                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
TESHOME WORKAGEGNEHU,               )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )               Civil Action No. 18-0526 (ABJ)
                                    )
WASHINGTON METROPOLITAN             )
AREA TRANSIT AUTHORITY, et al.,     )
                                    )
                  Defendants.       )
____________________________________)

                                MEMORANDUM OPINION

         Plaintiff Teshome Workagagnehu brought this action against defendants Washington

Metropolitan Area Transit Authority (“WMATA”), Paul J. Wiedefeld in his official capacity as

General Manager of WMATA, and Martin Van Buren, a former employee of WMATA, under

D.C. Code Ann. § 9-1107.01 et. seq. (the “WMATA Compact”) asserting claims of assault and

battery (Count I) and intentional infliction of emotional distress (Count II).     Am. Compl.

[Dkt. # 6] (“Am. Compl.”) ¶¶ 1–14, 74–99. Plaintiff seeks “damages in an amount equal to all of

his accumulated lost wages and benefits, including back pay, front pay and benefits; and

compensatory damages for the physical injury and emotional harm caused by [d]efendants . . . in

an amount not less than $500,000,” as well as attorneys’ fees and costs. Id., “Prayer for Relief”

at 18.

         Defendants Wiedefeld and WMATA have moved to dismiss the suit pursuant Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6). WMATA Defs.’ Mot. to Dismiss Pl.’s Am.

Compl. with Prejudice [Dkt. # 8] (“Defs.’ Mot.”) at 1. Defendants argue that the Court lacks

subject matter jurisdiction because “[p]laintiff and WMATA agreed to a Stipulated Order entered
by the Commonwealth of Virginia Workers’ Compensation Commission on May 4, 2018,

whereby WMATA agreed to compensate [p]laintiff for the same injuries alleged in the Amended

Complaint,” and as such the Virginia Workers’ Compensation Act (“VWCA”) provides the

exclusive remedy for plaintiff’s injuries. Id. The Court finds that it has jurisdiction over

plaintiff’s claims under the WMATA Compact, but plaintiff’s injuries are barred from further

relief by the VWCA. Accordingly, defendants’ motion to dismiss will be granted.

                                       BACKGROUND

       Plaintiff began working for WMATA as a mechanic in June 2012. Am. Compl. ¶ 10. On

March 8, 2017, he went to the Pentagon train station in Virginia to repair SmartTrip card

machines. Id. ¶ 15. While he was there, he got into an argument with Martin Van Buren, the on-

duty train station manager. Id. ¶¶ 14, 36–37. According to plaintiff, Van Buren became upset

after plaintiff assisted a customer purchase a SmartTrip card. Id. ¶¶ 26–28, 36. Van Buren told

plaintiff that helping customers was outside of plaintiff’s “responsibility,” and plaintiff

disagreed. Id. ¶¶ 36–38. Then Van Buren allegedly punched plaintiff in the face, pinned him to

the ground, and continued punching him. Id. ¶ 39. Plaintiff was taken to a hospital where he

stayed overnight. Id. ¶ 48. Police arrived at the scene and defendant Van Buren was arrested.

Id. ¶¶ 44–46. On May 5, 2017, Van Buren was convicted of simple assault under Va. Code Ann.

§ 18.2-57(A). Id. ¶ 53. Plaintiff alleges that he continues to suffer physical and emotional harm

from the attack, and that his pain prevents him from working at full capacity, which also hurts

him financially. Id. ¶ 2; see also Decl. of Teshome Workagegnehu [Dkt. # 13-1] (“Pl.’s Decl.”)

¶¶ 1–53.

       In a declaration attached to his amended opposition to the motion to dismiss, plaintiff

also avers that after the attack he “was placed on Workers’ Compensation . . . from March 9,



                                               2
2017 to November 5, 2017.” Pl.’s Decl. ¶ 3. Plaintiff resumed work in November 2017, but by

February 2018, he was in so much pain that he had to undergo surgery on his right knee and was

unable to work. Id. ¶¶ 4–7.

         On March 7, 2018, plaintiff filed this suit seeking damages for the workplace assault.

Compl. [Dkt. # 1], and six days later, on March 13, 2018, he filed his second workers’

compensation claim in Virginia, “seeking wage loss benefits from February 6, 2018 to March 13,

2018 and life time medical benefits.” Pl.’s Decl. ¶ 8. Plaintiff filed an amended complaint with

this Court approximately a month later, on April 26, 2018, but the amended complaint did not

mention plaintiff’s workers’ compensation claims based on the same assault. See generally Am.

Compl.

         While this suit was pending, plaintiff retained an attorney “who specializes in Virginia

Workers’ Compensation law,” who “settled” his second workers’ compensation claim on May 4,

2018. Pl.’s Decl. ¶ 14. Plaintiff and WMATA agreed to a Stipulated Order entered by the

Virginia Workers’ Compensation Commission awarding plaintiff compensation for a period of

temporary disability from February 6, 2018 to April 8, 2018 and committing WMATA to pay for

reasonable, necessary, and causally related medical benefits pursuant to Va. Code Ann. § 65.2-

603. Ex. 1 to Defs.’ Mot. [Dkt. # 8-2] (“Stipulated Order”). The Stipulated Order states that

“[t]he claimant sustained injuries to his head, neck, low back, right leg, and right thumb arising

out of his March 8, 2017 work-related accident,” id. at 1, and it provides the following relief:

                ORDERED that the claimant’s Award for temporary total disability dated
                May 26, 2017 is terminated effective November 5, 2017; it is further

                ORDERED that the claimant is awarded temporary total disability from
                February 6, 2018 through April 8, 2018 at the rate of $ 976.84 per week; it
                is further




                                                 3
               ORDERED that reasonable, necessary, and causally related medical
               benefits for the claimant’s head, neck, low back, right leg, and right thumb
               shall continue as long as necessary pursuant to Va. Code § 65.2-603; it is
               further . . .

               ORDERED that any remaining claims contained in the Employer’s
               Application for Hearing filed January 18, 2018 and Claimant’s claim filed
               March 13, 2018 are dismissed with prejudice.
Id. at 2–3.

        On May 10, 2018, six days after the Stipulated Order was entered, defendants WMATA

and Wiedefeld filed a motion to dismiss this suit due to lack of subject matter jurisdiction under

Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim under Rule 12(b)(6).1 Defs.’

Mot.; Mem. of Law in Supp. of Defs.’ Mot. [Dkt. # 8-1] (“Defs.’ Mem.”) at 1. Plaintiff filed an

opposition to the motion, Pl.’s Mem. of P. & A. in Opp. to Defs.’ Mot. [Dkt. # 9], and he was

subsequently granted leave by the Court to file an amended opposition. Min Order (Oct. 29,

2018); Pl.’s Am. Mem. of P. & A. in Opp. to Defs.’ Mot. [Dkt. # 13] (“Pl.’s Opp.”).2 The

motion is fully briefed and ripe for decision.3


                                   STANDARD OF REVIEW


        In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must

“treat the complaint’s factual allegations as true and must grant plaintiff ‘the benefit of all



1        Defendant Van Buren did not join in this motion and it appears that he has not yet been
served. Federal Rule of Civil Procedure 4(m) requires that a party be served within ninety days
of filing a complaint.

2      In his declaration, plaintiff avers that he filed a third workers’ compensation claim on
August 14, 2018 “because I missed work because of my injuries for the periods from July 8,
2018 and August 12, 2018,” but the declaration does not indicate whether that claim was
subsequently resolved. Pl.’s Decl. ¶ 25.

3      See also WMATA Defs.’ Reply [Dkt. # 10] (“Defs.’ Reply”); Reply to Pl.’s Am. Mem.
of Law in Opp. to Defs.’ Mot. [Dkt. # 14].
                                                  4
inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216

F.3d 1111, 1113 (D.C. Cir. 2000) (internal citation omitted), quoting Schuler v. United States,

617 F.2d 605, 608 (D.C. Cir. 1979); see also Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139

(D.C. Cir. 2011), quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005). Nevertheless,

the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported

by facts alleged in the complaint, nor must the Court accept plaintiff’s legal conclusions.

Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).


I.     Subject Matter Jurisdiction

       Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a

preponderance of the evidence. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).

Federal courts are courts of limited jurisdiction and the law presumes that “a cause lies outside

this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994);

see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited

jurisdiction, we begin, and end, with an examination of our jurisdiction.”). “[B]ecause subject-

matter jurisdiction is ‘an Art[icle] III as well as a statutory requirement . . . no action of the

parties can confer subject-matter jurisdiction upon a federal court.’” Akinseye v. District of

Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des

Bauxites de Guinee, 456 U.S. 694, 702 (1982).

       When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a

motion to dismiss under Rule 12(b)(6), the court “is not limited to the allegations of the

complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other

grounds, 482 U.S. 64 (1987). Rather, “a court may consider such materials outside the pleadings

as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case.”


                                                5
Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000), citing Herbert

v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome Stevens Pharm., Inc.

v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).

II.    Failure to State a Claim

       “To survive a [Rule 12(b)(6)] 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 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). In Iqbal, the Supreme Court reiterated the two principles underlying its decision in

Twombly: “First, the tenet that a court must accept as true all of the allegations contained in a

complaint is inapplicable to legal conclusions,” and “[s]econd, only a complaint that states a

plausible claim for relief survives a motion to dismiss.” Id. at 678–79, citing Twombly, 550 U.S.

at 555–56.

       A claim is facially plausible when the pleaded factual content “allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678,

citing Twombly, 550 U.S. at 556.        “The plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”

Id., quoting Twombly, 550 U.S. at 556.           A pleading must offer more than “labels and

conclusions” or a “formulaic recitation of the elements of a cause of action,” id., quoting

Twombly, 550 U.S. at 555, and “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Id., citing Twombly, 550 U.S. at 555.

       When considering a motion to dismiss under Rule 12(b)(6), the Court is bound to

construe a complaint liberally in the plaintiff’s favor, and it should grant the plaintiff “the benefit

of all inferences that can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp., 16



                                                  6
F.3d 1271, 1276 (D.C. Cir. 1994), citing Schuler, 617 F.2d at 608. Nevertheless, the Court need

not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged

in the complaint, nor must the Court accept plaintiff’s legal conclusions. See id.; see also

Browning, 292 F.3d at 242. In ruling upon a motion to dismiss for failure to state a claim, a

court may ordinarily consider only “the facts alleged in the complaint, documents attached as

exhibits or incorporated by reference in the complaint, and matters about which the Court may

take judicial notice.” Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002), citing

EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624–25 (D.C. Cir. 1997).

                                          ANALYSIS


I.     Sovereign Immunity

       Under the principle of sovereign immunity, federal courts are barred from adjudicating

civil cases against the United States government or a state government unless the complaint falls

under an express waiver of sovereign immunity. See Virginia Office for Prot. & Advocacy v.

Stewart, 563 U.S. 247, 253–54 (2011). “WMATA was created by an interstate compact entered

into by the District of Columbia and the states of Maryland and Virginia.”4 Watters v. WMATA,

295 F.3d 36, 39 (D.C. Cir. 2002). In doing so, “the three signatories [of the Compact] conferred

each of their respective sovereign immunities, including the Eleventh Amendment immunity of

the two states, upon the Authority.” Id. Therefore, “unless WMATA’s sovereign immunity has

been waived, the district court lacks jurisdiction to enter a judgment against the Authority.” Id.

at 39–40. Accordingly, the Court must first find that WMATA’s limited waiver of sovereign



4      On November 6, 1966, Congress consented to the WMATA Compact and enacted it for
the District of Columbia. Washington Metro. Area Transit Auth. Compact, Pub. L. No. 89–774,
80 Stat. 1324 (1966). The Compact is codified at D.C. Code § 9–1107.01; Md. Code. Ann.
Transp. § 10-204; and Va. Code § 32.2-3100.
                                                7
immunity applies to plaintiff’s claims before addressing the parties’ arguments related to the

Virginia Workers’ Compensation Act.

       In creating WMATA, Congress waived sovereign immunity for torts committed by

employees and agents of WMATA “in the conduct of any proprietary function.” Morris v.

WMATA, 781 F.2d 218, 222 (D.C. Cir. 1986). Section 80 of the WMATA Compact states:

              The Authority shall be liable for its . . . torts and those of its . . . employees
              and agent committed in the conduct of any proprietary function . . . but
              shall not be liable for any torts occurring in the performance of a
              governmental function.

Taking all of plaintiff’s allegations in the amended complaint as true, the Court finds that

defendant Van Buren’s workplace assault constitutes a “proprietary function,” rather than a

“governmental function,” and thus sovereign immunity is waived.

       “If an activity is a quintessential governmental function . . . it is within the scope of

WMATA’s sovereign immunity.” Burkhart v. WMATA, 112 F.3d 1207, 1216 (D.C. Cir. 1997)

(internal citations and quotation marks omitted).          However, “[b]ecause it is difficult to

distinguish between public and private sector functions with any precision,” the Court

distinguishes between conduct that is “discretionary” and “ministerial.” Banneker Ventures,

LLC v. Graham, 798 F.3d 1119, 1138 (D.C. Cir. 2015), citing Beebe v. WMATA, 129 F.3d 1283,

1287 (D.C. Cir. 1997). Discretionary functions are “governmental,” and thus are protected by

sovereign immunity.     Burkhart, 112 F.3d at 1216–17.           Discretionary actions “involve[ ]

judgment, planning, or policy decisions,” and reflect “sovereign choices.” Banneker, 798 at

1138, citing KiSKA Constr. Corp., U.S.A. v. WMATA, 321 F.3d 1151, 1159 n.9 (D.C. Cir. 2003)

(alterations in original). By contrast, claims arising from “ministerial” duties are considered

proprietary functions, and they are not immunized because they involve the “enforcement or




                                                  8
administration of a mandatory duty at the operational level.” Id., citing KiSKA, 321 F.3d at 1159

n.9 (emphasis in original).

       To determine whether a WMATA employee’s conduct is discretionary, and therefore

immunized, the Court applies a two-part test. KiSKA, 321 F.3d at 1159. First, the Court must

“ask whether any statute, regulation, or policy specifically prescribes a course of action for an

employee to follow,” and second, whether the “governing statutes or regulations leave room for

the exercise of discretion.” Id. (internal quotation marks and citations omitted). If the exercise

of discretion is “grounded in social, economic or political goals” it is considered a “policy

judgment” that retains sovereign immunity. Id. (internal quotation marks and citations omitted).

By contrast, if WMATA has “no rightful option but to adhere to the directive,” the relevant

conduct is ministerial rather than discretionary. Abdulwali v. WMATA, 315 F.3d 302, 304 (D.C.

Cir. 2003).

       Here, plaintiff alleges that defendant Van Buren was convicted of assault and battery

under Va. Code Ann. § 18.2-57(A), Am. Compl. ¶ 53, and that he also violated WMATA’s

express policy against workplace violence, which states in relevant part:

               Violence, threats, harassment, intimidation, and other disruptive behavior
               in our workplace will not be tolerated; that is, all reports of incidents will
               be taken seriously and will be dealt with appropriately. Such behavior can
               include oral or written statements, gestures, or expressions that
               communicate a direct or indirect threat of physical and/or or emotional
               harm, property damages, and/or disruption of the Authority’s business
               operations. Individuals who commit such acts may be removed from the
               premises and may be subject to disciplinary action up to and including
               termination, criminal penalties, or both.
Ex. A to Am. Compl. [Dkt. # 7] (“Safety Policy”).

       The Burkhart Court did not address whether WMATA’s internal policies qualify as a

“statute, regulation, or policy” as required under the first step of the sovereign immunity test, and

subsequent D.C. Circuit opinions have not addressed the issue. See Burkhart, 112 F.3d at 1217;

                                                 9
see also Felder v. WMATA, 105 F. Supp. 3d 52, 58 (D.D.C. 2015) (stating in dicta that Burkhart

does not reach the issue of WMATA’s internal policies and that it is “unclear” if WMATA

policies apply). However, other courts in this district and the D.C. Court of Appeals have

consistently held that internal WMATA policies satisfy the first step of the analysis. See, e.g.,

Whiteru v. WMATA, 258 F. Supp. 3d 175, 185–86 (D.D.C. 2017) (holding that the WMATA’s

Standard Station Operating Procedures (“SSOPs”) regarding closing inspections qualified as a

“policy” under the first step of the sovereign immunity test); Robinson v. WMATA, 858 F. Supp.

2d 33, 37–38 (D.D.C. 2012); WMATA v. Barksdale-Showell, 965 A.2d 16, 22–23 (D.C. 2009)

(analyzing WMATA’s Severe Weather Plan Alert and SSOPs); WMATA v. O’Neill, 633 A.2d

834, 838–39 (D.C. 1994) (analyzing an internal safety directive).

       Here, even if one were to find that Van Buren’s conduct was governed by a regulation or

policy, it is clear that there is no room for discretion under WMATA’s Safety Policy: employees

have “no rightful option but to adhere to [it].” Abdulwali, 315 F.3d at 304. As a WMATA

employee, defendant Van Buren was expressly instructed not to engage in threatening and

violent behavior in the workplace.      Since plaintiff’s claims turn upon a failure to act in

accordance with the Safety Policy, Van Buren’s actions are not shielded by sovereign immunity.

See Robinson, 858 F. Supp. 2d at 38 (holding that a bus operator who did not follow WMATA’s

safety rules did not qualify for sovereign immunity). Therefore, the Court finds that it has

subject matter jurisdiction to consider plaintiff’s claims and the pending motion to dismiss them.


II.    The Virginia Workers’ Compensation Act

       The parties agree that Virginia state law applies to plaintiff’s tort claims. See Pl.’s Opp.

at 15; Defs.’ Reply at 2. The WMATA Compact states that torts for which WMATA is liable

shall be resolved “in accordance with the law of the applicable signatory.” D.C. Code. Ann. § 9-


                                                10
1107.01(80). The applicable signatory is determined by the jurisdiction in which the incident

arose.   See Robinson v. WMATA, 774 F.3d 33, 38 (D.C. Cir. 2014) (applying District of

Columbia law to a tort claim when the injury occurred in D.C. and the plaintiff resided in D.C.);

see also Belton v. WMATA, 20 F.3d 1197, 1999 (D.C. Cir. 1994) (applying District of Columbia

law to a tort claim after plaintiff was run over by WMATA bus in D.C.). Plaintiff’s injury

occurred in Virginia, so Virginia state law applies. Am. Compl. ¶¶ 1, 47.5

         “The Virginia Workers’ Compensation Act applies to injuries ‘by accident arising out of

and in the course of’ an individual’s employment.” Butler v. S. States Coop., Inc., 270 Va. 459,

465 (2005), quoting Va. Code Ann. § 65.2–300. It is well established that, “[w]hen an employee

sustains such an injury, the Act provides the sole and exclusive remedy available against the

employer.” Giordano v. McBar Indus., Inc., 284 Va. 259, 264 (2012), quoting Butler, 270 Va. at

465. The Act’s exclusivity provision states that:

                The rights and remedies herein granted to an employee when his employer
                and he have accepted the provisions of [the VWCA] to pay and accept
                compensation on account of injury . . . by accident shall exclude all other
                rights and remedies of such employee.

Va. Code Ann. § 65.2-307(A).          Moreover, the Act “conclusively presumes” that “every

employer and employee . . . have accepted the provision of [the] title.” Va. Code Ann. § 65.2-

300. In this case, the parties appear to have expressly “accepted the provisions” of the VWCA

by entering into the May 2018 Stipulated Order which references plaintiff’s “work accident.”

Stipulated Order at 1.

         Plaintiff insists that the VWCA is inapplicable here because intentional torts – including

his assault and battery and intentional infliction of emotion distress claims – are not injuries by



5     Plaintiff resides in Virginia.     Am. Compl. ¶ 10.       Defendant Van Buren resides in
Maryland. Id. ¶ 14.
                                                 11
“accident” under the Act. Pl.’s Opp. at 5–6, 8. However, the Virginia Supreme Court has

interpreted the term “accident” to encompass intentional torts. In Butler, the Virginia Supreme

Court held that, “a physical assault may constitute an ‘accident’ within the meaning of the Act

when it appears that it was the result of an actual risk arising out of the employment.” 270 Va. at

465.6 The court added, “that such an accident arises out of the employment if there is a causal

connection between the employee’s injury and the conditions under which the employer requires

the work to be done.” Id. In applying this standard, the Court must determine whether Van

Buren’s assault on plaintiff was “personal” or “directed against [him] as an employee or because

of [his] employment.” Id. at 466. If personal, then the VWCA’s exclusivity provision would not

apply, and plaintiff’s claim could proceed.

       In applying these principles, Virginia courts have held that workplace sexual assaults are

“personal” in nature and therefore not barred by the VWCA’s exclusivity provision. In Butler,

the Virginia Supreme Court held that the plaintiff’s assault and battery, and intentional infliction

of emotion distress claims, were not barred by the VWCA because her assault was the result of

her co-worker’s “asserted personal attraction” towards her. 270 Va. at 466. In that case, the

Court noted that the plaintiff’s co-worker “frequently made personal comments . . . that he

wanted ‘to date’ her,” prior to forcibly trying to kiss her while on the job. Id. at 462. Similarly,

in City of Richmond v. Braxton, the Virginia Supreme Court held that an assault on the plaintiff




6       In his opposition, plaintiff relies heavily on McGreevy v. Racal-Dana Instruments, Inc., a
case from the Eastern District of Virginia, to argue that that intentional torts cannot constitute
“accidents” under the Virginia Workers’ Compensation Act. Pl.’s Opp. at 6, quoting 690 F.
Supp. 468, 469 (E.D. Va. 1988). However, that case is contrary to Virginia state case law
precedents. See Miller v. Washington Workplace, Inc., 298 F. Supp. 2d 364, 371 (E.D. Va.
2004) (declining to apply McGreevy “[g]iven the Virginia state law precedents”); see also Butler,
270 Va. at 465.
                                                12
did not arise out of her employment because it amounted to “sexual assault,” and was therefore

“of a personal nature.” 230 Va. 161, 165 (1985).

       The Virginia Supreme Court also found an assault to be personal when it was the result of

a co-worker’s friendship and inappropriate joking that crossed the line.               In Richmond

Newspapers, Inc. v. Hazelwood, 249 Va. 369, 374 (1995), the Court found that the plaintiff’s

assault and battery claims were not barred by the VWCA’s exclusivity provision because “there

was evidence that [the co-worker] goosed fellow workers because he considered them his

friends,” and “[i]ndeed, friendship seems to have been the motivation for the pressroom

goosing.” Id. at 374.7

       Here, the Court finds that plaintiff’s assault arose out of his employment because the

altercation arose from a purely work-related subject – the scope of plaintiff’s work duties. See

Sutter v. First Union Nat. Bank of Virginia, Inc., 932 F. Supp. 753, 759 (E.D. Va. 1996) (holding

that plaintiff’s assault and battery claims arose out of the employment because the incident was

prompted by a “work-related” dispute). In his complaint, plaintiff alleges that Van Buren told

plaintiff immediately before he struck him that “assisting customers was not [p]laintiff’s

responsibility and he should have left it alone.” Am. Compl. ¶ 36. Plaintiff has alleged no facts

that would support a finding that Van Buren was motivated by personal feelings or animus. In

fact, there is no indication that plaintiff had ever met Van Buren before the incident. Therefore,

plaintiff’s reliance on Butler, a case involving sexual assault, is misplaced. Pl.’s Opp. at 7.8


7       “To ‘goose’ means ‘to poke or dig (a person) in some sensitive spot; esp: to poke (a
person) between buttocks with an upward thrust of a finger or hand from the rear.’” Richmond
Newspapers, 249 Va. at 370 n.1, quoting Webster’s Third New International Dictionary 979
(1981).
8     Plaintiff also relies on Auriemma v. Logan’s Roadhouse, Inc., 2012 U.S. Dist. LEXIS
165194 (W.D. Va. Nov. 19, 2012), Pl.’s Opp. at 7, but that case, like Butler, found that the
coworker’s assault was “personal” because it constituted a sexual assault.
                                                 13
       Because the Court finds that plaintiff’s injuries under both counts arose out of his

employment, and there is no dispute that the assault occurred during work hours and in the

course of plaintiff’s employment, Butler, 270 Va. at 465, the Court finds that the VWCA’s

exclusivity provision applies, and plaintiff is barred from further relief.


                                          CONCLUSION

       Plaintiff was the victim of a senseless act of violence while he was trying to do his job.

However, he has been compensated by his employer, and it is clear that the VWCA bars further

recovery. Accordingly, plaintiff has failed to state a claim for which relief can be granted. For

this reason, the Court will grant defendants’ motion to dismiss. A separate order will issue.


       SO ORDERED.




                                               AMY BERMAN JACKSON
                                               United States District Judge

DATE: March 11, 2019




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