Articles Posted in Wrongful Termination

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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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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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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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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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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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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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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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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 laundry.jpgRuggles 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.

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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 stacks.jpgmultiple lawsuits, (2) conserving judicial resources, and (3) preventing inconsistent judicial decisions so parties can rely on adjudications.

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Jennifer Taylor worked for Allied Waste Industries. When Allied merged with Republic Services, Inc., Taylor found the new management’s style different and problematic. Her new supervisors were described as “micromanagers,” and Taylor clashed with them over many issues, including her job performance with which her supervisors’ were dissatisfied. Taylor attempted to resolve the issues through the Human Resources office, but ultimately separated from Republic. According to Taylor, she would have continued employment with Republic but for the allegedly tortious actions of her supervisors. Taylor sued Republic and her supervisors for various torts including tortious interference with business expectancy. Defendants moved for summary judgment on the tortious interference claim.

To state a claim for tortious interference in Virginia, a plaintiff must prove: (1) a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy on the part of the interferer; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted. In an at-will employment situation such as this, the plaintiff must also prove that the method of interference was improper. Improper methods of interference include means that are contrary to law or regulation and methods that employ violence, threat, intimidation, or fraud. Actions motivated by spite do not necessarily constitute improper means.

A tortious interference claim usually requires three actors – two parties to the contract and a third party who interferes with the contract, so typically, the alleged interferer is not a party to the contract. However, a tortious interference claim may lie where an agent of one of the contractual parties acts outside the scope of his employment in tortiously interfering with the contract. An act is within the scope of employment if (1) it was expressly or impliedly directed by the employer or is naturally incident to the business, and (2) it was performed with the intent to further the employer’s interest.

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