Employment -Virginia Whistleblower Protection Act survives motion to dismiss

Where an employee alleged that he was terminated after he reported a pattern of theft or embezzlement to his supervisors, and the court found that his allegations permitted a reasonable inference of causation, his Virginia Whistleblower Protection Act claim survived the company’s motion to dismiss.

Background

Ahmadshehzad Kaywan’s amended complaint asserts claims for: (i) unlawful discrimination under Title VII and (ii) wrongful termination under the Virginia Whistleblower Protection Act, or VWPA. Defendants seek to dismiss (i) Count One to the extent it is premised on national origin discrimination and (ii) Count Two in its entirety.

Count One

Plaintiff clarified in his opposition that he is not asserting a claim premised on national origin discrimination. The court thus construes Count One to assert only a claim for unlawful discrimination on the basis of religion under Title VII. Accordingly, the court will deny as moot the portion of defendants’ motion seeking to dismiss Count One to the extent it is premised on national origin discrimination.

Count Two

“The elements of a retaliatory discharge claim under Virginia law are that an employee: (1) made a good faith report of a federal or state violation to a supervisor, (2) was discharged by her employer, and (3) the report was the ‘but for’ cause of their discharge.”

Defendants assert that “Plaintiff merely alleges that he reported money discrepancies to his supervisor, not that he reported he thought the money was being stolen or embezzled.” However plaintiff’s amended complaint specifically alleges that he “reported a pattern of theft or embezzlement from Aldi’s daily cash register accounting to his superiors Mr. Whitmer and Mr. Hangyas and to Aldi HR” and that he “reported instances of theft by Senior Assistant Manager Ruth Vaca to his superiors” and to human resources.

Thus, contrary to defendants’ assertion, plaintiff has pled that he reported not only money discrepancies, but specifically theft and embezzlement by Vaca and others. Moreover, it is a reasonable inference that plaintiff’s report about theft by Vaca was meritorious, not just based on reasonable belief, as the report allegedly resulted in disciplinary action against Vaca. Thus, plaintiff alleges facts that plausibly satisfy the first element of a wrongful discharge claim under the VWPA.

Second, defendants argue that plaintiff’s allegations of retaliation by his employer are “conclusory” because he does not specify the retaliatory conduct or when it took place. Defendants home in on plaintiff’s conclusory allegation that “[he] became the subject of retaliatory actions by Mr. Whitmer and Mr. Hangyas” after reporting money shortages in the company registers.

However, defendants fail to acknowledge or dispute in their motion to dismiss the retaliatory action central to plaintiff’s amended complaint: his termination on or about Sept. 25, 2023. In their reply, defendants assert that the fact that Aldi allegedly took disciplinary action against Vaca “cut[s] against any possible inference of retaliation.”  But in making such contention, defendants conflate the second element (retaliatory action) with the third element (causation) because casting doubt as to the reason for plaintiff’s termination is a causation issue.

Defendants do not question that plaintiff was indeed terminated by Aldi. And an employer’s termination, or discharge, of an employee can be a retaliatory action under Va. Code § 40.1-27.3(A). Thus, plaintiff alleges facts that plausibly satisfy the second element of a wrongful discharge claim under the VWPA.

Third, defendants argue that plaintiff fails to establish the causation element. In response, plaintiff argues the court may infer causation because he alleges (1) Vaca received “preferential treatment and favoritism” from Hangyas; (2) Vaca was disciplined based on plaintiff’s reports; (3) Hangyas learned that plaintiff made the reports; (4) “not long after” that, plaintiff was terminated and (5) it can be reasonably inferred that, because Hangyas was “personnel leader,” he made the decision to terminate plaintiff.

Although plaintiff does not allege facts to support a plausible claim of causation based on temporal proximity alone, the court finds that, at this stage, the combination of plaintiff’s allegations plausibly permits a reasonable inference of causation. In sum, plaintiff has alleged sufficient facts to plead each element of his VWPA claim. Thus, plaintiff has plausibly stated a claim of wrongful termination in violation of the VWPA, and the motion will also be denied as to this claim.

Defendant’s partial motion to dismiss denied.

Kaywan v. Aldi LLC, Case No. 1:24-cv-1633, April 15, 2026. EDVA at Alexandria (Alston). VLW 026-3-181. 8 pp.

Full-Text Opinion

VLW 026-3-181
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