Virginia Lawyers Weekly VA Lawyers Weekly
Where the former Charlottesville police chief failed to plead facts plausibly suggesting that her termination was because of her race, color or gender, and failed to plead facts plausibly suggesting she was subjected to a hostile work environment because of her race, color or gender, the federal and state employment claims were dismissed.
Background
Rashall M. Brackney-Wheelock Ph.D., was hired as the Charlottesville police chief in 2018. She argues that her 2021 termination was a result of race, color and gender discrimination; resulted from tortious interference with her employment contract and a business conspiracy and involved violations of Virginia’s whistleblower statute, Human Rights Act and constituted defamation. Defendants’ have filed motions to dismiss.
Michael Wells
Plaintiff sues Wells for tortious interference with employment contract and business conspiracy. Plaintiff argues Wells acted as the city’s agent, so the city is liable for his actions based on respondeat superior. But plaintiff has not pled any allegations of fact that, taken as true, would establish that Wells was an employee or agent of the city.
City employees
Plaintiff asserts that multiple city employees tortiously interfered with her employment contract. This claim is dismissed because they, as the city’s employees, cannot interfere with the city’s contract with plaintiff. Plaintiff alleges no facts in support of her legal conclusion that the listed defendants were not acting as agents at all times relevant to her tortious interference with a contract claim. Additionally, plaintiff has not alleged any facts that these defendants employed improper methods to interfere with the contract.
Business conspiracy
Plaintiff asserts that certain individual defendants engaged in a statutory business conspiracy to harm her reputation. However, she never alleges business-related damages as Virginia law requires. The damages alleged relate only to plaintiff’s personal and employment interests, which are outside the domain of a statutory conspiracy claim. Even if the claim was within the statute’s domain, moreover, the intracorporate immunity doctrine would also bar plaintiff’s claim.
Defamation
Plaintiff asserts a defamation claim against three individual defendants. But the claim fails as to all of them because she does not allege facts showing they acted with actual malice.
Hostile work environment
Plaintiff claims that the city created a hostile work environment, which was discriminatory based on race, color and gender. But there are no factual allegations that the behavior was directed at plaintiff or based on her race, color or gender. It appears the officers created and exchanged the videos and texts among themselves, and then plaintiff conclusorily asserts that she was ridiculed and berated because of how she handled taking disciplinary action against those involved. As such, plaintiff does not meet the high bar for establishing a hostile work environment under Title VII.
And the other conduct that plaintiff alleges, i.e., statements from various defendants, occurred after plaintiff was notified of her termination and placed on paid administrative leave. As precedent in this district has previously noted, “‘post- termination harassment’ does ‘not constitute evidence of a hostile work environment.’”
Finally, because there is no allegation that the city knew or should have known about the conduct before June 3, 2021, and no allegation that the city opposed plaintiff’s decision to investigate and discipline the involved officers, any purported hostile work environment is not imputable to the city.
Discrimination
Plaintiff also claims that the city, in terminating her, discriminated against her based on race, sex and color, in violation of Title VII. But, as a matter of law, the alleged comparators were not similarly situated to plaintiff or treated differently than plaintiff with respect to termination.
Plaintiff premises her Virginia Human Rights Act, or VHRA, claim on the same conduct as discussed for her Title VII claims. The city argues, and this court agrees, that the VHRA claim suffers from the same defects as her Title VII claim.
Retaliation
Plaintiff also asserts that the city terminated her employment in retaliation for engaging in protected activity. But Title VII does not protect participation in an employer’s internal investigation not associated with a formal EEOC charge. And plaintiff does not allege conduct opposing behavior prohibited by Title VII.
If the court were to find that plaintiff engaged in protected activity, plaintiff would still need to plead facts that, taken as true, would establish that her termination was casually connected to her investigation and discipline of officers. The court has already addressed that the city supported plaintiff’s decision to discipline the officers, thus undermining any argument for a causal connection.
Whistleblower
The behaviors in the videos that prompted plaintiff’s investigation do not fit within the definition of “abuse” or “wrongdoing” under the statute. And because plaintiff was not requested to participate in an investigation or inquiry, she does not fall within the statute’s retaliation provision.
Defendants’ motions to dismiss granted.
Brackney-Wheelock v. City of Charlottesville, Case No. 3:22-cv-00035, Jan. 20, 2023. WDVA at Charlottesville (Moon). VLW 023-3-026. 39 pp.
