Lewis v. City of Alexandria, Record No. 131308.

CourtSupreme Court of Virginia
Citation287 Va. 474,756 S.E.2d 465
Decision Date17 April 2014
Docket NumberRecord No. 131308.


James J. O'Keeffe, IV, Roanoke (Zachary A. Kitts; K&G Law Group, Fairfax; Monica Taylor Monday; Abigail Elizabeth Murchison; Gentry Locke Rakes & Moore, Roanoke, on briefs), for appellant.

Jonathan R. Mook, Alexandria (James L. Banks, Jr., City Attorney; George McAndrews, Assistant City Attorney; Bernard J. DiMuro; DiMuroGinsberg, Alexandria, on brief), for appellee.

PRESENT: All the Justices.

Opinion by Justice ELIZABETH A. McCLANAHAN.

Henry Lewis (Lewis) claims the circuit court erred in declining to award reinstatement, front pay and/or compensation for lost pension benefits in his wrongful termination action against the City of Alexandria (the City) under Code § 8.01–216.8 of the Virginia Fraud Against Taxpayers Act (VFATA), Code §§ 8.01–216.1 through –216.19. We disagree and will affirm the judgment of the circuit court.

I. Background

The City hired Lewis in January 2008 as a senior project manager in its Capital Projects Division of the Department of General Services (the Department). Lewis was assigned to manage the construction of a new police and emergency communications facility (hereinafter, the police facility project), and worked in that capacity until August 2011, when the City terminated his employment.

Lewis sued the City alleging “unlawful retaliation and discrimination” in violation of Code § 8.01–216.8, based on his alleged wrongful termination. Specifically, Lewis claimed the City retaliated and discriminated against him by terminating his employment in response to complaints he made about Jeremy McPike (McPike), a Deputy Director, and then Director, of the Department (when McPike became Lewis' direct supervisor). Lewis complained to various individuals in the Department that McPike approved payments of certain false invoices submitted to the City by the construction company serving as the “construction manager” for the police facility project. These complaints caused acrimony between Lewis and McPike, as well as between Lewis and the construction manager, which, Lewis claimed, eventually led to his wrongful termination.

Lewis sought an award of two times the amount of back pay (as liquidated damages), reinstatement, special damages, including lost pension benefits, and “any other relief provided for in Code § 8.01–216.8.” To the extent the circuit court determined that reinstatement was “impractical and unworkable,” Lewis requested in the alternative that he be awarded front pay (i.e., lost future earnings).1

On Lewis' pretrial motion, the circuit court ruled that a jury would decide whether the City violated Code § 8.01–216.8 in terminating his employment and, if so, decide his claim for back pay. If the jury found in favor of Lewis, his other remedial requests would then be treated as requests for equitable relief and thus decided by the circuit court.

Unlike the issue of liability, evidence regarding the amount of back pay that would be owed to Lewis upon a finding of wrongful termination was undisputed. Approximately nine months after his termination, Lewis secured new employment with the Prince George's County, Maryland, Public Schools in June 2012, earning approximately ten thousand dollars a year less than he earned with the City. Accordingly, Lewis' expert witness in the field of economic damages, Joel Morse, Ph.D. (Morse), testified that Lewis' back pay would equal the rate of his salary with the City as applied to the period extending from the time of his termination (August 2011) to the time of trial (March 2013), less the earnings he received from his new employment during that same period.

Morse then testified outside the presence of the jury regarding his analysis in support of Lewis' claims for front pay and compensation for lost pension benefits. Although it is somewhat unclear from the record, Lewis has asserted below and maintains on appeal that Morse's testimony established that his lost front pay through age 65 (Lewis was 58 at the time of trial) was $57,178.2 As to the pension-related claim, Morse explained that Lewis' pension with the City had not vested at the time of his termination. Lewis would have been required to work for the City for another year and a half for his pension to vest. Nevertheless, according to Morse, Lewis was “denied the value [of that pension] between age 65 and 80 [Lewis' life expectancy],” the present value of which was $175,130. Morse further explained, however, that if Lewis worked to age 68 in his current position, he would receive a pension from the State of Maryland.

The jury returned a verdict in favor of Lewis and awarded damages of $104,096 in back pay. Lewis accordingly moved the court to include liquidated damages to this award pursuant to Code § 8.01–216.8, which would double the back pay award resulting in a total of $208,192. The circuit court granted the motion.

Lewis then moved the circuit court “to use its equitable powers” to award additional relief against the City, including “reinstatement ... or if reinstatement is not feasible, in the alternative ... an award of front-pay in the amount of $57,178.00”; and an award “for his loss of pension benefits in the amount of $175,130.” 3 The circuit court declined to award reinstatement, front pay or pension compensation. On a motion for reconsideration, Lewis again asked the circuit court to award front pay and pension compensation, but abandoned his claim for reinstatement. The circuit court again denied this requested relief in its final order. In reaching this decision, the circuit court reasoned that Lewis had been “made whole” by the jury's verdict and the circuit court's other awards in his favor. The circuit court otherwise found that the claims for front pay and pension compensation were “subject to too much speculation.”

II. Analysis

On appeal, Lewis asserts in his sole assignment of error that the circuit court erred in declining to award “reinstatement, front pay and/or compensation for his lost pension” under Code § 8.01–216.8. In requiring that we review the circuit court's construction and application of the statute's remedial provisions, this appeal presents a case of first impression in this Court.

A. Code § 8.01–216.8

Code § 8.01–216.8, the VFATA's anti-retaliation provision, creates a cause of action for wrongful termination resulting from the reporting of potential false claims against the Commonwealth and its subsidiaries.4 Thus, upon establishing that the City terminated his employment in violation of the statute, Lewis was entitled to seek the relief expressly provided therein. The statute states that such an employee “shall be entitled to all relief necessary to make that employee ... whole.” Code § 8.01–216.8. The statute further states that [r]elief shall include reinstatement[,] two times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys fees.” Id.

B. Reinstatement

As to the circuit court's denial of his claim for reinstatement, Lewis cannot make the argument on appeal that the circuit court erred in not awarding such relief. Lewis abandoned that claim at the hearing on his motion asking the circuit court to reconsider its earlier denial of reinstatement, front pay and pension compensation.

Lewis' counsel began his argument in support of the motion by stating that Code § 8.01–216.8 “says the [c]ourt shall award all relief necessary, including reinstatement,” but then asserted that “quite frankly, reinstatement is almost never practical.” At that point, the circuit court judge interjected by asking, “Can we agree that reinstatement is just not an option here [?] Lewis' counsel responded, “Fair enough, Judge,” after the circuit court judge went on to explain that his question was based on the evidence at trial of “obvious acrimony,” which led him to believe that reinstatement was “not an option.”

Moreover, even after assigning error to the circuit court's decision not to award reinstatement, Lewis states on brief in this appeal that “the circuit court likely enjoyed the discretion to determine that reinstatement was impractical, particularly given the parties' animosity and the fact that Lewis had secured new employment.” A party ‘may not approbate and reprobate by taking successive positions in the course of litigation that are either inconsistent with each other or mutually contradictory.’ Rowe v. Commonwealth, 277 Va. 495, 502, 675 S.E.2d 161, 164 (2009) (quoting Cangiano v. LSH Bldg. Co., 271 Va. 171, 181, 623 S.E.2d 889, 895 (2006)). Therefore, we leave for another day our consideration of the parameters of the statute's reinstatement provision.

C. Front Pay

We agree with the parties that the circuit court's treatment of Lewis' claim for front pay as a request for equitable relief under Code § 8.01–216.8 was correct. See Board of Supervisors of James City Cnty. v. Windmill Meadows, LLC, 287 Va. 170, 175, 752 S.E.2d 837, 839 (2014) (on appeal, circuit court's statutory construction is subject to de novo review (citing Newberry Station Homeowners Ass'n v. Board of Supervisors, 285 Va. 604, 611, 740 S.E.2d 548, 552 (2013))). That ruling, which was consistent with the treatment of front pay claims in FCA, FMLA, Title VII and ADEA cases, meant that the circuit court's subsequent decision regarding whether to award front pay was committed to its discretion. See, e.g., Nichols v. Ashland Hosp. Corp., 251 F.3d 496, 503–04 (4th Cir.2001) (FMLA); Selgas v. American Airlines, Inc., 104 F.3d 9, 12–13 & n. 2 (1st Cir.1997) (Title VII); Duke v. Uniroyal, Inc., 928 F.2d 1413, 1424 (4th Cir.1991) (ADEA); Wiehua Huang v. Rector and Visitors of the Univ. of Va., 2013 U.S. Dist. LEXIS 34186, at *39–40 (W.D.Va. March 7, 2013) (FCA) Wilkins v. St. Louis Housing Auth., 198 F.Supp.2d 1080,...

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