Wrongful Termination Category Archives — Page 2 of 3 — The Virginia Business Litigation Blog Published by Virginia and Washington, D.C. Litigation & Appeals Attorney

February 18, 2013

Tortious Interference with Business Expectancy Requires More Than Usual Workplace Conflict

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.

November 19, 2012

Can I Sue My Boss for Wrongful Termination?

by Lee E. Berlik

Until recently, the answer to this question has not been clear. After all, it’s the employer that does the hiring and firing, not necessarily the individual managers and supervisors. Employment defense lawyers have argued that by definition, a supervisor cannot be liable for wrongful termination when the supervisor is not the one effecting the termination. But on November 1, 2012, the Supreme Court of Virginia clarified that Virginia law does, in fact, recognize a cause of action for wrongful discharge in violation of public policy against a supervisor who was not the plaintiff’s actual employer but who participated in the wrongful firing and who was responsible for the violation of Virginia public policy. The case is Angela VanBuren v. Stephen A. Grubb.

VanBuren was a nurse at Virginia Highlands Orthopedic Spine Center when (according to her allegations) she was sexually harassed by her supervisor, Virginia Highlands’ owner Dr. Stephen Grubb. The harassment escalated and resulted in Grubb firing VanBuren when she rejected his advances and told him she planned to stay with her husband. VanBuren sued both Dr. Grubb and Virginia Highlands in federal court for wrongful discharge. The district court granted Dr. Grubb’s motion to dismiss, finding that the Supreme Court of Virginia would most likely hold that wrongful discharge claims are only recognized against the employer and not against supervisors in their individual capacity. VanBuren appealed to the Fourth Circuit, and that court certified the question to the Supreme Court of Virginia.

Although Virginia strongly adheres to the employment-at-will doctrine, it does recognize an exception when a discharge violates public policy. The exception is narrow and not every policy violation will give rise to a wrongful discharge claim. Discharge based on the employee’s refusal to engage in a criminal act is one of the narrow exceptions to the employment-at-will doctrine, and the court found that VanBuren’s claim fell within this exception (adultery and “open and gross lewdness and lasciviousness” are crimes in Virginia).

July 23, 2012

Retaliation Claim Dismissed for Failure to Exhaust Administrative Remedies

by Lee E. Berlik

The exhaustion of remedies doctrine requires parties to initiate and follow administrative procedures before seeking relief from the courts. The rationale behind the doctrine is that administrative agencies have specialized personnel, experience, and expertise to handle matters that arise under their jurisdiction. Additionally, an administrative complaint puts parties on notice of alleged wrongdoing, and administrative proceedings allow parties to resolve their disputes in a more efficient and less formal manner.

To allege discriminatory employment practices in a deferral state like Virginia, prior to filing any lawsuit, an aggrieved employee must exhaust administrative remedies by initiating an EEOC charge. Otherwise, the claim will be forever barred. The United States District Court for the Western District of Virginia recently addressed the exhaustion of remedies requirement in Kerney v. Mountain States Health Alliance.

Keltie Kerney was the Home Health Director at Norton Community Hospital (“NCH”) when she began having medical problems with her eye. She informed NCH that her medical problems would require medical leave and possibly future accommodation in order to continue her employment. NCH granted Kerney medical leave from August 19, 2010 through December 14, 2010 when her physician released her to return to work “with accommodations.” Upon her return to work, the hospital terminated Kerney. Kerney claims that the hospital discriminated against her on the basis of her age and disability and that it retaliated against her for her request for medical accommodations. Kerney brought suit against NCH and its owner, Mountain States Health Alliance (“MSHA”) under the Age Discrimination in Employment Act of 1967 (“ADEA”) and the Americans with Disabilities Act (“ADA”).

May 12, 2012

Burger King Manager Says He Was Fired For Having HIV

by Lee E. Berlik

Many people don’t realize that the Americans with Disabilities Act (ADA) protects not only employees with substantial hearing, visual, or mental impairments, but also those with HIV or AIDS. The ADA prohibits discrimination against “qualified individuals with disabilities.” Any physical or mental impairment that substantially limits one or more major life activities can qualify as a disability, and HIV disease is such an impairment.

Earlier this month in Norfolk, former Burger King manager Christopher Peña filed a discrimination suit against Burger King for allegedly terminating him upon learning he was HIV positive. Burger King says he was fired for poor performance. The complaint seeks compensatory damages for lost past and future wages, benefits, and emotional distress. It also seeks punitive damages, costs and attorney fees, reinstatement, and an injunction precluding further violations of the ADA.

Peña joined Burger King in 2004 and became a district manager, responsible for nine restaurants. When he learned he was HIV positive, he debated whether to tell the company but decided he should do so in case he reacted to his medications and had to miss work. He claims he had no disciplinary actions against him prior to disclosing his HIV status to a supervisor in June 2011. But shortly after the disclosure, one of his restaurants failed an audit, other restaurants within his management experienced service problems, and he dismissed an employee for stealing money. The company terminated his employment in September 2011.

April 30, 2012

Arlington Sheriff’s Office Wins Summary Judgment in Title VII Case

by Lee E. Berlik

A former employee of the Arlington County Sheriff’s Office failed to produce sufficient evidence of race discrimination to survive summary judgment. Such was the determination of Judge O’Grady of the Eastern District of Virginia, who entered summary judgment in favor of Arlington Sheriff Beth Arthur.

The case had been brought by former Inmate Services Counsel Robert Currie. Currie, an African-American male, alleged that he was racially discriminated against in 2009, when: (1) a watermelon was left on his desk by an African-American co-worker; (2) a Caucasian deputy made the statement “[t]here goes the neighborhood” on several occasions when Currie approached him; and (3) a Latino supply assistant referred to Currie as “boy” when addressing him.

Currie filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), claiming that he was discriminated against and was placed on probation in 2009 in retaliation for the fact that his lawyer had written to the Sherriff’s Office after the watermelon incident. The EEOC issued a Notice of Right to Sue in 2011. Two months later, Currie was terminated by Sheriff Arthur, allegedly as a result of an investigation that found that Currie violated policy, made false statements, treated an inmate unprofessionally, and retaliated against inmates.

January 7, 2012

Fairfax Court Finds Mere Reference to By-Laws Insufficient to Incorporate Into Contract

by Lee E. Berlik

In Virginia, employment is presumed to be at-will, but that presumption can be rebutted with evidence that the employment is for a specific period of time or that it can be terminated only for just cause. Virginia law says that contracts are to be construed as written and if the terms of the contract are clear, then those terms are to be given their plain meaning. A separate writing that is referenced in a written contract is construed as part of that agreement only if it is referred to with specificity and there is some expression of an intent to incorporate its terms into the agreement. As explained in a recent opinion by Judge Bruce D. White of Fairfax, “in order to incorporate the provisions of another document into the employment contract, the plain language of the employment contract must clearly reference and incorporate the terms of the document being incorporated.”

Johnson v. Versar was a lawsuit brought by William Johnson, Alexis Kayanan and Davy Jon Daniels against their former employer Versar, a government contractor based in Springfield, Virginia, for alleged breach of their employment contracts. They claimed that their employment was not at-will but was for a definite term. They based their argument on the fact that they received certain documents upon accepting employment that referenced Versar’s by-laws, which provided that officers “may be removed” by a majority vote of the board of directors. Because a resolution was never passed, they claimed that they were terminated in violation of their employment agreements.

Judge White sustained Versar’s demurrer with prejudice and dismissed the case. The Court found that the plaintiffs were at-will employees because the by-laws were not specifically and intentionally incorporated into the employment agreement. None of the offer letters referenced the by-laws, and the accompanying documents that did reference the by-laws did not indicate any intent to incorporate their terms as part of the employment agreement.

October 31, 2011

Norfolk Sexual Harassment Case Settled On Courthouse Steps

by Lee E. Berlik

A Lincoln-Mercury dealer in the Virginia Beach area has settled a lawsuit filed earlier this year by a former employee who claimed that she was subjected to a campaign of sexual harassment by the dealership’s general manager.

On March 4, 2011, Carla Mercado, who worked as a car saleswoman until she was fired in March 2009, sued Lynnhaven Lincoln-Mercury Inc. for sexual harassment, discrimination and retaliation, asserting that Juan Lewis, the general manager, repeatedly groped her and made unwanted sexual advances and suggestions. On October 21, 2011, U.S. District Judge Raymond A. Jackson denied Lynnhaven’s motion for summary judgment and its partial motion to dismiss the complaint. Faced with having a jury decide the merits of Ms. Mercado’s claims, the parties mutually decided to settle the case on the courthouse steps, the day the trial was scheduled to begin.

According to the complaint, Lewis repeatedly made remarks of a sexual nature to Mercado on the job and asked her to have oral sex with him. On one occasion, according to the complaint, he told her that the only way she would get a promotion is if she performed that sexual act on him. At one time, the complaint reads, he forcibly kissed her. These comments and actions, Dance or Fight.jpg the complaint says, “were an integral part of Juan Lewis’s custom, business practice, and course of dealing with certain women at Lincoln-Mercury, while fulfilling his role as General Manager at the dealership.”

September 26, 2010

Discrimination Claims in Virginia Must Be Brought Promptly

by Lee E. Berlik

Virginia is a “deferral state” for Title VII purposes, meaning that it has a state law prohibiting discriminatory employment practices and has a state or local agency (e.g., the Virginia Council on Human Rights) authorized to grant relief from such practices. To allege discriminatory employment practices in deferral states like Virginia, prior to filing any lawsuit, an aggrieved employee must exhaust administrative remedies by initiating an EEOC charge within 300 days. Otherwise, the claim will be forever barred. (See 42 U.S.C. § 2000e-5(e)(1)). In a case decided recently by Judge Spencer of the Eastern District of Virginia, a plaintiff found this out the hard way.

In McKelvy v. Capital One Services, LLC, the plaintiff was an African-American Director of IT services, over 40 years of age. After obtaining a “right-to-sue” letter from the EEOC, he sued Capital One, claiming that the removal of his supervisory responsibilities and the failure to promote him was based on his race or his age, and thus violated Title VII’s prohibitions against unlawful discrimination in employment. Finding that the alleged discrimination took place more than 300 days before the plaintiff filed his EEOC charge, the court granted summary judgment in Capital One’s favor and dismissed the plaintiff’s claims with prejudice.

The court also observed that, even if the plaintiff had not failed to exhaust administrative remedies, he could not prevail on his claim because he failed to present supportive facts (beyond his personal belief), to rebut Capital One’s assertion that his direct reports were taken away because other associates complained about his leadership style and because of some poor performance appraisals. To survive a motion for summary judgment, a plaintiff must come forward with supportive evidence.

January 14, 2010

Terminated Employee May Pursue Tortious Interference Claim Against Former Supervisor

by Lee E. Berlik

Virginia employment lawyers who represent plaintiffs are often looking for creative legal theories to help their clients receive justice. Employees seeking redress for perceived wrongful termination face a steep hurdle in the employment-at-will doctrine, under which a private employer, subject to certain exceptions, is free to discharge its employees at any time, for any reason or no reason at all, without incurring civil liability. While it is usually the corporate employer who gets cast in the role of defendant, plaintiffs’ lawyers have occasionally tried to impose liability on the individual manager who terminated or discriminated against the employee, usually without much success. A recent decision from the Eastern District of Virginia’s Richmond Division, however, opens the door to possible claims of “tortious interference” against the individual bad actor.

Williams v. Autozone Stores, Inc. is a sexual harassment case brought under Title VII of the Civil Rights Act of 1964, which prohibits harassment of employees where the conduct is sufficiently severe or pervasive to create a “hostile work environment,” or where the harassing conduct results in a tangible change in an employee’s employment status or benefits (such as getting fired). Williams, a former employee of Autozone, claimed that her manager, Willie Pugh, touched her inappropriately and made sexually-charged comments toward her. After asking Pugh to stop, Williams alleges that he wrote her up for nonexistent problems and that she was consequently transferred to a different store and eventually fired. Williams sued Autozone for alleged discrimination, but also sued Pugh himself on the theory that he tortiously interfered with her employment contract with Autozone. Autozone moved to dismiss the claim, arguing that Pugh was an agent of the company and that a company cannot interfere with its own contracts, but Judge Spencer allowed the claim to go forward.

Pugh pointed out that claims for tortious interference with contract require the existence of three separate parties: the two parties to the contract, and a third party who induces one of the two contracting parties to breach the agreement. As an employee of the company, he argued, he and Autozone were the same entity, negating the possibility of a third party. Pugh also pointed out that Williams acknowledged in her complaint that Pugh was an employee acting within the scope of his employment with Autozone.

November 2, 2009

Before Filing Retaliatory Discharge Action, Follow Internal Policies

by Lee E. Berlik

The First Amendment protects a public employee from retaliation by his or her employer when the employee speaks out on a matter of public concern. But before discharged government employees go rushing into court to sue the government entity for which they worked, they would be well advised to take advantage of any and all internal grievance processes offered by the government. A recent case decided by Judge Samuel G. Wilson of the Western District of Virginia demonstrates the potential perils of skipping this important step.

In Stickley v. Sutherly, the court laid out current jurisprudence as it applies to a public employer’s liability under 42 U.S.C. § 1983. (Section 1983 is a federal statute that creates liability for any local government or government officials who violate a person’s clearly-established constitutional rights, such as freedom of speech). Stickley was a police lieutenant in Strasburg, Virginia. Sutherly, the chief of police, demoted Stickley and another officer for violations of department policy. Shortly thereafter, the Northern Virginia Daily (a local newspaper) published an article criticizing Sutherly’s personnel practices. Prompted by the article, a member of Strasburg’s Town Council asked Stickley about his demotion, and Stickley expressed his dissatisfaction about it. After the councilman confronted Sutherly about Stickley’s demotion, Sutherly fired Stickley for insubordination.

Stickley, instead of pursuing the town’s official grievance process, filed suit against Sutherly and the Town of Strasburg. Stickley argued that his firing was in retaliation for his exercise of his First Amendment right to speak freely about matters of public concern; namely, the personnel practices of the police department.