Present: All the Justices
THERESA A. MULLINS
v. Record No. 960961 OPINION BY JUSTICE BARBARA MILANO KEENAN
January 10, 1997
VIRGINIA LUTHERAN HOMES, INC.
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Clifford R. Weckstein, Judge
In this appeal, we consider whether the trial court erred in
striking the plaintiff's evidence in an action alleging that she
was unlawfully discharged from her employment for filing a
workers' compensation claim.
Theresa A. Mullins filed a motion for judgment against her
former employer, Virginia Lutheran Homes, Inc. (the employer).
She alleged under Code § 65.2-308 1 that the employer discharged
her because she had filed a claim under the Virginia Workers'
Compensation Act. Code §§ 65.2-100 to -1310.
In a jury trial, the evidence showed that Mullins was hired
1
Code § 65.2-308 provides, in relevant part:
A. No employer or person shall discharge an
employee solely because the employee intends to file or
has filed a claim under this title or has testified or
is about to testify in any proceeding under this title.
. . .
B. The employee may bring an action in a circuit
court having jurisdiction over the employer or person
who allegedly discharged the employee in violation of
this section. The court shall have jurisdiction, for
cause shown, to restrain violations and order
appropriate relief, including actual damages and
attorney's fees to successful claimants and the
rehiring or reinstatement of the employee, with back
pay plus interest at the judgment rate as provided in
§ 6.1-330.54.
in February 1993 as a certified nursing assistant at Brandon Oaks
Retirement Home, a facility owned by the employer. Her daily
duties included helping the residents bathe, dress, and eat.
Mullins testified that on September 5, 1993, she entered the
room of an elderly woman, who was attempting to hold onto the
bathroom sink to keep from falling. Mullins injured her left
hand in the process of grabbing hold of the woman. Mullins'
supervisor, Louise Hill, told her to place ice on her hand and
complete her shift before seeking medical attention. After she
finished her shift, Mullins went to a hospital emergency room
where a doctor placed a metal splint on her hand and referred her
to an orthopedist.
Mullins testified that she reported to work two days later
and showed Hill her splint. According to Mullins, Hill asked,
"Why didn't you just let her fall instead of getting hurt?"
Mullins also testified that Rob Bianco, Brandon Oaks'
administrator, asked her if she "made it a habit of catching
people falling."
On October 3, 1993, an orthopedist diagnosed Mullins' injury
as a hyperextension of her left thumb, and ordered her to stop
all work that required use of her left hand. Mullins testified
that when she informed Hill of her orthopedist's instruction that
she perform only light-duty work, Hill stated that there were no
such positions available at that time.
Based on her orthopedist's instruction and the fact that
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Brandon Oaks had no light duty positions available, Mullins
stopped working at the end of October 1993. The employer paid
Mullins for approximately 48 hours of accumulated "sick and
holiday pay" for the period from October 28, 1993 to November 5,
1993. The record does not show that the employer made any
further wage payments to Mullins.
Mullins filed an application for benefits with the Virginia
Workers' Compensation Commission on November 5, 1993. In a
letter dated December 2, 1993, the employer advised Mullins that
her extended medical leave would expire on December 6, 1993. The
letter stated that if Mullins was unable to return to work after
this leave expired, her position would be filled by another
applicant.
On December 6, 1993, Mullins and her mother, Elizabeth
Heppert, met with Louise Hill. Heppert testified that Hill told
Mullins that her job was terminated due to her injury. Mullins
testified that Hill told her that she was being discharged
because her "sick" leave had expired and she was unable to return
to work.
About three months later, Mullins received medical
authorization to return to work. She testified that she spoke
with Hill about returning to Brandon Oaks, but was told that
there was no work available for her.
At the conclusion of Mullins' evidence, the trial court
granted the employer's motion to strike the evidence on the
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unlawful discharge claim. The court stated that it struck the
evidence because the jury could only find that the employer
violated Code § 65.2-308 "by speculation, by picking and choosing
among alternative explanations that the Plaintiff has offered."
The court later entered an order dismissing Mullins' unlawful
discharge action.
On appeal, Mullins argues that the evidence was sufficient
to raise a jury question whether the employer discharged her
solely because she filed a workers' compensation claim. Mullins
contends that the evidence of the employer's conduct was
sufficient to support a finding by the trier of fact that her
employment was terminated for this reason.
In response, the employer asserts that Mullins' evidence did
not show that she was fired solely because she filed a workers'
compensation claim. The employer contends that the evidence
showed only that when Mullins had used all her sick leave, she
was still unable to return to work. We disagree with the
employer.
In reviewing the trial court's decision to strike a
plaintiff's evidence, we must consider the evidence, and all
reasonable inferences which can be drawn from the evidence, in
the light most favorable to the plaintiff. Any reasonable doubt
about the sufficiency of the evidence must be resolved in the
plaintiff's favor. Waters v. Safeway Stores, Inc., 246 Va. 269,
270, 435 S.E.2d 380, 380 (1993); Artrip v. E.E. Berry Equip. Co.,
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240 Va. 354, 357, 397 S.E.2d 821, 823 (1990).
An employer's motivation in discharging an employee is a
fact ordinarily established by circumstantial, rather than
direct, evidence. In Charlton v. Craddock-Terry Shoe Corp., 235
Va. 485, 369 S.E.2d 175 (1988), we addressed this aspect of
proving an unlawful discharge claim under the Virginia Workers'
Compensation Act. There, the plaintiff alleged that she was
discharged from her employment because she had incurred a job-
related injury for which she intended to file a workers'
compensation claim. During cross-examination, however, the
plaintiff agreed that she was fired because she had refused to
sign a waiver of her right to claim compensation benefits.
Based on this testimony, the defendant argued that the
plaintiff's evidence showed that she was not fired solely because
she intended to file a workers' compensation claim, and that her
refusal to sign the waiver constituted a separate reason for her
dismissal. The trial court agreed and entered final judgment for
the defendant.
We reversed the trial court's judgment, noting that the
plaintiff did not know the actual reason for her dismissal. We
stated that "[h]er employer's innermost motivation was a matter
necessarily outside the realm of her knowledge." Id. at 489, 369
S.E.2d at 177. We concluded that since the plaintiff's
testimony, considered in its entirety, presented a question of
fact concerning the employer's motivation, the plaintiff was
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entitled to have that evidence weighed by the jury together with
all the other evidence in the case. Id. at 489-90, 369 S.E.2d at
177.
These observations apply equally to the present case. The
employer's motivation for discharging Mullins was a question
outside the realm of Mullins' knowledge to be resolved by the
trier of fact. See id. at 489, 369 S.E.2d at 177.
The evidence showed that Mullins was discharged about one
month after filing her workers' compensation claim. Heppert
testified that Hill told Mullins she was being discharged due to
her job-related injury. In addition, the comments allegedly made
by Hill and Bianco are circumstantial evidence that the employer
felt that avoiding employee injury claims was more important than
providing for the safety of residents in the facility. Viewed in
the light most favorable to Mullins, this evidence was sufficient
to raise a question of fact whether Mullins was discharged solely
for filing a workers' compensation claim.
The employer's articulated reasons for discharging Mullins,
her job-related injury and the expiration of her sick leave, did
not constitute "alternative explanations" which would require the
jury to speculate before finding that the employer violated Code
§ 65.2-308. An employer's articulated reasons for discharging an
employee are merely evidence relevant to the issue of the
employer's motivation, which the jury is entitled to consider
along with all the other evidence of the employer's conduct.
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Thus, we conclude that the trial court erred in striking Mullins'
evidence. 2
For these reasons, we will reverse the trial court's
judgment and remand this case for a new trial.
Reversed and remanded.
2
On appeal, the employer argues for the first time that
Mullins was not entitled to a jury trial on her claim that she
was discharged in violation of Code § 65.2-308. See Dunn v.
Bergen Brunswig Drug Co., 848 F. Supp. 645, 649 (E.D. Va. 1994).
Based on this argument, the employer contends that we should
treat the trial court's ruling on the motion to strike as "the
constructive equivalent of a finding by the trier of fact" that
Mullins did not prove her case by a preponderance of the
evidence. However, since the employer's contention is based on
an argument not raised at trial, we do not consider the merits of
that contention. Rule 5:25.
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