Virginia Lawyers Weekly VA Lawyers Weekly
In this suit by a volunteer firefighter who alleges he resigned his position as treasurer of the nonstock Fire Department corporation and was suspended as a member after he raised issues about lack of funding and inadequate resources, plaintiff firefighter has stated claims for violation of his First Amendment rights, ultra vires and defamation, including a claim for punitive damages, says the Harrisonburg U.S. District Court.
Defendants concede plaintiffs have adequately pled their claims for violations of the First Amendment, but assert that neither has an actionable due process claim.
The plaintiff who resigned has failed to allege sufficient facts to support a due process claim. A resignation is involuntary based on misrepresentation where the resignation is induced by the employee’s reasonable reliance on a misrepresentation by an employer of a material fact that concerns the resignation. Plaintiff has not alleged any misrepresentation on the part of defendants resulting in or concerning his resignation. Nor has he alleged any facts suggestive of duress or coercion. The complaint simply alleges plaintiff felt forced to resign his position as treasurer because of “inappropriate board actions.” The facts as pled demonstrate nothing more than a resignation in protest based on the belief that the board was acting improperly.
Plaintiff also claims he had been denied procedural due process as to his membership with the Fire Department because he has been suspended indefinitely without a hearing. His complaint does not contain facts to establish more than a de minimis property interest. The only benefits plaintiff alleges he receives as an active member are an unspecified tax exemption provided to volunteer firefighters, a “car decal,” the use of Fire Department facilities, and other vaguely referenced “similar related benefits.”
As a member – albeit a suspended member – of the non-stock corporation Fire Department, plaintiff may state a claim that the corporation lacks power to act inconsistently with his governing documents. Defendants concede that plaintiff has stated an ultra vires claim but argue the governing statute, Va. Code § 13.1-828(B), permits only injunctive relief and plaintiff’s claims for additional relief should be dismissed. This question is not properly raised on a Rule 12(b)(6) motion.
Plaintiff also alleges defamation, based on an allegation that defendant president of the non-stock corporation sent plaintiff’s employer a letter stating plaintiff acquired free paint for his own benefit by submitting a false document. This statement clearly imputes a crime of moral turpitude, namely larceny by false pretenses. Plaintiff alleged the issue of his acquisition of free paint under false pretenses was raised in 2012, that the matter was investigated and it was established that the paint was sought by another owner of the fire truck and was for the benefit of the department. Plaintiff asserts defendant president knew the outcome of the investigation when he sent the letter to the sheriff. This claim survives a motion to dismiss.
Finally, because plaintiff has alleged with sufficient particularity that the corporation president made the statement regarding the paint knowing it to be false, the complaint supports a request for punitive damages.
Charles v. Front Royal Volunteer Fire & Rescue Dep’t (Urbanski) No. 5:13cv120, May 13, 2014; USDC at Harrisonburg, Va. VLW 014-3-259, 14 pp.
