Virginia Lawyers Weekly VA Lawyers Weekly
A former prosecutor who claimed she was unlawfully fired from the Carroll County commonwealth’s attorney’s office has had her federal employment lawsuit tossed out of court.
Colette M. Wilcox, who now practices in Bristol, alleged her wrongful termination hurt her professional reputation throughout Southwest Virginia.
But U.S. District Judge Michael F. Urbanski decided her pleadings fell short. In two rulings this year – the latest on Dec. 6 – Urbanski dismissed Wilcox’s lawsuit against her former boss and another lawyer in the prosecutor’s office in Hillsville.
The latest opinion is Wilcox v. Lyons (VLW 018-3-543).
Shoulder shove
Wilcox said her job problems arose after an odd incident in 2015 at the prosecutors’ office. As she talked with a coworker about a family situation, Deputy Commonwealth’s Attorney Phillip C. Steele allegedly punched Wilcox in her right shoulder with a closed fist.
In an email to Commonwealth’s Attorney Nathan H. Lyons, cited in court papers, Wilcox said, “From behind me Phillip shoved me in the right shoulder hard! It hurt!”
Wilcox allegedly interpreted the incident to reflect “hostility … against women.” She complained about alleged discrimination and a hostile work environment on Nov. 30, 2015.
Later, Wilcox said she was issued an unfounded reprimand and – when she asked for a copy of a policy referenced in the reprimand – she was accused of insubordination. She was fired on Feb. 17, 2016. The gap between her complaints and her firing was two and a half months.
Retaliation claim founders
Wilcox sued in 2017, alleging civil rights violations. Her attorney said the fact that the parties were all prosecutors had nothing to do with the legal issues involved.
In March, Urbanski dismissed claims of sex discrimination, retaliation and deprivation of liberty interest, but gave Wilcox leave to amend. Still pending was a state law claim of battery against Steele.
In April, Urbanski refused to reconsider dismissal of the retaliation claim. Wilcox said her firing came soon enough after her complaints to establish the requisite “temporal proximity.”
Urbanski did not agree.
“This case does not involve the kind of ‘very close’ time span between protected activity and adverse action that gives rise to an inference of causation and establishes a prima facie case of retaliation,” the judge wrote in an April 25 opinion.
Wilcox’ attorney, Thomas E. Strelka of Roanoke, said he planned to appeal dismissal of the claims of gender-based harassment and retaliation under 42 U.S.C. § 1983.
Still alive in April were claims of deprivation of liberty and the state battery claim, but those claims went out in Urbanski’s December ruling.
Dispute over unemployment benefits
The liberty claim arose from litigation over whether Wilcox was entitled to unemployment benefits.
The 14th Amendment protects the right to procedural due process when government action threatens a person’s liberty interest in reputation and choice of occupation. The first element is showing a stigma preventing the claimant from engaging in other employment.
Wilcox contended that Lyons perpetuated such a stigma by petitioning the Carroll County Circuit Court to overturn an award of unemployment benefits. The ex-prosecutor said the commonwealth’s attorney filed damaging pleadings and made damaging statements through counsel in open court before Judge David A. Melesco. Specifically, Wilcox said Lyons suggested that Wilcox engaged in job misconduct, willful insubordination, attendance lapses and unreasonable actions regarding her duties as a prosecutor.
Such statements were made in “a forum frequented by Wilcox’ peers and prospective employers,” according to Urbanski’s summary. Lyons “false accusations” allegedly made it “difficult, if not impossible” for Wilcox to get hired in Carroll County or surrounding counties, the judge said.
But Urbanski ruled the allegations fell short of the “stigma” standard, requiring implications of “serious character defects such as dishonesty or immorality.” The 4th Circuit’s yardstick makes allegations of serious character defects actionable, but not statements implying mere incompetence, the judge said.
The charges leveled against Wilcox “are not of a sufficient magnitude to rise to the level of liberty deprivation,” Urbanski wrote. They related only to insubordination, attendance and incompetence, the judge said.
In a footnote, the judge cited language from a 1976 U.S. Supreme opinion: “The federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies.”
In a Dec. 6 order, Urbanski dismissed Count II (deprivation of liberty) with prejudice. He dismissed Court III (state law battery) without prejudice.
“We have been waiting for the court to rule so that we can proceed to the 4th Circuit,” Strelka said, referring to the retaliation and gender discrimination claims. “The issue in that ruling was temporal proximity, which is a common way to establish causation in discrimination cases,” he said.
The defendants were represented by Henry S. Keuling-Stout of Big Stone Gap who was not available for comment.
