Virginia Lawyers Weekly VA Lawyers Weekly
A former employee’s retaliation claim against her employer was dismissed as untimely despite arguments that the statute of limitations under the Virginia Whistleblower Protection Law, or VWPL, accrued on her last day of work, rather than the day she was given notice of termination, the Eastern District of Virginia has held in a matter of first impression.
U.S. District Judge T.S. Ellis III noted that the Supreme Court of Virginia hasn’t ruled on the VWPL’s statute of limitations but found “helpful and persuasive guidance” from other settled precedent from the high court about the accrual of causes of actions.
“Although no court has directly addressed when the statute of limitations begins to run under the VWPL, other state and federal precedent interpreting similar employment statutes indicates that the statute of limitations for Plaintiff’s VWPL claim began to run when Plaintiff received her written Notice of Termination, not on the later date when her employment actually ended,” Ellis wrote.
The opinion is Kulshrestha v. Shady Grove Reproductive Center (VLW 023-3-186).
‘Not a good fit’
A medical doctor who specializes in reproductive endocrinology and infertility, Sunita Kulshrestha joined Shady Grove Reproductive Center in 2014. She eventually began seeing patients at offices in Maryland and Virginia.
Between 2018 and 2020, Kulshrestha’s husband, father and father-in-law passed away. She also gave birth to her first child in 2020. In addition to caring for her child and elderly family, the doctor maintained a full workload with high patient satisfaction scores.
After her mother fell ill in August 2021, Kulshrestha asked Shady Grove for permission to conduct telemedicine. During a Zoom call with her director, the doctor asked to work from home for two weeks and for leave under the Family and Medical Leave Act, or FMLA.
Shady Grove’s director was concerned that Kulshrestha was “doing three full-time jobs at once … mom to a fifteen-month-old, caregiver to [Plaintiff’s] mother, and full-time physician.” The doctor asked if she was being treated differently based on her gender and caregiver status.
Kulshrestha received written notice on Aug. 30, 2021, that her employment was ending on Feb. 27, 2022, because “it was not a good fit,” per the opinion.
The doctor sued Shady Grove for multiple counts in the Eastern District — including retaliation in violation of the VWPL — in December 2022. Shady Grove moved to dismiss the VWPL claim, arguing that it was filed more than one year after the statute of limitations passed.
Kulshrestha contended that her VWPL claim was timely because her cause of action accrued when she sustained the damage from Shady Grove’s retaliation on her final day of work. She also moved to certify the novel issue of law to the Supreme Court of Virginia.
Accrual rule
Ellis pointed out that, under the VWPL, “[a] person who alleges a violation of this section may bring a civil action in a court of competent jurisdiction within one year of the employer’s prohibited retaliatory action.” (Emphasis added.)
In other words, the employer’s “retaliatory action” — not the later consequences of that action — is the relevant focus for starting the one-year statute of limitations period, the judge said.
“Thus, Plaintiff’s cause of action accrued, and the one-year statute of limitations began to run, when Plaintiff received her Notice of Termination on August 30, 2021, because at that point Defendant committed a ‘prohibited retaliatory action’ against her as required by the statute,” Ellis explained.
This conclusion is in agreement with the Supreme Court of Virginia’s interpretations of when a cause of action accrues under other statutes.
“As the Supreme Court of Virginia put this point, ‘[t]he general observation, applicable to all claims, [is] that the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date.’”
— U.S. District Judge T.S. Ellis III
“The Supreme Court of Virginia has repeatedly held that a cause of action accrues, and the statute of limitations begins to run, ‘when any injury, though slight, is sustained as the consequence of an alleged wrong, despite the fact that greater damage from the same wrong may be sustained at a later date,’” Ellis said. “… As the Supreme Court of Virginia put this point, ‘[t]he general observation, applicable to all claims, [is] that the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date.’”
The judge then described how other federal and state courts have reached the same result in cases interpreting claims brought under federal employment statutes. He noted that, in Delaware State College v. Ricks, the Supreme Court held that the statute of limitations for a professor’s retaliation claim began to run when the college formally voted to deny his tenure rather than when his teaching position expired.
“As the Fourth Circuit has explained in applying the Ricks accrual rule, this rule has a strong rationale because it encourages ‘a potential charging party to raise a discrimination claim before it gets stale, for the sake of a reliable result and a speedy end to any illegal practice that proves out,’ and it also serves to ‘protect employers from the burden of defending claims arising from employment decision that are long past,’” Ellis wrote. “Thus, Supreme Court and Fourth Circuit precedent makes clear that ‘a discriminatory discharge claim accrues when the employee receives notice of the termination, not on the last day of employment.’”
Thus, the judge said, it follows that Virginia’s Supreme Court would employ this accrual rule to the VWPL’s statute of limitations.
Ellis dismissed Kulshrestha’s VWPL retaliation claim and refused to certify the question to the Supreme Court of Virginia.
‘Apples-to-apples’
Fairfax employment litigator Broderick Dunn represents Kulshrestha. He thought Ellis would punt the accrual question to the Virginia Supreme Court because interpretation of state law generally isn’t the Eastern District’s purview.
“These new labor and employment laws that took effect July 2020 aren’t like your traditional Title VII employment discrimination claims and it’s not an apples-to-apples comparison,” he told Virginia Lawyers Weekly. “Some don’t require plaintiffs to exhaust administrative remedies. I think that differentiates these laws.”
Dunn added there was a need for the Supreme Court “to comment on and have cases proceed through state court to set forth what the contours of these laws are going to be.”
The litigator was hopeful the fresh slate of Virginia legislators would address issues with the new employment laws.
“I don’t think it was ever the legislators’ intent for somebody not to be able to file suit based on when they were actually terminated, and not just when they found out,” Dunn said. “Let’s say you receive notice that you’ll be terminated when your contract expires in six months, you go through the hassle of filing suit, but then the termination is reversed. Anything can happen.”
