COA: Whistleblower suit can move forward in part

In a suit brought by a former police officer against a supervisor and the city that employed him under the Fraud and Abuse Whistle Blower Protection Act, the city was entitled to sovereign immunity — but the supervisor was not, the Court of Appeals  of Virginia has ruled.

A former captain of the Waynesboro Police Department (WPD), Michael W. Martin, brought claims against the City of Waynesboro and his supervisor, Michael D. Wilhelm, alleging wrongful termination under the Whistle Blower Act as well as a common law wrongful termination claim and retaliation claims under Va. Code
§ 40.1-27.3.

The city and Wilhelm moved to dismiss the whistleblower claims for lack of subject matter jurisdiction, arguing that they were entitled to sovereign immunity. The circuit court granted the motion and granted summary judgment in favor of Wilhelm on the retaliation claim.

Martin appealed, and the court reversed in part.

“The Whistle Blower Act waives sovereign immunity for individual supervisors but not for government agencies for claims under Code § 2.2-3011, so the City is entitled to sovereign immunity from
Martin’s whistle blower claim, but Wilhelm is not,” Senior Judge William G. Petty wrote in the March 17 opinion. “Wilhelm was not Martin’s employer under § 40.1-2, so the circuit court correctly granted summary judgment for Wilhelm on the retaliation claim under Code § 40.1-27.3.”

The 17-page opinion, joined by Judges Mary Grace O’Brien and Richard Y. AtLee Jr., is Martin v. The City of
Waynesboro, Virginia (VLW 026-7-090).

1. Barry Montgomery of KPM Law in Chesterfield County, who represented the officer, said the “Court of Appeals got it right.”

“The decision shows that in order to create a waiver of sovereign immunity, the statute doesn’t have to use the magic words ‘we hereby waive sovereign immunity,’ and it just needs to be clear that the statute created a cause of action,” he said. “It was clear to me that the statute here created a cause of action against a supervisor for a government employee, waiving sovereign immunity in that particular instance.”

Montgomery also noted that the court upheld the trial court’s denial of summary judgment on the whistleblower claim against Wilhelm, and while such rulings are case-specific, the court’s decision does “bolster the fact that plaintiffs have a right to a jury trial in these cases.”

Charlottesville attorney Richard H. Milnor of Zunka, Milnor & Carter, who represented the defendants, did not respond to a request for comment.

Whistleblower, retaliation claims

Between 2016 and 2018, Martin worked on a drug task force composed of law enforcement officers from several adjacent jurisdictions and had several disagreements with other officials over enforcement methods.

Martin alleged that members of the Augusta County Sheriff’s Office used improper tactics when serving drug-related warrants; he also claimed he witnessed an officer use excessive force in a vehicle stop and take evidence that he put on his desk as a “trophy.”

During an investigation, a confidential informant told Martin where drugs were located after he promised that the informant would not be prosecuted. An internal investigation was later launched to determine whether Martin had violated WPD policies by making the promise without approval. The report concluded that Martin had violated policy, and he was terminated.

Martin filed suit against the city and Wilhelm under Va. Code § 2.2-3011, asserting that he was terminated from his job for reporting misconduct by other local law enforcement officers. The circuit court granted both defendants’ motions to dismiss for lack of subject matter jurisdiction, finding that they were entitled to sovereign immunity

Alternatively, the defendants moved for summary judgment on the whistleblower claims. The circuit court denied the motion.

Martin also alleged retaliation claims under Code § 40.1-27.3. The circuit court granted summary judgment in favor of Wilhelm.

All the parties appealed.

Supervisor can be sued, but not city

A statutory waiver of sovereign immunity occurs only when the statutory language has explicitly and expressly announced such a waiver, the court explained. The express announcement need not include specific terms but turns on whether the statute expressly makes the commonwealth or its agents subject to a procedural remedy.

Working through the definitions of “whistle blower,” “employee” and “government agency” in Code § 2.2-3011, the court found that “the Whistle Blower Act expressly creates a private right of action by a city policy officer against his supervisor, and it expressly waives the supervisor’s sovereign immunity for such claims. With this understanding in mind, we hold that Wilhelm is not entitled to sovereign immunity from Martin’s whistle blower claim. Thus, the circuit court erred by granting Wilhelm’s motion to dismiss on that basis.”

The act does not waive sovereign immunity for the city, however, with separate definitions for the terms “employer” and “government agency.”

“Code § 2.2-3011 creates a civil action only ‘for violation of this section,’ and prohibits only an ‘employer’ from retaliating against an employee for whistleblowing,” the court wrote. “The statute does not provide for claims against government agencies. By contrast, Code § 2.2-3010.1 prohibits any ‘governmental agency’ from retaliating against a citizen.

“‘[W]hen the General Assembly has used specific language in one instance, but omits that language or uses different language when addressing a similar subject elsewhere in the Code, we must presume that the difference in the choice of language was intentional,’” the court continued. “Thus, Code § 2.2-3011 creates a civil right of action against individual supervisors, not the agencies. The circuit court correctly granted the City’s motion to dismiss based on its sovereign immunity to the whistle blower claim.”

Summary judgment denial affirmed

Wilhelm also argued that he was entitled to summary judgment on Martin’s Whistle Blower Act claims, asserting that he terminated Martin for misconduct rather than out of retaliation.

The court disagreed.

“[W]hile Martin admitted the authenticity of [the report and investigation] in discovery, he generally disputes their contents and the allegations that he violated any WPD policies,” the court said. “Moreover, Martin disputes that Wilhelm terminated him based on the alleged policy violations rather than in retaliation for his whistle blower complaints. The allegations in the complaint paint a complicated picture of interpersonal tensions and shifting power dynamics between numerous individuals across jurisdictions. …

“Viewing the facts in the light most favorable to Martin, reasonable factfinders could draw different conclusions about whether Wilhelm terminated Martin in retaliation for his reports of misconduct, rather than for violating WPD policy. Granting summary judgment based on this record would impermissibly ‘short-circuit litigation by deciding disputed facts without permitting the parties to reach a trial on the merits.’”

Finally, the court affirmed the grant of summary judgment in favor of Wilhelm on Martin’s retaliation claim.

“It is undisputed that Wilhelm does not pay Martin’s wages, so he is not his ‘employer’ under the basic definition of the word in Code § 40.1-2,” the court explained. “Thus, the circuit court correctly granted
Wilhelm’s motion for summary judgment on the retaliation claim.”