Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Koontz, JJ., and Whiting, Senior Justice
BRIDGETTE JORDAN, ET AL.
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 961320 February 28, 1997
CLAY'S REST HOME, INC.
FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY
Thomas V. Warren, Judge
In this action by an employee against her former employer,
we consider whether to adopt an indirect, burden shifting method
of proof in wrongful discharge cases. We also consider whether
the trial court erred by imposing sanctions against the employee
and her attorney for filing a frivolous lawsuit.
Appellant Bridgette Jordan filed this action against Clay's
Rest Home, Inc., an adult residential facility in Blackstone,
seeking recovery of both compensatory and punitive damages. The
plaintiff alleged that she is a black female hired in May 1993 by
the defendant "as a full time office employee," that she
sustained "an on-the-job injury" in June 1993, and that defendant
terminated her employment in July 1993.
In a count labelled "Wrongful Discharge - Retaliation,"
plaintiff alleged defendant "willfully and wantonly discharged"
her "because of her on-the-job injury and her filing of a claim
for compensation under the Virginia Workers' Compensation Act."
In another count labelled "Wrongful Discharge - Race
Discrimination," plaintiff alleged defendant "willfully and
wantonly discharged" her "because of her race in violation of the
public policy of Virginia . . . prohibiting race discrimination
in employment."
In a grounds of defense, the defendant denied the
allegations of wrongful discharge and denied indebtedness to the
plaintiff in any amount. With the grounds of defense, the
defendant filed a motion for sanctions against the plaintiff and
her attorney. The defendant asserted that the plaintiff evinced
in the past an intent to "get" the defendant and that the filing
of the action was "irresponsible." The defendant asked the court
to assess a monetary penalty against the plaintiff and her
counsel.
Subsequently, and following some discovery proceedings, the
action was tried to a jury. At the conclusion of the plaintiff's
case-in-chief, the trial court granted defendant's motion to
strike the evidence upon both counts, and entered summary
judgment for defendant.
Later, the court held a hearing on the sanctions motion and
granted it. The court ordered the plaintiff and her attorney
each to pay $5,000 to defendant "as sanctions for filing and
pursuing a claim that was not well grounded in law & fact."
The plaintiff appeals from the summary judgment order. The
plaintiff and her attorney, pro se, appeal from the sanctions
order.
Initially, we shall address the plaintiff's action for
damages. Because the trial court struck the plaintiff's
evidence, the sufficiency of that evidence to sustain a recovery
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is challenged. Therefore, we shall consider the evidence, and
all reasonable inferences drawn from it, in the light most
favorable to the plaintiff. Page v. Arnold, 227 Va. 74, 76, 314
S.E.2d 57, 58 (1984).
The plaintiff's case was presented through the testimony of
two witnesses, the assistant administrator of defendant's
facility and the plaintiff herself, as well as through a number
of documents. This evidence showed that plaintiff had been
"hired" by Barbara T. Daniel, the local assistant administrator
with the approval of the "owner" of the facility, who resided in
Newport News. The plaintiff first reported to work on May 5,
1993 at a wage of $5 per hour as "a new employee" on a 90-day
"probationary period." She "was hired on a part-time basis,"
although she worked eight-hour shifts and typically 40 hours per
week. The defendant's policy was to evaluate probationary
employees' performance during and at the end of the 90-day period
to determine whether the employee qualified for further
employment.
The plaintiff was hired as an "office person." Her duties
included washing and ironing the residents' clothes and
delivering these items to residents' rooms. In addition, she
would "check" on the residents every hour during her shift, count
medicine, count money, and "[d]o a little book work."
In the course of evaluating plaintiff's performance, Daniel,
without advising plaintiff, noted in plaintiff's personnel file
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"a couple of instances" relating to her conduct. A file entry
dated June 11, 1993 states plaintiff "made several inappropriate
remarks about a male resident's back side" and plaintiff was
"extremely loud and used profanity on several occasions." Daniel
testified that the "bad language" had been used in the presence
of residents.
On June 28, 1993, plaintiff was running up stairs in the
facility and fell because of "a nail hanging out of a step,"
injuring her knee. Daniel knew on the day the injury occurred
that plaintiff was "reporting" it as a "work claim."
On July 1, 1993, Daniel notified the plaintiff by telephone
"that she should not come back to work." No reason for the
discharge was given by Daniel; she advised the plaintiff that
"she would get a reason from [defendant's attorney] explaining
why she was being terminated." Plaintiff testified that, prior
to this time, no one on behalf of defendant had warned her she
was "in danger of being fired."
On August 2, 1993, defendant's attorney wrote plaintiff the
following letter:
"At the request of John H. Graham, President of
Clay's Rest Home, I am advising you that your dismissal
from employment was due to the following facts:
1. You were employed on a 90 day trial basis.
2. It became apparent that you did not or could not
perform up to the standards they expect at Clay's Rest
Home.
3. You were an employee at will and as such your
employer may terminate at anytime without cause, which
was done."
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The evidence showed that during the time plaintiff worked
for defendant, it employed approximately 22 persons at the
facility. Over half of those persons were black, several of them
acting in a supervisory capacity. The record also shows that
during the period January 1 - December 31, 1993, 20 of
defendant's 32 employees were black. Plaintiff was the only
employee terminated by defendant during 1993, 1994, and 1995.
Following her discharge, the plaintiff was "replaced" by a
white female. The replacement was "hired after me," according to
the plaintiff. The record does not show the replacement's
qualifications.
At the time of trial in January 1996, there were
approximately 55 residents at the facility, of which one was
black. In 1993, none of the residents was black. This situation
resulted from "chance" because defendant has a nondiscriminatory
admissions policy, according to the evidence.
Following plaintiff's accident, she filed a workers'
compensation claim; as a result, she was awarded benefits for
lost wages, medical expenses, and attorney's fees. Plaintiff
testified she could not remember the date of filing the claim,
and the record does not establish it.
When asked how she had been subjected to racial
discrimination, the plaintiff testified "because there's no black
residents there." Elaborating, the plaintiff explained: "I
recall a long time ago when my mother called there and tried to
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get her mother in Clay's Rest Home, but they would not accept
her." The plaintiff also testified that because Daniel, who is
white, "just didn't have very much to say to" her, plaintiff felt
she was a victim of discrimination.
During argument of the defendant's motion to strike, the
plaintiff urged the trial court to adopt an indirect, burden
shifting method of determining whether plaintiff had established
a prima facie case of wrongful discharge. Under this theory, the
plaintiff argued, once an employee proves a "bare-minimum type
case," the employer "would have to come forward on their case to
articulate a legitimate explanation of the reason for the
discharge." Refusing to adopt the plaintiff's theory, the trial
court ruled "the plaintiff has not proven a prima facie case,"
and struck the plaintiff's evidence on both counts.
On appeal, the plaintiff says the "fundamental issue
presented in this case is whether the law of Virginia permits a
plaintiff such as Jordan, who lacks direct evidence in support of
her claims of wrongful discharge, to prove her claims
circumstantially, pursuant to the indirect, burden shifting
method of proof recognized in McDonnell Douglas [Corp. v. Green,
411 U.S. 792 (1973)] and subsequent case law." Continuing, the
plaintiff submits that this model should apply "to statutory
wrongful discharge actions, such as Jordan's action under [Code]
§ 65.2-308" (employer shall not discharge employee solely because
employee "intends to file or has filed" a workers' compensation
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claim). The plaintiff says the model should also apply to
"common law wrongful discharge actions [for race and gender-based
discrimination] under the principles set forth in Lockhart v.
Commonwealth Education Systems Corp., 247 Va. 98, 439 S.E.2d 328
(1994)." The plaintiff, injecting facts on brief that have no
support in the testimonial or documentary evidence presented
during the jury trial, then proceeds to argue that the trial
court erred in ruling she failed to prove a prima facie case.
In McDonnell Douglas, the Supreme Court considered
"significant questions as to the proper order and nature of proof
in actions under Title VII of the Civil Rights Act of 1964, . . .
42 U.S.C. § 2000e et seq." 411 U.S. 793-94. The Court said:
"The critical issue before us concerns the order and allocation
of proof in a private, non-class action challenging employment
discrimination." Id. at 800. In that case, an employer was
charged with a violation of the Civil Rights Act for refusing to
rehire a former employee who was black.
There, the Court held that a Title VII complainant "must
carry the initial burden under the statute of establishing a
prima facie case of racial discrimination." This may be done,
the Court said, if the employee shows "(i) that he belongs to a
racial minority; (ii) that he applied and was qualified for a job
for which the employer was seeking applicants; (iii) that,
despite his qualifications, he was rejected; and (iv) that, after
his rejection, the position remained open and the employer
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continued to seek applicants from persons of complainant's
qualifications." Id. at 802.
Continuing, the Court said the "burden then must shift to
the employer to articulate some legitimate, nondiscriminatory
reason for the employee's rejection." Id. The Court did not
attempt to detail "every matter which fairly could be recognized
as a reasonable basis for a refusal to hire." Id. at 802-03.
The Court did, however, rule that the employer's showing that the
employee participated in wrongful conduct against it sufficed to
discharge the employer's "burden of proof at this stage" and to
meet the employee's prima facie case of discrimination. Id. at
803.
In Texas Department of Community Affairs v. Burdine, 450
U.S. 248 (1981), the Supreme Court again addressed "the nature of
the evidentiary burden placed upon the defendant in an employment
discrimination suit" brought under the Civil Rights Act. Id. at
249-50. That case involved a refusal to promote and a subsequent
decision by the employer to terminate an employee allegedly based
on gender discrimination in violation of Title VII. Id. at 251.
There, the Court summarized the McDonnell Douglas "basic
allocation of burdens and order of presentation of proof in a
Title VII case alleging discriminatory treatment." Id. at 252.
Again, in United States Postal Service Board of Governors v.
Aikens, 460 U.S. 711 (1983), the Court applied the McDonnell
Douglas framework in a Title VII action brought by a black postal
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service worker who claimed his employer had discriminatorily
refused to promote him to a higher position. And, more recently,
in St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), a Title
VII action by a black employee who charged his employer with
demoting him and then discharging him because of his race, the
Court summarized McDonnell Douglas, Burdine, and Aikens.
From these decisions, and citing state-court decisions
adopting the McDonnell Douglas rationale, the plaintiff in the
present case fashions four elements that she says Virginia should
embrace when a plaintiff alleges wrongful discharge based on
race. According to the argument, a "plaintiff may establish a
prima facie case sufficient to shift the burden of production to
the defendant" if the plaintiff establishes by a preponderance of
the evidence: (1) that "the plaintiff was black"; (2) that "the
defendant discharged the plaintiff from employment"; (3) that
"the plaintiff was satisfactorily performing the job," that is,
she "was qualified for the job"; and (4) that "the plaintiff was
replaced with a white employee."
Given the Commonwealth's strong commitment to the
employment-at-will doctrine, and because we conclude that
Virginia's procedural and evidentiary framework for establishing
a prima facie case is entirely appropriate for trial of wrongful
discharge cases, we reject plaintiff's invitation to adopt the
McDonnell Douglas indirect, burden shifting idea. The McDonnell
Douglas outline, refined in later cases, was adopted by the
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Supreme Court in the context of Title VII actions under the
federal Civil Rights Act. There was no focus, as here, on the
employment-at-will doctrine. Indeed, in none of the Supreme
Court cases is there even a passing reference to the doctrine,
except in Burdine where there is a mention of "traditional
management prerogatives." 450 U.S. at 259.
Furthermore, Virginia law is settled that in trial of civil
actions generally, and in the trial of wrongful discharge cases
specifically, a plaintiff may prove a prima facie case by
circumstantial as well as direct evidence. See Charlton v.
Craddock-Terry Shoe Corp., 235 Va. 485, 490, 369 S.E.2d 175, 177-
78 (1988). Thus, there is no necessity for the Commonwealth to
provide a special framework for trial of wrongful discharge
cases.
And, contrary to plaintiff's contention, the fact that
Virginia uses a burden shifting procedure relating to jury
selection when there is a constitutional claim of racial
discrimination does not prompt us to embrace such a method here.
See Buck v. Commonwealth, 247 Va. 449, 450-51, 443 S.E.2d 414,
415 (1994); Barksdale v. Commonwealth, 17 Va. App. 456, 459, 460
n.3, 438 S.E.2d 761, 763, 764 n.3 (1993).
Therefore, applying conventional procedural principles, we
must determine whether the plaintiff presented evidence
sufficient to survive a motion to strike. We agree with the
plaintiff's statement on brief that, given the rejection of the
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indirect, burden shifting method of proof, she cannot "prevail in
this action, as she lacked direct evidence of wrongful
discharge." We accept that concession, but add that the
plaintiff also lacked circumstantial evidence of wrongful
discharge.
First, we address the question whether there is
circumstantial evidence to establish, prima facie, the
retaliatory discharge count. As we have noted, Code § 65.2-
308(A) provides, as pertinent, that no employer "shall discharge
an employee solely because the employee intends to file or has
filed" a workers' compensation claim. The record is devoid of
evidence that plaintiff was fired because she had "filed" a
claim. We do not know from the evidence when the plaintiff's
claim was filed; if, as the record seems to indicate, the claim
was filed weeks or months after she was discharged, then, under
this evidence, the discharge could not have been proximately
related to the filing.
Moreover, the circumstantial evidence is insufficient to
establish, prima facie, that plaintiff was fired "solely" because
she intended to file a claim. The evidence merely shows the date
of injury, that plaintiff thought she had been performing her
duties satisfactorily, that supervisor Daniel then knew plaintiff
was "reporting" the injury as work-related, and that plaintiff
was discharged three days later. Every employee injured in an
accident arising out of and in the course of her employment
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presumably will make a claim for compensation benefits. So the
timing of these events and the employer's knowledge that the
employee was "reporting" the injury, without more, does not raise
an inference that the plaintiff was fired solely because she
intended to file a workers' compensation claim. Otherwise, a
question of fact on this issue would arise in every case merely
upon proof that an employee had been fired after a work-related
injury. We refuse to establish such a precedent.
Second, we address the question whether there is
circumstantial evidence sufficient to establish, prima facie, the
race discrimination count. We hold there is not.
The evidence shows that the plaintiff is black; that her
white supervisor "just didn't have very much to say to" her; that
"a long time ago" plaintiff's grandmother was refused admission
to defendant's facility for some unknown reason; that plaintiff
was discharged; and, that a white female with unknown
qualifications, who was hired after the plaintiff had been
employed, "replaced" her. And, the race of the facility's
various residents is irrelevant, particularly in view of the fact
that a majority of defendant's employees were of the same race as
plaintiff. This evidence is utterly insufficient to prove, prima
facie, that defendant intentionally discriminated against
plaintiff on the basis of race.
Finally, we address the correctness of the sanctions order.
As pertinent, Code § 8.01-271.1 provides that the signature of
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an attorney on a pleading constitutes the attorney's certificate
that "to the best of his knowledge, information and belief,
formed after reasonable inquiry," the pleading "is well grounded
in fact and is warranted by existing law or a good faith argument
for the extension, modification, or reversal of existing law."
The court, upon violation of the statute, "shall impose" upon the
attorney or his client, or both, "an appropriate sanction," as
specified in the statute.
On appeal, the plaintiff and her attorney contend the trial
court erred in finding that they lacked a reasonable basis for
the filing of the motion for judgment. Elaborating, they "submit
that their mistake in believing that Jordan could try her
wrongful discharge claims on the basis of the McDonnell Douglas
model was reasonable and a good faith argument." They contend
that in a case like this "of first impression under Virginia
law," they should be permitted to argue "in support of the
adoption of a method of proof set forth in more than 20 years of
case law in the United States Supreme Court . . . without running
an unacceptable risk of being found in violation of § 8.01-
271.1." They contend that no violation of the statute was shown.
We agree.
In considering whether an attorney's conduct violates the
foregoing provisions of § 8.01-271.1, "we apply an objective
standard of reasonableness" in order to determine whether the
trial court abused its discretion in imposing sanctions. Nedrich
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v. Jones, 245 Va. 465, 471-72, 429 S.E.2d 201, 204 (1993). Thus,
we must determine whether, after reasonable inquiry, the attorney
could have formed a belief that the motion for judgment was
warranted by a good faith argument for modification of existing
law.
Our research has disclosed that appellate courts in at least
20 states have adopted the McDonnell Douglas framework. It has
been discussed in employment-law treatises. One author labels it
a "popular paradigm." 2 Henry H. Perritt, Jr., Employee
Dismissal Law and Practice § 7.22, at 98 (3d ed. 1992). Thus, we
believe the plaintiff and her attorney could have formed a
belief, after reasonable inquiry, that the motion for judgment
was warranted by a good faith argument for modification of
existing law. Accordingly, we hold the trial court abused its
discretion in imposing sanctions.
Consequently, the order entering summary judgment on the
merits of the plaintiff's action will be affirmed, the order
assessing sanctions against the plaintiff and her attorney will
be reversed, and final judgment will be entered here.
Affirmed in part,
reversed in part,
and final judgment.
JUSTICE HASSELL, with whom JUSTICE LACY and JUSTICE KEENAN join,
concurring.
I do not join the majority's opinion for three significant
reasons. First and foremost, the majority seems to suggest that
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Virginia's strong adherence to the employment-at-will doctrine is
more important than Virginia's strong public policy which
prohibits gender and/or racial discrimination in the work place.
Such a suggestion is inconsistent with precedent of this Court.
We have already determined that termination of employment based
on racial discrimination violates clear state policy against such
discrimination and gives rise to a cause of action for wrongful
discharge, notwithstanding the employment-at-will doctrine.
Lockhart v. Commonwealth Education Systems, 247 Va. 98, 439
S.E.2d 328 (1994).
Second, I disagree with the majority's opinion because I do
not believe that this is an appropriate case to decide whether
Virginia should accept or reject the indirect burden shifting
method of proof recognized in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Here, the plaintiff's evidence of racial
discrimination was so deficient that she would not have been able
to establish a viable cause of action under any recognized burden
of proof. Additionally, even though the majority says that when
the McDonnell Douglas principles were enunciated, "[t]here was no
focus . . . on the employment-at-will doctrine," the majority
neglects to acknowledge that the McDonnell Douglas burden of
proof principles are applied by federal trial and appellate
courts in Virginia. See Fuller v. Phipps, 67 F.3d 1137, 1141-42
(4th Cir. 1995). I believe that there may be instances where the
application of the McDonnell Douglas principles may be proper,
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and I would reserve that determination for another day.
Finally, I disagree with the majority's conclusion that a
retaliatory discharge claim under Code § 65.2-308 is
insufficient, as a matter of law, if a plaintiff alleges only
that she incurred a job-related injury and was discharged after
notifying her employer that she intended to file a workers'
compensation claim. Although the plaintiff here failed to
establish a prima facie case of retaliatory discharge, the
factual allegations and evidence in any other case are not before
this Court. The sufficiency of the evidence of each case must be
reviewed on its own merit, and I believe that the majority's
placement of a blanket restriction on future cases is
inappropriate.
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