Karen Balas v. Huntington Ingalls Industries , 711 F.3d 401 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
KAREN B. BALAS, 
Plaintiff-Appellant,
v.
HUNTINGTON INGALLS INDUSTRIES,  No. 12-1201
INC., Successor to Northrop
Grumman Corporation,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Arenda Wright Allen, District Judge.
(2:11-cv-00347-AWA-FBS)
Argued: January 31, 2013
Decided: March 15, 2013
Before DUNCAN, WYNN, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opin-
ion, in which Judge Wynn and Judge Floyd joined.
2 BALAS v. HUNTINGTON INGALLS INDUSTRIES
COUNSEL
ARGUED: Steven Scott Biss, Charlottesville, Virginia, for
Appellant. Scott William Kezman, KAUFMAN &
CANOLES, PC, Norfolk, Virginia, for Appellee. ON BRIEF:
Mark E. Warmbier, KAUFMAN & CANOLES, PC, Norfolk,
Virginia, for Appellee.
OPINION
DUNCAN, Circuit Judge:
Karen B. Balas appeals the district court’s denial of relief
on her claims of discrimination, retaliation, and hostile work
environment, brought under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e ("Title VII"), as well as wrongful
discharge, assault, and battery, brought under Virginia law,
against Huntington Ingalls Industries, Inc. ("Huntington
Ingalls"), the successor to her former employer, Northrop
Grumman Corporation.1 On appeal, Balas argues that the dis-
trict court erred in construing the scope of her charge of dis-
crimination, denying her leave to amend her complaint, and
granting summary judgment to Huntington Ingalls on her
claims of retaliatory discharge, assault, and battery. For the
reasons ably articulated by the district court, we affirm.
I.
A.
According to Balas, Huntington Ingalls "subject[ed] her to
an ongoing sexually hostile work environment that included
unwanted requests from her supervisor for sex, numerous sex-
ual comments, sexually explicit posters knowingly being
1
We refer to Balas’s former employer as Huntington Ingalls.
BALAS v. HUNTINGTON INGALLS INDUSTRIES 3
allowed in [her] workplace, employees massaging one
another, sexually offensive pictures, and unwanted touching
. . . ." J.A. 7. Her complaint centers on the actions of her
supervisor, Brad Price, who, she alleges, "frequently and
repeatedly commented to [her] about how much he liked her
attire and physical appearance"; "referred to [her] as a ‘good
woman’"; "frequently and repeatedly entered [her] small work
space and her personal space"; and "frequently talked about
his sex life to [her]." J.A. 7-8. According to Balas’s com-
plaint, "[i]n or around April 2009, Mr. Price solicited sex
from [her]." J.A. 8.
In August 2009, Balas wore a pair of ripped jeans to work.
Price, apparently in response to a complaint, sent her home to
change into more appropriate work attire. Balas alleges that
men dressed in similarly ripped jeans were not asked to
change. She alleges that upon returning to work, she com-
plained to Price that his request for her to change clothes was
discriminatory.
In January 2010, Price hugged Balas. Balas alleges that
Price "trapped [her] in her work space and willfully, wantonly
and forcibly put his arms around [her,] hugging her against
her will." J.A. 11-12. It is undisputed, however, that this hug
occurred after Balas had given Price a gift of Christmas cook-
ies for his family, and that immediately prior to the hug, Price
had thanked her for the cookies and told her, "You never
cease to amaze me." J.A. 145.
Balas alleges that she repeatedly complained of gender dis-
crimination and a hostile work environment. She asserts that
because of these complaints, she was repeatedly denied pro-
motions.
On February 17, 2010, Balas was fired for falsifying her
February 11, 2010 time records. Another female employee
was fired the same day for the same infraction. It is undis-
puted that Balas did not properly account for taking off over
4 BALAS v. HUNTINGTON INGALLS INDUSTRIES
an hour of time. Price alerted Cindi Wolfe, his human
resources representative, and Roger Lowman, the department
manager, of the time-keeping infraction. The three of them
undertook an investigation of the incident. Lowman, who was
never made aware of Balas’s alleged complaint to Price about
the jeans incident, was solely responsible for the decision to
fire Balas.
B.
On July 19, 2010, Balas submitted an intake questionnaire
to the Equal Employment Opportunity Commission
("EEOC"). She attached to her questionnaire a letter laying
out her complaints in greater detail, including being denied
opportunities for promotions, a "personal vendetta" Wolfe
held against her, and the circumstances of the jeans incident.
J.A. 182-84. The EEOC prepared a charge on her behalf,
alleging sex discrimination and retaliatory termination, which
Balas signed on July 26, 2010. The only specific occurrences
referenced in the charge were her termination and the jeans
incident. The EEOC charge listed February 17, 2010—the
date of her termination—as the "earliest" and "latest" date of
discrimination. The "continuing action" box on the charge
was left blank.
On October 2, 2010, Balas sent a second letter to the EEOC
providing further details related to Price and the alleged sex-
ual harassment. Later that month, the EEOC prepared an
amended charge, which included the allegation that Price
inappropriately hugged her in January 2010. The hug was the
only additional fact alleged in the amended charge. The earli-
est date of discrimination section was left blank, but, again,
the "continuing action" box was not checked.
The EEOC dismissed Balas’s charge and issued her right to
sue letter on February 25, 2011. She subsequently filed suit in
the district court pro se. In her complaint, Balas alleged Title
VII claims for failure to promote, retaliatory termination, and
BALAS v. HUNTINGTON INGALLS INDUSTRIES 5
hostile work environment based on sexual harassment. She
also alleged state law claims for wrongful discharge, assault,
battery, and intentional infliction of emotional distress.
Huntington Ingalls filed a motion for judgment on the
pleadings, which the district court granted in part. The court
determined that it lacked jurisdiction to consider allegations
in Balas’s Title VII claim that were not included in her EEOC
charge. In determining the scope of that charge, the court
declined to consider Balas’s intake questionnaire or letters to
the EEOC. The court concluded that Balas only properly
alleged discriminatory or retaliatory termination and harass-
ment by her supervisor. It went on, however, to dismiss her
harassment claim.
In her complaint, Balas alleged that Huntington Ingalls
wrongfully discharged her by terminating her in order to
silence her opposition to discrimination and harassment in the
workplace, in violation of what she asserted is the public pol-
icy articulated in the Virginia Human Rights Act ("VHRA"),
Va. Code § 2.1-714 et seq. Balas sought to amend her com-
plaint to include other sources of public policy in support of
her claim. The district court determined that Balas’s proposed
amendments would be futile because the complaint, even if
amended, would not sufficiently state a claim for wrongful
discharge. The court thus denied Balas leave to amend her
complaint and dismissed her wrongful discharge claim.
The court found that Balas had stated a claim of retaliatory
termination under Title VII and denied Huntington Ingalls’s
motion for judgment on the pleadings as to that claim. In con-
sidering the merits of Balas’s retaliatory termination claim on
summary judgment, the court concluded that Balas suffi-
ciently alleged that she had engaged in a protected activity in
complaining to Price about discrimination and that Hunting-
ton Ingalls took an adverse employment action against her by
firing her. It determined, however, that she failed to present
more than merely colorable evidence of a causal link between
6 BALAS v. HUNTINGTON INGALLS INDUSTRIES
the two events, and granted summary judgment to Huntington
Ingalls.
The court also determined that Balas had stated claims for
assault and battery. Upon considering the merits of those
claims, however, it concluded that Price’s hug could not
amount to either a battery or an assault, and granted summary
judgment to Huntington Ingalls.
Balas now appeals the district court’s dismissal of the
majority of her Title VII claims on the basis of lack of juris-
diction, its denial of leave to amend her complaint, and its
grant of summary judgment to Huntington Ingalls on her
retaliatory termination, assault, and battery claims.2
II.
Balas first argues that the district court erred by considering
only her EEOC charge—and not the intake questionnaire and
letters she sent to the EEOC—in evaluating her Title VII
claims. She also argues that she should have been granted
leave to amend her complaint to include additional sources of
public policy upon which to base her wrongful discharge
claim.
Balas further challenges the district court’s grant of sum-
mary judgment to Huntington Ingalls. With respect to her
Title VII retaliatory discharge claim, she argues that a reason-
able person could find a connection between her alleged com-
plaints to Price regarding sexual harassment and
discrimination and Lowman’s decision to fire her. She also
argues that she presented sufficient evidence from which a
jury could find that Price committed the torts of assault and
battery.
2
Balas does not challenge the district court’s dismissal of her Title VII
harassment claim, her wrongful discharge claim based on the VHRA, or
her intentional infliction of emotional distress claim.
BALAS v. HUNTINGTON INGALLS INDUSTRIES 7
We address each of these arguments in turn.
A.
We first take up Balas’s argument that the district court
erred in considering only her amended EEOC charge, and not
the contents of her intake questionnaire or the two letters she
submitted to the EEOC. The import of her argument derives
from the fact that federal courts lack subject matter jurisdic-
tion over Title VII claims for which a plaintiff has failed to
exhaust administrative remedies. Jones v. Calvert Grp., Ltd.,
551 F.3d 297, 300 (4th Cir. 2009). We review questions of
subject matter jurisdiction de novo. Dixon v. Coburg Dairy,
Inc., 369 F.3d 811, 815 (4th Cir. 2004) (en banc).
1.
An employee seeking redress for discrimination cannot file
suit until she has exhausted the administrative process. See 42
U.S.C. § 2000e-5(b). The requirement of filing a charge with
the EEOC against the party sued serves two principal pur-
poses: "‘First, it notifies the charged party of the asserted vio-
lation. Secondly, it brings the charged party before the EEOC
and permits effectuation of the [Civil Rights] Act’s primary
goal, the securing of voluntary compliance with the law.’"
Dickey v. Greene, 710 F.2d 1003, 1005 (4th Cir. 1983), rev’d
on other grounds, 729 F.2d 957 (4th Cir. 1984) (quoting
Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 719 (7th Cir.
1969)). The filing of an administrative charge, therefore, "is
not simply a formality to be rushed through so that an individ-
ual can quickly file his subsequent lawsuit." Chacko v. Patux-
ent Inst., 429 F.3d 505, 510 (4th Cir. 2005). Rather, the
charge itself serves a vital function in the process of remedy-
ing an unlawful employment practice.
An employee complaining of illegal discrimination must
first contact the EEOC and present it with information sup-
porting the allegations. 42 U.S.C. § 2000e-5(b); 29 C.F.R.
8 BALAS v. HUNTINGTON INGALLS INDUSTRIES
§ 1601.6. After receiving an employee’s intake questionnaire
and any other information the employee has provided, the
EEOC typically assists the employee with filing a charge.
This assistance often includes drafting a charge—as it did
here—and then asking the employee to sign it. See U.S. Equal
Employment Opportunity Comm’n, The Charge Handling
Process, available at http://www.eeoc.gov/employees/
process.cfm (last visited Feb. 15, 2013).
The EEOC sends a notice and copy of the charge to the
employer. 42 U.S.C. § 2000e-5(b); 29 C.F.R. § 1601.14. This
notice gives the employer the chance to voluntarily conduct
its own investigation and attempt to resolve any discrimina-
tory actions internally. See Chacko, 429 F.3d at 510. Concur-
rently, the EEOC investigates the charge.
The filing of a charge also "initiates agency-monitored set-
tlement, the primary way that claims of discrimination are
resolved." Id. This procedure "reflects a congressional intent
to use administrative conciliation as the primary means of
handling claims, thereby encouraging quicker, less formal,
and less expensive resolution of disputes." Chris v. Tenet, 221
F.3d 648, 653 (4th Cir. 2000). Prior to making any determina-
tion as to the merit of a charge, the EEOC may encourage and
facilitate settlement between the parties. 12 C.F.R. § 1601.20.
If the EEOC finds "reasonable cause to believe that the
charge is true, the Commission shall endeavor to eliminate
any such alleged unlawful employment practice by informal
methods of conference, conciliation, and persuasion." 42
U.S.C. § 2000e-5(b); 29 C.F.R. § 1601.24. If the EEOC can-
not reach a voluntary settlement with the employer, the
agency may file a lawsuit or issue a Notice-of-Right-to-Sue to
the employee. 29 C.F.R. § 1601.27-28. If the EEOC does not
make a reasonable cause determination or the employee
requests a right to sue, the agency may issue one, thus allow-
ing the employee to file suit. 29 C.F.R. § 1601.28.
BALAS v. HUNTINGTON INGALLS INDUSTRIES 9
2.
In any subsequent lawsuit alleging unlawful employment
practices under Title VII, a federal court may only consider
those allegations included in the EEOC charge. See Evans v.
Techs. Applications & Serv. Co., 80 F.3d 954, 962-63 (4th
Cir. 1996) ("The allegations contained in the administrative
charge of discrimination generally operate to limit the scope
of any subsequent judicial complaint."). If the plaintiff’s Title
VII claims "‘exceed the scope of the EEOC charge and any
charges that would naturally have arisen from an investigation
thereof, they are procedurally barred.’" Chacko, 429 F.3d at
506 (quoting Dennis v. Cnty. of Fairfax, 55 F.3d 151, 156 (4th
Cir. 1995)).
In determining what claims a plaintiff properly alleged
before the EEOC, we may look only to the charge filed with
that agency. We have noted that "it would be objectively
illogical to view a private letter from a complaining party to
the EEOC as constructively amending a formal charge, given
that one of the purposes of requiring a party to file charges
with the EEOC is to put the charged party on notice of the
claims raised against it." Sloop v. Mem’l Mission Hosp., Inc.,
198 F.3d 147, 149 (4th Cir. 1999). Sloop’s reasoning applies
here, despite Balas’s contentions to the contrary. Balas argues
that her letters, written before formal charges were filed,
should be treated differently. We disagree. Given that Balas’s
employer was never apprised of the contents of her letters
(nor could she expect it to have been), the point at which they
were written makes no difference for the goals of putting her
employer on notice or encouraging conciliation.
While we recognize that EEOC charges often are not com-
pleted by lawyers and as such "‘must be construed with
utmost liberality,’" Alvarado v. Bd. of Trs. of Montgomery
Cmty. Coll., 848 F.2d 457, 460 (4th Cir. 1988) (quoting
Kaplan v. Int’l Alliance of Theatrical & Stage Emps., 525
F.2d 1354, 1359 (9th Cir. 1975)), we are not at liberty to read
10 BALAS v. HUNTINGTON INGALLS INDUSTRIES
into administrative charges allegations they do not contain.
Instead, persons alleging discrimination have a different form
of recourse if they determine that their initial charge does not
read as they intended: they may, as Balas did, file an amended
charge with the EEOC. See 29 C.F.R. § 1601.12(b).3 The
intake questionnaire and the letters Balas submitted to the
EEOC cannot be read as part of her formal discrimination
charge without contravening the purposes of Title VII.
Balas also argues that she should not be penalized for the
EEOC’s "negligence" in failing to send a copy of her intake
questionnaire and letters to the EEOC to her employer.4 How-
ever, she points to no authority—and we find none—requiring
the EEOC to undertake such an action or providing the EEOC
with the discretion to do so.5 We decline to impose such an
obligation upon the EEOC.
3
Balas suggests that we should read the regulation governing amend-
ments to EEOC charges, which provides in part that "[a] charge may be
amended to cure technical defects or omissions, including failure to verify
the charge, or to clarify and amplify allegations made therein," 29 C.F.R.
§ 1601.12(b), to mean that her letters should be considered for clarifica-
tion and amplification of her allegations. The regulation by its terms
applies to the amendment of the charging document itself, not to extrinsic
ones. Balas’s is an implausible reading of the regulation and one for which
she advances no support.
4
Balas made this contention for the first time at oral argument. While
issues not included in the opening brief are generally considered waived,
W. Va. CWP Fund v. Stacy, 671 F.3d 378, 389 (4th Cir. 2011), we discuss
her contention briefly for the sake of comprehensiveness.
5
The EEOC is simply required to serve the respondent with a copy of
the charge, or, when providing a copy of the charge would impede the law
enforcement functions of the EEOC, notice of the charge. 42 U.S.C.
§ 2000e-5(b); 29 C.F.R. § 1601.14. As the EEOC clarifies on its intake
questionnaire, the "principal purpose" of that questionnaire is "to solicit
information about claims of employment discrimination, determine
whether the EEOC has jurisdiction over those claims, and provide charge
filing counseling, as appropriate." J.A. 181. While the questionnaire "may
serve as a charge if it meets the elements of a charge," id., the EEOC is
under no obligation to provide it to a respondent employer along with a
charge. None of the "routine uses" of the questionnaire involve sending it
or attached documents to respondent employers. Id.BALAS v. HUNTINGTON INGALLS INDUSTRIES 11
Any Title VII claims based on allegations included only in
Balas’s intake questionnaire and letters are therefore outside
the jurisdiction of the federal courts. The district court prop-
erly declined to consider those allegations not included in
Balas’s EEOC charge.
B.
We next consider the district court’s denial of leave for
Balas to amend her complaint. Leave to amend a pleading
should be freely given "when justice so requires." Fed. R. Civ.
P. 15(a). "‘[L]eave to amend a pleading should be denied only
when the amendment would be prejudicial to the opposing
party, there has been bad faith on the part of the moving party,
or the amendment would be futile.’" Edwards v. City of
Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999) (quoting John-
son v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir.
1986)). The court determined that Balas’s proposed amend-
ments would be futile. We review the denial of leave to
amend a complaint for abuse of discretion. HCMF Corp. v.
Allen, 238 F.3d 273, 276-77 (4th Cir. 2001).
Virginia generally adheres to the common law doctrine of
at-will employment. Miller v. SEVAMP, Inc., 362 S.E.2d 915,
916-17 (Va. 1987). However, an at-will employee may bring
a tortious wrongful discharge claim if her termination violates
a state public policy as expressed in a statute. Bowman v.
State Bank of Keysville, 331 S.E.2d 797, 801 (Va. 1985). The
Supreme Court of Virginia has consistently characterized this
exception as "narrow." City of Virginia Beach v. Harris, 523
S.E.2d 239, 245 (Va. 2000). That court has recognized a "dis-
charge . . . based on [an] employee’s refusal to engage in a
criminal act" as a basis for a wrongful discharge action.
Rowan v. Tractor Supply Co., 559 S.E.2d 709, 711 (Va.
2002).
Balas contends that she was discharged for refusing to
engage in illegal activity and sought to amend her complaint
12 BALAS v. HUNTINGTON INGALLS INDUSTRIES
to reference additional crimes she declined to commit. Specif-
ically, she would have amended her complaint to allege that
her discharge followed from her refusal to commit three
crimes under Virginia law: (1) fornication, see Va. Code
§ 18.2-344; (2) lewd and lascivious behavior, see Va. Code
§ 18.2-345; and (3) sexual assault, see Va. Code § 18.2-61.
We consider each in turn.
In support of her argument regarding the first of these poli-
cies, Balas cites Mitchem v. Counts, 523 S.E.2d 246 (Va.
2000). There, the Supreme Court of Virginia determined that
a plaintiff sufficiently stated a claim for wrongful discharge
based on Virginia statutes proscribing fornication and lewd
and lascivious behavior. However, as the district court cor-
rectly determined here, Mitchem’s application of Virginia
Code § 18.2-344, prohibiting fornication, was abrogated by
Martin v. Ziherl, 607 S.E.2d 367 (Va. 2005), making Balas’s
proposed amendment futile. In Martin, the Virginia Supreme
Court struck down § 18.2-344 as unconstitutional, "because
by subjecting certain private sexual conduct between two con-
senting adults to criminal penalties it infringes on the rights
of adults to ‘engage in the private conduct in the exercise of
their liberty under the Due Process Clause of the Fourteenth
Amendment to the Constitution.’" 607 S.E.2d at 371 (quoting
Lawrence v. Texas, 539 U.S. 558, 564 (2003)).
Amending her complaint to reference Virginia’s public pol-
icy against lewd and lascivious behavior would likewise be
futile. Virginia Code § 18.2-345, which makes it illegal to
"lewdly and lasciviously associate and cohabit" and to engage
in "open and gross lewdness and lasciviousness," does not
apply to the facts Balas alleges in her complaint. Price never
proposed cohabitation, and the hug Balas complains of did not
even begin to approach the sort of "open and gross lewdness"
§ 18.2-345 prohibits. See Everett v. Commonwealth, 200
S.E.2d 564 (Va. 1973).6
6
In an unpublished opinion, VanBuren v. Grubb, 471 F. App’x 228,
233-34 (4th Cir. 2012), we determined that an employee complaining that
BALAS v. HUNTINGTON INGALLS INDUSTRIES 13
Balas’s final proposed amendment would be even farther
from the mark. She would amend her complaint to allege that
she was wrongfully discharged for not consenting to engage
in the crime of sexual assault. Her proposed argument is
untenable, as it is legally impossible to consent to sexual
assault. Lack of consent is an element of the crime of sexual
assault, so consensual sexual activity simply cannot constitute
sexual assault. Va. Code § 18.2-61. Therefore, as a matter of
law, "had [Balas] consented to having [Price] touch her, there
would have been no crime." Mitchem, 523 S.E.2d at 253. Any
complaint of wrongful discharge on this basis would be
unavailing.
Because the district court correctly determined that amend-
ing her complaint would be futile, it did not abuse its discre-
tion in denying Balas leave to do so.
C.
Next, we turn to Balas’s Title VII claim of retaliatory dis-
charge. We review the district court’s grant of summary judg-
ment de novo. Castillo v. Emergency Med. Assocs., 372 F.3d
643, 646 (4th Cir. 2004). We draw all reasonable inferences
in favor of Balas, the non-moving party. Id."In order to establish a prima facie case of retaliation, a
plaintiff must prove three elements: (1) that she engaged in a
protected activity; (2) that her employer took an adverse
she was fired for refusing to engage in adultery and lewd and lascivious
cohabitation had adequately alleged wrongful discharge in violation of
established public policy. However, the conduct at issue in Van-
Buren—including "unwelcome contact, fondling, and touching," whereby
the defendant would "rub [the plaintiff’s] back, waist, breasts, and other
inappropriate areas[ ] and attempt to kiss her," 471 F. App’x at 230—in-
vited the plaintiff to engage in acts characterized by a degree of lewdness
or lasciviousness not present here. Moreover, as an unpublished opinion,
VanBuren does not control the outcome of this case.
14 BALAS v. HUNTINGTON INGALLS INDUSTRIES
employment action against her; and (3) that there was a causal
link between the two events." EEOC v. Navy Fed. Credit
Union, 424 F.3d 397, 405-06 (4th Cir. 2005). Balas’s alleged
complaint of discrimination to Price regarding the jeans inci-
dent was a protected activity, and her termination from the
company was an adverse employment action. For a successful
Title VII claim, Balas must show a causal connection between
these two incidents.
Balas does not dispute that Lowman, the manager responsi-
ble for firing her, was not aware of her complaint to Price
regarding the jeans incident. However, Balas argues that
Price’s involvement in the investigation that led to her termi-
nation constitutes evidence that he directly influenced that
decision.
Title VII does not "limit the discrimination inquiry to the
actions or statements of formal decisionmakers for the
employer." Hill v. Lockheed Martin Logistics Mgmt., Inc.,
354 F.3d 277, 290 (4th Cir. 2004). However, we have refused
to endorse a construction of Title VII that would treat a "sub-
ordinate who has no supervisory or disciplinary authority and
who does not make the final or formal employment decision
[as] a decisionmaker simply because he had a substantial
influence on the ultimate decision or because he has played a
role, even a significant one, in the adverse employment deci-
sion." Id. at 291. For Balas’s retaliatory termination claim to
succeed, she must demonstrate that Price "possessed such
authority as to be viewed as the one principally responsible
for the decision." Id. It is fatal to her claim that she presents
no evidence to that effect.
Because Lowman did not know of the protected activity,
and because Price, who allegedly influenced him, was not
principally responsible for the decision to terminate Balas’s
employment, we affirm the district court’s grant of summary
judgment to Huntington Ingalls on the retaliatory discharge
claim.
BALAS v. HUNTINGTON INGALLS INDUSTRIES 15
D.
Finally, we turn to the district court’s summary adjudica-
tion of Balas’s assault and battery claims. Again, we review
the court’s grant of summary judgment de novo. Castillo, 372
F.3d at 646.
Battery is "an unwanted touching which is neither con-
sented to, excused, nor justified." Koffman v. Garnett, 574
S.E.2d 258, 261 (Va. 2003). Assault entails "an act intended
to cause either harmful or offensive contact with another per-
son or apprehension of such contact, and that creates in that
other person’s mind a reasonable apprehension of an immi-
nent battery." Id. (citing Restatement (Second) of Torts § 21
(1965)). "Although these two torts ‘go together like ham and
eggs,’ the difference between them is ‘that between physical
contact and the mere apprehension of it. One may exist with-
out the other.’" Id. (quoting W. Page Keeton, Prosser and
Keeton on Torts § 10 at 46).
1.
For contact to rise to the level of battery, it must be "offen-
sive," Restatement (Second) of Torts § 18, and "done in a
rude, insolent, or angry manner," Crosswhite v. Barnes, 124
S.E. 242, 244 (Va. 1924). "A bodily contact is offensive if it
offends a reasonable sense of personal dignity." Restatement
(Second) of Torts § 19. As Balas concedes, the quality of the
act’s offensiveness is judged by an objective standard, not by
whether the plaintiff found the act offensive. Id. at § 18.7
Balas argues that whether she consented to the hug is a
question of fact appropriate for a jury, although she does not
7
The Restatement further clarifies that for a contact to amount to bat-
tery, it "must be one which would offend the ordinary person and as such
one not unduly sensitive as to his personal dignity." Restatement (Second)
of Torts § 19 cmt. a.
16 BALAS v. HUNTINGTON INGALLS INDUSTRIES
dispute that she never told Price to stop or that the hug was
unwelcome. To the contrary, rather than objecting to the hug
itself, she testified that it was the manner of the hug that made
her uncomfortable: "the way [Price] swooped [her] up at [her]
waist, or the way he grabbed [her] was what felt offensive."
J.A. 128.
Even if the hug was not consented to, it was "excused" or
"justified," and a reasonable person could not find it objec-
tively offensive. See Koffman, 574 S.E.2d at 261. To consti-
tute battery, the challenged contact must be "unwarranted by
the social usages prevalent at the time and place at which it
is inflicted." Restatement (Second) of Torts § 19 cmt. a. Balas
had just given Price a gift of Christmas cookies. Immediately
before hugging Balas, Price thanked her and told her that she
never ceased to amaze him. Given the circumstances sur-
rounding the hug, we determine that Balas raises no genuine
question of material fact as to whether the hug was objec-
tively offensive.
2.
For conduct to constitute assault, it must be intended to
cause harmful or offensive contact or apprehension of that
contact. Koffman, 574 S.E.2d at 261. The conduct must also
cause an objectively reasonable apprehension of an imminent
battery. Id. Balas presented no evidence that the hug was
harmful or offensive, or that Price intended the hug to involve
any contact beyond the hug itself or intended to make Balas
think that it would. The circumstances indicate that the requi-
site intent was absent, and any apprehension of an imminent
battery Balas might have felt was not objectively reasonable.
We therefore affirm the district court’s grant of summary
judgment as to the assault and battery claims.
BALAS v. HUNTINGTON INGALLS INDUSTRIES 17
III.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.