Employment – Private Security Company – Baghdad Security Officer – Whistleblower Claim

An Alexandria U.S. District Court says an employee fired by a Herndon company that provides contract security to U.S. diplomats in Baghdad cannot sue the company for a variety of tort and whistleblower claims arising from his discharge for violations of alcohol policy, ignoring established practices for timely reporting of incidents; unilaterally deciding to fly an injured employee home in coach class, not business class while allegedly blaming corporate headquarters and failure to address concerns about disparate treatment and race discrimination.

Plaintiff sued for tortious interference with prospective contract and retaliation under 42 U.S.C. § 1981, wrongful discharge, defamation and False Claims Act violations. He alleges the company’s reasons for his discharge are pretextual.

With regard to plaintiff’s Bowman public policy claim, plaintiff here asserts the type of generalized, common law whistleblower retaliatory discharge claim the Virginia Supreme Court has specifically “refused to recognize” as an exception to Virginia’s employment at will doctrine. As such, plaintiff’s wrongful discharge claim must qualify under the second or third exceptions of Rowan v. Tractor Supply Co., 263 Va. 209 (Va. 2002), to succeed. The statutes upon which plaintiff relies are Va. Code 18.2-172, prohibiting forgery, and Va. Code § 18.2-178, prohibiting obtaining money by false pretenses. Plaintiff argues that both Virginia statutes plainly impose a duty on plaintiff not to commit the crimes of forgery or obtaining money under false pretenses. Plaintiff argues that both Virginia statutes plainly impose a duty on him not to commit the crimes of forgery or obtaining money under false pretenses and that defendant fired him “refusing to engage in statutorily prohibited conduct.”

Plaintiff argues that because defendant’s corporate headquarters were in Virginia, any money successfully defrauded from the government through the falsification of bills and forging of invoices would have been paid to defendant at corporate headquarters in Virginia and the forged documents sent to DOS by plaintiff would pass through Virginia. A similar “chain of distribution” theory was rejected by the Virginia Supreme Court in a drug distribution case where criminal activities completed in Arizona were considered too attenuated to allow for prosecution of an individual under Virginia law. Plaintiff must show some criminal conduct occurred here, but plaintiff does not allege forged documents passed through Virginia or that defendant maintained bank accounts in Virginia where fraudulently obtained money could be deposited. The court also rejects plaintiff’s claim that Virginia criminal statutes apply to plaintiff in Iraq because forgery and false pretenses to obtain money are “continuing offenses,” as plaintiff relies on venue provisions to make this argument. Plaintiff has not cited to any cases where either the Virginia forgery statute or the Virginia false pretenses statute was applied extraterritorially, either through reliance on these venue provisions or otherwise. Absent some allegation of conduct in the commonwealth, the venue statutes plaintiff cites do not confer jurisdiction in Virginia for the actions plaintiff committee in Iraq. Plaintiff’s wrongful discharge claim is dismissed.

Likewise, his False Claims Act claim is dismissed, as he has asserted only a conclusory allegation that defendant retaliated against him and/or unlawfully terminated him because he cooperated with a DOS investigation.

Finally, the conduct of defendant here certainly falls into the type of conduct that is protected from state tort liability for defamation and intentional infliction of emotional distress. The contents of the letter outlining the reasons for plaintiff’s discharge tend to show it was sent in response to queries by government investigators engaged in an official investigation. The emotional distress claim also fails under Rule 12(b)(6).

Twigg v. Triple Canopy Inc. (Cacheris, J.) No. 1:10cv122, June 2, 2010; USDC at Alexandria, Va. VLW 010-3-298, 20 pp.