Dao v. Faustin, Case No. 1:19-cv-649

• Decision Date: 29 August 2019
• Docket Number: Case No. 1:19-cv-649
• Citation: 402 F.Supp.3d 308
• Parties: Melaney DAO, et al., Plaintiffs, v. Paul M. FAUSTIN, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

402 F.Supp.3d 308

Melaney DAO, et al., Plaintiffs,

v.Paul M. FAUSTIN, et al., Defendants.

Case No. 1:19-cv-649

United States District Court, E.D. Virginia, Alexandria Division.

Signed August 29, 2019

Peter Charles Cohen, Hans Harris Chen, Charlson Bredehoft Cohen & Brown PC, Reston, VA, for Plaintiffs.

Gregory David Grant, Shulman Rogers Gandal Pordy & Ecker PA, Potomac, MD, Edward Lee Isler, Michelle Bodley Radcliffe, Isler Dare PC, Vienna, VA, for Defendants.

MEMORANDUM OPINION

T.S. Ellis, III, United States District Judge

This case arises from the alleged workplace harassment of plaintiffs Dao and Khan, former employees of defendant Infused Solutions, LLC ("Infused"), by defendant Faustin, the Chief Financial Officer of defendant Infused. In the Second Amended Complaint, plaintiffs bring various state law claims against defendant Faustin, including assault and battery, intentional infliction of emotional distress, negligent infliction of emotional distress, breach of fiduciary duty, and negligence. Plaintiffs also allege that defendant Infused is vicariously liable for certain of these state law claims under the doctrine of respondeat superior and that defendant Infused is also liable for hostile work environment and retaliation under Title VII and negligent retention under Virginia law. At issue in this matter are defendants' motions to dismiss plaintiffs' Second Amended Complaint for failure to state a claim. For the reasons that follow, defendants' motion to dismiss must be granted in part and denied in part.

I.

The well-settled motion to dismiss standard does not require extensive elaboration. As the Supreme Court has made clear, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Importantly, in making this determination the district court must "accept as true all well-pled facts in the complaint and construe them in the light most favorable to [the plaintiff]." United States v. Triple Canopy, Inc. , 775 F.3d 628, 632 n.1 (4th Cir. 2015). But the district court is not bound to "accept as true a legal conclusion couched as a factual allegation." Anand v. Ocwen Loan Servicing, LLC , 754 F.3d 195, 198 (4th Cir. 2014).

II.

In his motion to dismiss, defendant Faustin argues that dismissal is warranted with respect to the state law claims brought against him (i) because the claims are time-barred and (ii) because the claims fail to state a claim under Virginia law. Each of these arguments is addressed in turn.

A.

Defendant Faustin first argues that plaintiffs' state law claims are barred by the applicable statute of limitations. Under Virginia law, actions for personal injury and for breach of fiduciary duty must be brought within two years after the cause of action accrues. See Va. Code §§ 8.01-243(A), 8.01-248. Thus, as the parties agree, each of plaintiffs' state law claims against defendant Faustin is subject to a two-year statute of limitations.¹ This two-year statute of limitations period began to run for plaintiffs' personal injury claims "when the wrong [was] committed" and for their breach of fiduciary duty claims on "the date of the alleged breach." Castillo v. Emergency Med. Assocs., P.A. , 372 F.3d 643, 646 (4th Cir. 2004) ; Informatics Applications Grp., Inc. v. Shkolnikov , 836 F. Supp. 2d 400, 424 (E.D. Va. 2011). Here, the initial Complaint bringing plaintiff's state law claims against defendant Faustin was filed by plaintiffs on June 27, 2018. Accordingly, to be timely, plaintiffs' state law claims must be based on alleged wrongful acts or breaches of fiduciary duty that occurred between June 27, 2016 and June 27, 2018.

Defendant Faustin goes one step further, however, arguing that plaintiffs' state law claims are time-barred in full because they are based in part on alleged actions by defendant Faustin that occurred before June 27, 2016. In support of this argument, defendant Faustin relies entirely on Wheeler v. Virginia , No. 7:17CV00337, 2018 WL 325202, at *2 (W.D. Va. Jan. 8, 2018). But that decision did not reach the holding that defendant Faustin contends. Rather, the district court in Wheeler held that the claim at issue there was "partially time-barred to the extent that it is based on acts that fall outside the limitations period." Id. (emphasis added). The Wheeler court did not, contrary to defendant Faustin's assertion, hold that the claim was time-barred in its entirety simply because the claim was based on alleged conduct occurring both before and after the statute of limitations began to run. See id. at *2–3 (granting the defendant's partial motion to dismiss and dismissing Count II of the plaintiff's complaint in part as time-barred). Accordingly, Wheeler does not stand for the proposition for which it is cited by defendant Faustin, and the fact that plaintiffs' claims are based on alleged conduct occurring both before and during the limitations period does not render plaintiffs' claims time-barred in full. Instead, as plaintiffs correctly recognize, plaintiffs' state law claims against defendant Faustin are time-barred in part only to the extent that such claims are based on alleged conduct by defendant Faustin that occurred before June 27, 2016.²

Here, it is clear that plaintiffs' claims are based at least in part on alleged conduct by defendant Faustin occurring after June 27, 2016.³ Thus, to the extent that plaintiffs' claims are based on conduct occurring after that date, such claims are timely and may proceed.

B.

Defendant Faustin next argues that dismissal of plaintiffs' state law claims is warranted on the ground that plaintiffs have not pled sufficient facts to state any claim upon which relief can be granted. Each of plaintiffs' state law claims against defendant Faustin is analyzed separately below.

1.

In Counts 1 and 2 of the Second Amended Complaint, plaintiffs each bring a cause of action against defendant Faustin for assault and battery. Importantly, although assault and battery "go together like ham and eggs," they are considered to be "two independent torts" under Virginia law. Koffman v. Garnett , 265 Va. 12, 16, 574 S.E.2d 258 (2003). As the Supreme Court of Virginia has explained, the elements of assault are (1) "an act intended to cause either [ (a) ] harmful or offensive contact with another person or [ (b) ] apprehension of such contact" (2) "that creates in that other person's mind a reasonable apprehension of an imminent battery." Id. (citing Restatement (Second) of Torts § 21 (1965) ). In contrast, battery requires a showing of (1) "an unwanted touching which is neither consented to, excused, nor justified" (2) that is "offensive" and (3) that is "done in a rude, insolent, or angry manner." Balas v. Huntington Ingalls Indus., Inc. , 711 F.3d 401, 411 (4th Cir. 2013) (quoting Koffman , 265 Va. at 16, 574 S.E.2d 258 ; Restatement (Second) of Torts § 18 ; and Crosswhite v. Barnes , 139 Va. 471, 477, 124 S.E. 242 (1924) ). It is settled that "[a] bodily contact is offensive if it offends a reasonable sense of personal dignity ... judged by an objective standard, not by whether the plaintiff found the act offensive." Id. (citing Restatement (Second) of Torts §§ 18, 19 ).

Plaintiffs have alleged sufficient facts to state claims of battery against defendant Faustin. Plaintiff Dao alleges that on one occasion in the beginning of 2017, defendant Faustin grabbed plaintiff Dao's hand while they were riding in a car together for a work-related matter. Second Am. Compl. ¶ 45. Plaintiff Dao shook her hand away from defendant Faustin and told him not to touch her. Id. Plaintiff Dao further alleges that on numerous other occasions, indeed "on a near daily basis," defendant Faustin would instruct plaintiff Dao to come close to him and would "forcibly pull" her towards himself and hug her. Id. ¶ 42. Often, defendant Faustin "forcibly held [plaintiff] Dao in a hug for an extended period of time." ¶ 43. Plaintiff Dao alleges that she "frequently resisted," that she was "reluctant[ ]" to come close to defendant Faustin, and that she "tried to physically force him away from her." Id. ¶¶ 42–43. Importantly, prior to the occurrence of these hand grabbings and forced hugs, Dao had told defendant Faustin "not to touch her and that she does not like to be touched, especially by men, due to past sexual abuse." Id. ¶ 40.

These allegations, viewed in the light most favorable to plaintiff Dao, are sufficient to state a claim for battery upon which relief can be granted. First, it is clear that the touchings of plaintiff Dao by defendant Faustin were unwanted and were not consented to, excused, or justified. As the above allegations reflect, plaintiff Dao made clear to defendant Faustin that she did not want to be touched by him and that she resisted his attempts to hug her and grab her hand. Second, under an objective standard, these incidents of bodily contact "offend a reasonable sense of personal dignity" and are thus "offensive" for purposes of the battery claim. See Balas , 711 F.3d at 411. The facts alleged demonstrate that defendant Faustin's repeated contact with plaintiff Dao's body was done in blatant disregard of plaintiff's Dao's obvious discomfort with and resistance to his physical advances. Third, for similar reasons, these allegations reflect that defendant Faustin's alleged touchings were done in a "rude" or "insolent" manner. See id. According to the Second Amended Complaint, defendant Faustin's contact with plaintiff Dao's body was forcible and was done in disregard of plaintiff Dao's attempts to resist and in disregard of her clear distress caused by defendant Faustin's behavior. Thus, plaintiff Dao has pled sufficient facts to state a claim of battery against defendant Faustin.

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