Doctor doesn’t cite a statute, but still has Bowman claim

A physician who said he was fired for refusing to participate in his employer’s unlawful “scheme” to distribute stockpiled medicine can sue for wrongful discharge in violation of Virginia public policy, a federal appeals court said on Jan. 8.

Richard Weidman, a former senior physician at Exxon Mobil’s Fairfax office, alleged that in 2009 he discovered the company had been operating illegal pharmacies in several states, and had illicitly stockpiled large quantities of medication in its Fairfax office and in other clinics.

He alleged that when he reported to senior management that Exxon Mobil was violating pharmacy laws in several states, the employer began criticizing his performance and ultimately terminated him in 2013. He attributed his heart attack to the job difficulties.

Exxon maintained Weidman had failed to respond to a performance improvement plan and was fired for poor performance.

Appearing pro se in the trial court and on appeal, Weidman sued for fraud, intentional infliction of emotional distress and wrongful discharge. An Alexandria federal court dismissed his suit in August. The 4^th U.S. Circuit Court of Appeals upheld dismissal of Weidman’s tort claims, but reversed dismissal of his state law claim under Bowman v. State Bank of Keysville.

The district court faulted Weidman for failing to identify a statute whose public policy Exxon Mobil violated in firing him.

The 4^th Circuit panel said Weidman had stated a claim that his termination violated the public policy provisions stated in Va. Code §§ 54.1-3310 and 54.1-3435. Those statutes make it unlawful for anyone to practice pharmacy or to engage in wholesale distribution of prescription drugs without a license, said Judge Roger L. Gregory, who wrote the unanimous panel opinion.

Although the statutes Gregory cited were not in Virginia’s criminal code, violating the statutes constituted a misdemeanor and led to criminal penalties, the court said.

“Therefore, refusal to practice pharmacy without a license should be treated as refusal to engage in a criminal act,” the panel said.

Weidman specifically alleged in his complaint that the Exxon Mobil manager who supervised Weidman’s direct supervisor requested that Weidman participate in a scheme involving a Virginia pharmacy, in which the pharmacy would distribute stockpiled medication to Exxon Mobil employees, but Weidman “refused to do so and informed [the supervisor] that this would “be against the law.”

The plaintiff also alleged he told Exxon’s medical director that he would not obtain a New Jersey medical license to work at a clinic in that state as long as it was operating an illegal pharmacy. Weidman alleged the medical director responded with physical intimidation.

Weidman “clearly described the circumstances of his refusal to engage in an act of criminal consequences,” Gregory wrote.

Any deficiency in omitting a citation to the statutes was “merely technical,” Gregory said, especially since Weidman included the statutes in his reply to Exxon’s motion to dismiss.

Gregory gave a nod to Weidman’s claim that Exxon breached its anti-retaliation promises stated in its employee handbook and in video comments by the company CEO at annual meetings. The appellate judge acknowledged the 4^th Circuit previously has recognized that Virginia law allows employers to make unilateral offers even to at-will employees, in employee handbooks.

But Gregory said the decision to reverse on the Bowman claim meant the panel did not have to consider the employee-handbook claim.

McLean lawyers Thomas P. Murphy, Arthur E. Schmalz and Ryan M. Bates represented Exxon Mobil on appeal.