Employment – Hostile workplace/constructive discharge suit is dismissed

Where a former employee alleged she suffered a hostile workplace and constructive discharge for refusing her employer’s direction that she engage in a criminal act, but she failed to plead facts making these claims plausible, her complaint was dismissed.

Background

Dawn Elizabeth McCullough filed an amended complaint against her former employer, MDM Solutions LLC, alleging a Bowman claim, which recognizes a common law cause of action in Virginia for terminating an at-will employee in violation of public policy. McCullough asserts that she suffered a hostile workplace and constructive discharge for refusing her employer’s direction that she engage in a criminal act. MDM has filed a motion to dismiss.

Analysis

McCullough alleges that she “suffered constructive discharge” in retaliation for refusal to commit criminal acts as directed by MDM. The Virginia Supreme Court has not adopted a test to determine when intolerable or abusive workplace conditions can lead to a constructive discharge. Circuit courts have generally required evidence that an employer acted deliberately to make an employee’s working conditions intolerable and thereby forces the employee to resign.

Plaintiffs face a high bar to establish intolerability. Virginia courts require that the conduct be “so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” Further, the plaintiff must show a causal connection between the Bowman violation and the intolerable workplace.

In short, McCullough must allege that the individuals creating an intolerable workplace were retaliating for her refusal to violate the law. McCullough’s allegations of intolerability generally fall into three groups: (1) disparate treatment; (2) sexual harassment and (3) expectation of imminent termination.

Disparate treatment

McCullough’s claims of false disciplinary actions, negative performance reviews, exclusion from key email communications, verbal harassment, denial of medical leave and threats of transfer to undesirable assignments are clearly insufficient to show intolerability. McCullough’s allegations of general workplace grievances do not meet the standard of outrageousness to show intolerability.

Sexual harassment

McCullough also claims she endured numerous requests to engage in sexual acts, exposure to a frequent sexual harasser, and fear of bodily harm, which allegedly caused significant emotional distress. Sexual harassment can create an intolerable environment.

But McCullough’s vague allegations of inappropriate sexual requests and conversations are insufficient to show intolerability. Further, McCullough’s vague allegations make it impossible to demonstrate causation. Based on the amended complaint, it is not clear that the individuals who engaged in sexual harassment were aware of and retaliating against McCullough because of her refusal to violate the law.

Imminent termination

McCullough alleges that the work environment became intolerable because “MDM took steps that would let any reasonable person believe that a termination was imminent.” MDM argues that “being given a future end date for one’s employment does not constitute ‘intolerable’ working conditions.” The Virginia courts have not addressed this issue.

Because Virginia adheres strongly to the doctrine of at-will employment, and has not explicitly adopted any form of constructive discharge, I find that the Virginia courts are unlikely to adopt the imminent termination application. The Virginia circuit courts which have found constructive discharge uniformly have required that the employee suffer extreme indignities. An employee’s belief that termination is imminent does not appear to rise to the level of abuse required.

Even assuming an employee can rely upon imminent termination to show an intolerable workplace under Virginia law, McCullough likely does not demonstrate that MDM unequivocably threatened her with imminent termination. In an email on Feb. 2, 2024, she alleges that “MDM wanted to get rid of her” but provides no basis for that assertion. Although suggesting imminent termination, a coworker commenting on “the layoff” and removal from work communications is likely not, in of itself, sufficient to show intolerability.

Aggregate

At the hearing on April 6, 2026, McCullough argued that aggregation of her complaints, coupled with directed violation of law, are sufficient to show intolerability. Even considering McCullough’s claims in the aggregate, the amended complaint fails to plausibly allege intolerability.

Deliberateness

MDM also argues that McCullough fails to show that MDM intended to force her to resign due to her protected activity. The court agrees. Allegations of MDM’s failure to act would be sufficient to demonstrate deliberateness if the work environment were intolerable. Because McCullough fails to plausibly allege intolerability, the deliberateness prong is also insufficient.

Defendant’s motion to dismiss amended complaint granted.

McCullough v. MDM Solutions, LLC, Case No. 7:25-cv-117, May 6, 2026. WDVA at Roanoke (Ballou). VLW 026-3-200. 14 pp.

Full-Text Opinion

VLW 026-3-200