Jordan v. Clay's Rest Home, Inc.

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

- 2 -
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

- 3 -
"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."

- 4 -
 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

- 5 -
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

- 6 -
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

- 7 -
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

- 8 -
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

- 9 -
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

- 10 -
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

- 11 -
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

- 12 -
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

- 13 -
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

- 14 -
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,

- 15 -
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.

- 16 -