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Messenger protected: Two courts, two opinions on Bowman claim for whistleblowers

Peter Vieth//November 8, 2021

Messenger protected: Two courts, two opinions on Bowman claim for whistleblowers

Peter Vieth//November 8, 2021

Despite a contrary earlier opinion from a federal court, a Hanover County circuit judge says employees can sue for tort damages claiming they were fired for blowing the whistle on safety problems.

The Oct. 22 ruling by Judge Patricia Kelly highlights the uncertainty of the law on common law wrongful termination claims based on Virginia whistleblower statutes.

Kelly’s ruling does not mention the Sept. 7 decision from U.S. District Judge David J. Novak, but her analysis takes a different tack, concluding that the public policy underlying an anti-retaliation statute is broad enough to support a Bowman claim.

The opinion is Chenault v. RBI Corp. (VLW 021-8-122).

COVID concerns

Plaintiff Brooking Chenault contends he was fired from Ashland-based RBI Corp for complaints about lax infection control measures in light of the COVID-19 pandemic. Chenault says he was fired as a direct result of his opposition to management’s “cavalier attitude” about virus exposure, according to Kelly’s opinion letter. He reportedly complained about a lack of mask requirements or other isolation measures, Kelly said.

Chenault relied on a Virginia statute approved last year in a package billed as “landmark legislation” to “combat worker exploitation.” Va. Code § 40.1-27.3 bars retaliatory action against an employee who reports to a supervisor a violation of a federal or state law or regulation. The measure creates a civil action with the possibility of reinstatement, lost wages and attorney fees.

Hoping for more than just those damages, Chenault added a second count seeking tort remedies, which could include punitive damages. The tort claim is based on the 1985 Virginia Supreme Court ruling in Bowman v. State Bank of Keysville and later decisions allowing actions for wrongful discharge based on a violation of public policy embodied in a state statute.

Kelly ruled that the statutory claim foundered because Chenault failed to allege a specific report of a violation of a law or regulation to a supervisor.

“The allegations of ‘voicing concerns” or ‘objecting to a cavalier attitude’ are simply not enough to support a claim that Plaintiff in good faith reported a violation to a supervisor,” Kelly wrote.  She sustained management’s demurrer to Count I with leave to amend.

Tort claim survives

But Chenault managed to avoid demurrer on his wrongful termination tort count.

Management argued the claim must fail because Chenault was complaining of violations of state executive orders and emergency temporary standards that were not state statutes or regulations.

Kelly agreed with the plaintiff that the test is not whether there was a violation of the actual whistleblower statute but whether there is a violation of the public policy underlying the statute.

Kelly acknowledged that in this case there was not a “generalized public policy statute” such as those addressed in Virginia case law. Moreover, she said, “the Virginia Supreme Court has steadfastly held that Bowman created narrow exceptions to the Virginia termination at will doctrine.”

“The issue is whether the policy underlying Va. Code § 40.1-27.3 is broad enough to support a claim under Bowman where the allegation is that the employee was terminated for voicing concerns over violations of workplace standards,” Kelly wrote.

The judge concluded that was the case.

“Even though Plaintiff failed to state a claim under the actual language of § 40.1-27.3, he has stated a claim for a retaliatory discharge in violation of the public policy embodied by that statute. Additionally, Plaintiff is a member of the class the statute was designed to protect,” Kelly concluded.

Exclusive remedy?

Kelly only briefly addressed a key issue that occupied the federal judge the month before.

The defendants in Chenault claimed the tort claim was barred because the statutory civil remedies establish the exclusive means of recovery. Citing a 1994 Virginia Supreme Court decision, Kelly succinctly stated there is nothing in the statute to indicate it provides the exclusive remedy.

But in Williams v. TMS International LLC (VLW 021-3-442), Judge Novak rejected a claim under a similar whistleblower protection statute, concluding that the law provided an “extensive statutory remedy” that precluded a common law action for retaliatory discharge.

“[W]hen 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 wrote.

The same Richmond lawyers clashed in both cases: Harris Butler for the plaintiffs and Courtney M. Malveaux and Kevin D. Holden for the management defendants.

The exclusivity issue remains open for litigation, said McLean’s Declan Leonard. Leonard, who was not involved in either Chenault or Williams, counsels management on employment law issues.

“While at first blush the Chenault decision has the potential to be a game-changer at a time when COVID safety issues are topic one in the workplace, the fact that the decision fails to exhaustively tackle the most glaring question for Bowman claims [means] I do not think it will ultimately have much of a seismic effect on how other courts in Virginia approach this issue,” Leonard said.

“Until the Virginia Supreme Court weighs in, or until a decision by a circuit court … squarely and convincingly tackles the question of whether a Bowman tort claim can proceed alongside (or instead of) the prescribed statutory remedy, I do not see the Chenault opinion as opening up any sort of flood gate on Bowman claims in the COVID context or otherwise,” he added.

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