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Claim rejected — Judge: No ‘Bowman’ action for safety-claim retaliation

Peter Vieth//September 27, 2021

Claim rejected — Judge: No ‘Bowman’ action for safety-claim retaliation

Peter Vieth//September 27, 2021//

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A Richmond federal judge has rejected a state-law wrongful termination claim based on alleged retaliation against an employee who reported safety and health violations.

The Bowman claim fizzled because the state code already provides a “extensive statutory remedy” that precludes a common law action for retaliatory firing, U.S. District Judge David J. Novak reasoned. Novak said he was anticipating how the Supreme Court of Virginia would rule on the issue.

Novak’s Sept. 7 decision eliminated the wrongful termination count from a three-count lawsuit filed by a former steel worker who says he was fired after complaining about his employer’s indifference to dangerous working conditions.

The employee’s lawyer said he thinks the judge misinterpreted how the state Supreme Court will decide the issue.

Novak’s opinion is Williams v. TMS International LLC (VLW 021-3-442).

Workplace concerns

Plaintiff Milton Williams, an African American man, operated a front-end loader at a steel plant near Petersburg, loading and unloading hot steel slag, a byproduct of the process of turning scrap steel into useable metal. The workplace was noisy, hot and dusty, as Novak summarized the complaint.

Williams contended the company and his supervisors ignored his concerns about airborne dust and other possible toxins at the plant. Williams then reported his complaints to OSHA. He claimed he was fired on April 19, 2019, after advising a supervisor of his OSHA report. He said two white employees previously were allowed to remain employed after similar conduct.

In his Virginia-law wrongful termination claim based on the 1985 Virginia Supreme Court case of Bowman v. State Bank of Keysville, Williams alleged his firing violated the public policy of Title 40.1 of the Virginia Code to prevent and address unsafe working conditions.

Williams also alleged racial discrimination in his contract rights and retaliation for his raising health and safety concerns under Va. Code § 40.1-51.2:1.

The defendants — the employer and two supervisors — asked Novak to dismiss the Bowman claim. Williams suggested Novak certify the question to the Supreme Court of Virginia.

Exclusive remedy

Novak agreed with the defendants that the Virginia General Assembly already had “specially provided” Williams with the mechanism to protect his right to complain about workplace conditions, and said there was “ample precedent” to allow him to anticipate how the state Supreme Court would rule without putting the issue to the justices.

The judge acknowledged that Virginia’s high court has not yet decided whether the administrative remedies provided in Va. Code § 40.1-51.2:2 would preclude a Bowman claim based on the safety statute. But Novak concluded that decisions by Virginia trial courts and federal courts interpreting state law indicate that the statutory administrative procedures furnish the exclusive remedy for violations of the public policy at issue.

The remedy statute requires employees to exhaust an administrative procedure before filing an action in circuit court.

This “extensive” statutory remedy indicates the legislature’s intent to make the statute “self-contained” so as not to create a public policy forming the basis of a Bowman claim,” Novak decided. He cited three Virginia circuit decisions and two federal district decisions to support his conclusion.

Multiple remedies possible?

Williams, represented by Richmond’s Harris D. Butler III, argued that injuries often have more than one possible legal remedy. Options can include common law tort actions and federal statutory claims, the plaintiff contended.

“But when a state statute already contains a remedial scheme for violations of a statutory right, a plaintiff does not need a Bowman claim to vindicate the statute’s underlying public policy,” Novak responded. “Otherwise, a plaintiff could simply bring a Bowman action and bypass a statute’s remedial scheme, thereby subverting the legislature’s intent.”

Novak concluded there was no need for the legislature to explicitly state that a statutory remedy was exclusive.

“The Virginia Code creates a right and a remedy to safeguard the underlying public policy at issue here. That remedy bars a Bowman claim despite the statute’s lack of an express legislative pronouncement that the remedy precludes all others,” Novak wrote.

Ruling cited in similar case

The defendants are represented by attorneys at the Richmond office of Jackson Lewis PC. Kevin D. Holden of that firm declined to comment, because the case is ongoing.

Butler was less reticent.

“I think he just got led astray and into error by the defense argument,” Butler said of Novak’s decision. Bowman is said to create a “narrow exception” to the employment-at-will doctrine, but Butler argued it’s narrow in the identification of public policy, not in the application of that policy.

“I think the law should be very clear on this. I think the Supreme Court has spoken,” Butler said. He contended the cases cited by Novak were wrongly decided. He said the elimination of the tort claim removed the prospect of attorney fees and punitive damages from Williams’ action.

“Management has been chipping away at the Bowman doctrine for an extended period of time,” Butler said. He said Novak’s decision was cited by a law firm representing management at a Sept. 21 hearing in a similar case in Hanover County Circuit Court.

Butler said he would ask the 4th U.S. Circuit Court of Appeals to certify the issue to the Virginia Supreme Court when the Williams case goes up on appeal.

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