Court won’t dismiss whistleblower firing case

A former employee sufficiently alleged that he made a good faith report of a violation of law to his employer prior to his termination for a claim under the Whistleblower Protection Statute, the Western District of the U.S. District Court of Virginia has ruled, denying a motion to dismiss.

While conducting a safety audit, Chris Wimmer observed what he believed were violations of federal Occupational Safety and Health Administration and Virginia Occupational Safety and Health regulations, as well as general workplace safety rules at a New Millennium Building Systems (NMBS) plant.

After he was fired, Wimmer sued NMBS, alleging that he was wrongfully terminated for raising safety concerns and that his termination constituted unlawful retaliation in violation of the Whistleblower Protection Statute, Va. Code §§ 40.1-27.3 and 40.1-51.2:1.

NMBS moved to dismiss, but the court denied the motion.

“Simply put, Wimmer alleges that he witnessed a procedure that ‘presented a significant safety risk’ that could cause death or serious harm to an employee using a forklift,” Senior U.S. District Court Judge Michael F. Urbanski wrote. “He further alleges that the procedure ran afoul of workplace safety statutes requiring employers to provide a workplace free from ‘hazards … causing or likely to cause death or serious physical harm’ and the regulations designed to mitigate those hazards from forklifts. Taking all factual allegations as true and making all reasonable inferences in his favor, this is a plausible link between the alleged action and the law.”

The 18-page opinion is Wimmer v. New Millennium Building Systems, LLC (VLW 026-3-270).

Neither Christopher E. Collins of Yugo Collins in Roanoke, who represented Wimmer, nor Roanoke attorney Agnis C. Chakravorty of Woods Rogers — who represented NMBS — responded to a request for comment.

Safety concern reported

Wimmer worked as a welder at NMBS’s Salem plant beginning in December 1998 before he was promoted to the position of quality control supervisor in 2016.

In July 2024, while conducting a safety audit, Wimmer alleged that he saw an employee standing next to an unsecured load on the unprotected side of a forklift. Because of where the employee was standing, there was a high risk that the load could fall and that it could fall on the unprotected side; if the load were to have fallen on the employee, that person could have been seriously harmed or killed.

Believing that he witnessed violations of OSHA, VOSH and general workplace safety regulations, Wimmer and a colleague reported the concern to the traffic supervisor at the time. The supervisor told him the next day that “management knows the procedures” and did not investigate further.

Two days later, NMBS told Wimmer that he was being investigated for harassment and targeting an employee. He alleged that he was interrogated and berated by a manager who attempted to force Wimmer to admit that he bullied the employee against whom he brought the safety complaint.

Wimmer emailed NMBS’s corporate office about the issue, reiterating his concern regarding workplace safety.

He was terminated a few weeks later and filed suit.

NMBS responded with a motion to dismiss.

Specific violations of law alleged

Wimmer alleged that he was terminated in violation of § 40.1-27.3, which provides that “[a]n employer shall not discharge … an employee … because the employee … in good faith reports a violation of any federal or state law or regulation to a supervisor[.]”

NMBS argued that Wimmer did not sufficiently allege that his report was “rooted in specific violations of law” as required under the statute, but the court disagreed.

A plaintiff’s underlying report to their employer does not need to specifically reference the statute that they believe was being violated, the court explained.

“Rather, the requirement that the complaint be ‘rooted in specific violations of law’ means that ‘for the purposes of a motion to dismiss, a plaintiff must plausibly link the reported misconduct to violations of law,’” the court said.

Wimmer alleged that, based on the lack of securing of the forklift load he witnessed, he believed that there was a very high risk that the load could fall, which presented a significant safety risk. He also alleged that he reported what he believed were violations of OSHA, VOSH and general workplace safety regulations to his supervisors, and his complaint cited both federal and state safety requirements.

These allegations were “sufficient to allege that Wimmer made a good faith report of a violation of state or federal law,” the court wrote. “He states a claim under the Whistleblower Statute.”

Two statutes, two claims

NMBS also argued that the court should dismiss Wimmer’s whistleblower claim because he was limited to the exclusive remedies available under § 40.1-51.2:2 for employees who allege retaliation for making a safety complaint.

The court was not persuaded.

Wimmer raised claims under two different statutes: § 40.1-27.3, which bars retaliation against an employee because they reported a violation of any federal or state law, and § 40.1-51.2:2, which prohibits retaliation against an employee because they filed a safety or health complaint.

“The rights created by these two statutes are not the same even though, as courts have noted, the same conduct may give rise to claims under both statutes,” the court said. “The remedies also differ.”

While NMBS relied upon state and federal cases related to Bowman common law retaliatory discharge claims, the court rejected the reasoning, which “does not apply where two different statutes create rights and remedies that could apply to the same underlying conduct. … This court declines to rule that the statues are exclusive in this case. Because Wimmer has sufficiently alleged both claims, the statutes provide rights and remedies for both claims, and there is nothing in the statute indicating an intent that the statutory remedies are exclusive, he may raise them both.”

The court denied NMBS’s motion to dismiss.

Wimmer v. New Millennium Building Systems, LLC

ISSUE           Did a former employee sufficiently allege that he made a good faith report of a violation of law to his employer prior to his termination to survive a motion to dismiss his claim under the Whistleblower Protection Statute?

Answer      Yes (U.S. District Court for the Western District of Virginia)

Attorneys  Christopher E. Collins, Roanoke, Yugo Collins (plaintiff) Agnis C. Chakravorty, Roanoke, Woods Rogers (defendant)

• Wimmer v. New Millennium Building Systems, LLC