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Punitive damages available in public policy discharge case

Where plaintiff alleges that he was fired after he complained to defendant employer that he was not being timely paid, he has stated a claim for discharge in violation of public policy.

Further, defendant’s demurrer to plaintiff’s claim for punitive damages is overruled. However, the demurrer to plaintiff’s attorney fees claim is sustained.

Case goes forward

“In his first amended complaint [FAC] plaintiff alleges that his first paycheck was withheld for several days. When he complained to defendant, plaintiff alleges he was fired as ‘a direct result of his complaints regarding TCP’s [defendant’s] failure to provide compensation as required by law.’

“Plaintiff’s first amended complaint ‘purports to be an action pursuant to Bowman v. State Bank of Keysville, 229 Va. 534 (1985), which established the principle that, where a right is ‘conferred by statute’ and ‘is in furtherance of established public policy, the employer may not lawfully use the threat of discharge of an at-will employee as a device to control’ the employee’s right under the statute. …

“Defendant contends that the FAC does not state a cause of action against it because Plaintiff was ‘executive personnel’ within the meaning of Code 40.1-29(A)(1) and was thus not within the class of persons protected by Code § 40.1-29.

“While Plaintiff argues that he was not an executive and is thus within the class of persons protected by Code § 40.1-29, the court need not resolve that issue because the public policy upon which Plaintiff relies is set out in Code § 40.1-29(0):

“‘No employer shall withhold any part of the wages or salaries of any employee except for payroll, wage or withholding taxes or in accordance with law, without the written and signed authorization of the employee.’

“As the FAC alleges that Defendant withheld Plaintiff’s ‘wages properly owing and due to’ Plaintiff … Plaintiff has stated a Bowman claim[.]”

Defendant’s demurrer is overruled.

Punitive damages

“Defendant argues that the FAC does not allege any ‘facts that would support his demand for punitive damages’ in that the FAC ‘does not allege the kinds of willful, malicious, oppressive, wanton, or reckless behavior that would support a punitive damages award.’ …

“With regard to the alleged wrongful behavior in the case at bar – Defendant’s wrongful termination of Plaintiff – the FAC alleges that ‘the basis of [Plaintiff]’s termination was in retaliation for reporting’ violations ‘of Code § 40.1-29, et seq.’ to Defendant. … In the court’s view, the allegation of ‘termination in retaliation for reporting’ violations ‘of Code § 40.1-29, et seq.’ sufficiently alleges that Defendant’s behavior was willful, malicious, oppressive, wanton, or reckless.”

Defendant’s demurrer to the punitive damages claim is overruled.

Attorney fees

Plaintiff cites Kemp v. Miller, 166 Va. 661 (1936), as support for his attorney fees claim. “In Kemp, there had been previous litigation for specific performance of a contract[.] …

Kemp held that the ‘rule in Virginia as to the recovery of counsel fees as damages is well established’ … ‘except where the injury is wanton or malicious and exemplary damages are recoverable, the allowance of fees paid counsel for defending the original proceedings is not proper.’ … (emphasis added).

“In the case at bar, as Plaintiff is not seeking attorney fees as damages for previous litigation, but as attorney fees for the instant case, Kemp does not apply.”

Defendant’s demurrer as to the attorney fees claim is sustained.

Frank v. True Color Painters, Case No. CL 2021-7835, Oct. 4, 2021, Fairfax Circuit Court (Gardiner). Zachary A. Kitts, Dirk McClanahan for the parties. VLW 021-8-120, 5 pp.

VLW 021-8-120