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In the united states district court for the - Virginia Lawyers Weekly

In the united states district court for the - Virginia Lawyers Weekly

2d 431, 447 (E.D. Va.

2d 431, 447 (E.D. Va. 2002) (citing Maximus v. Lockheed Info. Management Sys. Co., Inc., 254 Va. 408, 413-14, 493 S.E.2d 375 (Va. 1997)). To show that “improper” methods were used, a plaintiff must show that the means are “illegal and independently tortious, such as violations of statutes, regulations, or recognized common-law rules.” Duggin v. Adams, 234 Va. 221, 227, 360 S.E.2d 832, 836 (Va. 1987). Improper means may include violence, threats or intimidation, bribery, unfounded litigation, fraud, misrepresentation or deceit, defamation, duress, undue influence, misuse of inside or confidential information, or breach of a fiduciary relationship. Id.; see also, Storey, 207 F. Supp. 2d at 447 n.23. Case 3:10-cv-00111-REP Document 29 Filed 11/03/10 Page 8 of 14 Defendant Napper argues that summary judgment is warranted because the undisputed material facts are devoid of evidence that: (1) any alleged interference caused Clark’s termination; (2) Napper had the requisite intent to interfere with her employment; and (3) Napper employed “improper” methods. A. The Cause of Clark’s Termination There is no doubt from the record that MWV did not immediately decide to terminate Clark, but that it was a process that evolved. At some point in mid to late September, MWV constructed the Performance Plan, allowing Clark to correct her performance issues during a 45 to 60 day period to follow. The Performance Plan, dated October 1, 2009, was never implemented or followed, as MWV chose to terminate Clark before implementation. The Performance Plan itself contains sufficient indicia that the majority of Clark’s alleged shortcomings, including those arising from the Lost Report Incident, were already known to MWV at the time that it drafted the Performance Plan. The record shows that only two events 8

happened in the interim: (1) White, Rieck, and Napper had a conference call in which they discussed the Incident and Clark’s role therein; and (2) Clark admitted to Hewlett that she had shared the confidential identity of the subject of the 360 Evaluation with at least one other employee. Case 3:10-cv-00111-REP Document 29 Filed 11/03/10 Page 9 of 14 There is at least some evidence that either of those two intervening events could have caused MWV to change course, resulting in the decision to terminate Clark’s employment rather than proceed with the Performance Plan. A jury could infer that Napper’s request to work with a different administrative assistant prompted Rieck, the MWV employee who ultimately decided to terminate Clark, to abandon the Performance Plan. Alternatively, the jury could conclude that Clark’s admission that she had, indeed, divulged the confidential identity of the subject of the 360 Evaluation was the ultimate reason for her termination. The resolution of those alternative theories, each supported by more than a mere scintilla of evidence, is the sort of disputed material fact within the province of a jury. See Anderson, 477 U.S. at 248. Of course, it is not appropriate, at the summary judgment stage, for the Court to impose its own resolution of such disputed facts, no matter which alternative may appear most likely. See Williams, 372 F.3d at 667. Thus, the argument cannot serve as a basis for awarding summary judgment. B. Evidence of Intent Napper argues that the record contains no evidence that he intended to induce MWV to terminate Clark’s employment. (Def.’s Br. at 14.) Although Clark may be entitled to a reasonable inference that Napper’s input influenced MWV’s decision, the present record contains no evidence that Napper sought her termination. (Rieck Dep. at 11:9-14; Rieck Decl. 8; 9

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