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Constructive discharge might support Bowman claim.

Byline: Peter Vieth

Although a federal judge ruled that allegations of constructive discharge as opposed to outright firing might support a Virginia "Bowman" claim of wrongful termination, the judge said other factors undermined the effort to add that claim to a wiretapping lawsuit.

The judge's conclusion speaks to an issue still unresolved by the Virginia Supreme Court.

U.S. District Judge Michael F. Urbanski said neither Virginia's Wage Payment Act nor the state's Wiretap Act would support wrongful discharge claims under the doctrine established by the 1985 Virginia Supreme Court decision in Bowman v. State Bank of Keysville.

The doctrine allows a wrongful termination action if the employee's termination was in violation of a state law-based public policy.

Urbanski's Dec. 11 ruling is Briggman v. Nexus Services Inc. (VLW 018-3-546).

Secret recordings

The case involves three former employees of Nexus, the Verona-based immigration bond security company. The company is under investigation by Virginia and New York authorities for possible consumer law violations, court records show.

The ex-employees claimed the company propagated a "paranoid and hostile culture" marked by eavesdropping and email spying. Two of the Nexus staffers said supervisors confronted them with recordings apparently made with hidden microphones in company-supplied vehicles.

The original lawsuit was centered on alleged violations of federal and state wiretapping laws. A proposed amended complaint offered in September sought to add a new claim for "wrongful termination/constructive discharge/hostile workplace," according to the judge's summary.

The former employees contended they were constructively discharged when the company violated the wage payment law, the state wiretap law and the federal Electronic Communications Privacy Act.

Untested theory

The Supreme Court of Virginia has neither recognized nor rejected a constructive discharge Bowman claim, Urbanski said. The defendants disputed whether the court would honor such a claim, but the judge concluded the Virginia justices would likely recognize a constructive discharge Bowman claim, assuming all the other elements were met.

The defendants pointed to an unpublished 1996 decision of the 4th U.S. Circuit Court of Appeals where that court declined to extend Bowman to constructive discharge claims.

Courts have split since that ruling, but Urbanski noted "significant numbers" of Virginia trial courts have recognized constructive discharge under Bowman.

Public policy lacking

Despite his willingness to apply Bowman to a constructive discharge claim, Urbanski ultimately agreed with the defendants that the Bowman claims were futile and refused to allow filing of the proposed amended complaint.

Urbanski pointed to the 2018 decision of the U.S. District Court for the District of Columbia in Vasquez v. Whole Foods Market Inc., holding that violations of the Virginia Wage Payment Act do not give rise to a Bowman claim.

The D.C. court reasoned that the statute conferred no right of employees to receive wages, but merely established policy as to the manner in which employers pay wages.

Similarly, Urbanski rejected the Bowman claim based on the state Wiretap Act. "The only right that inures to employees is the right to file a civil action when an employer violated the Wiretap Act," the judge wrote. "There is no suggestion that Defendants interfered with that right."

Defense lawyer Brendan D. O'Toole of Richmond highlighted Urbanski's rejection of a Bowman right under the Wage Act or the Wiretap Act "because their alleged constructive terminations did not violate a policy enabling the exercise of their rights, if any, under those statutes, and neither statute sets forth an explicit public policy."

No appeal

Urbanski also rejected state law claims of malicious prosecution. "The court fails to see a common nucleus of operative facts between the federal claims and the Malicious Prosecution Claims," the judge wrote.

"Where the case law is still evolving, why not make a novel argument," said Nicholas A. Hurston of Staunton, the lawyer for the plaintiffs. He said he was particularly disappointed in the ruling that the Wiretap Act lacked a public policy supporting a Bowman claim.

The clients determined not to appeal, Hurston said.

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Author:Vieth, Peter
Publication:Virginia Lawyers Weekly
Date:Dec 21, 2018
Words:668
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