Lewis v. City of Alexandria

PRESENT: All the Justices

HENRY LEWIS
OPINION BY
v. Record No. 131308 JUSTICE ELIZABETH A. McCLANAHAN
APRIL 17, 2014
CITY OF ALEXANDRIA

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
James C. Clark, Judge

Henry Lewis (Lewis) claims the circuit court erred in

declining to award reinstatement, front pay and/or compensation

for lost pension benefits in his wrongful termination action

against the City of Alexandria (the City) under Code § 8.01-

216.8 of the Virginia Fraud Against Taxpayers Act (VFATA), Code

§§ 8.01-216.1 through -216.19. We disagree and will affirm the

judgment of the circuit court.

I. Background

The City hired Lewis in January 2008 as a senior project

manager in its Capital Projects Division of the Department of

General Services (the Department). Lewis was assigned to manage

the construction of a new police and emergency communications

facility (hereinafter, the police facility project), and worked

in that capacity until August 2011, when the City terminated his

employment.

Lewis sued the City alleging "unlawful retaliation and

discrimination" in violation of Code § 8.01-216.8, based on his

alleged wrongful termination. Specifically, Lewis claimed the
City retaliated and discriminated against him by terminating his

employment in response to complaints he made about Jeremy McPike

(McPike), a Deputy Director, and then Director, of the

Department (when McPike became Lewis' direct supervisor). Lewis

complained to various individuals in the Department that McPike

approved payments of certain false invoices submitted to the

City by the construction company serving as the "construction

manager" for the police facility project. These complaints

caused acrimony between Lewis and McPike, as well as between

Lewis and the construction manager, which, Lewis claimed,

eventually led to his wrongful termination.

Lewis sought an award of two times the amount of back pay

(as liquidated damages), reinstatement, special damages,

including lost pension benefits, and "any other relief provided

for in Code § 8.01-216.8." To the extent the circuit court

determined that reinstatement was "impractical and unworkable,"

Lewis requested in the alternative that he be awarded front pay
1
(i.e., lost future earnings).

1
See Johnson v. Spencer Press of Maine, Inc., 364 F.3d 368,
379 (1st Cir. 2004) (explaining that "[a]n award of back pay
compensates plaintiffs for lost wages and benefits between the
time of discharge and the trial court judgment," whereas
"[f]ront pay . . . compensates plaintiffs for lost wages that
may accrue after the conclusion of the trial").
2
 On Lewis' pretrial motion, the circuit court ruled that a

jury would decide whether the City violated Code § 8.01-216.8 in

terminating his employment and, if so, decide his claim for back

pay. If the jury found in favor of Lewis, his other remedial

requests would then be treated as requests for equitable relief

and thus decided by the circuit court.

Unlike the issue of liability, evidence regarding the

amount of back pay that would be owed to Lewis upon a finding of

wrongful termination was undisputed. Approximately nine months

after his termination, Lewis secured new employment with the

Prince George's County, Maryland, Public Schools in June 2012,

earning approximately ten thousand dollars a year less than he

earned with the City. Accordingly, Lewis' expert witness in the

field of economic damages, Joel Morse, Ph.D. (Morse), testified

that Lewis' back pay would equal the rate of his salary with the

City as applied to the period extending from the time of his

termination (August 2011) to the time of trial (March 2013),

less the earnings he received from his new employment during

that same period.

Morse then testified outside the presence of the jury

regarding his analysis in support of Lewis' claims for front pay

and compensation for lost pension benefits. Although it is

somewhat unclear from the record, Lewis has asserted below and

maintains on appeal that Morse's testimony established that his

3
lost front pay through age 65 (Lewis was 58 at the time of

trial) was $57,178. 2 As to the pension-related claim, Morse

explained that Lewis' pension with the City had not vested at

the time of his termination. Lewis would have been required to

work for the City for another year and a half for his pension to

vest. Nevertheless, according to Morse, Lewis was "denied the

value [of that pension] between age 65 and 80 [Lewis' life

expectancy]," the present value of which was $175,130. Morse

further explained, however, that if Lewis worked to age 68 in

his current position, he would receive a pension from the State

of Maryland.

The jury returned a verdict in favor of Lewis and awarded

damages of $104,096 in back pay. Lewis accordingly moved the

court to include liquidated damages to this award pursuant to

Code § 8.01-216.8, which would double the back pay award

resulting in a total of $208,192. The circuit court granted the

motion.

2
During his testimony, Morse relied on a chart that was
only used as demonstrative evidence, which may have shown this
front pay figure. Morse did testify, however, that based on his
calculations Lewis' back pay and front pay combined would total
$161,228. We will simply assume, for purposes of this opinion,
that $57,178 was Morse's front pay figure, but hold that the
circuit court did not abuse its discretion in declining to award
this sum to Lewis as front pay.
4
 Lewis then moved the circuit court "to use its equitable

powers" to award additional relief against the City, including

"reinstatement . . . or if reinstatement is not feasible, in the

alternative . . . an award of front-pay in the amount of

$57,178.00"; and an award "for his loss of pension benefits in

the amount of $175,130." 3 The circuit court declined to award

reinstatement, front pay or pension compensation. On a motion

for reconsideration, Lewis again asked the circuit court to

award front pay and pension compensation, but abandoned his

claim for reinstatement. The circuit court again denied this

requested relief in its final order. In reaching this decision,

the circuit court reasoned that Lewis had been "made whole" by

the jury's verdict and the circuit court's other awards in his

favor. The circuit court otherwise found that the claims for

front pay and pension compensation were "subject to too much

speculation."

II. Analysis

On appeal, Lewis asserts in his sole assignment of error

that the circuit court erred in declining to award

3
In addition, Lewis requested (i) an award of attorneys'
fees, as expressly provided for in Code § 8.01-216.8, (ii)
payment for his unused vacation leave, and (iii) expungement of
all disciplinary actions entered on his employment file with the
City. The circuit court ruled in Lewis' favor on these three
requests, which included awards of $243,684.12 in attorneys'
fees and costs, and $8,181 for loss of vacation pay. None of
these awards are at issue in this appeal.
5
"reinstatement, front pay and/or compensation for his lost

pension" under Code § 8.01-216.8. In requiring that we review

the circuit court's construction and application of the

statute's remedial provisions, this appeal presents a case of

first impression in this Court.

A. Code § 8.01-216.8

Code § 8.01-216.8, the VFATA's anti-retaliation provision,

creates a cause of action for wrongful termination resulting

from the reporting of potential false claims against the

Commonwealth and its subsidiaries. 4 Thus, upon establishing that

the City terminated his employment in violation of the statute,

Lewis was entitled to seek the relief expressly provided

therein. The statute states that such an employee "shall be

entitled to all relief necessary to make that employee . . .

whole." Code § 8.01-216.8. The statute further states that

"[r]elief shall include reinstatement[,] two times the amount of

back pay, interest on the back pay, and compensation for any

4
The VFATA is based on the federal civil False Claims Act
(FCA), 31 U.S.C. §§ 3729-3733. The relief provided in Code §
8.01-216.8 of the VFATA is, in fact, identical to the relief
provided in the FCA under 31 U.S.C. § 3730(h)(2). The FCA cases
thus provide guidance for our review in this appeal. We also
find guidance in cases addressing other federal statutory
schemes containing anti-retaliatory relief for wrongful
termination, specifically the Age Discrimination in Employment
Act (ADEA) (29 U.S.C. § 626(b)), the Family Medical Leave Act
(FMLA) (29 U.S.C. § 2617(a)(1)(B)), and Title VII of the Civil
Rights Act of 1964 (Title VII) (42 U.S.C. § 2000e-5(g)).
6
special damages sustained as a result of the discrimination,

including litigation costs and reasonable attorneys fees." Id.

B. Reinstatement

As to the circuit court's denial of his claim for

reinstatement, Lewis cannot make the argument on appeal that the

circuit court erred in not awarding such relief. Lewis

abandoned that claim at the hearing on his motion asking the

circuit court to reconsider its earlier denial of reinstatement,

front pay and pension compensation.

Lewis' counsel began his argument in support of the motion

by stating that Code § 8.01-216.8 "says the [c]ourt shall award

all relief necessary, including reinstatement," but then

asserted that "quite frankly, reinstatement is almost never

practical." At that point, the circuit court judge interjected

by asking, "Can we agree that reinstatement is just not an

option here[?]" Lewis' counsel responded, "Fair enough, Judge,"

after the circuit court judge went on to explain that his

question was based on the evidence at trial of "obvious

acrimony," which led him to believe that reinstatement was "not

an option."

Moreover, even after assigning error to the circuit court's

decision not to award reinstatement, Lewis states on brief in

this appeal that "the circuit court likely enjoyed the

discretion to determine that reinstatement was impractical,

7
particularly given the parties' animosity and the fact that

Lewis had secured new employment." A party "'may not approbate

and reprobate by taking successive positions in the course of

litigation that are either inconsistent with each other or

mutually contradictory.'" Rowe v. Commonwealth, 277 Va. 495,

502, 675 S.E.2d 161, 164 (2009) (quoting Cangiano v. LSH Bldg.

Co., 271 Va. 171, 181, 623 S.E.2d 889, 895 (2006)). Therefore,

we leave for another day our consideration of the parameters of

the statute's reinstatement provision.

C. Front Pay

We agree with the parties that the circuit court's

treatment of Lewis' claim for front pay as a request for

equitable relief under Code § 8.01-216.8 was correct. See Board

of Supervisors of James Cnty. v. Windmill Meadows, LLC, 287 Va.

170, 175, 752 S.E.2d 837, 839 (2014) (on appeal, circuit court's

statutory construction is subject to de novo review (citing

Newberry Station Homeowners Ass'n v. Board of Supervisors, 285

Va. 604, 611, 740 S.E.2d 548, 552 (2013))). That ruling, which

was consistent with the treatment of front pay claims in FCA,

FMLA, Title VII and ADEA cases, meant that the circuit court's

subsequent decision regarding whether to award front pay was

committed to its discretion. See, e.g., Nichols v. Ashland

Hosp. Corp., 251 F.3d 496, 503-04 (4th Cir. 2001) (FMLA); Selgas

v. American Airlines, Inc., 104 F.3d 9, 12-13 & n.2 (1st Cir.

8
1997) (Title VII); Duke v. Uniroyal, Inc., 928 F.2d 1413, 1424

(4th Cir. 1991) (ADEA); Wiehua Huang v. Rector and Visitors of

the Univ. of Va., 2013 U.S. Dist. LEXIS 34186, at *39-40 (W.D.

Va. March 7, 2013) (FCA) Wilkins v. St. Louis Housing Auth., 198

F.Supp.2d 1080, 1091-92 (E.D. Mo. 2001) (FCA). We therefore

also agree with the parties that this Court's review of the

circuit court's denial of front pay is subject to an abuse of

discretion standard. See Landrum v. Chippenham & Johnston-

Willis Hosps., Inc., 282 Va. 346, 352, 717 S.E.2d 134, 136-37

(2011) (analyzing abuse of discretion standard); Bentley Funding

Group, L.L.C. v. SK&R Group, L.L.C., 269 Va. 315, 323-24, 609

S.E.2d 49, 53 (2005) (circuit court's exercise of discretionary

authority in equity reviewed under abuse of discretion

standard).

Lewis argues the circuit court abused its discretion in not

awarding front pay under Code § 8.01-216.8 in the amount of

$57,178, based on testimony of his economic damages expert. The

circuit court had to award at least "some amount of front pay in

lieu of reinstatement," Lewis contends, or "explain why front

pay was somehow unnecessary to make Lewis whole." (Emphasis

omitted.) With this, we disagree.

9
 Code § 8.01-216.8 nowhere mentions the words "front pay." 5

Thus, to the extent front pay is an available remedy under the

statute in an appropriate case, it would necessarily be awarded

under the statute's provision for recovery of "any special

damages sustained as a result of the discrimination," which are

not defined in the statute. Id. Furthermore, the overriding

consideration under the express terms of the statute is not that

the plaintiff be awarded any particular kind of relief, or

combination of remedies, as "special damages." Id. Rather, it

is ultimately a matter of compensating the plaintiff with

"relief necessary to make [him] whole." Id. See Hammond v.

Northland Counseling Ctr., Inc., 218 F.3d 886, 892 (8th Cir.

2000) (the FCA's anti-retaliation statute has same "overarching

purpose").

It is true that front pay is commonly given consideration

as an equitable remedy in the alternative to reinstatement in

cases decided under anti-retaliation statutes for wrongful

termination, including the FCA. See Wilkins, 198 F.Supp.2d at

1091 ("While the FCA does not specifically include front pay as

a remedy available to the court to effect full compensation, the

court concludes that Congress intended that front pay be awarded

5
Nor is front pay expressly provided as a remedy in the
anti-retaliation provisions of the FCA, ADEA, FMLA or Title VII.
See supra note 4.
10
in the appropriate case to effect the express Congressional

intention that a claimant under § 3730(h) be made whole."

(internal citation omitted)). But front pay is not awarded as a

matter of course when reinstatement is denied. As the United

States Court of Appeals for the Fourth Circuit has counseled,

"front pay may serve as a substitute or a complement [to

reinstatement]. Because of the potential for windfall, however,

its use must be tempered." Duke, 928 F.2d at 1424. Hence,

"[i]ts award, as an adjunct or an alternative to reinstatement,

must rest in the discretion of the court in shaping the

appropriate remedy." Id. Similarly mindful that the plaintiff

should not receive "a windfall, rather than compensation" in an

FCA case, the United States Court of Appeals for the Eighth

Circuit held in Hammond that the plaintiff was not entitled to

either reinstatement or front pay, even though there was factual

support for an award of other FCA damages and attorneys' fees.

218 F.3d at 892-95. See Moysis v. DTG Datanet, 278 F.3d 819,

829 (8th Cir. 2002) (trial court did not abuse its discretion in

declining to award front pay because, "in light of the current

employment [of plaintiff] and back pay and compensatory awards,

an award of front pay would be an unnecessary windfall to

[plaintiff]"). 6

6
Code § 8.01-216.8 makes no express provision for front
11
 Here, the circuit court found that Lewis was "made whole"

under Code § 8.01-216.8 without an award of front pay, based

upon (i) the jury's award of $104,096 in back pay and the

circuit court's doubling of that award as liquidated damages,

for a total award of $208,192; (ii) the circuit court's award of

$8,181 for lost vacation pay; and (iii) the circuit court's

award of $243,684.12 in attorneys' fees. In light of these

awards, we cannot say that the circuit court abused its

discretion in declining to award front pay to Lewis in the

amount of $57,178, as requested, particularly given that his

liquidated damages award was nearly twice the amount of his

claim for front pay.

We find support for this conclusion in Dotson v. Pfizer,

Inc., 558 F.3d 284 (4th Cir. 2009), a FMLA wrongful termination

case in which the plaintiff was awarded liquidated damages, but

not front pay. Like Lewis, the plaintiff in Dotson argued that

the trial court erred by considering "the role played by the

pay. As explained above, absent an award of reinstatement,
front pay is an equitable remedy that may be awarded, in the
circuit court's discretion, as an alternative to reinstatement.
The overarching requirement under the statute is that the
plaintiff be made "whole." Id. Consequently, absent
reinstatement, an award of front pay is not required as a matter
of law in any case apart from consideration of the other relief,
if any, awarded under the statute in making the plaintiff whole,
as decided by the circuit court in its sound discretion.

12
liquidated damages [award] in making him whole" when the trial

court declined to award front pay. Id. at 300-01. The Fourth

Circuit held that the trial court did not abuse its discretion

in making this ruling, explaining that "it is difficult to

understand why a lower court cannot consider the role of

liquidated damages in reaching [the FMLA anti-retaliation

provision's] overarching goal" of making the plaintiff whole.

Id. at 301. Other courts have similarly recognized that an

award of liquidated damages may justify the denial of front pay.

See, e.g., McNeil v. Economics Laboratory, Inc., 800 F.2d 111,

118 (7th Cir. 1986) (explaining that "front pay may be less

appropriate when liquidated damages are awarded"); Wildman v.

Lerner Stores Corp., 771 F.2d 605, 616 (1st Cir. 1985) ("Because

future damages are often speculative, the district court, in

exercising its discretion, should consider the circumstances of

the case, including the availability of liquidated damages.");

Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir. 1992)

("We agree with the Seventh and First Circuits that a

substantial liquidated damage award may indicate that an

additional award of front pay is inappropriate or excessive.");

Cancellier v. Federated Dep't Stores, 672 F.2d 1312, 1319 (9th

Cir. 1982) ("[A]vailability of a substantial liquidated damages

award may be a proper consideration in denying additional

damages in lieu of reinstatement."); see also Bergerson v. New

13
York Office of Mental Health, 652 F.3d 277, 288 (2d Cir. 2011)

(explaining, in an ADEA wrongful termination case, that "[a]n

award of front pay is discretionary, and if a district court

makes a nonerroneous 'specific finding' that a plaintiff has

already been made whole, no abuse of discretion can be found in

denying front pay"). 7

D. Compensation for Lost Pension Benefits

Finally, Lewis argues that the circuit court abused its

discretion in denying his claim against the City for lost

pension benefits in the amount of $175,130. As with front pay,

Code § 8.01-216.8 does not expressly provide for relief

pertaining to lost pension benefits. Thus, to the extent such

relief may be awarded, it too would necessarily be awarded as an

equitable remedy for "special damages." Code § 8.01-216.8. See

7
Because of the quantitative comparison of Lewis' front pay
claim to his liquidated damages award, justifying the circuit
court's denial of an award of front pay, we need not address the
circuit court's determination that his front pay claim was
otherwise too speculative. We nevertheless note that it is, of
course, well established under applicable case law that the
longer the period over which front pay is requested, the more
speculative a front pay award becomes. Downey v. Strain, 510
F.3d 534, 545 (5th Cir. 2007) Here, Lewis sought an award of
front pay through age 65, a period of nine years from the date
of his termination and seven years from the date of trial.
Compare, id. at 544-45 (affirming trial court's two year front
pay award); Dollar v. Smithway Motor Xpress, Inc., 710 F.3d 798,
808-811 (8th Cir. 2013) (reversing trial court's ten year front
pay award).

14
Blum v. Witco Chem. Corp., 829 F.2d 367, 373-74 (3rd Cir. 1987)

(treating claim for lost pension compensation under the ADEA as

claim for equitable relief). Accordingly, as noted in regard to

Lewis' claim for front pay, we conclude that the decision

whether to award lost pension compensation to Lewis was

committed to the circuit court's discretion, and that his appeal

of the circuit court's denial of this claim is likewise subject

to an abuse of discretion standard of review.

The salient facts before the circuit court relevant to its

denial of Lewis' claim for pension compensation are as follows.

Lewis was a licensed architect with more that thirty-five years

of experience in architecture and construction project

management, and no evidence was presented indicating that he

could no longer market his professional skills. His contract

with the City contained no specific period of employment, and

the police facility project, which was his only assignment

during his three and a half years of employment with the City,

was completed two months after his termination. Lewis' pension

with the City had not vested at the time of his termination, and

would not have vested for another eighteen months. Finally,

Lewis obtained employment after his termination that paid a

comparable salary and would provide pension benefits upon his

retirement at age 68.

15
 Based on these facts, we hold that the circuit court did

not abuse its discretion in determining that Lewis was made

whole through his other awards against the City, absent an award

of pension compensation; and that his claim for pension

compensation in the amount of $175,130 was otherwise "subject to

too much speculation." 8

III. CONCLUSION

For these reasons, we hold that the circuit court did not

abuse its discretion in awarding relief to Lewis under Code §

8.01-216.8, absent an award of reinstatement, front pay or

pension compensation. We will thus affirm the judgment of the

circuit court.

Affirmed.

JUSTICE MIMS, concurring.

I concur with the majority’s conclusions that Lewis abandoned

his claim for reinstatement and that the circuit court did not

abuse its discretion by denying his claim for pension

compensation because it was too speculative. However, I write

8
Lewis cites no persuasive authority compelling a different
conclusion. In the two cases that he does cite in support of
this claim, Blum, 829 F.2d at 371-76, and Buckley v. Reynolds
Metals Co., 690 F.Supp. 211, 213-220 (S.D.N.Y. 1988), the
plaintiffs had been long term employees with tenures of between
9 and 25 years, and were entitled to pension benefits at the
time their employment was terminated.

16
separately because I believe that the interpretation of Code §

8.01-216.8 in Part II(C) is both unnecessary and incorrect.

As the majority opinion recites, front pay is awarded as

prospective compensation, for pay lost from the date of judgment

into the future. Johnson v. Spencer Press of Maine, Inc., 364

F.3d 368, 379 (1st Cir. 2004).

The evidence in this case is that the project for which

Lewis was principally responsible ended in October 2011, at

least five months before he filed his complaint and 18 months

before entry of judgment. Although Lewis argues that he is

entitled to an award of front pay for the difference between his

compensation from the City and from his new employer through age

65, he failed to prove at trial that his at-will employment by

the City would not have lawfully terminated upon the conclusion

of the project. Cf. Wilkins v. St. Louis Hous. Auth., 198

F.Supp.2d 1080, 1092 (E.D. Mo. 2001). He therefore failed to

prove that he was entitled to ongoing employment by the City at

his previous level of compensation from the date of judgment

forward.

Consequently, Lewis’ claim for front pay was, as the

circuit court ruled, simply too speculative. The court did not

abuse its discretion when it declined to enter such an award.

This basis is sufficient to affirm its judgment and the Court

need not reach the interpretation of Code § 8.01-216.8. Yet the
majority opinion does so, relying on its analysis of that issue

to decide this assignment of error. In addition to being

unnecessary, that analysis is incorrect.

Code § 8.01-216.8 provides that when an employee proves a

claim of unlawful retaliation under the Virginia Fraud Against

Taxpayers Act (the “VFATA”), he or she “shall be entitled to all

relief necessary to make [him or her] whole.” (Emphasis added.)

The statute further specifies that “[r]elief shall include

reinstatement with the same seniority status that [he or she]

would have had but for the discrimination, two times the amount

of back pay, interest on the back pay, and compensation for any

special damages sustained as a result of the discrimination,

including litigation costs and reasonable attorney fees.” Id.

(emphasis added).

“It is elementary that the primary object in the

interpretation of a statute is to ascertain and give effect to

the intention of the legislature.” Andrews v. Shepherd, 201 Va.

412, 414, 111 S.E.2d 279, 281 (1959). “In interpreting [a]

statute, ‘courts apply the plain meaning . . . unless the terms

are ambiguous or applying the plain language would lead to an

absurd result.’” Baker v. Commonwealth, 284 Va. 572, 576, 733

S.E.2d 642, 644 (2012) (quoting Boynton v. Kilgore, 271 Va. 220,

227, 623 S.E.2d 922, 926 (2006)).

18
 “When the word ‘shall’ appears in a statute it is generally

used in an imperative or mandatory sense.” Schmidt v. City of

Richmond, 206 Va. 211, 218, 142 S.E.2d 573, 578 (1965); accord

City of Waynesboro Sheriff's Dep't v. Harter, 222 Va. 564, 566,

281 S.E.2d 911, 912-13 (1981). “In this sense ‘shall’ is

inconsistent with, and excludes, the idea of discretion, and

operates to impose a duty which may be enforced . . . unless an

intent to the contrary appears.” Andrews, 201 Va. at 414, 111

S.E.2d at 281-82.

Nevertheless, “the courts, in endeavoring to arrive at the

meaning of written language, whether used in a will, a contract,

or a statute, will construe ‘may’ and ‘shall’ as permissive or

mandatory in accordance with the subject matter and context.”

Pettus v. Hendricks, 113 Va. 326, 330, 74 S.E. 191, 193 (1912).

Code § 8.01-216.8 therefore is ambiguous because we must

determine whether the General Assembly intended the relief

provision to be mandatory or permissive. Brown v. Lukhard, 229

Va. 316, 321, 330 S.E.2d 84, 87 (1985) (“Language is ambiguous

if it admits of being understood in more than one way or refers

to two or more things simultaneously . . . . is difficult to

comprehend, is of doubtful import, or lacks clearness and

definiteness.”).

When interpreting an ambiguous statute, courts may consult

its legislative history. See id. (excluding use of legislative

19
history when statute is unambiguous). The General Assembly

enacted the VFATA in 2002. 2002 Acts ch. 842. As noted in the

majority opinion, the substantive words it used in the relief

provision were identical to those found in the corresponding

provision in the federal False Claims Act, 31 U.S.C. § 3729 et

seq. (the “FCA”)--specifically, 31 U.S.C. § 3730(h). Moreover,

the General Assembly enacted an amendment to conform the relief

provision in Code § 8.01-216.8 to the changes to 31 U.S.C. §

3730(h) after Congress amended the federal statute in the Fraud

Enforcement and Recovery Act of 2009, Pub. L. No. 111-21, §

4(d), 123 Stat. 1617, 1624-25 (2009) and the Dodd-Frank Wall

Street Reform and Consumer Protection Act, Pub. L. No. 111-203,

§ 1079A(c), 124 Stat. 1376, 2079 (2010). 2011 Acts ch. 676.

The fact that the General Assembly adopted the same

substantive language as the relief provision in the FCA when it

originally enacted the corresponding provision in the VFATA, and

amended the VFATA provision in 2011 after Congress amended the

FCA provision in 2009 and 2010, indicates that the General

Assembly intended state courts to construe the state statute as

the federal courts had then construed the federal statute.

Powers v. County School Board, 148 Va. 661, 669, 139 S.E. 262,

264 (1927) (“When the legislature comes to pass a new law or to

amend an old one, it is presumed to act with full knowledge of

the law as it stands bearing upon the subject with which it

20
proposes to deal.”) (internal quotation marks omitted). Two

federal cases construing the FCA relief provision are especially

instructive here.

In Hammond v. Northland Counseling Center, Inc., 218 F.3d

886 (8th Cir. 2000), the United States Court of Appeals for the

Eighth Circuit held that reinstatement may be an impractical,

inappropriate remedy in light of continuing acrimony between the

parties. It declined to reach the question of awarding front

pay in lieu of reinstatement because the plaintiff terminated in

that case “started work [for a new employer] the very next day

with an equal (if not better) salary and benefits package.” Id.

at 892.

The United States District Court for the Eastern District

of Missouri addressed the question squarely in Wilkins. There

the court reiterated that reinstatement may not be appropriate

in every case due to the relationship between the parties. 198

F.Supp.2d at 1091. It further found that the animosity between

the plaintiff and his employer made reinstatement inappropriate

in that case. It held that “Congress intended that front pay be

awarded in the appropriate case to effect the express

Congressional intention that a claimant under [31 U.S.C.] §

3730(h) be made whole.” Id. It continued by holding that

“[w]hether to order reinstatement or front pay is committed to

the discretion of [the trial] court” and that where

21
reinstatement was inappropriate “the court will award . . .

front pay.” Id.

The trial court in Wilkins clearly considered front pay to

be an equitable substitute for reinstatement. 1 The only factor

it considered when deciding that an award of front pay was

appropriate was its conclusion that reinstatement was

inappropriate based on the facts of the case. 198 F.Supp.2d at

1091. This is a logical conclusion based on the plain language

of the FCA, which, like the VFATA, commands that the plaintiff

“shall be entitled to all relief necessary to make [him or her]

whole.” 31 U.S.C. § 3730(h)(1); accord Code § 8.01-216.8.

As the majority opinion recites, “[a]n award of back pay

compensates plaintiffs for lost wages and benefits between the

time of the discharge and the trial court judgment.” Johnson,

364 F.3d at 379. Thus, an award of back pay is an award of

retrospective relief, intended to restore to the plaintiff

compensation he or she would have received between termination

and judgment if the unlawful retaliation had not occurred. 2

Reinstatement is the corresponding award of prospective relief,

1
The district court’s judgment was affirmed “in all respects,”
without commentary on its front pay reasoning. Wilkins v. St.
Louis Hous. Auth., 314 F.3d 927, 934 (8th Cir. 2002).
2
The interest on the back pay, litigation costs, and attorneys’
fees provided by the statutes are also retrospective relief
because they too restore to the plaintiff losses he or she
incurred prior to or in the course of obtaining the judgment.
22
ensuring that the plaintiff receives, after judgment, the

compensation he or she would have earned from his or her

employment if the unlawful retaliation had not occurred.

However, as noted in Hammond and Wilkins, reinstatement may

be inappropriate due to the current relationship between the

parties. In such circumstances, front pay is an equitable

substitute for reinstatement, as reflected in part of the

definition of front pay included in Johnson but omitted from the

majority opinion: “Front pay, by contrast, is money awarded for

lost compensation during the period between judgment and

reinstatement or in lieu of reinstatement. Front pay thus

compensates plaintiffs for lost wages that may accrue after the

conclusion of the trial.” Id. (emphasis added) (internal

quotation marks omitted). Both retrospective relief and

prospective relief are necessary to make the plaintiff whole

unless, as in Hammond, the plaintiff suffers no prospective

injury. 3 218 F.3d at 892.

To hold, as the majority opinion effectively does, that no

prospective relief is necessary simply because reinstatement is

3
The VFATA does not relieve the plaintiff of the general duty to
mitigate his or her damages. See, e.g., Forbes v. Rapp, 269 Va.
374, 380, 611 S.E.2d 592, 595 (2005). A plaintiff terminated in
an unlawful retaliatory act therefore must make reasonable
efforts to obtain alternative employment. See Wilkins, 198
F.Supp.2d at 1091-92.
23
impractical or inappropriate due to the relationship of the

parties unfairly penalizes the plaintiff alone for the

deterioration in the bilateral employment relationship. More

importantly, such an interpretation contravenes the spirit of

the statutes.

The majority opinion cites several federal cases

interpreting the relief provisions of other federal statutes and

concludes that, coupled with the statutory award of double back

pay, an award of front pay may result in a windfall to the

plaintiff. According to the majority opinion, this would exceed

the amount of damages Congress and the General Assembly intended

when they contemplated making the plaintiff whole. I disagree

for two reasons.

First, federal cases interpreting the relief afforded by

other federal statutes are not instructive here. The General

Assembly took the language of the VFATA from the FCA, not the

Age Discrimination in Employment Act, the Family Medical Leave

Act, or the Civil Rights Act of 1964. Moreover, Hammond and

Wilkins were decided in 2000 and 2001, respectively, and thus

were contemporaneous with the General Assembly’s original

enactment of the VFATA in 2002.

Second, the windfall concern was adequately addressed in

Wilkins. There the court reduced the amount of back pay by the

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amount of compensation the plaintiff received from his new

employment. 198 F.Supp.2d at 1090.

For the reasons stated, I would hold that “shall” is

mandatory in Code § 8.01-216.8 and that it requires a court to

award both retrospective and prospective relief when the

plaintiff proves both retrospective and prospective injury. It

may exercise its sound discretion to determine which form of

prospective relief (reinstatement or front pay) may be

appropriate considering the facts of the case. I therefore

would affirm the circuit court’s judgment because, as noted

above, Lewis failed to prove prospective injury. There was no

evidence that he was entitled to ongoing employment by the City

at his previous level of compensation from the date of judgment

forward.

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