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Employment – Wrongful Termination – Defamation – Bonus Checks

An Alexandria U.S. District Court grants summary judgment to defendant National Head Start Association Inc., in this wrongful termination suit filed by the NHSA’s former president and CEO, who alleges NHSA board officers breached her contract and defamed her when they fired her for alleged improper diversion of NHSA funds to herself in the form of “bonus” checks.

The court grants the employer summary judgment on all counts. As to plaintiff’s breach of contract claim, she was an at-will employee and the board terminated her employment as authorized under her employment agreement, which allowed the board to discharge plaintiff “at any time it determines the executive director’s performance of her duties has been unsatisfactory.” On plaintiff’s claim for breach of an implied covenant of good faith and fair dealing, Virginia does not recognize implied covenants in an at-will employment contract. As to her claim of retaliatory discharge, plaintiff was not a member of the class of persons protected by the public policy underlying Va. Code § 13.1-846 and § 13.1-873 expresses no public policy. Plaintiff argues defendant violated the public policy in these statutes because it terminated her employment based on her objections concerning how the board handled the 2007 board officer elections. It is clear that any public policy expressed in the statute fails to reach plaintiff, an officer who admittedly had no voting rights and no right to intervene in the election itself. Plaintiff is not protected by any public policy expressed in Code § 13.1-846. Her reliance on Code § 13.1-873 is misplaced because that statute describes the powers and duties of an officer; it does not express any public policy.

The court grants the motion as to the defamation count because the chairman made the statement to a member of Head Start with a common interest in the reasons for plaintiff’s discharge and plaintiff cannot prove by clear and convincing evidence the statements were made with malice. The statement at issue dealt with plaintiff’s receipt of two bonus checks. She argues there is ample evidence the board president knew the board authorized plaintiff’s bonuses and his statement about improper diversion of funds therefore was made with malice. The court rejects plaintiff’s argument because, even if the board president knew generally that the board authorized plaintiff’s bonuses at some point in the past, there is nothing to suggest he knew these checks in these amounts were authorized bonuses, or that the checks were in fact authorized.

Plaintiff has not identified a single writing outlining the process or procedures for determining her bonus amounts or for issuing the bonus checks. Nor has plaintiff produced records showing the percentage increase in budget each year or written calculations showing plaintiff’s precise bonus amounts. In short, there is nothing showing the precise dollar amounts to which plaintiff was entitled to in bonuses. The evidence is insufficient to prove these checks were board-authorized bonus checks instead of checks issued for some improper purpose and thus plaintiff cannot prove by clear and convincing evidence that the board president made the statements with malice.

Summary judgment for employer.

Greene v. National Head Start Ass’n Inc.
(Lee, J.) No. 1:09cv546, April 30, 2010; USDC at Alexandria, Va. VLW 010-3-245, 22 pp.

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