Dickenson v. Wal-Mart Stores, Inc

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
KATHY DICKENSON,
Plaintiff-Appellant,
v. No. 97-2548
WAL-MART STORES, INCORPORATED,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Virginia, at Big Stone Gap.
Glen M. Williams, Senior District Judge.
(CA-96-240-B)
Submitted: June 2, 1998
Decided: October 22, 1998
Before NIEMEYER and LUTTIG, Circuit Judges, and
HALL, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Timothy Worth McAfee, BLEDSOE & MCAFEE, Big Stone Gap,
Virginia, for Appellant. W. Bradford Stallard, PENN, STUART &
ESKRIDGE, Abingdon, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Kathy Dickenson appeals from the district court's order granting
the Defendant's motion for summary judgment on her civil complaint
alleging that Defendant violated Virginia's insulting words statute.1
Finding no reversible error, we affirm.
Dickenson worked as an assistant manager at the Wal-Mart store
in Norton, Virginia. On May 2 and May 3, 1996, two bomb threats
were made against the store while Dickenson was on duty. Dickenson
complained about a migraine headache following the second bomb
threat and went to the service desk to ask for some headache medicine.2
The employee at the service desk gave Dickenson personal prescrip-
tion pills that she (the other employee) took for pain. Although Dick-
enson accepted the pills, she later decided not to ingest them because
she did not recognize them as normal over-the-counter medication.
Dickenson was summoned to the manager's office when she
arrived at work the next day. In addition to Dickenson and the store
manager, the district manager and the district loss prevention manager
(Cindy Pope) were also present. Dickenson alleges that Pope berated
her for taking prescription pills which did not belong to her, in viola-
tion of the company's drug policy. When Dickenson produced the
pills and said she had not taken them, Pope allegedly told Dickenson
that simply possessing the pills, which she claimed were Schedule II
narcotics, was a federal offense and a felony and that Dickenson
would probably go to jail.3 Pope's accusations form the basis for
Appellant's claims.
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1 Va. Code Ann. § 8.01-45 (Michie 1992). Dickenson also alleged defa-
mation and intentional infliction of emotional distress in her complaints.
However, on appeal, she challenges only the court's grant of summary
judgment on her insulting words claim, expressly abandoning all other
claims. (Appellant's brief at 3).
2 The record discloses that employees routinely went to the service
desk to receive over-the-counter medicine for headaches.
3 It is undisputed that Pope incorrectly identified the pills in question
as Schedule II narcotics. In addition, possession of these particular pills
was not a felony.
2
Summary judgment is appropriate when there is "no genuine issue
of material fact," given the parties' burdens of proof at trial. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Fed. R. Civ. P.
56(c). In determining whether the moving party has shown that there
is no genuine issue of material fact, we must assess the factual evi-
dence and all inferences to be drawn therefrom in the light most
favorable to the non-moving party. See Ross v. Communications Sat-
ellite Corp., 759 F.2d 355, 364 (4th Cir. 1985). We review a grant of
summary judgment de novo. Higgins v. E.I. DuPont de Nemours &
Co., 863 F.2d 1162, 1167 (4th Cir. 1988). In the present case, we find
that the district court properly granted Defendant's motion.
Virginia's insulting words statute provides that:"All words shall be
actionable which from their usual construction and common accep-
tance are construed as insults and tend to violence and breach of the
peace." (emphasis added). Dickenson alleges that the statute "has
been interpreted by Virginia courts to be virtually co-extensive with
the common law action for defamation." See Dwyer v. Smith, 867
F.2d 184, 195-96 (4th Cir. 1989). Relying on Dwyer and various state
court opinions, Dickenson alleges that Pope's false accusations were
defamatory per se and malicious in nature, that Wal-Mart was not
entitled to the defense of corporate immunity, and that Wal-Mart
abused its qualified privilege. We decline to address these allegations
because we find that the district court properly granted summary
judgment on the ground that Dickenson failed to present any evidence
that Pope's accusations, even if defamatory, tended to violence or a
breach of the peace. See Allen & Rocks, Inc. v. Dowell, 477 S.E.2d
741, 742-43 (Va. 1996) (holding that recovery under the statute
requires that the words used not only be insulting but must also tend
to violence and a breach of the peace).
Accordingly, we affirm the district court's order. 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
3