Shirley Shaheen v. Wellpoint, Incorporated , 490 F. App'x 552 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-2317
SHIRLEY SHAHEEN,
Plaintiff – Appellant,
v.
THE WELLPOINT COMPANIES, INC., d/b/a WellPoint, Inc.,
Defendant – Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (3:11-cv-00077-JRS)
Submitted: May 17, 2012 Decided: August 3, 2012
Before AGEE, DAVIS, and DIAZ Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard F. Hawkins, III, HAWKINS LAW FIRM, PC, Richmond,
Virginia, for Appellant. Karla Grossenbacher, Taron K.
Murakami, SEYFARTH SHAW LLP, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After her termination, Shirley Shaheen filed suit
against her former employer, alleging defamation in the context
of her termination. The district court entered summary judgment
in favor of Shaheen’s employer and denied as moot her motion to
compel production of certain privileged documents. For the
reasons that follow, we affirm.
I.
A.
Shaheen worked for The WellPoint Companies
(“WellPoint”) in various capacities from March 2004 until
October 2010. In March 2006, Shaheen was named a manager of
WellPoint's NurseLine, “a 24/7 call-in operation designed to
provide quick and immediate advice from nurse associates to
insureds of Anthem Blue Cross Blue Shield (a WellPoint
subsidiary).” Appellant’s Br. 5. As a manager, Shaheen was
responsible for supervising approximately twenty NurseLine
associates.
Shaheen remained in this position until October 15,
2010, when she was terminated by WellPoint. The chronology
leading to her termination began with a September 11, 2010
incident between Shaheen and Linda Taylor, a NurseLine
associate. According to Shaheen, she asked Taylor to switch to
2
a cubicle with a “Click–to–Talk” extension, a call feature that
Taylor needed to perform her job. Taylor protested, responding
“I don’t understand why the hell I have to move,” and adding
that after previously using a cubicle not equipped with Click-
to-Talk, “why the hell is it so important that I move now?”
J.A. 315. The exchange continued. Ultimately Shaheen asked,
“[I]s it really an ordeal to move?,” and according to Shaheen,
Taylor responded, “[I]t f-king is.” Id.
Shaheen subsequently participated in a previously-
scheduled online conference with other NurseLine managers and
WellPoint personnel, including Kelli Lohmeyer, Director of
NurseLine, and Whitney Ingle, the WellPoint Human Resources
representative for NurseLine. Shaheen informed Ingle and
Lohmeyer of her encounter with Taylor. Ingle and Lohmeyer
advised Shaheen that this behavior was grounds for Taylor's
termination. To this end, Ingle and Lohmeyer instructed Shaheen
to submit a written description of the incident. According to
Shaheen, Ingle specifically requested a statement regarding
“what the curse words were.” Id. 81. Shaheen’s subsequent memo
indicated that Taylor “responded in a verbally hostile matter,”
used the “f-word,” and that at least two other NurseLine
associates—Tammy DeGroft and Pamela Roepke—witnessed the
incident. Id. 149.
3
In response to Ingle’s instruction, Shaheen and
Barbara Wetzler, another NurseLine manager, informed Taylor that
she was being terminated based on her behavior and language
during the September 11 incident. According to a memo Shaheen
prepared for Ingle summarizing the conversation with Taylor,
Taylor felt that “she did nothing wrong, she did not curse, was
not hostile and was not inappropriate.” Id. 155. Shaheen’s
memo again mentioned that the incident was “witnessed by at
least two associates,” identifying DeGroft and Roepke, and
noting that “both associates were standing with [Taylor] and I
[sic] when the incident occurred.” Id. And Shaheen added that
three other associates—including Charlyn Harrison—“were also on
the unit in [the] area to potentially overhear and see
[Taylor’s] comments and behavior.” Id.
Days later, Taylor contacted Ingle to challenge her
termination, insisting that she never used the “f-word” during
her exchange with Shaheen. In light of Taylor’s protestations,
Ingle and Lohmeyer opened an investigation into the incident.
Initially, they contacted the witnesses identified in Shaheen’s
memo—including DeGroft, Roepke, and Harrison—asking if they had
“overheard or seen anything inappropriate.” Id. 458. These
witnesses, however, were unable to confirm that Taylor used the
“f-word.” In fact, Harrison stated that she was not at work
when the incident occurred. Unable to confirm the details of
4
the alleged incident via Shaheen’s asserted witnesses, Ingle and
Lohmeyer scheduled a meeting with Shaheen.
During their meeting with Shaheen, Ingle and Lohmeyer
requested a verbatim account of the incident, specifically
asking about Taylor’s cursing and why no other employees heard
the exchange. Shaheen responded that although she could not say
why no one overheard Taylor’s words, Shaheen never said that she
and Taylor were yelling. Apparently dissatisfied with Shaheen’s
responses, at a meeting on October 15, 2010, Ingle and Lohmeyer
terminated Shaheen. Explaining the decision, Ingle and Lohmeyer
indicated that they felt that Shaheen had “misrepresented the
severity of the situation” between her and Taylor. Id. 326.
Specifically, they emphasized that they had to “prompt [Shaheen]
four times” before Shaheen restated that Taylor used the “f-
word.” Id. In Shaheen’s personnel file, “misconduct” was noted
as the reason for termination. Id. 437.
B.
Shaheen filed a diversity action alleging defamation
and defamation per se against WellPoint, and requesting
compensatory and punitive damages. 1 Shaheen challenged the
1
Shaheen’s complaint also included a breach of contract
claim that was subsequently dismissed and is not challenged on
appeal.
5
following six statements: (1) Ingle and Lohmeyer’s statements
during the October 13 and 15 meetings that Shaheen
misrepresented and lied about the facts related to the incident
with Taylor; (2) Ingle and Lohmeyer’s statement during the
October 15 meeting with Shaheen that she “misrepresented the
severity” of Taylor's conduct; (3) a note in Shaheen’s personnel
file that she was terminated for “misconduct”; (4) a statement
that Shaheen violated WellPoint's ethics policy by
misrepresenting facts related to a company investigation; (5)
Lohmeyer's statement in an email to Ingle that Shaheen did not
offer any alternatives to terminating Taylor; and (6) Lohmeyer's
statement in an email to Ingle that Shaheen decided to
terminate, or recommended termination for, Taylor. Shaheen v.
WellPoint Companies, Inc., No. 3:11–CV–077, 2011 WL 5325668, at
*2 (E.D. Va. Nov. 3, 2011).
WellPoint moved for summary judgment, with Shaheen
responding in opposition. Shaheen subsequently moved to compel
the production of documents related to WellPoint’s investigation
of the incident, including communications between WellPoint
employees and counsel, and to reopen the depositions of Ingle
and Lohmeyer. The district court found that the statements were
protected by a qualified privilege that Shaheen had not defeated
and therefore, that Shaheen “failed to show the existence of a
genuine dispute” as to whether the challenged statements were
6
defamatory or defamatory per se. Id., 2011 WL 5325668, at *6.
Accordingly, the district court granted WellPoint’s motion for
summary judgment and denied Shaheen’s motion to compel as moot.
Shaheen timely appealed.
II.
We review the district court’s grant of summary
judgment de novo, viewing the facts and drawing all reasonable
inferences therefrom in the light most favorable to the non-
movant. PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d 111,
119 (4th Cir. 2011). Summary judgment is proper only if there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. Id. We review the
district court’s denial of a motion to compel discovery for
abuse of discretion. Lone Star Steakhouse & Saloon, Inc. v.
Alpha of Va., Inc., 43 F.3d 922, 929 (4th Cir. 1995).
III.
A defamation action under Virginia law requires (1)
publication, (2) of an actionable statement, and (3) the
requisite intent. Chapin v. Greve, 787 F. Supp. 557, 562 (E.D.
Va. 1992). To be actionable, a statement must be both false and
defamatory. Id. Defamatory statements must be “more than
merely unpleasant or offensive;” rather, they must “make the
7
plaintiff appear odious, infamous, or ridiculous.” Id.(internal quotation omitted). Certain statements are considered
defamatory per se, including those that impute an unfitness to
perform the duties of a job or lack of integrity in the
performance of duties, or prejudice the party in her profession
or trade. Echtenkamp v. Loudon County Pub. Sch., 263 F. Supp.
2d 1043, 1061 (E.D. Va. 2003).
In the context of a defamation action, Virginia
recognizes a qualified privilege for “[c]ommunications between
persons on a subject in which the persons have an interest or
duty.” 2 Larimore v. Blaylock, 528 S.E.2d 119, 121 (Va. 2000).
The qualified privilege, however, “is lost if a plaintiff proves
by clear and convincing evidence that the defamatory words were
spoken with common-law malice.” Smalls v. Wright, 399 S.E.2d
805, 808 (Va. 1991). To defeat the privilege, a plaintiff must
2
As noted by the district court, the publication element of
a defamation action requires dissemination of the statement to a
third party in a nonprivileged context and “[i]n this regard, it
is well settled . . . that communications between persons on a
subject in which the persons have an interest or duty are
occasions of privilege.” Shaheen, 2011 WL 5325668, at *4.
(quotation and alteration omitted). In concluding that Shaheen
could not defeat WellPoint’s qualified privilege, the district
court determined that WellPoint was entitled to summary judgment
on Shaheen’s claims of defamation and defamation per se. See
Food Lion, Inc. v. Melton, 458 S.E.2d 580, 584 (Va. 1995)
(noting, in the context of a claim of defamation per se, that in
addition to proving negligence, a plaintiff “further must prove
that there was publication of the defamatory words”) (emphasis
added).
8
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,” or “what, as a matter
of law, is equivalent to malice, that the communication was made
with such gross indifference and recklessness as to amount to a
wanton or wilful disregard of the rights of the
plaintiff.” Southeastern Tidewater Opportunity Project, Inc. v.
Bade, 435 S.E.2d 131, 132-33 (Va. 1993).
Shaheen does not seriously dispute that the
statements—at least initially—are covered by qualified
privilege, and we readily conclude that they are. See Larimore,
528 S.E.2d at 121 (noting that Virginia courts have applied the
privilege “in a number of cases involving defamatory statements
made between co-employees and employers in the course of
employee disciplinary or discharge matters”). She asserts,
however, the existence of a genuine dispute on an issue of
material fact as to whether WellPoint lost the privilege through
its malicious actions. Specifically, she argues that WellPoint
lost the privilege via its (1) “reckless disregard for the truth
in terms of its gross[ly] deficient investigation” of the
incident, (2) “use of disproportionate and/or exaggerated
language when describing the ‘facts’ it believes supported its
defamatory statements,” and (3) “lack of reasonable cause or
belief for believing the allegations against Shaheen to be
9
true.” Appellant’s Br. 34, 36 (citing Great Coastal Exp., Inc.
v. Ellington, 334 S.E.2d 846, 853-54 (Va. 1985)).
We find that Shaheen fails to raise a genuine dispute
on the issue of WellPoint’s alleged malice. Ingle and Lohmeyer
conducted an investigation of the incident in response to
Taylor’s challenge to her termination, including her denial of
using the “f-word.” This investigation included interviews of
Shaheen and all associates identified by Shaheen as witnesses or
potential witnesses. Shaheen’s attempts to discredit the
investigation as “grossly inadequate,” Appellant’s Br. 3, are
themselves lacking. For example, Shaheen argues that in asking
if the associates had “overheard or seen anything
inappropriate,” J.A. 458, rather than specifically inquiring
about the “f-word” or about Taylor, Ingle and Lohmeyer failed to
ask “the right questions,” Appellant’s Br. 36. As Ingle
explained, however, it is her practice “not [to] ask leading
questions when . . . conduct[ing] an investigation. I wanted to
get open and honest answers about . . . what they may or may not
have observed.” J.A. 458-59.
In another example, Shaheen asserts that Ingle did not
include in her talking points with Shaheen that DeGroft said
that Taylor was talking loudly, was agitated, and left at some
point and did not hear the end of the conversation. In so
doing, Shaheen argues that Ingle "downplayed" and "omitted"
10
certain facts supportive of Shaheen's account. Appellant’s Br.
18-19. While it is true that DeGroft indicated that she heard
Taylor “speaking loudly” (adding that Taylor “often” spoke at a
similar volume), J.A. 410, Taylor was not terminated for raising
her voice, but “predominantly” for allegedly using the “f-
word,” id. 444. And on this point, DeGroft offered no
corroboration for Shaheen’s version of events.
WellPoint’s investigation stands in contrast to the
incomplete or nonexistent investigations in the cases on which
Shaheen relies. See, e.g., A.B.C. Needlecraft Co. v. Dun &
Bradstreet, Inc., 245 F.2d 775, 777 (2d Cir. 1957) (finding
evidence that defendant published false information with
“nothing more to go on than a misunderstood casual remark,
with no effort to verify the facts, though to have done so would
have been a simple matter” was “clearly sufficient to support a
[jury] finding that the defendant acted in wanton and reckless
disregard of the plaintiff's rights” (emphasis added)); Wirig v.
Kinney Shoe Corp., 461 N.W.2d 374, 380 (Minn. 1990) (rejecting
claim of qualified privilege where “no investigation occurred to
substantiate the charges that [the terminated plaintiff-
employee] had stolen merchandise,” but rather “[t]he managerial
personnel who repeated the accusations simply believed their
sources without further investigation” (emphasis added)).
11
The investigation that led to Shaheen’s termination
did not suffer from the same failings and thus, Shaheen has
failed to raise a genuine dispute on an issue of material fact
sufficient to defeat WellPoint’s qualified privilege.
Accordingly, we affirm the district court’s summary judgment
ruling. 3 See, e.g., Taylor v. CNA Corp., 782 F. Supp. 2d 182,
202-03 (E.D. Va. 2010) (granting summary judgment to defendants
on defamation claim where plaintiff asserted malice but “the
record provides no basis for a reasonable jury to make such a
conclusion by th[e] elevated [clear and convincing] standard”).
IV.
Shaheen further contends that the district court erred
in denying her motion to compel as moot. Having reviewed the
record and considered Shaheen’s argument, we find no abuse of
discretion and affirm. See Lone Star, 43 F.3d at 929 (observing
that we “afford[] a district court substantial discretion in
managing discovery”).
3
Because we affirm the district court’s conclusion that
WellPoint was entitled to summary judgment based on its
qualified privilege, we do not address Shaheen’s additional
argument that the court erred in “suggest[ing]” that the
challenged statements were not defamatory per se. Appellant’s
Br. 39.
12
Moreover, even were we to conclude that the district
court erred, any error was harmless. Shaheen concedes that she
sought to compel production of documents protected by the
attorney-client privilege, but argues that disclosure was
warranted under the “at issue” doctrine. According to Shaheen,
the “at-issue” exception to the attorney-client privilege
applies because (1) the privilege was asserted as a result of
some affirmative act by WellPoint; (2) through the affirmative
act, WellPoint put the protected information at issue by making
it relevant to the case; and (3) application of the privilege
would deny Shaheen access to vital information. See Billings v.
Stonewall Jackson Hosp., 635 F. Supp. 2d 442, 446 (W.D. Va.
2009).
We disagree, as WellPoint never asserted advice of
counsel as an affirmative defense. Indeed, neither Ingle nor
Lohmeyer indicated that they relied on advice of counsel in
terminating Shaheen, or in making the alleged defamatory
statements. Thus, the “at issue” doctrine does not apply. See,
e.g., Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851,
863 (3d Cir. 1994) (“Advice is not in issue merely because it is
relevant . . . . The advice of counsel is placed in issue where
the client asserts a claim or defense, and attempts to prove
that claim or defense by disclosing or describing an attorney
client communication.”); Billings, 635 F. Supp. 2d at 446
13
(“[Defendant] does not assert the defense of advice of counsel
in this case; thus, the narrow ‘at-issue’ exception does not
apply.”); Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wa. 1975)
(noting that cases finding a waiver of attorney-client privilege
share a “common denominator” in that “the party asserting the
privilege placed information protected by it in issue through
some affirmative act for his own benefit”).
V.
For the foregoing reasons, we affirm the judgment of
the district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
14