Employment: Facts don’t support constructive discharge claim

Although a woman alleged she suffered false disciplinary actions, negative reviews, verbal harassment, exclusion from email chains, denial of medical leave and threats of transfer to undesirable work sites, these allegations were inadequate to support a constructive discharge claim, which requires employment conditions so intolerable that she was forced to resign.

Background

Elizabeth McCullough brings a Bowman claim under Virginia common law against her former employer, MDM Solutions LLC, alleging she was constructively discharged for her refusal to violate various state and federal laws at the company’s direction. MDM has filed a motion to dismiss.

Constructive discharge

MDM argues that, as a matter of law, a constructive discharge cannot support a Bowman claim and thus the complaint should be dismissed in full. Neither the Fourth Circuit nor the Virginia Supreme Court has expressly recognized that constructive discharge can serve as the basis for a Bowman claim, and Virginia courts are divided on the matter. In the absence of controlling authority, I must predict how the Supreme Court of Virginia would rule.

There is a trend of Virginia courts recognizing the viability of constructive discharge claims, both within and outside of the Bowman context. Courts in this district have followed the trend in the Virginia trial courts and held that a constructive discharge Bowman claim may survive a motion to dismiss if the plaintiff properly alleges all necessary elements of both a Bowman cause of action and constructive discharge. At this stage, these decisions are persuasive, and I find the mere fact that McCullough’s claim relies on an alleged constructive discharge does not justify dismissal.

However a plaintiff alleging a constructive discharge show conditions so severe that resignation was effectively involuntary. Here, McCullough alleges false disciplinary actions, negative reviews, verbal harassment, exclusion from email chains, denial of medical leave and threats of transfer to undesirable work sites, causing emotional and psychological harm. These allegations are likely inadequate to demonstrate that—following her refusal to carry out an unlawful directive—she was subject to employment conditions so intolerable that she was forced to resign.

Bowman

McCullough bases her Bowman claim on an alleged constructive discharge stemming from her refusal to participate in criminal violations of state and federal law. A Bowman claim is a distinctly state law cause of action and cannot rest on violations of federal law. I therefore turn to the three Virginia statutes McCullough relies upon to support her claim.

To state a plausible Bowman claim based on direction to commit a crime, McCullough must do more than enumerate state criminal statutes; she must allege that her employer, MDM, directed her to break these laws in a manner exposing her to potential criminal prosecution. She fails to meet this standard.

McCullough does not allege how MDM’s direction to create or certify false or inaccurate inspection reports violated the Virginia Erosion and Stormwater Management Act, nor that such conduct could subject her to criminal prosecution. McCullough’s reliance on the Virginia forgery statute is similarly misplaced; the complaint does not allege sufficient facts to show that compliance with MDM’s directives could have subjected her to prosecution under Va. Code § 18.2-168.

Finally, McCullough also fails to allege that her compliance with MDM’s orders would have exposed her to criminal liability under the Virginia false pretenses statute, Va. Code § 18.2-178. The complaint does not allege that the false documentation MDM directed McCullough to create caused any person or entity any property loss. McCullough fails to plead this essential element, and thus the complaint does not plausibly allege that any refusal by McCullough to comply with MDM’s directions would expose her to criminal prosecution under § 18.2-178.

Defendants’ motion to dismiss granted.

McCullough v. MDM Solutions LLC, Case No. 7:25-cv-117, Dec. 1, 2025. WDVA at Roanoke (Ballou). VLW 025-3-492. 9 pp.