“Improper Methods” Often Key to Tortious Interference Liability

Perhaps a colleague at work is trying to get you fired. Or maybe you did already get fired, and your former boss is contacting prospective employers to make sure you don’t get hired. Either way, you’re not going to be very happy about it, and you may start to look into your legal options. When one person interferes with the employment status of another person, and does or says something with the intention of getting that person fired, and succeeds in that endeavor, the legal claim most often applicable is that of tortious interference with contract. A recent federal case, however, illustrates that successful claims require more than just an intent to disrupt another person’s employment; they require a showing that “improper methods” were used in the course of that disruption.

Because employment contracts are generally terminable at the will of either party (employees can quit, and employers can fire the employee, without being in breach of contract), tortious interference with employment relationships will not be actionable absent additional wrongdoing in the form of so-called improper methods. There is no hard-and-fast definition of “improper methods,” but Virginia cases have held that improper methods include:

  • Actions that are illegal or independently tortious
  • Violations of an established standard of a trade
  • Fraud or deceit
  • Unethical conduct
  • Sharp dealing
  • Overreaching
  • Actions that fall far outside the accepted practice of the “rough and tumble” world of free market competition

(See Duggin v. Adams, 234 Va. 221, 228 (1987); Lewis-Gale Med. Ctr., LLC v. Alldredge, 282 Va. 141, 153 (2011)).

Let’s take a quick look at Ethel Stout v. Allstar Therapies, Inc., filed in the Richmond Division of the Eastern District of Virginia. Ethel Stout had two part-time jobs as an occupational therapist, one with Allstar Therapies, and another with Medi Home Health & Hospice. For reasons that aren’t clear, Stout’s boss at Allstar, James Bell, fired her. Stout texted him in response, calling her termination unexpected and baseless. Bell then, according to the complaint, contacted Medi and informed them of Stout’s termination. Bell also forwarded Stout’s text messages to Medi, and proceeded to offer Allstar’s services in place of Stout. Medi proceeded to terminate Stout’s employment.

Stout sued Allstar for tortious interference and intentional infliction of emotional distress. She claimed that Bell’s actions (on behalf of Allstar) caused her to suffer “symptoms of constant anxiety, anger, panic attacks, lack of concentration, and significant insomnia.” The court found that the allegations in the complaint were insufficient to support either claim, and dismissed the case.

Tortious interference, the court held, requires (1) a valid contractual relationship; (2) knowledge of the relationship by the defendant; (3) intentional interference inducing or causing a breach of the contractual relationship; and (4) resulting damage to the relationship. But there is no protection in Virginia against mere interference with a contract terminable at will, such as an employment contract. For such interference to be key-2824086_960_720-300x296legally actionable, the defendant’s actions must involve improper methods.

The allegations in this particular case, the court held, were insufficient to constitute “improper methods.” Even if Allstar had interfered with Stout’s employment relationship with Medi, no facts were alleged showing that Allstar’s conduct involved fraud or deceipt, violated a standard trade practice, constituted overreaching, or involved unfair competition. “Consequently, the facts outlined merely represent the rough and tumble world of market competition and Stout fails to state a plausible claim for tortious interference,” the court wrote.

The IIED claim did not fare any better. To establish a claim for intentional infliction of emotional distress, a plaintiff must prove that: (1) the defendant acted intentionally or recklessly; (2) the conduct was outrageous and intolerable; (3) a causal connection between the defendant’s conduct and emotional distress; and (4) severe emotional distress. The court found that elements (2) and (4) were lacking here: it was not “outrageous” for Allstar to share Stout’s texts in an effort to gain business for itself, and Stout’s alleged emotional distress was not severe enough to state a claim under Virginia law. Allegations of nervousness, an inability to sleep, withdrawal from activities, and an inability to concentrate at work do not constitute emotional distress severe enough to give rise to liability. Ultimately, the court held that “Stout’s symptoms of anxiety, anger, panic attacks, lack of concentration and significant insomnia do not meet the severity requirement under Virginia law.”


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