Pasco v. Zimmerman et al

Filing 11

Brief / Memorandum in Support re 10 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. filed by Shenandoah County Library.

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
Harrisonburg Division
ROBERT L. PASCO,
Plaintiff
Civil Action No.: 5:11CV87
y.

HANK ZIMMERMAN, et als.
Defendant

BRIEF IN SUPPORT OF MOTION TO DISMISS
Defendant Shenandoah County Library ("Library"), by counsel, states as follows for its
Brief in Support of hs Motion to Dismiss.
FACTS
The plaintiff filed this action for both compensatory and punitive damages arising from
Defendant Library's alleged acts and conduct in violation of the plaintiffs rights under both
federal and state laws. The Court has jurisdiction in this matter pursuant to 28 U.S.C, §§ 1331
and 1343.
This action arises out of the termination of the plaintiff by Defendant Board of Trustees
ofthe Shenandoah County Library ("Board of Trustees"). The plaintiff served as the Director of
Defendant Library from January 1, 2002 until October 12, 2010. Complaint T 6. Defendant
f
Library is a public entity established by the governing body of Shenandoah County pursuant to
Virginia Code § 42.1-33, et seq. Complaint T 9. Defendant Board of Trustees is also a public
f
entity appointed by the governing body of Shenandoah County pursuant to Virginia Code § 42.1 35. Complaint T 10. Defendant Hank Zimmerman ("Zimmerman") was the Chairman ofthe
f
Library's Board of Trustees, and is sued in both his individual and official capacities. Complaint

17.
On the morning of October 1, 2010, Defendant James Dallas Moore ("Defendant
Moore") came into the plaintiffs office at the Library.
\

The plaintiff alleges that Defendant

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Moore physically pushed him back from his computer and seized two external computer hard
drives that were on the plaintiffs desk near his computer, on the opposite side ofthe desk from
the doorway through which Defendant Moore entered the office. Complaint T 17. The plaintiff
f
alleges that one of the hard drives belonged to the Library and one of the hard drives was his
personal property. Complaint T 19. When Defendant Moore attempted to leave the plaintiffs
f
office with both of the hard drives, the plaintiff attempted to retrieve the hard drives from
Defendant Moore. Complaint T f 21, 23. When the plaintiff attempted to retrieve the hard drive
f
T
from Defendant Moore, Defendant Moore allegedly threw both ofthe drives to the floor and they
shattered. Complaint T 24.
f

The plaintiff further alleges that Defendant Moore's conduct

destroyed the plaintiffs hard drive, rendering it useless and the files on it in-etrievable.
Complaint T 27.
f
The plaintiff avers that when Defendant Zimmerman learned ofthe incident, he asked the
plaintiff not to file a criminal complaint against Defendant Moore, and further told the plaintiff to
wait until after the plaintiff had returned from a scheduled conference to make a decision about
Defendant Moore's employment. Complaint T 29. Defendant Moore filed a complaint to law
f
enforcement against the plaintiff for assauh and battery on October 2, 2010. A Sheriffs Deputy
came to the plaintiffs home and advised him of such complaint. Complaint T 30. In response,
f
the plaintiff alleges that he, as Director of the Library responsible for personnel decisions,
terminated Defendant Moore and then informed Defendant Zimmerman. Complaint T 31. On or
f
about October 12, 2010, Defendant Board of Trastees met and voted to terminate the plaintiffs
employment. Complaint T 36. Further, Defendant Board of Trustees reinstated Defendant Moore
f
to his job. Complaint T 37.
f
The Complaint contains six separate counts against Defendant Library, including both
federal and state claims. Count One alleges claims under 42 U.S.C. §§ 1983 and 1988, alleging
that the defendants' conduct violated clearly established statutory and constitutional rights of
which a reasonable person would have known, including the right to be free from unlawful
searches and seizures, and the right to protection from unlawful takings without due process
under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution.
Complaint T 42. The plaintiff alleges he had both a statutory and a constitutional right to
f
possession of the computer hard drives. Complaint T 41. Further, the plaintiff alleges a
f
deprivation of his rights, privileges, or immunities secured for him by the Constitution and other
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laws, and that his actions to protect his rights resulted in the unlawful termination of his job.
Complaint T 43.
f
Count Two alleges a state claim of conversion, alleging that the defendants had no right
to seize his property. Complaint T 47.
f

Count Three alleges a state violation of Virginia

Computer Crimes Act. Complaint T 51. Count Four alleges a state claim of assauh and battery,
f
stating that Defendant Moore's touching was in an unlawful manner without authority or
permission, and that Defendant Library "ratified, adopted, and acquiesced in Defendant Moore's
conduct." Complaint T 55. Count Five alleges a violation ofVirginia Constitution Article 1, §
f
11, stating that no person shall be deprived of his life, liberty, or property without due process of
law. Complaint T 62. Count Six alleges a vw-ongful discharge in violation of Virginia public
f
policy arising out ofVirginia Code §§ 18.2-152.1 through 18.2-152.15 and §§ 19.2-11.01
through 19.2-11.4, as well as the Virginia Constitution, Article 1, § 11. Complaint T 74.
f
ARGUMENT
I.

Standard of Review

The purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of the factual
allegations made in a complaint. E.I DuPont De Nemours & Co. v. Kolon Ind., 688 F. Supp. 2d
443, 449 (E.D. Va. 2009); and Edwards v. City ofGoldsboro, 178 F.3d 231, 243-44 (4"' Cir.
1999). "To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted by the court as true, to 'state a claim to relief that is plausible on its face.'" E.L DuPont
De Nemours, 688 F. Supp. 2d at 449 (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570
(2007)). To be plausible on hs face, the facts alleged must be more than a "sheer possibility that
a defendant has acted unlawfully." Id. While the Court must accept as true all factual allegations
contained in the complaint, h is not bound to accept as true the complaint's legal conclusions.
Ashcroft V. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) ("Threadbare rechals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.").
Moreover, the Court "need not accept as true unwarranted inferences, unreasonable conclusions,
or arguments." Kloth v. Microsoft Corp., 444 F.3d 312, 319 (4* Ch. 2006). A motion to dismiss
will be granted if it appears that the plaintiff would be enthled to no relief under any state of
facts which could be proved to support his claim. Wolford v. Budd Co., 149 F.R.D. 127, 129
(W.D. Va. 1993).

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II.

42 U.S.C. § 1983 Claim Fails to State an Unconstitutional Policy or Custom

In Count One ofthe Complaint, the plaintiff purports to allege a violation of 42 U.S.C. §
1983 against Defendant Library, stating: "Because Defendant Moore and the other Defendants
had no right to seize Plaintiffs computer hard-drive, because the seizure of Plaintiff s property
was unreasonable and because Plaintiff objected to the seizure. Plaintiff had both a statutory
right and a constitutional right to possession of the computer hard-drive." Complaint T 41. In
f
essence, the Plaintiff alleges an unlawful search and seizure and the right to protection from
unlawful taking without due process of law under the Fourth, Fifth, and Fourteenth
Amendments. Complaint T 42. However, the plaintiff fails to state an actionable claim against
f
Defendant Library.
The seminal case of Monell v. New York City Dept of Social Services, 436 U.S. 658
(1978) established municipal liability in an action under § 1983 for unconstitutional actions by a
municipal employee below the policy-making level. Under Monell, counties, like other local
government entities, can be sued for violations of constitutional rights under 42 U.S.C. § 1983;
however, a plaintiff must show that the violation of his constitutional rights resulted from a
municipal policy or custom. Monell, 436. U.S. at 690. Moreover, the Monell Court specifically
concluded that a municipality cannot be held liable solely because it employs a tortfeasor. Id. at
691. The Supreme Court made h clear that "a municipality cannot be held liable under § 1983
on a respondeat superior theory." Id.'

Rather, a local government as an entity is only

responsible under § 1983 when the local government's policy or custom, "whether made by hs
lawmakers or by those who edicts or acts may fairly be said to represent official policy," causes
the injury. Id at 694; see also Spell v. McDaniel, 824 F.2d 1380, 1385 (4* Ch. 1987)
(municipalities cannot be held liable under a theory of respondeat superior for the constitutional
violations of their employees acting within the scope of their employment).
Accordingly, a plaintiff alleging a § 1983 action must therefore adequately plead and
ultimately prove three distinct elements. First, the plaintiff must prove the existence of an
official policy or custom. Second, the plaintiff must show that such official policy or custom is
fairly attributable to the municipality. Third, the plaintiff must show that the official policy or
' Further, the Fourth Circuit has set a high standard to guard against back door respondeat suprerior claims, stating
that "Where a plaintiff claims that the municipality has not directly mflicted an mjury, but nonetheless has caused an
employee to do so, rigorous standards of culpability and caustion must be applied to ensure that the municipality is
not held liable solely for the actions of its employee." Carter v. City of Danville, 164 F.3d 215,218 (4* Cir. 1999)
(citations omitted)).
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custom proximately caused the underlying constitutional violation. Jordan ex. rel Jordan v.
Jackson, 15 F.3d 333, 338 (4* Ch. 1994). These requirements apply not only in actions against
local governments, but also in actions against individually named municipal agents sued in their
official capacities. Monell, 436 U.S. at 690 n. 55. In this case, the plaintiff has failed to
sufficiently allege any of the three required elements. The Complaint is devoid of any mention
of or reference to an official policy or custom. The plaintiffs § 1983 claim rests solely on
Defendant Moore's alleged unlawful seizure ofthe plaintiffs hard drive. The plaintiff fails to
make any allegations in his Complaint in regards to the existence of Defendant Library's policy,
custom, or practice; therefore, he fails to plead a viable claim under Monell. See also Semple v.
City of Moundsville, 195 F.3d 708, 712 (4"" Ch. 1999). Defendant Moore's alleged actions in
grabbing and breaking the plaintiffs property is not fairly attributable to Defendant Library.
Moreover, no official policy or custom of Defendant Library proximately caused the underlying
alleged constitutional violations under the Fourth and/or Fifth Amendments.
Municipal or local government policy is typically found in ordinances and regulations,
though h can also be found in formal or informal ad hoc policies, choices, or decisions of
government officials authorized to make and implement government policy. SpeU, 824 F.2d at
1385. The Fourth Circuh went on to say that '"[pjolicy' in this context implies most obviously
and narrowly a 'course of action consciously chosen from among various ahernatives' respecting
basic governmental function, as opposed to episodic exercises of discretion in the operational
details of government." Id at 1386 (quoting Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985);
and citing Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S. Ct. 1292, 1299 & n. 9 (1986)).
Thus, in finding liability under § 1983, official policy is used in the relatively narrow sense of
discrete, consciously chosen courses of action by policymakers. Id. In this case, the plaintiff
cites no official policy or facts comprising consciously chosen courses of action by the
policymaking Defendant Board of Trustees. Custom or usage may also serve as a basis for the
imposition of local government Uability. Monell, 436 U.S. at 690-91. '"Custom or usage' may
be found in 'persistent and widespread . . . practices of [municipal] officials [which] [a]lthough
not authorized by written law, [are] so permanent and wellsettied as to [have] the force of law.'"
Spell, 824 F.2d at 1386 (quoting Monell, 436 U.S. 658 at 691 (internal citation and quotation
omitted)).

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Here, the facts and allegations cannot support attribution of a policy of Defendant
Library. To be fairly attributed to a local government, a policy must be made directly by hs
governing body, or by a municipal agency, or an official having final authority to establish and
implement the relevant policy. Id at 1387 (citing Monell, 436 U.S. at 694 (policy of City Board
of Education and Department of Social Services); and Pembaur v. City of Cincinnati, 475 U.S.
469, 106 S. Ct. 1292, 1300-01 (1986) (policy decision by County Prosecutor).

Defendant

Moore's actions allegedly give rise to the § 1983 action. Defendant Moore is neither a lawmaker
nor an official having final authority to establish and implement the relevant policy. Likewise,
Defendant Moore's actions cannot give rise to attribution of custom or use. Custom or use
requkes '"persistent and widespread . . . practices'" by local govemment agents and employees
that may be attributed to the local government "when the duration and frequency ofthe practices
warrants a finding of either actual or constructive loiowledge by the municipal governing body
that the practices have become customary among hs employees." Spell, 824 F.2d at 1387 (citing
Bennett v. Slidell, 728 F.2d 762, 768 (5"' Ch. 1984)). The independent and one time actions of
Defendant Moore are not so permanent and well-settied to have the force of law. There is no
allegation in the Complaint that the actions of Defendant Moore have become customary among
the Library employees. Moreover, an isolated incident or a meager history of isolated incidents
is insufficient to prove the existence of an official policy or custom. Doe v. County of Fairfax,
225 F. 3d 440, 456 (4* Ch. 2000) (citing Carter v. Morris, 164 F. 3d 215, 220 (4* Ch. 1999) (no
liability under § 1983 on plaintiffs assertion that the City of Danville remained deliberately
indifferent to or has actively condoned a long and widespread history of violations ofthe federal
rights of hs citizens on the part of the police department)). Even liberally interpreting the
Complaint to infer allegations of custom or use, without supporting facts, it is legally
insufficient. Dwares v. City ofNew York, 985 F.2d 94, 100 (2d Ch. 1993) ("The mere assertion,
however, that a municipality has such a custom or policy is insufficient in the absence of
allegations of fact tending to support, at least circumstantially, such an inference.").
Further, Defendant Library cannot be subject to liability under 42 U.S.C. § 1983 even if
the plaintiff is able to identify conduct attiibutable to h. Rather, "'[t]he plaintiff must also
demonstrate that, through hs deliberate conduct, the municipality was the 'moving force' behind
the injury alleged." Riddick v. School Bd of City of Portsmouth, 238 F.3d 518, 524 (4* Ch.
2000) (quoting Board ofthe County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 404
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(1997)). The alleged unconstitutional acts were committed by Defendant Moore. Moreover,
these acts were committed before any actions alleged by Defendant Board of Trustees. There is
no allegation that Defendant Board of Trustees was deliberately indifferent to any actions of
Defendant Moore that led to or caused Defendant Moore's alleged actions on October 1, 2010.
Nor is there any allegation that Defendant Board of Trustees was deliberately indifferent to any
complaints or concerns ofthe plaintiff that was the moving force behind the plaintiffs injury.
See Jones v. Wellham, 104 F.3d 620, 627 (4* Ch. 1997) (plaintiffs allegations that County's
failure to terminate officer in 1979 constituted deliberate indifference to her civil rights and led
to rape by officer in 1990 were rejected by Fourth Circuh, holding that "only decisions taken
with deliberate indifference to the potential consequences of laiown risks suffices to impose
municipal liability on the basis that such decisions constituted official County 'policy.'").
In reviewing the Complaint as a whole, it is clear that the plaintiff has not and cannot
state any underlying constitutional violations sufficient to impose liability on Defendant Library.
The plaintiff does not ehe any policy or custom that could have proximately caused any alleged
constitutional violations. Nor does the plaintiff allege, and the facts do not support, that through
hs deliberate conduct. Defendant Board of Trastees was the moving force behind his alleged
injuries. Rather, the plaintiff alleges that Defendant Moore's unconstitutional actions caused his
injuries. As such, the plaintiff fails to state an actionable claim under 42 U.S.C. §§ 1983 and
1988 against Defendant Library, and Count One ofthe Complaint should be dismissed against
Defendant Library.
III.

State Claims Against Defendant Library Invalid

Counts Two, Three, and Four of the Complaint allege state tort claims for conversion,
assauh and battery, and violation ofVirginia Computer Crimes Act, 18.2-152.12. In Vhginia, as
a general rule, the sovereign is immune from actions at law for damages. Hinchey v. Ogden, 226
Va. 234 (1983); Ericksen v. Anderson, 195 Va. 655, 657 (1954) (State is immune from Uability
for the tortious acts of its servants, agents and employees, in the absence of express
constitutional or statutory provisions making h liable.). Further, h is clear that this protection
extends to municipalities and local governments in the exercise of their governmental functions.
Haggard V. City of Richmond, 172 Va. 145 (1939). Here, the establishment and operation ofa
County Library is a government function. Moreover, immunity under the Eleventh Amendment
has not been waived by the Virginia Tort Claims Act, as that Code section only waives sovereign
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immunity provided the lawsuh is filed in state court. Reynolds v. City of Richmond, 51A F. Supp.
90, 91 (E.D. Va. 1983) (waiver under Virginia Code § 8.01-195.1 may not be properly construed
as waiver of immunity under the Eleventh Amendment to the same or similar suhs in federal
court) (citations omitted); and see Carter v. City of Danville, 164 F.3d 215, 221 (4* Ch. 1999)
(plaintiffs state tort claims of assauh, battery, and false imprisonment against the City are barred
by sovereign immunity). As such, these state tort claims allegedly committed by Defendant
Moore should be dismissed as to Defendant Library.
Even absent sovereign immunity, Defendant Library is not liable for the state tort claims
allegedly committed by Defendant Moore.

First, under Virginia law, "a person is liable for

conversion for the wrongful exercise or assumption of authority over another's goods, depriving
the owner of theh possession, or any act of dominion wrongfully asserted over property in denial
of, or inconsistent with, the owner's rights." E.L DuPont De Nemours & Co. v. Kolon Ind,, 688
F. Supp. 2d 443, 454 (E.D. Va. 2009) (quoting Simmons v. Miller, 261 Va. 561, 582 (2001)).
The plaintiff has failed to state how Defendant Library deprived the plaintiff of possession of his
property or asserted any act of dominion over the plaintiffs property in denial or inconsistent
with his rights.
The Complaint alleges that only Defendant Moore seized the hard drive. Defendant
Moore did not in fact leave the plaintiffs office with the hard drive. Nor did Defendant Moore
maintain possession ofthe hard drive. While Defendant Moore attempted to leave the plaintiffs
office with allegedly the intention of seizing the hard drives. Defendant Moore threw both of the
drives to the floor and they allegedly shattered. Complaint T f 20, 21, and 24. Nothing else in the
f
T
Complaint sets forth any additional facts supporting a claim for conversion against Defendant
Library. All ofthe facts alleged by the plaintiff focus solely on the actions of Defendant Moore.
There are no facts or actions alleged by the plaintiff supporting that Defendant Library
wrongfully exercised or assumed authority over the plaintiffs goods, or deprived the plaintiff of
possession of his property, or any act by Defendant Library wherein it wrongfully asserted
dominion over the plaintiffs property in denial of, or inconsistent with, the plaintiffs rights.
Further, Defendant Library is not liable for Defendant Moore's allegedly illegal behavior.
The allegations do not give rise to liability by Defendant Library for Defendant Moore's actions
based on respondeat superior. The allegations do not sufficiently state that Defendant Moore's
actions were committed within the scope of his employment, though they were committed during
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the course of his employment.

First, Defendant Moore's alleged actions in grabbing and

throwing the plaintiffs hard drive to the floor was not something fairly and naturally incident to
Defendants Library's or Board of Trustees' business. See United Brotherhood v. Humphreys,
203 Va. 781, 787 (1962). Second, Defendant Moore's actions were not done with a view to
further Defendants Library's or Board of Trustees' interests, but arose wholly from some
external, independent, and personal motive on the part of Defendant Moore. See Id. More
importantly, the plaintiff admhs that Defendant Moore's actions and "conduct was inhially
undertaken for personal reasons, and did not arise out of his employment, although such conduct
occurred during the course of his employment." Complaint T 54. The plaintiff merely makes a
f
blanlcet assertion that the "Defendants had no right to seize Plaintiffs property" (Complaint T
f
46); however, the facts alleged only show that Defendant Moore, not Defendant Library,
allegedly illegally seized the plaintiffs property. Thus, the plaintiffs conversion claim fails
against Defendant Library.
Second, the plaintiff incorrectiy applies the provisions of the Vhginia Computer Crimes
Act. The plaintiff simply alleges that the defendants have violated Vhginia Code §§18.2-152.1
through 18.2-152.15; however, application of the facts aUeged in the Complaint to the Act
demonstrates that, in fact, the majority of those Code provisions are not triggered. At best, the
plaintiff arguably may have alleged sufficient facts to infer a violation ofVirginia Code § 18.2152.4(A)(3) in that computer data may have been allegedly ahered, disabled, or erased when
Defendant Moore threw the plaintiffs hard drive to the floor. However, none ofthe allegations
show that Defendant Library violated Vhginia Code § 18.2-152.4. There is no allegation that
Defendant Library ahered, disabled, or erased the plaintiffs computer data. The plaintiffs
unsupported allegation that "Defendants have, without authorization, unlawfully engaged in
computer trespass, permanently disabled Plaintiffs computer data, seized, obtained, used,
deprived Plaintiff of, and destroyed, his computer files and data" (Complaint T 51), is legally
f
insufficient to state a claim for violation ofthe Virginia Computer Crimes Act against Defendant
Board of Trustees.
Third, the claim of assault and battery is also based solely on the actions of Defendant
Moore. Complaint T 54. Moreover, the plaintiff specifically states that the unlawful touching by
f
Defendant Moore "did not arise out of his employment, although such conduct occurred during
the course of his employment." Complaint | 54. As such, the allegations are insufficient to
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support a claim against Defendant Library under the doctrine of respondeat superior. Generally,
an assault and battery by an employee is not within the scope of employment. Thus, based on
the plaintiffs allegations, as a matter of law. Defendant Moore was not acting within the scope
of his employment, thereby absolving Defendant Library from any liability. See Kensington
Assocs V. West, 234 Va. 430 (1987) (employee who accidentally shot third party resulting from
horseplay not acting within the scope of his employment as a matter of law); Abernathy v.
Romaczyk, 202 Va. 328 (1960) (as a matter of law employee not acting within scope of
employment when he assaulted third party over who caused traffic accident); and Cary v. Hotel
Rueger, Inc., et al, 195 Va. 980 (1984) (assauh by employee over money owed to the victim not
within scope of employment as a matter of law).^
Again, the plaintiffs bare allegations that by reinstating Defendant Moore to his job and
by terminating the plaintiff. Defendant Library "adopted, ratified and acquiesced in Defendant
Moore's illegal behavior" is legally insufficient to state a claim for relief against Defendant
Library for assauh and battery. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949
(2009).
For all of these reasons. Counts Two, Three, and Four of the Complaint should be
dismissed against Defendant Library.
IV.

Defendant Library Did Not Violate Virginia Constitution

Count Five of the Complaint states a general averment that the Defendants deprived the
plaintiff of his property without due process of law (Complaint T 62), but alleges no facts
f
specific or attributable to Defendant Library. All of the facts and allegations center on the
actions of Defendant Moore in seizing and destroying the plaintiffs hard drive. The allegations
do not state, nor do they support, a conclusion that Defendant Library violated any article or
provision of the Virginia Constitution.

As such. Count Five of the Complaint should be

dismissed against Defendant Library.
V.

Termination Not in Violation ofVirginia Public Pohcy

Count Six of the Complaint alleges that the plaintiff was terminated in violation of
Virginia public policy, based on alleged violations of the Crime Victim and Witness Rights Act,

^ Additionally, in Virginia, there is no duty or reasonable care imposed upon employer in the supervision of its
employees. See Chesapeake and Potomac Tel Co. v. Dowdy, 235 Va. 55 (1998). Further, the Complaint fails to
state facts sufficient to show Defendant Library owed a duty to protect the plaintiff from the alleged assault and
battery. See Wright v. Webb, 234 Va. 527 (1987).
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Virginia Code §§ 19.2-11.01-19.2-11.4, Virginia Computer Crimes Act §§ 18.2-152.1 thi-ough
18.2-152.15, and the Virginia Constitution, Article 1, § 11. The plaintiff faUs to state a claim
against Defendant Library for wrongful termination based on the public policy exception to atwill employment.
In Bowman v. State Bank of Keysville, 229 Va. 534 (1985), the Virginia Supreme Court
first recognized an exception to the employment at-will doctrine based on an employer's
violation of public policy in the termination of an employee. Since Bowman, the Supreme Court
ofVirginia has considered numerous cases claiming a public policy exception to the employment
at-will doctrine, and has consistently declined the invhation to broaden this exception. Rather,
the Supreme Court of Virginia considers the public policy exception to at-will employment
termination to be a narrow exception, holding that while virtually every statute expresses a
public policy of some sort, "termination of an employee in violation ofthe policy underlying any
one [statute] does not automatically give rise to a common law cause of action for wrongful
discharge." City of Virginia Beach v. Harris, 259 Va. 220, 232 (2000). In only three types of
cases has the Virginia Supreme Court held that the claims were sufficient to constitute a common
law action for wrongful discharge under the public policy exception: 1. an employer violated a
policy enabling the exercise of an employee statutorily created right {Bowman v. State Bank of
Keysville, supra); 2. where the public policy violated by the employer was explichly expressed in
the statute and the employee was clearly a member of that class of persons directly entitled to the
protections enunciated by the public policy (Lockhart v. Commonwealth Education System
Corporation, 247 Va. 98 (1994) (unlawful discharge based on gender)); and 3. where the
discharge was based on the employee's refusal to engage in a criminal act (Mitchem v. Counts,
259 Va. 179 (2000)). Here, the common law action is not based on a pubhc poUcy expressly set
out in the statute as it was in Lockhart. Nor does the plaintiff claim that he is enthled to maintain
a common law action because he was terminated for refusal to engage in criminal acts, as in
Mitchem. Rather, the plaintiff attempts to bootstrap a public policy exception to employment atwill based on the Virginia Computer Crimes Act, Crime Victim and Witness Rights Act, and/or
the Virginia Constitution, in an attempt to make out a Bowman exception.
The plaintiffs use ofthe criminal statutes cited in the Complaint is without merh, as the
allegations, at best, show that Defendant Moore allegedly engaged in illegal conduct and do not
show that the plaintiff engaged in protected activity for which he was fired. This case is similar
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to Rowan v. Tractor Supply Company, 256 Va. 209 (2002). In Rowan, the plaintiff argued that
by virtue ofVirginia Code § 18.2-460, the obstraction of justice statute, she was vested with a
right to be fiee from intimidation with a regard to her pressing criminal charges and participating
in the legal processes connected to those charges. Rowan, 263 Va. at 215. However, the Virginia
Supreme Court found that, unlike in Bowman, Virginia Code § 18.2-460 does not grant a person
involved in a criminal prosecution any specific right; therefore, there exists no corresponding
public policy necessary to protect the right. Ld. As such, the Court held that the defendant's
action in discharging the plaintiff "did not violate a right granted to her but rather violated a
criminal statute enacted to ensure that the administration of justice is not subverted." Id. The
same analysis applies here. Even assuming Defendant Library somehow violated the Crime
Victim and Witness Rights Act, Vhginia Code §§ 19.2-11.01-19.2-11.4, or the Virginia
Computer Crimes Act, Virginia Code §§ 18.2-152.1 through 18.2-152.15, none of these
provisions grant the plaintiff a specific right; thus, there is no corresponding public policy
necessary to protect that right.
Second, the Virginia Constitution does not create a property interest in the plaintiffs
employment. See Jenkins v. Weatherholtz, 909 F. 2d 105 (4* Cir. 1990) (as an at-wiU employee,
discharged deputy sheriff has no civil rights action for deprivation of due process because he had
no property right in continued employment under Virginia law). In Jenkins, the Fourth Circuit
stated "[a] local government employee serving 'at the will and pleasure' of the government
employer has no legitimate expectancy of continued employment and thus has no protectable
property interest." Jenkins, 909 F. 2d at 107 (citations omitted); see also City ofVirginia Beach
V. Harris, 259 Va. 220, 232 (2000) (finding no wrongful discharge where the plaintiff was
terminated for obtaining criminal warrants charging a superior office with obstruction of justice
because the plaintiff officer was not a member of the public for whose benefit the statute was
enacted). In this case, there are no facts to support a violation of the Virginia Constitution,
Article 1, § 11 by Defendant Library. The plaintiff does not allege there was an employment
contract for a specific term. Taken as a whole, the Complaint leaves no other conclusion that the
plaintiff served at the will of Defendant Library.

As such, the plaintiff has no action for

wrongful termination based on violation of due process because the plaintiff had no property
right in continued employment with Defendant Library under Virginia law.

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Accordingly, the Complaint fails to state a valid Bowman claim for wrongful discharge in
violation ofVirginia public policy and should be dismissed.
VI.

Punitive Damages

Punitive damages are not recoverable against Defendant Library for the alleged actions of
Defendant Moore. Punitive damages cannot be awarded against an employer for the actions of
an employee unless the employer participated in, ratified, or authorized the wrongful acts of its
employees. Freeman v. Sproles, 204 Va. 353, 358 (1963). The plaintiff does not allege that
Defendant Library participated in any ofthe alleged acts. Moreover, the plaintiff fails to allege
sufficient facts to support a finding that Defendant Library ratified or authorized the alleged
wrongful acts of Defendant Moore. Without facts or elaboration, the plaintiff alleges that by
reinstating Defendant Moore to his job and by terminating the plaintiff, Defendant Library
"adopted, ratified and acquiesced in Defendant Moore's illegal behavior." The Court should not
accept this statement as legally sufficient to state a claim for punitive damages against Defendant
Library. Doe v. Bruton Parish Church, et al, 42 Va. Cir. 467, 472 (1997) (demurrer to punitive
damages claim sustained as court not bound by plaintiffs legal conclusion that the church
ratified the alleged conduct).^
CONCLUSION
The Complaint fails to state a claim upon which relief can be granted against Defendant
Library and should be dismissed as against this defendant in its entirety. First, the Complaint
fails to correctly allege a § 1983 claim against Defendant Library, a local govemment entity.
Nor can the plaintiff fix this defect through amendment of the Complaint based on the facts
alleged. The plaintiff cites no written or formal unconstitutional policy that did or would have
caused his injury. Nor does the plaintiff assert that Defendant Moore's alleged illegal search and
seizure was the result of affn-mative decisions of individual policymaking officials.

Further,

nothing in the Complaint suggests that Defendant Moore's allegedly illegal actions were caused
by persistent and widespread practice such that Defendant Library could be liable under § 1983.
Moreover, nothing in the Complaint even infers that Defendant Library's deliberate indifference
was the moving force behind Defendant Moore's alleged unconstitutional acts.

Rather,

Defendant Moore's conduct was an isolated, one-time, unprecedented incident arising out of a
^ Additionally, the Complaint contains no facts, merely unsupported conclusions and allegations, of willful and
wanton conduct, conscious and/or reckless disregard for the plaintiffs rights, and malice and ill-will and spite;
therefore, such claims are insufficient as a matter of law to support an award for punitive damages.
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personal dispute between the plaintiff and Defendant Moore. As such, there can be no 42 U.S.C.
§ 1983 claim against Defendant Library.
Second, there is no liability on the part of Defendant Library for the state tort claims
alleged by the plaintiff.

Third, the Complaint fails to state any violations of the Virginia

Constitution committed by Defendant Library. Fourth, the plaintiff fails to properly assert a
Bowman public policy exception to the at-will employment doctrine, as the common law action
is not based on a public policy expressly set out in the statute, is not a common law action for
wrongful termination for refusal to engage in criminal acts, and the Complaint does not show
that the plaintiff engaged in protected activity for which he was fired. Finally, as the plaintiff has
failed to state a valid 42 U.S.C. § 1983 claim against Defendant Library, there is no compelling
reasons or circumstances that justify this Court's retention ofthe state law claims alleged.
Wherefore, Defendant Library, by counsel, respectfully requests that based on all of the
reasons set forth in this Memorandum in Support ofthe Motion to Dismiss, and for the reasons to
be argued at the hearing ofthis matter, the Court grant Defendant Moore's Motion to Dismiss
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, dismiss this matter with
prejudice in hs entirety as against it, and for any further relief deemed necessary and proper.
SHENANDOAH COUNTY LIBRARY
By Counsel

LiTTEN i& SiPE L.L.P.

Mehsa u . Michelsen
J. Jay Litten
Virginia State Bar Nos. 4000land 24567
410 Neff Avenue
Harrisonburg, Virgmia 22801-3434
Telephone [phone]
Facsimile [phone]

Counsel for Defendants Hank Zimmerman, Board of Trustees ofthe
Shenandoah County Library, and Shenandoah County Library.

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CERTIFICATE
1 certify that on the 22"^* day of December, 2011, 1 electronically filed the foregoing
Memorandum in Support of Motion to Dismiss with the Clerk of the Court using the CM/ECF
system, which will send notification of such filing to Timothy E. Cupp, Esq., Cupp & Cupp,
P.C,

1951-D Evelyn Byrd Avenue, P.O. Box 589, Harrisonburg, Virginia 22803,

[e-mail], Counsel for Plaintiff; and to Julia B. Judkins, Esq., Bancroft, McGavin,
Horvath,

&

Judkins,

P.C,

3920

University

Drive,

Fairfax,

Vhginia

22030,

[e-mail], Counsel for Defendant James Dallas Moore.

Counsel for Defendants Hank Zimmerman, Board
of Trustees ofthe Shenandoah County Library,
and Shenandoah County Library.

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