Virginia Lawyers Weekly VA Lawyers Weekly
Where a former employee of the Albemarle County School Board alleged that she felt compelled to resign after experiencing repeated race-based comments that caused her mental and emotional distress, and after the school board did not intervene or act to address these comments, she plausibly alleged a claim for race discrimination.
Background
Emily Mais has brought federal and state law claims against her former employer, the Albemarle County School Board. She alleges the school board violated her free speech rights under Article I, § 12 of the Virginia Constitution (Count One), wrongfully discharged her in violation of public policy (Count Two) and committed several violations under the Virginia Human Rights Act, or VHRA (Counts Three-Six) and Title VII (Counts Seven-Ten). The school board moves to dismiss plaintiff’s claims.
Free speech violation
In Count One, plaintiff claims that her speech rights were violated under Article I, § 12 of the Virginia Constitution. The school board argues this claim should be dismissed because it is barred by sovereign immunity. The court agrees.
To bring a private cause of action under the Virginia Constitution against a governmental entity, the constitutional provision must be self-executing or have associated legislation that allows for a cause of action. Plaintiff argues that Article I, § 12 is self-executing for her free speech claim and cites a series of cases in which courts have adjudicated the merits of free speech claims brought under Article I, § 12.
In these cases, the courts considered state free speech claims alongside federal free speech claims, rendering any separate state free speech analysis unnecessary because the freedom of speech protections guaranteed by the Virginia Constitution are construed co-extensively with the free speech protections in the First Amendment of the U.S. Constitution. Unlike those cases, plaintiff has not asserted a federal free speech claim, nor has she asked for leave to amend her second amended complaint to add a federal free speech claim.
The Supreme Court of Virginia has not settled the scope of an implied right of action under Article I, § 12. However, two Virginia circuit courts have recently concluded that Article I, § 12 is only self-executing for claims challenging laws or ordinances. Assuming plaintiff has alleged enough to state a claim for relief under the Virginia Constitution, the court agrees with the Virginia circuit courts and finds that Article I, § 12 is only self-executing for claims challenging laws or ordinances. Because plaintiff is not challenging the constitutionality of a law or ordinance, her claim is barred by sovereign immunity.
VHRA
Plaintiff brings several claims under the VHRA, which prohibits an employer from discriminating because of an individual’s race. The school board argues these claims are barred because the VHRA does not contain an explicit waiver of sovereign immunity. The court agrees.
Plaintiff argues that the school board’s sovereign immunity is waived because of Virginia Code § 1-230, which provides general rules of construction and definitions to be applied to Virginia’s statutes. The court finds that Virginia Code § 1-230 cannot serve as an explicit waiver of sovereign immunity for the VHRA because it is a statute of general application. The Virginia General Assembly could have defined “employer” or “person” in the VHRA to include commonwealth agencies but chose not to do so.
Public policy
The commonwealth “strongly adheres to the employment-at-will doctrine.” The Supreme Court of Virginia permits a “narrow exception” to the doctrine. One such exception is when an employee claims she has been discharged in violation of an established public policy. However several courts have found that the Virginia Constitution cannot serve as the source for a wrongful discharge claim. The court agrees with these decisions.
Title VII
Considering the alleged repeated race-based comments, the school board’s lack of intervention and plaintiff’s emotional and mental distress, plaintiff has alleged a plausible racial hostile work environment claim under Title VII.
The court also finds that plaintiff has alleged sufficient facts to state a plausible constructive discharge claim. Plaintiff alleged that she experienced repeated race-based comments that caused her mental and emotional distress, that the school board did not intervene or act to address these comments and that she was asked to give an apology in front of school staff. The accumulation of these allegations sufficiently supports that a reasonable employee in plaintiff’s position could have felt compelled to resign.
Finally considering the short temporal proximity between her alleged protected activity and the alleged adverse employment actions, plaintiff has alleged enough facts to support a plausible inference that the school board retaliated against her because of her protected activity.
Defendant’s motion to dismiss granted in part, denied in part.
Mais v. Albemarle County School Board, Case No. 3:22-cv-51, Feb. 21, 2023. WDVA at Charlottesville (Moon). VLW 023-3-070. 22 pp.
