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City, employees immune from whistleblower claims

Virginia Lawyers Weekly//September 25, 2023

City, employees immune from whistleblower claims

Virginia Lawyers Weekly//September 25, 2023//

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Where a woman alleged that the City of Lynchburg, its fire chief and its city manager violated Virginia’s Fraud and Abuse Whistle Blower Protection Act, the defendants were entitled to sovereign immunity against this claim.


Mary Lynn Shumate alleges that the City of Lynchburg violated Title VII of the Civil Rights Act of 1964 by creating and permitting a work environment to exist that was discriminatory and hostile to female employees (Count One). In Count Two, she contends that the city retaliated against her — in contravention of Title VII — for reporting the gender discrimination.

Finally she pleads in Count Three that the city and two city employees violated Virginia’s Fraud and Abuse Whistle Blower Protection Act. Defendants have filed a motion to dismiss.


Defendants first argue that Counts One and Two are procedurally barred because they exceed the scope of the allegations in her charge of discrimination with the Equal Employment Opportunity Commission, or EEOC. The court disagrees.

It does not appear that plaintiff’s constructive discharge claim is, as defendants half-heartedly contend, the “gravamen” of her complaint. Indeed, plaintiff’s Title VII counts do not hinge on her reported constructive discharge. Rather, they focus on her work within “a culture that discriminated against women and rewarded such behavior.” And those claims “are reasonably related to [the allegations in] her EEOC charge.” Therefore, her Title VII counts alleging discrimination and retaliation should be allowed to proceed; she has exhausted her remedies as to those claims.

Defendants next protest that plaintiff filed this lawsuit before obtaining a right-to-sue letter from the EEOC. They insist this renders her Title VII claims premature. However the Fourth Circuit has held: “Where … a right to sue letter is filed in the district court prior to dismissal and there is no showing that early filing of the complaint has interfered with the administrative function or prejudiced the defendants, the complaint should not be dismissed as premature.”

It is true that plaintiff filed her complaint on June 7, 2023, before receiving her right to sue letter. But she received the letter less than a month later, on June 23, 2023. In fact, plaintiff received the right to sue letter before defendants filed their motion to dismiss on June 29, 2023. It follows that defendants have not suffered prejudice from this suit being filed prematurely.

Count Three

“Under longstanding principles, sovereign immunity protects municipalities from tort liability arising from governmental functions, but not proprietary functions.” The Supreme Court of Virginia has previously determined that the “operation of a fire department is a governmental function.” In addition, the Fourth Circuit has concluded — albeit in reference to a different statute — that “hiring, training, and supervision practices are [also] governmental functions.” The court, therefore, determines that the City of Lynchburg is protected by sovereign immunity.

This extends to the individual defendants. First, both Gregory Wormser and Wynter Benda — as fire chief and city manager, respectively — occupy high-level management positions within city government. Indeed, their positions are integral to the maintenance of Lynchburg and its fire department. Second, the city has a strong interest in how Wormser and Benda complete their jobs. If they succeed, the city will likely prosper. Conversely, if they fail, the city might flounder.

Third, the city exercises little control over the individual defendants. Instead, as fire chief and city manager, the individual defendants have wide latitude to act for the benefit of the city. Finally, the decision about whether to demote plaintiff involved the exercise of discretion.

Defendants’ motion to dismiss granted in part, denied in part.

Shumate v. City of Lynchburg, Case No. 6:23-cv-00032, Sept. 5, 2023. WDVA at Lynchburg (Moon). VLW 023-3-534. 11 pp.

VLW 023-3-534

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