University not ‘employer’ under whistleblower statute

Where a university police officer claims his discharge was related to his report that vehicle dashboard cameras were malfunctioning, he has no claim under the Fraud and Abuse Whistle Blower Protection Act (FAWPA) because the university is not an employer under FAWPA.

Further because the FAWPA has its own set of remedies, he does not have a wrongful discharge claim under Bowman.

Statement of the case

“The Court has before it two questions of apparent first impression: 1) whether George Mason University (‘GMU’) is an ‘employer’ under … FAWPA, … and 2) whether alleged violations of the FAWPA can support a Bowman wrongful discharge claim.

“Upon renewed review, this Court declines to alter its finding that GMU is not an employer under the FAWPA, because GMU is neither a ‘person’ nor an ‘agent of the governmental agency.’ …

“Although Virginia Code § 1-230 includes a wide range of entities in its definition of ‘person,’ the legislature clearly intended to depart from this definition in the FAWPA.

“Further, GMU is also not an agent of a governmental agency; rather, GMU is the governmental agency.

“Additionally, this Court reaffirms its finding that alleged violations of the FAWPA cannot support a Bowman wrongful discharge claim. Because the FAWPA itself provides a remedy for enforcing and vindicating the policy of the statute, the FAWPA cannot be the basis for a wrongful discharge claim.

“Consequently, this Court shall deny Plaintiff’s Motion to Reconsider the holdings of the Court that GMU cannot be held liable under the FAWPA, and that the demurrer to the wrongful discharge claim based on alleged violations of the FAWPA must be sustained without leave to amend.

Background

“Brian Morrison was an officer with the GMU Police Department (‘GMU PD’). In 2016, Plaintiff allegedly made investigators aware of a problem with vehicle dash cameras that were malfunctioning and exhibiting recording problems.

“Plaintiff alleges a group of individuals at GMU engaged in corruption and retaliation that was first triggered by Plaintiff’s reporting of the malfunctioning dash cameras. Plaintiff was transferred to a night shift at the Fairfax GMU Campus and was promoted to Corporal.

“Plaintiff alleges he was thereafter prevented from fulfilling the certification requirements to retain the rank of Corporal. He was subsequently terminated on September 1, 2021.

“Plaintiff filed his First Amended Complaint on April 15, 2022, naming as Defendants GMU and five individuals: Emily Ross, Carl Rowan, Jr., Carol Kissal, Andrew Sanavaitis, and Thuan Ly.

“The individual defendants are affiliates or employees of GMU, most as GMU PD officers. The First Amended Complaint alleges, among other claims, whistleblower retaliation under the FAWPA and wrongful discharge.

“Defendants GMU and Sanavaitis each filed demurrers to the First Amended Complaint, arguing the Complaint failed to state a claim for whistleblower retaliation and for wrongful discharge. On December 20, 2023, this Court sustained the demurrers to those claims without leave to amend.

“The demurrer to the whistleblower retaliation claim against Defendant GMU was sustained based on the Court’s finding GMU does not meet the definition of ‘employer’ under Virginia Code § 2.2-3010.

“The demurrer to the wrongful discharge claim was sustained, in part, based on findings that alleged violations of the FAWPA cannot support a Bowman claim, and that allowing Plaintiff to sue on a claim for whistleblower retaliation and for wrongful discharge based on the whistleblower retaliation statute would impermissibly authorize duplicative claims. On January 10, 2024, Plaintiff filed a motion to reconsider these findings.”

FAWPA

“[T]he plain language of Virginia Code § 2.2-3010 substantiates a manifest intention on the part of the legislature to depart from the definition of a ‘person’ in Virginia Code § 1-230.

“Section 2.2-3010 flatly defines an employer as a ‘person supervising one or more employees, including the employee filing a good faith report, a superior of that supervisor, or an agent of the governmental agency.’

“It would defy logic to conclude a legal entity, rather than a natural person, could ‘supervise one or more employees.’

“To this point, the Supreme Court of the United States has defined a ‘supervisor’ as one who is ‘empowered by the employer to take tangible employment actions’ — one who is empowered to ‘supervise.’ …

“Because a legal entity, like GMU, is only a person in a conceptual sense, it follows a legal entity cannot logically engage in the act of ‘supervising.’ …

“Even if governmental entities were liable under the FAWPA, the plain language of the statute expressly indicates agents of a governmental agency, rather than the governmental agency itself, would be the only ones liable. Here, GMU is the relevant governmental agency at issue. …

“Plaintiff’s reconsideration argument fails, and the Court reiterates its ruling that GMU, not being a natural person nor agent of a governmental agency, is not an ‘employer’ as defined in Virginia Code § 2.2-3010, and therefore is not subject to liability under the FAWPA.”

‘Bowman’

“‘Virginia adheres to the employment at-will doctrine.’ … Bowman v. State Bank of Keysville, 229 Va. 534 (1985), created a narrow exception to this rule for cases in which an employer violates public policy in the discharge of an employee. …

There are only three recognized scenarios under which a wrongful discharge claim can be made under the Bowman exception:

“(1) when an employer violated a policy enabling the exercise of an employee’s statutorily created right; or

“(2) when the public policy violated by the employer was explicitly expressed in the statute and the employee was clearly a member of that class of persons directly entitled to the protection enunciated by the public policy; or

“(3) when the discharge was based on the employee’s refusal to engage in a criminal act. …

“FAWPA cannot be a basis for a Bowman claim because it provides an express remedy for instances of whistleblower retaliation. …

“Virginia courts have long held that ‘[when] a statute creates a right and provides a remedy for the vindication of that right, then that remedy is exclusive unless the statute says otherwise.’”

Ruling

“[T]his Court shall deny Plaintiff’s Motion to Reconsider the holdings of the Court that GMU cannot be held liable under the FAWPA, and that the demurrer to the wrongful discharge claim based on alleged violations of the FAWPA must be sustained without leave to amend.”

Brian Morrison v. George Mason University, et al., Case No. CL-2021-7808, Feb. 6, 2024. Fairfax County Circuit Court (Bernhard). J. Caleb Jones, counsel for plaintiff. Thea A. Paolini, counsel for defendants. VLW 024-8-011, 15 pp.