In re Terry, Bankruptcy No. 80-02342.

• Decision Date: 30 December 1980
• Docket Number: Bankruptcy No. 80-02342.
• Citation: 7 BR 880
• Parties: In re Roderick Keith TERRY, Cynthia Diane Terry, Debtors. Cynthia Diane TERRY, Plaintiff, v. GORDON'S JEWELRY COMPANY OF VIRGINIA, INC., Defendant.
• Court: U.S. Bankruptcy Court — Eastern District of Virginia

7 B.R. 880 (1980)

In re Roderick Keith TERRY, Cynthia Diane Terry, Debtors.

Cynthia Diane TERRY, Plaintiff, v. GORDON'S JEWELRY COMPANY OF VIRGINIA, INC., Defendant.

Bankruptcy No. 80-02342.

United States Bankruptcy Court, E.D. Virginia.

December 30, 1980.

Richard W. Hudgins, of Hudgins & Neal, Newport News, Va., attorney for the debtor.

Stephen H. Pitler, of Joseph Smith, Ltd., Hampton, Va., attorney for Gordon's Jewelry Co. of Virginia, Inc.

MEMORANDUM OPINION

HAL J. BONNEY, Jr., Bankruptcy Judge.

Cynthia Diane Terry hereinafter "the debtor" filed her Chapter 13 bankruptcy petition on July 21, 1980, and an order for relief was entered by operation of law. At the time the debtor obtained such relief, she was employed by Gordon's Jewelry Company of Virginia, Inc. hereinafter "the employer" as an assistant manager at one of its Hampton, Virginia, stores.

At the time of filing her bankruptcy petition she was indebted to her employer for certain jewelry she had purchased and payments were routinely deducted from her wages. Additionally, as a part of her duly executed employment agreement, it was stipulated and agreed that upon termination of employment any balance on the account "may be deducted from my final salary payment."

The debtor's Chapter 13 plan provided for payments to her employer-creditor outside of the plan as a secured creditor; nevertheless, the debtor's employment was terminated on August 15th and wages accrued were credited to her account.

The debtor brings suit seeking:

1-restoration of her employment,

2-payment of back wages,

3-imposition of the sanctions of section 40.1-29, Code of Virginia as amended.

4-imposition of the sanctions of 11 U.S.C. § 362, and

5-damages for the alleged wrongs of the employer.

We go immediately to the root issue, the termination of the employment. The courts of bankruptcy generally take a dim view of an employer firing an employee simply because he or she has filed a bankruptcy petition and the jurisdiction to enjoin this is widely accepted. In re Sparks, 306 F.Supp. 676 (N.D.Ala.1969); In re Jackson, 424 F.2d 1220 (7th Cir. 1970); In re Crutcher, No. 33,802 (E.D. of Tenn.1971). See Matter of Harvey L. Jackson, 290 F.Supp. 872 (S.D.Ill. 1968); Continental Bank v. Chicago Rock Island & Pacific Railway Co., 294 U.S. 648, 55 S.Ct. 595, 79 L.Ed. 1110 (1935); Consumer Credit Protection Act of 1968, Public Law 90-321, § 303(a) and (b).

But this is not a blanket rule¹ and certainly an employee can be dismissed for cause independent of an employer's chagrin at receiving a bankruptcy notice on one of its employees. Associated Press v. National Labor Relations Board, 301 U.S. 103, 57 S.Ct. 650, 81 L.Ed. 953 (1937); Coppage v. Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441 (1915).

The debtor here was indeed dismissed for cause. The fact that the bankruptcy of which the employer had notice may indeed have triggered the firing is not overriding and should not be used to forestall a discharge that was otherwise due. She was discharged, justifiably, for (1) poor sales, (2) use of the employer's time for personal matters and (3) laziness.

A study of the sales record in evidence for May to August clearly demonstrates that her sales were considerably poorer than the sales of others even those less experienced than she. There were numerous occasions when superiors spoke to her in "talk to sessions" about personal telephone calls on the job. For instance, Allen R. Riberby, the store manager, testified he had observed calls to her from relatives, calls lasting fifteen minutes "quite a number of times," and she had admitted the problem of personal calls in a July 1980 "talk to session." As assistant manager, hers was the duty to open the store in the morning by 9:30, yet almost routinely it was fifteen to twenty minutes late opening because she was in Don's eating. Her excuse that all of the other employees did the same thing and then rushed to work tardy does not justify her actions. Truly, a good example would have been helpful, but at the very least she owed it to her employer to open the store on time.

The dismissal was entirely justified.

It was in her favor that her employer had grounds for dismissal but had not previously exercised them. It would be unjust to say, in effect, "Now, she cannot be fired during the three year pendency of the Chapter 13 plan."

The dismissal was just and neither restoration of employment or damages are justified.

IT IS SO ORDERED.

The issue of wages seized is another matter. This case was filed on July 21st and notice of the bankruptcy was mailed by the Court to creditors on August 7th. Indeed, as concluded above, the employer had a knowledge of the Chapter 13 bankruptcy on August 15th when the debtor was discharged. This fact is clearly supported by all of the evidence, particularly the testimony of Charles Marshall, Gordon's Jewelry's Zone Manager.

The debtor's ledger card reflects that on September 17th, more than a month after dismissal, the sum of $342.57 was credited to her account. This, of course was wages due in the ordinary course of paying employees on August 16th. An additional $170 was due for the debtor's final week of employment. Strangely, two checks, $342.57 and $170.00, respectively, were tendered to the debtor's counsel by defendant's counsel minutes...