Bass v. E.I. DuPont De Nemours & Co.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PORTIA BASS, 
Plaintiff-Appellant,
v.
 No. 01-1073
E. I. DUPONT DE NEMOURS &
COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
Jackson L. Kiser, Senior District Judge.
(CA-00-64-5)
Argued: October 30, 2001
Decided: January 10, 2002
Before WILKINS, LUTTIG, and GREGORY, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
COUNSEL
ARGUED: Tamika Chelsea Harris, Waynesboro, Virginia, for
Appellant. James Moss Johnson, Jr., MCGUIRE WOODS, L.L.P.,
Charlottesville, Virginia, for Appellee. ON BRIEF: R. Craig Wood,
MCGUIRE WOODS, L.L.P., Charlottesville, Virginia, for Appellee.
2 BASS v. DUPONT DE NEMOURS & CO.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
This case involves numerous claims by the appellant, Portia Bass,
against her former employer, E.I. du Pont de Nemours & Co.
(DuPont). The district court granted two separate motions to dismiss,
and Bass has appealed both. We dismiss a portion of the appeal for
lack of appellate jurisdiction, and affirm in all other respects.
I.
Because of the procedural posture of the case, we assume the
veracity of the following allegations. Bass is a 50 year-old African-
American female who worked for DuPont for 15 years. She was
DuPont’s Global Lycra Toxic Substances Control Act (TSCA) Coor-
dinator. Bass was demoted to a lesser position, and replaced in her
former position by Nancy Deputy, a white woman under forty years
of age. Though inexperienced and unqualified for the job, Deputy was
given a superior compensation package. Bass complained of the
demotion in a letter to management, which was disseminated to vari-
ous managers. Bass was ridiculed by these managers because of the
letter. Another manager, Susan Dahl, wrote a defamatory letter
regarding Bass that was circulated to twelve corporate executives.
At some point after the demotion, Bass was ordered to resume her
previous duties as TSCA Coordinator, but with the restriction that she
was to have no contact with Nancy Deputy, who would also retain the
position. Bass was also subjected to additional verbal abuse by co-
employees, which she reported to two DuPont Vice Presidents.
As part of her job, Bass was required to ensure the accuracy of cer-
tain health and safety data. Because of the restrictions that were
placed on her upon resumption of TSCA duties, Bass did not have
BASS v. DUPONT DE NEMOURS & CO. 3
access to the information necessary to make accurate assessments of
the data.
Bass alleges that she was consistently paid less than similarly situ-
ated white men. On May 10, 1999, Bass filed a discrimination com-
plaint with the EEOC. On June 16, 1999, Bass was fired. This lawsuit
ensued.
Bass’s Complaint and First Amended Complaint alleged various
nonspecific causes of action which the district court found could be
broadly grouped as follows: (1) Title VII discrimination, retaliation,
and hostile work environment, 42 U.S.C. § 2000e; (2) Equal Pay Act
violations, 29 U.S.C. § 206(d); (3) a state law defamation claim; (4)
a state law wrongful discharge claim, Va. Code § 40.1-51.2:1; (5) a
state law spoliation of evidence claim; and (6) a state law tortious
interference with due process claim. DuPont moved for dismissal of
the wrongful discharge, defamation, spoliation of evidence, and tor-
tious interference claims pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. DuPont also moved for summary judgment
on the Equal Pay Act claim pursuant to Rule 56 of the Federal Rules
of Civil Procedure. In an order dated December 15, 2000, the district
court granted DuPont’s motion to dismiss and denied DuPont’s
motion for summary judgment.
On January 19, 2001, Bass filed her Second Amended Complaint,
realleging the remaining claims and adding several new claims. The
complaint contained eleven counts: Count I—Title VII race discrimi-
nation; Count II—age discrimination in violation of the Age Discrim-
ination in Employment Act; Count III—Title VII sex discrimination;
Count IV—wage discrimination in violation of the Equal Pay Act;
Count V—Title VII retaliation; Count VI—Title VII hostile environ-
ment; Count VII—ADEA hostile environment; Count VIII—
conspiracy in violation of 42 U.S.C. § 1985(3); Count IX—a
Bivens claim; Count X—common law conspiracy to hinder pursuit of
discrimination claim; and Count XI—common law conspiracy to
destroy evidence. On March 19, 2001, the district court granted
DuPont’s motion to dismiss Counts VI through XI.
On March 19, 2001, the district court also granted Bass’s motion
for entry of judgment on the claims dismissed by the December 15
4 BASS v. DUPONT DE NEMOURS & CO.
order pursuant to Rule 54(b) of the Federal Rules of Civil Procedure.
Bass did not move for a similar entry of judgment on the claims dis-
missed by the March 19 order.
Bass has appealed both the December 15 order and the March 19
order.
II.
We must address a preliminary issue before reaching the merits of
the appeal. DuPont has filed a motion to dismiss the appeal from the
district court’s March 19 order for lack of appellate jurisdiction. We
agree that we do not have jurisdiction over that portion of the appeal.
Unlike the appeal from the December 15 order, entry of judgment
has not been made on the claims dismissed by the March 19 order.
Accordingly, the district court’s decision as to these claims lacks
finality under 28 U.S.C. § 1291. See also Fed. R. Civ. P. 54(b).
Bass argues that the March 19 decision is appealable under two
exceptions to the finality requirement: pendent appellate jurisdiction
and the Cohen collateral order doctrine. Neither of these exceptions
applies.
First, Bass argues that we have discretion to exercise pendent
appellate jurisdiction over otherwise non-appealable orders that "are
reasonably related to the appealable order when that review will
advance the litigation or avoid further appeals." Hoechst Diafoil Co.
v. Nan Ya Plastics Corp., 174 F.3d 411, 416 (4th Cir. 1999). In
Hoechst, however, we noted that the viability of the doctrine of pen-
dent appellate jurisdiction had been cast into some doubt by the
Supreme Court’s decision in Swint v. Chambers County Comm’n, 514
U.S. 35 (1995). See Hoechst, 174 F.3d at 416.
In Swint, the Supreme Court, while not definitively settling
whether the exercise of pendent appellate jurisdiction is ever appro-
priate, sharply limited its potential reach. The Court left open the pos-
sibility that pendent appellate jurisdiction might be appropriate if a
court of appeals with jurisdiction over one ruling, conjunctively
BASS v. DUPONT DE NEMOURS & CO. 5
reviews a related ruling that is "inextricably intertwined" with the
appealable order, or if review of the otherwise non-appealable order
is "necessary to ensure meaningful review" of the appealable order.
Swint, 514 U.S. at 51. See also Jenkins v. Medford, 119 F.3d 1156,
1159 (4th Cir. 1997) (en banc); Taylor v. Waters, 81 F.3d 429, 437
(4th Cir. 1996) (citing Swint). Bass’s appeal does not meet this test.
While the claims dismissed by the two orders do arise out of the same
set of alleged facts, the claims resolved by the December 15 order are
easily separated from the claims resolved by the March 19 order. The
claims involve different legal issues. Swint, 514 U.S. at 51. Indeed,
it appears Bass argued as much in seeking partial entry of judgment
pursuant to Rule 54(b). See Appellee’s Motion to Dismiss the Appeal
of Counts VI-XI for Lack of Jurisdiction, Ex. A.
Second, the Cohen collateral order doctrine does not provide a
basis for jurisdiction over the March 19 order. Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. 541, 546 (1949). Cohen authorizes
jurisdiction only over "decisions that are conclusive, that resolve
important questions separate from the merits, and that are effectively
unreviewable on appeal from the final judgment in the underlying
action." Swint, 514 U.S. at 42.
Bass’s appeal fails to qualify. First, under Rule 54(b), the March
19 order remains subject to revision at any time before entry of judg-
ment, and is therefore not conclusive. Second, the issues resolved by
the March 19 order are not separate from the merits, they are the mer-
its. Third, the March 19 order is clearly reviewable on appeal.
DuPont’s motion to dismiss Bass’s appeal from the district court’s
March 19 order is therefore granted.
III.
Remaining before us is the appeal from the December 15 order. We
review a Rule 12(b)(6) dismissal de novo. Edwards v. City of Golds-
boro, 178 F.3d 231, 243 (4th Cir. 1999). "[A] Rule 12(b)(6) motion
should only be granted if, after accepting all well-pleaded allegations
in the plaintiff’s complaint as true and drawing all reasonable factual
inferences from those facts in the plaintiff’s favor, it appears certain
that the plaintiff cannot prove any set of facts in support of his claim
entitling him to relief." Edwards, 178 F.3d at 244.
6 BASS v. DUPONT DE NEMOURS & CO.
A.
The first claim dismissed by the district court was Bass’s wrongful
discharge claim. Bass asserts that she has stated a cause of action
under Va. Code § 40.1-51.2:1, which provides:
No person shall discharge or in any way discriminate
against an employee because the employee has filed a safety
or health complaint or has testified or otherwise acted to
exercise rights under the safety and health provisions of this
Title for themselves or others.
Bass’s claim fails, however, because she has not exhausted her
administrative remedies, as required by Virginia law. Va. Code
§ 40.1-51.2:2 provides a remedy for violations of Va. Code 51.2:1,
stating:
Any employee who believes that she has been discharged or
otherwise discriminated against by any person in violation
of § 40.1-51.2:1 may, within thirty days after such violation
occurs, file a complaint with the Commissioner alleging
such discharge or discrimination. Upon receipt of such com-
plaint, the Commissioner shall cause such investigation to
be made as he deems appropriate . . . . (B) Should the Com-
missioner, based on the results of his investigation of the
complaint, refuse to issue a charge against the person that
allegedly discriminated against the employee, the employee
may bring action in a circuit court having jurisdiction over
the person allegedly discriminating against the employee,
for appropriate relief.
Under Virginia law, "[when] a statute creates a right and provides
a remedy for the vindication of that right, then that remedy is exclu-
sive unless the statute says otherwise." School Board v. Giannoutsos,
238 Va. 144, 147, 380 S.E.2d 647, 649 (1989); see also Vansant &
Gunsler, Inc. v. Washington, 245 Va. 356, 360, 429 S.E.2d 31, 33
(1993) (same). See Judy v. Nat’l Fruit Product Co., Inc., 40 Va. Cir.
244, 245 (City of Winchester 1996) (holding that Va. Code § 40.1-
51.2:2 provides an exclusive remedy for violations based on Va. Code
§ 40.1-51.2:1). Accordingly, Bass must satisfy the requirements of
BASS v. DUPONT DE NEMOURS & CO. 7
Va. Code § 40.1-51.2:2 before initiating a lawsuit. Because she has
not done so, her claim was appropriately dismissed.
B.
The district court also dismissed Bass’s defamation claim. As the
district court held, this claim is barred by the applicable statute of lim-
itations. The limitations period for defamation in Virginia is one year.
Va. Code § 8.01-247.1. The defamatory letter was published on
August 10, 1998; this lawsuit was filed on August 7, 2000, almost a
full year after the limitations period had run. Bass seeks to avoid the
consequences of the statutory limitations period by arguing that we
should apply a discovery rule. The Virginia General Assembly has
declined to adopt a discovery rule in defamation actions. Va. Code
§ 8.01-230 provides that a "right of action shall be deemed to accrue
and the prescribed limitation period shall begin to run from the date
the injury is sustained . . . and not when the resulting damage is dis-
covered." The statute then enumerates specific exceptions to the
accrual rule. The defamation statute of limitations is not among the
listed exceptions. See Jordan v. Shands, 255 Va. 494, 498 (1998)
("Any cause of action that the plaintiff may have had for defamation
against any of the defendants accrued on . . . the date she alleges . . .
that the defamatory acts occurred.").
C.
The third claim dismissed by the district court was Bass’s spolia-
tion of evidence claim. The district court correctly held that Virginia
does not recognize a tort based on spoliation of evidence. See Austin
v. Consolidated Coal Co., 256 Va. 78, 82, 501 S.E.2d 161 (1998)
(declining to recognize the tort in case of the employer’s spoliation
of evidence important to an employee’s suit against third parties). In
Austin, the Virginia Supreme Court did not specifically address
whether Virginia would recognize the tort in the context of an
employer’s spoliating evidence of an employee’s claim against the
employer itself. As the district court recognized, however, there is
even less reason to permit the tort in such a context. When the spolia-
tor is the potential defendant in the case for which evidence was
destroyed, the courts typically have ample alternate remedies in the
form of fines, costs, adverse jury instructions, evidentiary presump-
8 BASS v. DUPONT DE NEMOURS & CO.
tions, and default. See, e.g., Va. Sup. Ct. R. 4:12; Fed. R. Civ. P. 37.
We think that Virginia would not recognize the tort of spoliation of
evidence in the circumstances presented by this case.
D.
The fourth and final claim dismissed by the district court was
Bass’s claim that DuPont tortiously interfered with her due process
rights during the EEOC investigation. This claim fails for at least two
reasons. First, claims of tortious interference in Virginia have been
limited to contractual settings. Chaves v. Johnson, 230 Va. 112, 120,
335 S.E.2d 97 (1985); see also Economopoulos v. Kolaitis, 259 Va.
806, 815, 528 S.E.2d 714 (2000) (finding no claim for tortious inter-
ference with inheritance expectancy); Multi-Channel TV Cable Co. v.
Charlottesville Quality Cable Corp., 65 F.3d 1113, 1121 (4th Cir.
1995) (no claim under Virginia law for tortious interference with an
irrevocable license); Douglas v. Lancaster Community College, 990
F. Supp. 447, 467 (W.D. Va. 1997) (no claim under Virginia law for
tortious interference by employee against employer with decisions in
the employment relationship). Second, no rights of Bass’s have been
interfered with because "due process considerations do not attach to
the EEOC investigative process." Georator Corp. v. EEOC, 592 F.2d
765, 768 (4th Cir. 1979).
IV.
We therefore conclude that the district court’s December 15 order
should be affirmed, and we dismiss the appeal from the March 19
order.
DISMISSED IN PART AND AFFIRMED IN PART