2016, Fisher sent Via a registered letter terminating her employment. The letter indicated that CCA was unable to hold Via's position following the expiration of her FMLA leave and that her employment would be terminated effective May 16, 2016.

On or about October 26, 2016, Via filed a charge of disability discrimination with the Equal Employment Opportunity Commission (EEOC). "Via's charge alleged disability discrimination in the failure of Defendants, or either of them, to engage in an interactive process on a good faith basis to determine reasonable accommodations to enable Via to resume her work and in Defendants' ultimate failure to provide reasonable accommodation to Via." Id. ¶ 34.

On July 17, 2017, Via filed the instant action against CCA and Fisher. Via's original complaint asserted a single count of disability discrimination under the ADA. See Compl. 10, Dkt. No. 1.

On August 26, 2017, Via and Morris attended an all-day social event. Upon returning home that night, Morris received a frantic call from one of her crew members, Luis Yrupailla, who reported that a fire had erupted at CCA's printing plant in Boston, Virginia. Morris told Yrupailla that she would come to the plant right away. Before leaving, Morris called Mitzi Mills, CCA's director of production. 2d Am. Compl. ¶ 45. Mills told Morris that she would meet her at the plant.

Morris arrived at the plant around the same time as Mills and her husband, Nathan See, who worked for CCA as a machine technician. Yrupailla advised Morris that he and other employees began to smell smoke while working in the data processing area of the plant. Yrupailla followed the smell and found a fire burning in an enclosed machine shop that CCA had recently constructed in the middle of the facility. Yrupailla's efforts to extinguish the fire were unsuccessful and the responding fire departments were unable to contain the fire. The plant ultimately burned to the ground.

After speaking with See at the scene of the fire and reviewing mechanical drawings of the plant, the chief of the Culpeper County Fire Department determined that the fire had erupted in a heating, ventilation, and air conditioning (HVAC) unit on the roof of the plant, directly above the machine shop. The fire caused the roof to collapse and ultimately spread to the area below. See advised the fire chief that the HVAC unit had not been working properly for approximately two weeks.

Fisher subsequently arrived at the scene of the fire and spoke with many of the employees present. "By not later than sundown [that day], Fisher understood that the fire that consumed the CCA facility had commenced in an HVAC unit, known by CCA to be in disrepair, located on the roof of the facility." Id. ¶ 63.

The next morning, Fisher entered the Boston General Store and spoke to another customer, Alfred Marsh, and the store's owner. Their conversation eventually turned to the fire:

The conversation began when Fisher responded to the following question from the store owner: "Do you know what caused the fire?"

Fisher replied: "I think it is arson. I am on my way to meet with fire investigators now, this morning."

Fisher then advised Marsh that Fisher was looking for a building in the Culpeper Industrial Park in Brandy Station to move "his printing business," and that Brandy Station is closer than Boston to Dulles airport.

Marsh, now understanding that he was speaking to Steve Fisher, said to Fisher: "I smelled electrical smoke." Marsh's house was fogged in on the night of the fire with smoke from the fire.

Fisher replied: "I have reason to believe that a disgruntled employee that I had dismissed is responsible for the fire."

Fisher continued: "She is litigating with me and had ample opportunity to cause the fire. She kept doing work that I told her not to do. And that eventually caused me to dismiss her. I feel bad for her, but... then I found out that her family owns a restaurant in Culpeper at the corner of Route 15 and 3.

Marsh replied to Fisher: "You mean you're talking about Sandy Via?"

Marsh has known Sandy Via and her family for nearly 50 years. Marsh knew that Via works for or owns her family restaurant at the corner of Route 15 and 3 in Culpeper, the only restaurant at that corner.

Fisher looked at Marsh, astonished, and asked: "Is she a friend of yours?"

Marsh replied: "Yes, Sandy and her family are friends."

Fisher then said: "Well, maybe I shouldn't have said anything."

But then Fisher continued: "I think she had ample opportunity, and I think that she holds a grudge against me because the last time I saw her she flipped me the bird."

Id. ¶¶ 66–77.

That same day, a local newspaper published a story regarding the fire. Fisher indicated during an interview that his team was already working on a plan to rebuild the printing plant. Fisher also noted that "CCA's hundreds of employees could ‘be retained’ during the rebuilding process via a ‘government’ safety net." Id. ¶ 78.

On September 2, 2017, the defendants terminated Morris' employment. Morris was one of only two managers who were dismissed following the fire. Via maintains that the defendants "knew and intended that Morris' termination would cause continued financial and emotional hardship" and that the decision was an act of "retaliation ... related to Via's initial EEOC charge and to this lawsuit." Id. ¶¶ 81, 97.

Via filed an amended complaint on October 4, 2017. Based on the events that transpired following the fire, Via added a claim for retaliation in violation of the ADA and a claim for defamation per se.

The defendants responded to the amended complaint by filing a partial motion to dismiss. The court held a hearing on the motion via teleconference on February 22, 2018. At the conclusion of the hearing, the court permitted Via to file a second amended complaint.

The case is now before the court on the defendants' partial motion to dismiss the second amended complaint. The motion has been fully briefed and is ripe for review.

Standards of Review

The defendants' motion is brought pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Rule 12(b)(1) permits a party to move for dismissal for lack of subject matter jurisdiction. The plaintiff bears the burden of proving that subject matter jurisdiction exists. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). Dismissal for lack of subject matter jurisdiction is appropriate "if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Id. (citation and internal quotation marks omitted).

Rule 12(b)(6) permits a party to move for dismissal of a complaint for failure to state a claim upon which relief can be granted. When deciding a motion to dismiss...