Wrongful Termination Category Archives — The Virginia Business Litigation Blog Published by Virginia and Washington, D.C. Litigation & Appeals Attorney

June 21, 2022

Public Employees Can’t Be Fired for Exercising Free Speech Rights

Freedom of speech is protected by the First Amendment to the United States Constitution. In the employment context, the First Amendment offers special protection to state and federal employees. Public employees have some extra job security as they cannot (at least not legally) be terminated for exercising their free-speech rights. (If you work for a private company, the First Amendment doesn’t do much for you because it’s a limit on government power, not private entities). If a public employee gets fired for saying something his government employer didn’t like, he may, in appropriate circumstances, be entitled to pursue a Section 1983 claim for monetary damages.

If you’ve been following the drama down in Pound, Virginia, you know that the town is on the verge of collapse. Town funds were embezzled, the Town Attorney was fired, and so many council members quit that the council was left without a quorum and unable to conduct business. This is a place that actually did defund the police, terminating the employment of the town’s entire police department. The town may or may not exist at the end of next year. But back to the Town Attorney. As a public employee, he enjoyed the First Amendment right to freely express his personal views without giving his employer grounds to terminate him. But according to the complaint he filed against former Town Council member Clifton Cauthorne and others (a complaint which, as an interesting aside, appears to have been written with a typewriter), the Town fired him in retaliation for his criticism of the Town’s Mayor. A federal judge recently opined that if the allegations in the complaint are true, the Town violated the attorney’s First Amendment rights.

November 6, 2015

Termination for Demanding Payment of Earned Bonus Held Actionable

by Guest Blogger

Here in Virginia, employment is presumed to be “at-will”: an employer can terminate the employment relationship with or without cause, upon reasonable notice, for any reason or no reason at all. Employees have the same right. The employment-at-will doctrine is particularly strong in Virginia, but there are some limited exceptions. An employee cannot be terminated without cause if an applicable employment agreement requires good cause for termination. A termination will also be deemed unlawful if it violates state or federal anti-discrimination laws or if the reason for the termination violates public policy.

Under the public policy exception to the employment-at-will doctrine, an employer may not terminate an employee in violation of explicit statements of public policy or in violation of laws that don’t expressly state a public policy but are designed to protect property rights, personal freedoms, health, safety, or welfare of the people in general and are in furtherance of an underlying and established public policy. Bowman v. State Bank of Keysville, 229 Va. 534 (1985). In practice, courts apply the public-policy exception only in rare circumstances, and not every violation of public policy will give rise to a valid wrongful discharge claim.
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August 31, 2015

Newly Released EEOC Directive To Assist Federal Employees Alleging Discrimination When Potential Conflict of Interest Exists

by Guest Blogger

As you may know from past posts, the U.S. Equal Employment Opportunity Commission (EEOC) enforces five federal laws that prohibit employment discrimination against applicants for federal employment, current federal employees, or former federal employees: Title VII of the Civil Rights Act of 1964, as amended (prohibiting discrimination on the basis of race, color, religion, sex, or national origin); the Equal Pay Act of 1963 (prohibiting agencies from paying different wages to men and women performing equal work in the same work place); the Age Discrimination in Employment Act of 1967, as amended (prohibiting discrimination against persons age 40 or older); Sections 501 and 505 of the Rehabilitation Act of 1973, as amended (prohibiting discrimination on the basis of disability); and Title II of the Genetic Information Nondiscrimination Act of 2008 (prohibiting discrimination based on genetic information).

But what if the individual discriminating against a federal employee is the head of the agency or division wielding vast influence not only in the employee’s division but the entire agency? What if the alleged discrimination is inflicted by the head of the EEO office? Federal employees may fear that the EEO office is not investigating thoroughly such claims of discrimination and/or is predisposed not to find that any discriminatory conduct occurred.
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June 30, 2015

The Obergefell Effect On Employment

by Guest Blogger

On June 26, 2015, the Supreme Court of the United States (“SCOTUS”) decided the 5-4 landmark decision, Obergefell v. Hodges, No. 14-556 (June 26, 2015). What’s so important about this case, which has resulted in nationwide parades, rainbow lighting of the White House, and rainbow-tinted profile pictures on Facebook? And, more important to us here at BerlikLaw, what might the Obergefell ruling portend for the employment discrimination realm?

Well, I’ll tell you. Obergefell determined that the states could not ban same-sex marriage. Prior to June 26, 2015, thirty-six states permitted same-sex marriage, but the remaining states still prohibited it. Then, last Friday, in a sweeping act of federalism, SCOTUS determined that the states could not constitutionally prevent same-sex couples from legally marrying in any state. SCOTUS answered a “YES” to the pivotal constitutional question: do the Equal Protection and Due Process clauses of the Fourteenth Amendment require all states to perform same-sex marriages? Yes, yes, they do.
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May 15, 2015

One Racist Act May Be Enough to Support a Title VII Claim

by Guest Blogger

Virginia employers take note: even one racial slur (or sexist comment) by one employee to another can subject you to legal liability under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-3(a).

Title VII protects employees against discrimination in the workplace if the discriminatory conduct is based on gender, race, color, disability, religion, or national origin. Harassment is unwelcome conduct based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It is not harassment if your supervisor is mean or rude to you–unless said conduct is based on one of aforementioned discriminatory bases.
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October 10, 2014

Has the Recent Same-Sex Marriage “Decision” Paved the Way for Increased Protection Against Sexual-Orientation Discrimination in Employment?

by Guest Blogger

A few days ago, SCOTUS (the Supreme Court of the United Sates) surprised us some by deciding not to hear appeals from several states that sought to prohibit same-sex marriage. However, the non-ruling has been hailed as a historical and momentous event changing an untold number of lives. What happened? Well, the Supreme Court “denied cert“–that is, it declined to review appellate decisions–from cases in Virginia, Utah, Indiana, and some other states, which had held that bans on same-sex marriage were unconstitutional. By refusing to hear the appeals, the court gave tacit approval of the lower courts’ decisions, making gay marriage legal in 11 more states. Legal gay marriage across the country is happening, people, as it’s now legal (or about to become legal) in 35 states, including the District of Columbia.

On October 7, hot on the heels SCOTUS’s denial of cert of 4th Circuit decisions allowing same-sex marriage in Virginia, the Virginia Commonwealth University in Richmond announced that it intended to broaden its discrimination policies to include gender identity and sexual orientation. These developments are interesting as they may be portentous as Virginia state law does not yet include gender identity and sexual orientation as protected classes, which enables employers to fire an employee for being gay.
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March 3, 2014

Age Bias Not Enough to Prevail Under ADEA

by Lee E. Berlik

The Age Discrimination in Employment Act (“ADEA”) prohibits an employer from discriminating against an employee on the basis of age. To prevail on an ADEA claim, it is not enough to show that a supervisor was biased against older employees. A successful plaintiff needs to show that she suffered an unfavorable employment action that she would not have suffered but for age discrimination. All illustrated by the recent case of Lavina D. Jernagin v. John M. McHugh, even if a supervisor refers to an employee as an “old-timer” and a “dinosaur,” if age was not the “but for” cause of an unfavorable employment action, the plaintiff will be unable to recover.

Lavina Jernagin began civilian employment with the United States Army in 1997, working as a Logistics Management Specialist with the Army’s Directorate of Logistics (DOL). In 2003 and 2005, Ms. Jernagin received annual performance ratings of “outstanding” or “excellent.” In 2007, Sergeant Travania Fair and Pamela Kent became Ms. Jernagin’s first and second line supervisors. Sergeant Fair considered Ms. Jernagin’s performance below average. In July 2007, as part of a branch reorganization, Lawrence Lawson and Mary Costa became Ms. Jernagin’s first and second line supervisors. At trial, witnesses testified that Ms. Costa had made several derogatory age-related statements toward Ms. Jernagin and her coworkers.
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February 20, 2014

EEOC Announces Record Monetary Recovery from Employers in 2013

by Guest Blogger

The U.S. Equal Employment Opportunity Commission (“EEOC”) recently released a comprehensive set of fiscal year 2013 data tables showing that it obtained the highest monetary recovery in agency history through its administrative process, increasing by $6.7 million to $372.1 million of the 93,727 charges received in fiscal year (“FY”) 2013.

There was actually a nearly 6% decrease in charges filed in FY 2013 from FY 2012. In total, 93,727 employees filed charges with the EEOC. Consistent with past years, retaliation was the most commonly cited basis (more than 35,500 charges) for discrimination charges and increased in FY 2013. The next most commonly charge was racial discrimination (more than 33,000 charges) followed by gender/sexual harassment/pregnancy discrimination (nearly 28,000 charges) and then disability discrimination (with almost 26,000 charges). EEOC’s data showed more than 3,000 charges were found to be “reasonable cause,” where the evidence gained in the investigation rendered a conclusion that discrimination occurred. The data also demonstrated that the EEOC successfully conciliated 1,437 charges (approximately 40%). A “successful conciliation” is described by EEOC as one that results in substantial relief to the employee citing discrimination and all others adversely affected by discrimination.
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September 16, 2013

In Wrongful Termination Case, Court Employs Burden Shifting Framework Where No Direct Evidence of Discrimination Exists

by Lee E. Berlik

A plaintiff employee with no direct evidence of disability discrimination must establish a prima facie case of wrongful termination. If he succeeds, the defendant employer is required to articulate a legitimate, non-discriminatory reason for the termination. The burden then shifts back to plaintiff to show that the reason offered was merely a pretext for discrimination. The United States District Court for the Western District of Virginia recently employed this burden shifting framework in Ruggles v. Virginia Linen Service, Inc. and granted the employer’s motion for summary judgment.

Timothy Ruggles was a route salesman for Virginia Linen Service and New System Linen Service. His duties included bringing extra linens to clients who had run out of linens before their scheduled delivery date. The extra linens rarely weighed more than 25 pounds. Ruggles also acted as a substitute driver for ill or vacationing employees, although he contended that substitute driving or “running a route” was not a primary function of his position. Running a route required him to make new deliveries of linens and pick up bags of soiled linens from customers. Occasionally, the bags of soiled linens weighed up to 100 pounds. When running a route, Ruggles and other employees often separated the heaviest bags of soiled linens into smaller bags to reduce the weight and make the bags easier to lift.

Ruggles suffered a back injury that was not related to his work. As a result, his doctor ultimately placed him on restrictions that prevented him from lifting more than 10 pounds for four weeks. Later, an orthopedic specialist permanently restricted Ruggles from lifting more than 50 pounds and/or continuous lifting of more than 25 pounds. Defendants offered Ruggles a sales position that would not require heavy lifting, but Ruggles rejected the offer. Defendants eventually terminated him based on the permanent restrictions the orthopedic specialist put in place.

April 2, 2013

Res Judicata: Double Jeopardy’s Civil-Lawsuit Cousin

by Lee E. Berlik

When Cecil Addison was passed over for promotion, he sued Volvo Trucks North America and Ivan Mitchell in the Western District of Virginia for breach of contract and discrimination. Volvo Trucks had a contract agreement with the United Auto Workers Union. Addison alleged the defendants changed the contract’s job requirements without Union approval so they could put a white male employee in the position for which Addison, a black male, was the most senior qualified employee. He also claimed that, when he complained, they retaliated by terminating his employment. Addison sought $25 million for the career he said they destroyed, and an additional $25 million for pain and suffering. But this wasn’t the first time he filed a lawsuit like this.

Addison made substantially the same allegations, plus others, in an earlier suit he filed in the same court in 2009. In that case, he didn’t communicate with the defendants for over five months, failed to appear at his own scheduled deposition and, when the magistrate judge ordered him to show cause why the case shouldn’t be dismissed, failed to respond. So that case was dismissed.

The principle of res judicata (Latin for “a thing adjudicated”) bars a party from filing a new lawsuit if that party has filed a prior suit on the same claim or on claims arising from the same transactions that could have been raised in that prior suit. The Supreme Court has acknowledged the important reasons for this doctrine, which include (1) preventing the cost and vexation of multiple lawsuits, (2) conserving judicial resources, and (3) preventing inconsistent judicial decisions so parties can rely on adjudications.