MD’s whistleblower suit not timely filed, state high court finds

An emergency room doctor who claimed she was removed from the work schedule and subsequently terminated in retaliation for complaining about charging practices did not timely file a claim under the Virginia Whistleblower Protection Act, the Supreme Court of Virginia has held.

The high court’s decision in Ingleside Emergency Group LLC v. Hollis (VLW 025-6-031) reversed a Court of Appeals of Virginia’s decision affirming the denial of the former employer’s plea in bar.

Justice Teresa M. Chafin wrote for the court, finding that the doctor sustained an initial injury from the alleged retaliatory action in March 2021 but did not file a claim under the VWPA until April 1, 2022, beyond the one-year statutory filing limitation.

The doctor had argued that the true start of the one-year clock was a June 2021 termination letter, rather than her removal from the schedule in March 2021.

The court disagreed.

“That she later discovered her injury to be greater than she first realized is immaterial to when she first sustained the injury,” Chafin wrote. “Thus, as pled, her cause of action for her termination accrued and the statute of limitations commenced at the time of the removal in March of 2021.”

Counsel for the parties in the case could not be reached for comment before deadline.

Removal from schedule

The plaintiff entered into contracts with Ingleside Emergency Group and Kingsford Emergency Group in November 2018 to provide emergency medical services at HCA Healthcare Company facilities.

She signed subsequent renewals to these contracts that were effective for one year from July 6, 2020. The contracts “could be terminated without cause upon 90 days of written notice, or without notice by the staffing company for certain causes.”

In the fall of 2020, the plaintiff voiced opposition to some practices she was directed to undertake, reporting to management that she refused to upcharge her services “and that she believed the practice was fraudulent.”

She also lodged complaints that management had mismanaged federal COVID-19 relief funds and not distributed any to physicians. Per the court’s opinion, the plaintiff had said that not disbursing relief funds to physicians while “cutting the reimbursement of those very same workers presents a very bad visual for the general public.”

In January 2021, the plaintiff was allegedly informed that her contracts would not be renewed unless she took “a significant rate cut.” On March 2, 2021, she noticed she was left off the April work schedule.

She contacted a member of management, who informed her that there was a case pending review. The plaintiff subsequently received a letter on June 2, 2021, stating that her “resignation” was “approved” and that her employment was considered “voluntarily relinquished effective 3/3/2021.”

Suit was filed in Henrico County Circuit Court on April 1, 2022, alleging the defendants violated the VWPA in terminating the plaintiff’s provider agreements and that the decision to terminate was in violation of the contracts and stemmed from her complaints in the fall of 2020.

The defendants argued that the VWPA claim was time-barred, as the complaint alleged the plaintiff had suffered retaliation when she was first left off the schedule on March 2, 2021, more than a year before the case was filed.

The circuit court declined the defendants’ plea in bar, but certified an interlocutory appeal of its order, which the Court of Appeals took up.

The appellate court affirmed the circuit court’s judgment, concluding that “neither [the plaintiff’s] realization in March that she was not scheduled to work nor the limited communication she received in response to her inquiry could constitute an adverse employment action” like the one in [Rivera v. Mantech Int’l Corp.].”

In Rivera, the appeals court determined an employee’s cause of action accrued beginning “on the date his employer notified him that his employment was being terminated, not the later date when the termination took effect.”

The defendants appealed to the Supreme Court of Virginia.

Claim is barred

On appeal, the defendants argued that the plaintiff’s first removal from the work schedule on March 2, 2021, “was a prohibited retaliatory action sufficient to trigger the running of the statute of limitations.”

The VWPA states that an employee who believes they have been retaliated against can bring a civil action “within one year of the employer’s prohibited retaliatory action.”

“The rules governing commencement of limitation periods in Virginia are well-settled,” Chafin wrote, citing the 2013 Supreme Court of Virginia decision in Kiser v. A.W. Chesterton Co., which said in relevant part that “the act itself is regarded as the ground of the action and is not legally severable from its consequence” and that VWPA tolling “then begins to run, and not from the time of the damage or discovery of the injury.”

“As argued by [the defendants], the Court of Appeals’ application of these rules is at odds with the statute and the facts of the case,” the judge wrote.

The opinion added that this case falls under the VWPA’s “other retaliatory action regarding an employee” category, with the statute itself identifying the “prohibited retaliatory action” as when the one-year statute of limitations runs.

“In its review, the Court of Appeals rested its decision primarily on the lack of notice that the removal [from the schedule] was a definitive, adverse employment action against [the plaintiff], distinguishing the facts here from those in Rivera,” Chafin wrote.

Further, the appeals court “implied, and [the plaintiff] argued, that the lack of communication gave [her] no subjective basis to believe that the action taken was adverse to her employment.”

However, Chafin wrote that the removal of the plaintiff from the work schedule in March 2021 “was a deliberate act that affected the terms of [her] employment,” which she sought an explanation about on the same day that she was not scheduled.

“Cognizance of a particular intent … is not part of the statute,” the opinion said. “To that end, it was unnecessary to provide [the plaintiff] any more notice of adversity than that apparent in the act of removing her from the work schedule.”

Chafin noted that no corrective or remedial action was taken between March 2021 and June 2021, and that even if the plaintiff did not fully understand the meaning of her removal from the schedule in March 2021, “its character therefore became clear to her in June of that same year, well within the one-year statute of limitations, and she had sufficient time to pursue the right of action granted to her by the VWPA.”

“[The plaintiff’s] complaint makes clear that the June 2021 termination letter only confirmed that the true nature of the earlier act to remove [her] from the schedule going forward was to effectively terminate her employment,” Chafin wrote.

Therefore, the court concluded that the plaintiff sustained her initial injury, and the statute of limitations began to run, in March of 2021. As such, her April 1, 2022, VWPA claim was time-barred.

“[The plaintiff’s] complaint makes clear that the June 2021 termination letter only confirmed that the true nature of the earlier act to remove [her] from the schedule going forward was to effectively terminate her employment.”

— Justice Teresa M. Chafin, Supreme Court of Virginia