Pasco v. Zimmerman et al

Filing 23

Brief / Memorandum in Opposition re 12 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, 13 Brief / Memorandum in Support Of Defendant Board. filed by Robert L. Pasco.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
Harrisonburg Division
ROBERT L. PASCO,
Plaintiff,
v.
HANK ZIMMERMAN, et al.,
Defendant.

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CIVIL ACTION NO. 5:11cv00087-MFU

PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT BOARD OF
TRUSTEES’ MOTIONS TO DISMISS UNDER RULE 12(b)(6)

The plaintiff Robert L. Pasco (“Pasco”), by counsel, and pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, submits his Memorandum in Opposition to Defendant Board of
Trustees’ Motions to Dismiss, and shows the Court as follows:
I.

Introduction and Facts.
The defendant Board of Trustees of the Shenandoah County Library (hereinafter the

“Board”) asserts in its Motion to Dismiss that all of the claims against it should be dismissed.
Pruned to its essence, most of Defendant Board’s arguments stem primarily from the contention that
the Defendant Moore acted for his own private reasons and the Defendant Board is immune. Pasco
opposes the Defendant Board’s Motion because the Defendant Board ignores the import of many of
the facts alleged in Pasco’s Complaint, and because Pasco has stated cognizable claims against the
Defendant Board and the other defendants under the plausibility standard of review. Moreover, the
Court has subject matter jurisdiction of the federal and the supplemental state claims and neither
sovereign immunity, nor the Eleventh Amendment, bars Pasco’s claims.

Pasco served as the Director of the Shenandoah County Library from January 1, 2002 until
he was terminated unlawfully from his job on October 12, 2010. Defendant Hank Zimmerman was
the Chairman of the Library’s Board of Directors. Zimmerman’s actions complained of in the
Complaint were taken in the course and scope of his position with the Defendant Board of Trustees,
with the Board of Trustees’ actual or apparent authority and/or with Board of Trustees’ knowledge
and acquiescence. Dallas Moore was employed by Defendant Board of Trustees as the technology
director of the Shenandoah County Library. Moore’s actions complained of in the Complaint were
taken in the course and scope of his position with the Defendant Board of Trustees. Complaint, ¶¶
5-8. The Defendant Shenandoah County Library is a public entity under the authority of Virginia
Code Ann. § 42.1-33, et seq., as amended. By Virginia statute, funding for the Library is by a
special levy and constitutes a separate fund. Id. Moreover, the Defendant Board is authorized by
Virginia statute to manage and control the operations of the Library, and further is authorized to
receive donations and bequests for the establishment and maintenance of the Library. Complaint ¶¶
9-10. Pasco was the Library Director for almost nine years, substantially increasing services to the
public. Pasco held a legitimate expectation that he would not be terminated from his employment
absent just cause. Id., ¶¶ 12-13.
Moore was a disciplinary problem at the Library in 2010. He had taken an unnatural interest
in another Library employee, Keith Brown, causing Brown to complain of Moore’s attention.
Moore also had performance deficiencies, including tardiness which had become a habit. Id., ¶¶ 1415. On the morning of October 1, 2010, Moore was late to work and Pasco needed information for
a monthly report. Pasco, who was the head personnel officer of the Library (Complaint, ¶ 31),
reprimanded Moore and engaged in other discussions with him in the performance of his duties.

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Id., ¶ 15. A personnel dispute with Moore ensued involving Moore attempting to insinuate himself
into personnel matters involving Brown. Id., ¶ 16.
Moore wanted Pasco fired from Pasco’s Director position, which made Pasco Moore’s
supervisor. Moore assaulted and battered Pasco later on the morning of October 1, 2010 in order to
seize two computer hard-drives from Pasco’s office. Id., ¶¶ 21; 16-20. One of the hard-drives
belonged to Pasco, and the other contained confidential data relating to employees. Id., ¶ 18.
Moore was going to take the computer hard drives to the Shenandoah County Administrator to
accomplish his plan of getting Pasco fired. Id., ¶ 21. He was going to use information he falsely
claimed was on the hard-drives to assist with his plan. Id. A reasonable inference is that Moore
purportedly had such information because of his position as technology director. Moore informed
Defendant Zimmerman of this plan to go to the County Administrator in order to get Pasco fired
using information he claimed was on the hard-drives. Id. Pasco let Moore know that he was
seizing Pasco’s property, and Pasco then attempted to retrieve his property and the Library’s
property from Moore. Id., ¶ 23. Instead of relinquishing the property, Moore threw both harddrives to the ground, shattering them and destroying Pasco’s hard-drive so that the files on it were
useless and irretrievable. Id., 24-27.
Moore also shared with Zimmerman that Moore was going to file a criminal assault and
battery charge against Pasco, but Zimmerman did not share this information with Pasco. Instead,
Zimmerman asked Pasco agree to try to mediate the situation between him and Moore. Pasco
agreed, until he was confronted the next day by a Sheriff’s deputy who advised Pasco of Moore’s
criminal complaint against him based on assault and battery. Id., ¶ 30. Because of Moore’s
behavior, Pasco’s concern that Moore may harm Pasco and others, and Moore’s false statements to
law enforcement, as well as to Zimmerman, Pasco terminated Moore’s employment in accordance

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with his authority as the Library Director. Id., ¶¶ 30-31. Moore filed a grievance with no content
other than to seek reinstatement, but he did not appear on October 7, 2010, the date scheduled, to
present his position and accordingly Pasco denied the grievance as he was authorized to do. Id., ¶¶
32-33. Another version of Moore’s grievance was not shown to Pasco. Id., ¶ 32.
Even before Moore’s scheduled October 7, 2010 grievance hearing, Zimmerman obtained
commitments from other members of the Boart of Trustees to terminate Pasco’s employment,
with full knowledge that Moore had assaulted and battered Pasco and of the illegal seizure and
destruction of Pasco’s and the Library’s property. Id., ¶ 35. Zimmerman’s plan reached fruition
on October 7, 2010 when the Board met at the home of a member and voted to terminate Pasco
from his public employment. Id., ¶ 36. Moore was then reinstated to his job. The Defendants
Zimmerman, Board of Trustees and Shenandoah County Library adopted, ratified and
acquiesced in Defendant Moore’s illegal behavior as the acts of all Defendants. Id., ¶ 37.
The Complaint sets forth other facts relevant to the Motion to Dismiss.
II.

Rule 12(b)(6) Standard
The Federal Rules of Civil Procedure require that a complaint contain “a short and plain

statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2).
That Rule does not require “detailed factual allegations.” See, Ashcroft v. Iqbal, 129 S.Ct. 1937,
1949 (2009). Moreover, there is no heightened pleading requirement for §1983 claims such as
are brought in this Complaint. Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U.S. 163, 166 (1993). In Leatherman Chief Justice Rehnquist, writing
for a unanimous Court, stated that the Fifth Circuit’s heightened-pleading requirement in local
government failure to train cases was “impossible to square” with the notice pleading standard of
Rule 8(a) of the Federal Rules of Civil Procedure.

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The role of a 12(b)(6) motion is to test plausibility when determining whether a
plaintiff has stated a claim for which relief may be granted. Rule 12(b)(6) simply gives a
district judge a tool to screen out implausible cases. To survive a Rule 12(b)(6) motion, a
complaint “need only give the defendant fair notice of what the claim is and the grounds
upon which it rests.” Coleman v. Md. Ct. of Apps., 626 F.3d 187, 190 (4th Cir. 2010).
The plausibility requirement is met where the facts in support of a pleading allow the
Court to reasonably infer that the Defendant is liable for the conduct of which the
plaintiff complains. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). That standard is not
a probability requirement, but merely asks for something more than a mere possibility.
See also, Jacobsen v. Bank of Am., N.A., 2010 U.S. Dist. LEXIS 131760, **1-2 (W.D.
Va. 2010)(Moon, J.). Thus, Rule 12(b)(6) simply calls for enough allegations to raise a
plausible claim and a reasonable expectation that discovery will reveal evidence
supporting the elements of the claim. Speaker v. United States HHS CDC, 623 F.3d
1371, 1380 (11th Cir. 2010).
III.

Pasco Alleged Facts Establishing a Cognizable Claim Against Defendant Board of
Trustees Under Count One for Violation of 42 U.S.C. § 1983
The Supreme Court recognized municipal liability in an action under 42 U.S.C. § 1983 in

Monell v. New York City Dept. of Soc. Serv., 436 U.S. 658 (1978). Accordingly, the Defendant
Board may be sued for violations of the statute. The Board raises no issue over whether the
conduct alleged in the Complaint is of a sufficiently public character to support a claim under the
statute. Rather, Defendant Board argues that the “plaintiff fails to make any allegations in his
Complaint in regards to the existence of the Board of Trustee’s policy, custom or practice;
therefore he fails to plead a viable claim under Monell.” Id. at 5. The Defendant Board’s
argument is without merit.
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Proof of a “policy” or “custom” does not require evidence of numerous similar violations.
Hall v. Marion School Dist. No. 2, 31 F.3d 183, 195 (4th Cir. 1994). “Municipal liability may be
imposed for a single decision by municipal policymakers under appropriate circumstances.”
Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986). See also, Presley v. City of
Charlottesville, 464 F.3d 480 n. 1 (4th Cir. 2006).
The Supreme Court in Pembaur stated:
a government frequently chooses a course of action tailored to a particular
situation and not intended to control decisions in later situations. If the decision
to adopt that particular course of action is properly made by that government's
authorized decisionmakers, it surely represents an act of official government
"policy" as that term is commonly understood.
Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81 (1986) (emphasis added). A decision, then,
by the government's authorized policymakers concerning the status of a particular employee is
generally considered "policy" under § 1983. See, e.g., Hall, 31 F.3d at 195-96. The decision of
the Board of Trustees, with all of the facts of Defendant Moore’s unlawful search, seizure and
taking of Pasco’s property at hand and known to them, and nonetheless acting to reinstate Moore
to his employment and discharge Pasco without just cause (an additional property deprivation
attributable to the Defendant Board), constitutes the “policy” or “policies” required to support
governmental liability here for purposes of Rule 12(b)(6).
The Defendant Board rigidly adheres to the fact that Defendant Moore’s unlawful search,
seizure and taking of Pasco’s property preceded action by the Board under the facts alleged. But
on those facts, the Board’s liability is supported by the ratification and adoption of Moore’s
conduct, and the use of that conduct and Pasco’s response to it against Pasco. As Judge William
Osteen recognized in his opinion upholding a jury verdict in favor of a former employee of

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Halifax County under 42 U.S.C. § 1983 in Scearce v. Halifx County, 1995 U.S. Dist. LEXIS
9216 *23 n. 10 (W.D. Va. 1995),
Where a subordinate’s decision is subject to review by the governmental entity’s
authorized policymakers, and the authorized policymakers approve the decision
and the basis for it, their ratification would be chargeable to the governmental
entity because their decision is final. (citing City of St. Louis v. Praprotnick, 485
U.S. 112, 126 (1988).

Defendant Moore’s conduct, including his insertion into the personnel operations at the
Library through his unlawful search, seizure and taking of Pasco’s property, as well as his
reports to Defendant Zimmerman of the reason for the illegal search and seizure, were reviewed
and considered directly and almost immediately by the Defendants Zimmerman, Board and the
Library. The Defendants approved of Defendant Moore’s conduct, knowing of its illegality.
Complaint, ¶¶ 35-37. They adopted it as their own through their actions. This constitutes
ratification for purposes of governmental liability. Moreover, the Board directly participated in
the denial of Pasco’s rights to continued employment based upon Pasco standing up for his rights
to protect his property and the Board thereby inserted itself directly in intentional, deliberate and
calculated conduct constituting a taking of his property. The Board knew of the deliberate
conduct by Defendant Moore, and engaged in its own deliberate conduct in ratification of
Moore’s conduct and the deliberate termination of Pasco’s employment. Accordingly, the
Defendant Board’s Motion to Dismiss should be denied.
IV.

The Defendant Board is not Entitled to Sovereign Immunity or Eleventh
Amendment Immunity
The Defendant Board claims that it is immune from liability for Counts Two, Three and

Four of the Complaint, which allege intentional state tort claims for conversion, assault and
battery and violation of the Virginia Computer Crimes Act, Va. Code Ann. §18.2-152.12. The

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Defendant Board’s reliance on Hinchey v. Ogden, 226 Va. 234 (1983), Erickson v. Anderson,
195 Va. 655, 657 (1954), Hoggard v. City of Richmond, 172 Va. 145 (1939) and Carter v. City of
Danville, 164 F.3d 215 (4th Cir. 1999) is misplaced. Sovereign immunity has no application to
any of the claims in this case. The Defendant Board cites to Carter v. City of Danville to support
its contention that tort claims of assault, battery and false imprisonment are barred by sovereign
immunity. Def. Memo. at 7-8. However, the Carter Court noted in its decision that although the
plaintiff there argued that the City was not immune from liability for intentional torts of its
employees, the plaintiff had cited no relevant authority for that proposition.
No precedential value can be taken from Carter v. City of Danville, 164 F.3d 215 (4th Cir.
1999) because only a year after it was decided, another panel of the Fourth Circuit decided
Shvern v. Derosiers, 2000 U.S. App. LEXIS 29688 (4th Cir. 2000). The Court, in a per curiam
opinion of a panel consisting of Judges Wilkinson, Niemeyer and Luttig, considered the same
argument made by the defendants in the Carter case concerning sovereign immunity. The Court
stated:
Virginia case law is clear on this point: state employees are not entitled to the
protection of sovereign immunity when accused of an intentional tort. See Tomlin
v. McKenzie, 251 Va. 478, 468 S.E.2d 882, 884 (Va. 1996); Fox v. Deese, 234 Va.
412, 362 S.E.2d 699, 706 (Va. 1987); Elder v. Holland, 208 Va. 15, 155 S.E.2d
369, 372-73 (Va. 1967). See also Coppage v. Mann, 906 F. Supp. 1025 (E.D. Va.
1995).
Id. at *2-3. See also, Lentz v. Morris, 236 Va. 78, 372 S.E.2d 608, 610 (sovereign immunity
does not protect a county from liability for “gross negligence or intentional misconduct.”)
The Defendant Board also makes reference to Reynolds v. City of Richmond, 574 F.Supp.
90, 91 (E.D. Va. 1983) for the proposition that “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 suits in federal court.” Def. Memo. at 8. The Eleventh Amendment has no application to
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this case. While states and their agencies may not be sued in federal court directly in their own
names for damages by virtue of the Eleventh Amendment, suits against their political
subdivisions, such as counties, are not so barred. Moor v. Alameda County, 411 U.S. 693, 71721 (1973); Lincoln County v. Luning, 133 U.S. 529, 530 (1890). Reynolds v. Sheriff, City of
Richmond, 574 F. Supp. 90 (E.D. Va. 1983) does not support an argument that the Eleventh
Amendment is implicated here. The quote attributed to that case by Defendant Board was in the
context of the defendant Virginia Department of Corrections’ motion to dismiss given its status
as an agency of the state. The same protection is not offered to the Defendants in the case at bar.
Accordingly, there is no immunity applicable to the Defendant Board.

V.

Pasco’s Response to Defendant Board’s Motion to Dismiss Counts II-IV for Lack of
Respondeat Superior Liability
The Defendant Board claims that it is not responsible for the Virginia tort claims asserted

in Counts II-IV under the doctrine of respondeat superior for the conduct of the Defendant
Moore. It argues that “the allegations do not state that Defendant Moore’s actions were
committed within the scope of his employment, though they were committed during the course
of his employment.” Defendant’s Memorandum at 8-9. Defendant Board supports its argument
with a reference to ¶ 54 of the Complaint, a paragraph dealing specifically with the provisions of
Count IV, Assault and Battery.
The Defendant Moore ignores the allegations of ¶ 8 of the Complaint, in which Pasco
alleges:
Except as otherwise alleged herein, Moore’s actions complained of herein were
taken during the course and scope of his position with the Defendant Board of
Trustees.

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Additionally, the allegations make it clear that the Defendant Moore was acting within the scope
of his employment, notwithstanding his initial motivation. He intended to seize the hard-drives
for the County and take them to the County Administrator. Complaint, ¶ 21. Moreover, the
Defendant Moore’s acts were made known to the Defendant Board, and it adopted and ratified
them as discussed above by reinstating him and terminating Pasco after Pasco exercised his
authority as Director to terminate Moore’s employment for Moore’s illegal acts. Accordingly,
Pasco has stated a claim against the Defendant Board under his Virginia state law tort claims.
Just as important, the Court is not considering a Rule 50 or Rule 56 motion in which it
reviews all of the evidence that has been elicited at trial and developed in discovery. We are
here merely on a 12(b)(6) motion. Thus, the Defendant Board’s Rule12(b)(6) motion here goes
simply to whether the Complaint states a plausible claim of respondeat superior liability. The
Board is necessarily arguing that based on the Complaint, the Court already can rule as a matter
of law that no jury could hold the Defendant Board vicariously liable pursuant to respondeat
superior for what happened to Pasco.
Gina Chin & Assocs. v. First Union Bank, 260 Va. 533, 542 (2000), Majorana v. Crown
Cent. Petroleum Corp., 260 Va. 521, 526-27 (2000), and Plummer v. Center Psychiatrists, Ltd.,
252 Va. 233, 237, 476 S.E.2d 172 (1996) all provide otherwise. Respondeat superior liability is
more than possible; it is likely. But all that must be said at this stage is that the Defendant Board
cannot show that it is implausible. The 12(b)(6) motion, therefore, should be overruled and the
jury permitted to decide the case.
“When an employer-employee relationship has been established, the burden is on the
[employer] to prove that the [employee] was not acting within the scope of his employment
when he committed the act complained of, and . . . if the evidence leaves the question in doubt it
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becomes an issue to be determined by the jury.” Kensington Assocs. v. West, 234 Va. 430, 43233 (1987). Thus, in Majorana, the Court explained:
When the plaintiff presents evidence sufficient to show the existence of an
employer-employee relationship, she has established a prima facie case triggering
a presumption of liability. The burden of production then shifts to the employer,
who may rebut that presumption by proving that the employee had departed from
the scope of the employment relationship at the time the injurious act was
committed. If the evidence leaves in doubt the question whether the employee
acted within the scope of the employment, the issue is to be decided by the jury
and not as a matter of law by the trial court.
260 Va. at 526-27.
In Majorana, the plaintiff contended that a gas station attendant had lunged at her and
grabbed her breasts. Id. at 524. The Supreme Court held that once the plaintiff produced
evidence that the attendant was an employee of the Defendant corporation, the lower court erred
when it ruled as a matter of law that the conduct was outside the attendant’s scope of
employment. Id. at 527. The Court held “at this stage of the proceedings, there simply are not
sufficient facts which would permit us to hold, as a matter of law, that the defendant has met its
burden of showing that its employee was not acting within the scope of his employment.” Id.
(citations omitted) (emphasis in original). Trial courts routinely apply this rule. See., e.g., Mann
v. Heckler & Koch Def., Inc., 2008 U.S. Dist. LEXIS 79126 (E.D.Va. 2008)(rejecting motion to
dismiss and holding, “The Complaint alleged an employment relationship . . . . In Virginia, once
an employment relationship is established, the burden is on the employer to prove that the
employee was not acting within the scope of his employment when he committed the act.
Plaintiff had no burden to allege any additional facts.”)(citing Gina Chin).
Here, on a 12(b)(6) motion, the employer-employee relationship has been pled and
conclusively assumed, and of course no one denies it in fact. Per Kensington’s burden-shifting
rule, which has retained its vigor through Plummer to Majorana and Gina Chin to Mann to
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today, the burden thus is on the Defendant Board to come forward with evidence proving beyond
doubt that Defendant Moore was not acting within the scope of his employment when he injured
Pasco. This they have not done yet. The Defendant Board’s 12(b)(6) motion plainly is not the
correct vehicle for such a factual argument now. See Plummer, 252 Va. at 237 (“Furthermore, at
this stage of the proceedings, there simply are not sufficient facts which would permit us to hold,
as a matter of law, that the defendant has met its burden of showing that its employee was not
acting within the scope of his employment.”)
Effectively, then, the Defendant Board’s motion takes old law and ignores newer cases
from the Virginia Supreme Court – Plummer, Gina Chin and Majorana – that provide the current
standard of respondeat superior liability, removing historic restraints on such vicarious liability
for intentional torts. Thus, in 2000, the Supreme Court clarified that respondeat superior applies
to employers even when the employee is clearly not acting in the employer’s interest. See Gina
Chin, 260 Va. at 542.
In fact, even before Gina Chin was decided in 2000, in 1996 the argument Defendant
Board is trying to make had been rejected by the Supreme Court 1996 in Plummer. In Plummer,
a psychiatrist was alleged to have committed acts of assault and battery upon a patient by having
sexual intercourse with her during therapy sessions. The Supreme Court of Virginia held that a
jury could conclude that the psychiatrist was acting within the scope of his employment. Id. at
237. Citing Commercial Business Systems v. Bell South, 249 Va. 39, 45, 453 S.E.2d 261 (1995),
the Court stated, “The courts . . . have long since departed from the rule of nonliability of an
employer for willful or malicious acts of his employee.” Id. Accordingly, the Supreme Court
overruled the ruling of the trial court that an assault by the physician was outside of the scope of
the employment of the physician.

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Under this standard, Virginia courts have had no difficulty in finding respondeat superior
liability even when the employee was acting contrary to not only the interests, but also the
express wishes of his employer. When all of Pasco’s factual assertions and inferences are
accepted, the Court should reject the Defendant Board’s invitation to rule as a matter of law on a
12(b)(6) motion that the Defendant Board cannot be held vicariously liable for the state common
law and statutory tort claims pursuant to respondeat superior.
VI.

Pasco’s Allegations Set forth a Valid Claim for Violation of the Virginia
Constitution
Count Five states a damages claim against Defendants for their violations of Plaintiffs’

state constitutional rights. Defendant Board asserts that it did not violate any article or provision
of the Virginia Constitution and contends that there are no allegations relating to its denial of
Pasco’s constitutional rights. Defendant Board does not contest, however, that the Virginia
Constitution’s Bill of Rights is a statement of Virginia law, individual rights enjoyed by
Virginians or Virginia public policy.
In this Count, Plaintiff seeks monetary damages against the Defendant for the deprivation
of property, which includes the discharge from employment directly by the Defendant Board, as
well as the seizure and destruction of his property, both of which were in violation of the
provisions of Article I, § 11 of the Virginia Constitution’s Bill of Rights. The facts alleged in the
Complaint support the common law’s application in this context in two regards: common law
tort (see the discussion relating to Count Six, the public policy wrongful discharge as applied to
the rights underlying the Virginia Constitution) and Virginia common law supporting claims
under state constitutional provisions.
The common law claim asserted by Plaintiff, lying in a violation of an individual’s state
constitutional rights, is not dissimilar from the very right recognized by the U.S. Supreme Court
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in Bivens v. Six Unnamed Agents, 403 U.S. 388 (1971). There, the U.S. Supreme Court held that
common law provided a damages remedy for the violation of an individuals’ federal
constitutional rights by federal agents – although the language of the federal constitutional rights
themselves do not expressly provide a monetary damages cause of action:
‘The very essence of civil liberty certainly consists in the right of
every individual to claim the protection of the laws, whenever he
receives an injury.’ Marbury v. Madison, I Cranch 137, 163 (1803).
Having concluded that petitioner’s complaint states a cause of
action under the Fourth Amendment, supra, at 390-395, we hold that
petitioner is entitled to recover money damages for any injury he
suffered as a result of the (federal) agents’ violation of the
Amendment.
403 U.S. at 396-7.
The Virginia Constitution is an affirmative grant of rights to individuals. The Virginia
Constitution’s Bill of Rights is a “Declaration of Rights made by the good people of Virginia in
the exercise of their sovereign powers, which rights do pertain to them and their posterity, as the
basis and foundation of government.” Introductory statement to Virginia Constitution Bill of
Rights. Va. Const. Article I. Pasco’s claim relies on the Virginia Constitution’s Bill of Rights,
Article I, § 11, which states in pertinent part:
That no person shall be deprived of his life, liberty, or property
without due process of law; that the General Assembly shall not
pass any law impairing the obligation of contracts, nor any law
whereby private property shall be taken or damaged for public
uses, without just compensation, the term “public uses” to be
defined by the General Assembly . . .

Independent of the common law rights established in the Bowman line of public policy
common tort law, which is its own “executing” mechanism in the wrongful discharge context,
Virginia courts recognize a private right of action under the Virginia Constitution where the
constitutional provision relied upon is “self executing.” See Robb v. Shockoe Slip Found, 228 Va.
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678, 324 S.E.2d 674 (1985). In Robb, the Supreme Court of Virginia stated that “constitutional
provisions in bills of rights and those merely declaratory of common law are usually considered
self-executing.” Id; accord Gray v. Virginia Sec’y of Transp., 276 Va. 93, 105, 662 S.E.2d 66, 72
(2008) (“Article I, Section 5 is contained in the Bill of Rights, and such constitutional provisions
are generally considered to be self-executing.”) See Kitchen v. City of Newport News, 275 Va.
378, 657 S.E.2d 132 (2008) (finding a portion of Article I, § 11 to be self-executing). Here, the
constitutional provisions that Pasco relies on are found in the Bill of Rights and as such should
“generally be considered self-executing.” Accordingly, the Virginia Constitution provides Pasco
with a valid cause of action.
In Robb, the Court also held that “[p]rovisions of a Constitution of a negative character
are generally, if not universally, construed to be self-executing.” Robb, 228 Va. at 681-682, 324
S.E.2d at 676 (quoting Robertson v. Staunton, 104 Va. 73, 77, 51 S.E. 178, 179 (1905). Here, the
provision relied upon by Plaintiffs is of a negative character and prohibits certain conduct.
Article I, § 11 expressly states that “no person shall be deprived of his life, liberty, or property
without due process of the law.” Va. Const. art. I, § 11. Because the provision relied on by Pasco
is contained in the Bill of Rights and is of a negative character it should be “generally, if not
universally, construed to be self-executing.” Robertson, 104 Va. at 77, 51 S.E. at 179.
Finally, the Court has also quoted with approval an alternative test to determine whether
or not a constitutional provision is self-executing:
A constitutional provision may be said to be self-executing if it
supplies a sufficient rule by means of which the right given may be
employed and protected, or the duty imposed may be enforced; and
it is not self-executing when it merely indicated principles…

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Robb, 228 Va. at 682, 324 S.E.2d at 676 (quoting Newport News v. Woodward, 104 Va. 58, 6162, 51 S.E. 193, 194 (1905). Here, the constitutional provision relied on by Plaintiff is not
merely a statement of “policy” but instead contains a clear directive.
Since the Defendant Board was directly involved in the discharge of Pasco and ratified
and is responsible for the seizure and destruction of Pasco’s property in violation of provisions of
the Virginia Constitution which are self-executing, the Defendant Board’s Motion to Dismiss
should be denied.
VII.

Pasco Sets forth a Cognizable Claim for Tortious Wrongful Discharge
Under Bowman and Post-Bowman Case Law
In its Memorandum (at p. 12), Defendant Board relies on Rowan v. Tractor Supply Co.,

263 Va. 209, 559 S.E .2d 709 (2002), in which the Court declined to extend the wrongful
discharge claim to an employee asserting that she had a right to be free from intimidation with
regard to pressing criminal charges in relation to an alleged assault on her (relying on the public
policy underlying the obstruction of justice statute, Va. Code Ann. § 18.2-460). 1 Defendant
Board inappropriately seeks to extend the ruling in Rowan to this claim, and erroneously
contends that none of the statutes on which Pasco relies creates a right on his behalf. Def. Memo
at 12. The Defendant’s argument is without merit.
In Bowman v. State Bank of Keysville, 229 Va. 534, 331 S.E. 2d 797 (1985), the Virginia
Supreme Court established that a common law claim for wrongful discharge exists for a violation
of the public policy underlying expressions of public policy such as may be found in statute. Id.,
229 Va. at 539-40. Such claim does not address a violation of the statute itself, and is not an

1

The Court accepted Rowan on a limited question certified from the United States District Court
for the Western District of Virginia and expressly noted that it declined to rule on the plaintiff’s
other asserted statutory bases for the claim, including statutes at issue here that recognize rights
of crime victims and persons involved in criminal prosecution.
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implied right of action arising out of the statutory language, but rather is a claim that persons
and/or entities tortiously terminated one’s employment in violation of the policies underlying the
statutory expression of public policy. See Bradick v. Grumman Data Systems Corp., 254 Va.
156, 160-61, 486 S.E.2d 545, 547 (1997); Mitchem v. Counts, 259 Va. 179, 188-89, 523 S.E.2d
246, 251 (2000) (policy need not be expressly stated in the language of the statute, as the claim is
not one for violation of the statute).
The Virginia Supreme Court has recognized three types of public policy wrongful
discharge claims: (1) a discharge of an employee for exercising a statutorily created right; (2) a
discharge for a reason contrary to a public policy explicitly expressed by statute; and (3) a
discharge resulting from an employee’s refusal to engage in an illegal act. Bowman (termination
for exercising right to vote as shareholder pursuant to the policy underlying Va. Code § 13.1-32)
is an example of a type (1) claim; Bailey v. Scott-Gallaher, Inc., 253 Va. 121, 480 S.E.2d 502
(1997) (discharge in violation of gender-based protections of former Va. Code § 2.1-175) is an
example of a type (2) claim; and Mitchem v. Counts (termination for refusal to engage in
criminal activity, refusing to engage in a sexual relationship, in violation of policies underlying
Va. Code §§ 18.2-34, 345) is an example of a type (3) claim
i.

Application of the Public Policy Wrongful Discharge Tort

The Court defined the parameters of the tort when it considered two claims by employees
asserting public policies underlying the Virginia Human Rights Act, Virginia Code § 2.1-714 et
seq., the companion cases of Lockhart v .Commonwealth Educ. Sys. Corp (race) and Wright v.
Donelly & Co., et al, 247 Va. 98, 439 S.E.2d 328 (1994). In Lockhart/Wright, the Court stated:
The discharges of Ms. Lockhart and Ms. Wright are allegedly
tortious not because they have a vested right to employment,
but because their employers misused the freedom to
terminate the services of at-will employees by purportedly
17

discriminating against their employees on the basis of race and
gender.
247 Va. at 106, 439 S.E.2d at 332. (Emphasis added). 2
Again demonstrating the breadth of the public policy tort, two opinions following the
Lockhart decision held that the tort was supported in circumstances alleging discharges based on
the policies underlying other Human Rights Act provisions: the Bailey case, 253 Va. 121, 480
S.E.2d 502 (gender) and Bradick, 254 Va. 156, 486 S.E.2d 545 (disability). 3 In Mitchem v.
Counts, the Court rejected the argument that a statute fails to support a public policy discharge
claim because it does not expressly state such public policy and ruled that “[l]aws that do not
expressly state a public policy but which were enacted to protect the property rights, personal
freedoms, health, safety, or welfare of the general public, may support a wrongful discharge
claim if they further an underlying, established public policy that is violated by the discharge
from employment.” 259 Va. at 189, 523 S.E.2d at 251 (citations omitted).
ii.

Pasco’s Public Policy Wrongful Discharge Claims

Pasco alleges three public policy grounds for his wrongful termination tort claims,
including the public policies underlying the following:

2

The Defendant’s reliance on Jenkins v. Weatherholtz, 909 F.2d 105 (4th Cir. 1990) for the
proposition that the Virginia Constitution does not create a property interest in continued
employment misses the mark. Jenkins involved a claim by a sheriff’s deputy for an alleged due
process violation under federal law. However, under Virginia law, since a sheriff’s deputy
serves at the will of the sheriff, there was no protectable property interest for due process
purposes. The at-will status of an employee does not adversely affect his rights under Bowman
and its progeny. Moreover, Pasco, a long time employee of the Library, sufficiently alleges his
legitimate expectation that he would not be terminated from his employment absent just cause,
and thus sets forth his right to continued employment. Complaint, ¶ 13.
3
In 1995, the General Assembly amended the Virginia Human Rights Act to legislatively
abrogate the Act’s common law public policy basis for public policy wrongful discharge claims.
Va. Code § 2.1-725(D); Doss v. Jamco, Inc., 254 Va. 362, 492 S.E.2d 441 (1997).
18

•

•

Virginia Code § 19.2-11.01 – 19.2-11.4 et seq., the Crime Victim and
Witness Rights Act; and

•

iii.

Virginia Code § 18.2-152.1 – 18.2-152.15, prevention and remedy for
computer crimes, including larceny of computer data, computer fraud and
computer trespass;

Article I, Section 11 of the Virginia Constitution, protecting fundamental
rights to possess and enjoy property free from of arbitrary deprivations
and takings without due process.

Plaintiff has stated a cognizable public policy wrongful discharge claim
underlying Va. Code §§ 19.2-11.01-19.2-11.4 and Virginia Code §§ 18.2-152.1
– 18.2-152.15

The Virginia Computer Crimes Act and the Crime Victim and Witness Rights Act
provide specific and substantive rights to which Pasco, as a crime victim, was entitled. He was
within the class of individuals protected by such Acts, and the termination of his employment
undermined the policies underlying these statutes. Pasco had statutory rights to protect his
computer hard-drive and computer data from unlawful seizure and destruction, and to report
crimes against himself and assist in the prosecution of the Defendant Moore for his unlawful
behavior. Complaint, ¶ 72. He exercised his rights when he reported the conduct to Defendant
Zimmerman and the deputy sheriff and opposed the illegal conduct of Moore and the other
Defendants. Id. at 73. Pasco was fired because he exercised his statutory rights in violation of
the public policies underlying the statutes, just as the plaintiffs in Bowman were terminated for
the manner in which they had voted their shares in their bank employer. Pasco adequately
alleged a Type 1 and Type 2 claim identified in Rowan.
iv.

Plaintiff has stated a cognizable public policy discharge claim underlying
Article I, Section 11 of the Virginia Constitution

The Virginia Constitution is a clear pronouncement of Virginia public policy, sufficient
to serve as a basis for a common law public policy wrongful discharge claim. In Bowman, the

19

Court identified several cases from other jurisdictions construing the common law tort. These
included Supreme Court decisions from Connecticut, Oregon, Texas and West Virginia, as
among the “at least 20 states” recognizing the common law public policy exception to at-will
employment. See 229 Va. at 539, 331 S.E.2d at 801.
The common law does recognize state constitutional policy as an appropriate anchor for
the public policy wrongful discharge tort. The Ohio Supreme Court held that the common law
public policy wrongful discharge tort could encompass public policy not only in statutes, but also
in the Ohio and United States Constitutions, administrative rules and regulations and the
common law. Painter v. Graley, 639 N.E.2d 51, 56 (Ohio 1994).
Likewise, the West Virginia Supreme Court stated:
We make it clear today that, an at-will or otherwise employed
private sector employee may sustain, on proper proof, a cause of
action based upon a violation of public policy emanating from a
specific provision of the state constitution. Determining whether a
state constitutional provision may be applied to a private sector
employee must be done on a case-by-case basis, i.e. through
selective incorporation and application.
Tiernan v. Charleston Area Med. Ctr., Inc., 506 S.E.2d 578 (W. Va.1998).
The proper inquiry here is (1) whether Article I, Section 11 is a statement of Virginia
public policy and (2) whether Pasco has alleged that his termination violated that public policy.
Inquiry (1), the public policy basis for the claim, is a decision for the Court. Inquiry (2), whether
the termination alleged violated the public policy asserted, is a question for the fact finder.
In the Virginia Supreme Court’s Lockhart/Wright decisions construing the tort
considered, and recognized, claims for wrongful discharges based upon race and gender in
violation of the public policy underlying the Virginia Human Rights Act, Va. Code § 2.1-714, et
seq. In Lockhart the Virginia Supreme Court stated:

20

We hold that Ms. Lockhart and Ms. Wright pled viable causes of
action. In Bowman, we recognized the plaintiffs’ rights to bring
actions for wrongful discharge based upon violations of Virginia’s
public policy that a stockholder should be permitted to exercise the
right to vote stock free of duress and intimidation from corporate
management. Here, however, we are concerned with rights of
even greater importance, the personal freedom to pursue
employment free of discrimination based on race or gender.
Indeed, there are few, if any, greater restrictions on personal
freedoms that an employee can suffer than to be terminated
because of discrimination based upon race or gender.
247 Va. at 104, 439 S.E.2d 331. (Emphasis added.)
The public policy recognized was within the “narrow exception” recognized in Bowman,
not because the plaintiffs held a vested right to employment, but, because “their employers
misused the freedom to terminate the services of at-will employees on the basis of race and
gender.” Lockhart, 247 Va. at 106; 439 S.E.2d at 332. Once the plaintiff identifies a public
policy, the common law allows for broad public policy protection within the exception, as the
Court recognized concerning race or gender based terminations. This expansion of the public
policy tort was ultimately limited, not by Bowman’s “narrow exception to employment-at-will,”
but only by the later legislative abrogation of one particular application of the common law: use
of the Virginia Human Rights Act provisions to serve as a public policy basis in tort.
The Court continues to explain, however, that the vitality of the common law is limited
only by the General Assembly’s authority to specifically abrogate or alter provisions of the
common law. The Court has stated:
The basis for the General Assembly’s authority is found in Va.
Code § 1-10, which provides as follows:
The common law of England, insofar as it is not repugnant
to the principles of the Bill of Rights and Constitution of
this Commonwealth, shall continue in full force within the
same, and be the rule of decision, except as altered by the
General Assembly.
21

Doss v. Jamco, Inc., 254 Va. 362, 492 S.E.2d 441 (1997). (Emphasis in original.)
Thus, the Supreme Court of Virginia has recognized that the common law public policy
wrongful discharge tort had broadly encompassed claims for gender or race based terminations,
as alleged in Lockhart (race), Wright (gender), and as later reaffirmed in Bailey (gender) and
Bradick (disability). This application of the common law claim was only later limited by the
specific act of the Virginia legislature when it statutorily abrogated the common law as applied
to the VHRA and civil rights discrimination based wrongful discharge claims.
State constitutional pronouncements of Article I, Section 11 are statements of Virginia
public policy which support a Bowman public policy wrongful discharge claim for, as the Court
stated in Doss, the common law continues in full force and effect so long as it is consistent and
not repugnant to the principles of the Virginia Constitution.
The source of all governmental power is the people. The Virginia Constitution recognizes
this and confers rights on its citizens. Preamble to Virginia Constitution. Virginia’s citizens then
granted the state government limited rights to govern, under a tripartite sharing of conferred
authority shared by the legislative, judicial and executive branches. This is the source of the
legislature’s right to enact laws. The English common law which predated our state constitution
continues in effect, except as specifically limited by the legislature. While Virginia statutes may
constitute expressions of Virginia public policy, they do not do so to the exclusion of the
Virginia Constitution’s Article I pronouncements – and no ruling of the Virginia Supreme Court
construing this cause of action so limits the tort. There having been no abrogation of the
common law by the General Assembly in this context, or exclusion of the Virginia Constitution’s
pronouncements of public policy from common law applications, Pasco has stated a cognizable
claim for the common law wrongful discharge tort.
22

Pasco alleges in this Count that his discharge violated the public policy underlying
Article I constitutional provisions guaranteeing the rights not to be deprived of his property
without due process of law, or having his property taken without just compensation. His efforts
to protect his property from governmental seizure, and then seeking to protect his constitutional
rights resulted in the termination of his employment, further depriving him of his property. The
Defendants are not at liberty to erode any individual’s constitutionally protected rights. Indeed,
any erosion of constitutional protections by governmental actors is repugnant to our
constitutional structure. Defendant’s discharge of Pasco in violation of the public policy
underlying Article 1, §11 protections states a proper public policy wrongful discharge claim.
Through Pasco’s discharge, the Defendants have deprived Pasco of wages, protectable
property, without due process of the law or compensation (Article 1, § 11), and the policy
underlying such constitutional protections is contravened by Pasco’s discharge.
Pasco is an intended beneficiary of the protection of the Article I protection for, if a
public entity is allowed to render the public policy underlying the right meaningless, the public
policies underlying these provisions are jeopardized. In Bowman, the Supreme Court of Virginia
cited cases from other jurisdictions as illustrative of the tort. See 229 Va. at 539-40, 331 S.E.2d
at 800-01. In one of the cases cited by the Court in Bowman, Harless v. First National Bank in
Fairmont, 246 S.E.2d 270 (W. Va. 1978), the West Virginia Supreme Court considered whether
a bank employee allegedly fired in retaliation for his efforts to require his employer to comply
with consumer credit protection laws was within the intended class of beneficiaries.

23

The West Virginia Supreme Court held:
We have no hesitation in stating that the Legislature intended to
establish a clear and unequivocal public policy that consumers of
credit covered by the Act were to be given protection. Such
manifest public policy should not be frustrated by a holding that an
employee of a lending institution covered by the Act, who seeks to
ensure that compliance is being made with the Act, can be
discharged without being furnished a cause of action for such
discharge.
246 S.E.2d at 276.
Because Pasco relies on clear statements of the Commonwealth’s public policy, the
Virginia Constitution provides the public policy basis for the tort, and this claim is not the
“generalized cause of action for ‘retaliatory discharge’” which the Court rejected in Miller v.
SEVAMP, 234 Va. at 468, 362 S.E.2d at 918. Defendant’s Motion to dismiss, then, should be
denied.
VIII. Punitive Damages
At this point in the proceedings, Pasco has not asserted a claim for punitive damages
against Defendant Board.
CONCLUSION
Based on the foregoing, and for the reasons to be argued at the hearing, the Plaintiff
Pasco respectfully requests that the court deny the Defendant Board of Trustees’ Motion to
Dismiss in its entirety.
ROBERT L. PASCO
By: s/Timothy E. Cupp
Timothy E. Cupp (VSB #23017)
Cupp & Cupp, P.C.
1951 Evelyn Byrd Avenue, Suite D
Harrisonburg, Virginia 22801
[e-mail]
[phone]
[phone] (facsimile)
Counsel for Plaintiff
24

CERTIFICATE
I hereby certify that on January 20, 2012, I electronically filed the foregoing Plaintiff’s
Memorandum in Opposition to Defendant Board of Trustees’ Motions to Dismiss with the Clerk
of the Court using the CM/ECF system, which will send notification of such filing to the
following counsel for Defendants:
Julia B. Judkins (VSB No. 22597)
[e-mail]
Bancroft, McGavin, Horvath & Judkins, PC
3920 University Drive
Fairfax, Virginia 22030
[phone]
[phone] (fax)
Counsel for Defendant Moore
Melisa G. Michelsen (VSB No. 40001)
J. Jay Litten (VSB No. 24567)
Litten & Sipe, LLP
410 Neff Avenue
Harrisonburg, Virginia 22801
[phone]
[phone] (fax)
Counsel for Defendants Zimmerman, Board of Trustees and Library

s/Timothy E. Cupp

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