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Defamation With Draft Complaints
Be wary in sending draft complaints that contain potentially defamatory allegations until Virginia law becomes more clear on the issue.Adultery: Clear and Convincing
Madison County Circuit Court finds clear and convincing evidence of adultery.Police Offers Alleges Civil Rights Violation By Local Government Officials
In mid-October, a Newport News police officer filed suit in federal district court, alleging that local government officials had violated his constitutional right to due process of law. The case is styled Hall v. City of Newport News.The Fourteenth Amendment to the U.S. Constitution requires state and local governments to respect all rights, procedural and substantive, owed to individuals by law. When an individual believes that the government deprived him of a legal right, he can invoke the Fourteenth Amendment and sue the government for acting in an unconstitutional manner.
A due process violation is one of the allegations in Hall v. Newport News. In that case, Officer Hall was fired after two civilian complaints were filed against him in January 2007. He appealed that firing, and a grievance panel voted to reinstate him in October 2007. The city refused to re-hire Hall, and he remained out of work until a circuit court judge ordered the city to re-hire him in September 2008. Hall was not reinstated until November 2008, after the circuit court judge threatened the city with contempt orders. When he was finally reinstated, Hall was relegated to the records department and forbidden from making arrests, as he had in the past. The damage that Officer Hall alleges is the decreased chance for promotion in light of this treatment. Furthermore, the city has yet to pay Hall for the months between his successful appeal before the grievance panel and his actual reinstatement, a period of 13 months. Officer Hall is asking the federal trial court to award him $5 million for the deprivation of his rights and the damage to his reputation and job opportunities.
Prison Guard's Sexual Harrasment Claim Dismissed
A United States Magistrate Judge recommended that two sexual harassment claims be dismissed in an employment discrimination suit last week. In Sizemore v. Southwest Virginia Regional Jail Authority, a female prison guard challenged her termination as contrary to federal sexual harassment laws. In particular, the guard alleged that her superior officer had made illegal sexual remarks to her in such a sever and consistent manner as to amount to a “hostile work environment.” She also alleged that she was fired because she was a woman, in violation of the Civil Rights Act of 1964.On the hostile work environment claim, the federal magistrate recommended dismissal. Federal law requires a plaintiff to demonstrate that an “objective, reasonable person” would find the work environment to be abusive or hostile and that the particular plaintiff actually found the working environment to be abusive or hostile. While the guard in this case produced sufficient evidence to show that a reasonable person would have found the prison to be an abusive or hostile work environment, the court held that she failed to produce any evidence that she actually found it to be hostile. The court stated that the female guard failed to show that she perceived the work environment to be hostile or abusive in the slightest, despite alleging many inappropriate comments.
On the second claim, for unlawful firing due to her sex, the magistrate judge likewise recommended dismissal. On that issue, the female guard produced evidence that male guards were more likely to be demoted or transferred for the same kinds of conduct she was disciplined and ultimately fired for. In response, the prison argued that the female guard was terminated for poor performance evaluations, repeated tardiness, and negligence in her daily work. The court found that argument persuasive, and held that the prison had supplied an adequate non-discriminatory basis for the firing. As such, the guard could not seek damages from the prison for unlawful termination.
Federal lawsuit filed by husband backfires in custody case
The Virginia Court of Appeals recently affirmed a trial court’s reassessment of child custody rights following a divorce settlement. In Serdah v. Serdah, husband and wife separated and entered into a settlement agreement. They agreed to joint legal custody of their only son, with primary physical custody to wife. The parties also agreed that wife would have tie-breaking power in the event of a disagreement between them. Nearly two years later, presumably due to disagreements between the parties, wife filed a motion to amend custody from joint legal custody to sole legal custody in Juvenile & Domestic Relations Court. In response, the husband filed a lawsuit in federal court, alleging that wife’s increasing control over their son violated his Fourteenth Amendment liberty interests to the companionship, care, custody, and control of his son. The wife lost in JDR Court and appealed to the local trial court, where she argued that the husband’s separate federal lawsuit evidenced his inability to deal with her in child-related matters.The trial court agreed and admitted the lawsuit into evidence, holding that the husband’s allegations in the federal suit helped determine the best interests of the child pursuant to the Virginia’s child custody laws. The Court of Appeals affirmed the trial court, holding that because the husband’s federal lawsuit tended to prove a fact in issue (the husbands willingness and ability to deal with the wife), it was properly admitted into evidence and considered by the court.
Labels: child custody
Literal Terms of Settlement Agreement Enforced To Limit Attorney's Fees Claim
The Virginia Court of Appeals affirmed that the terms of a property settlement, like any other contract, must be interpreted exactly as written. In Everett v. Everett, the wife contended that the parties’ property settlement agreement required her husband to pay for all of her attorney’s fees and costs associated with the divorce proceeding. In contrast, the husband argued that the agreement only required him to cover her attorney’s fees if he sought a reduction in child support. The trial court applied principles of contract interpretation to the agreement and sided with the husband. The Court of Appeals, after an independent inquiry, agreed.The Court of Appeals especially looked to the interpretation placed on the settlement agreement by the parties themselves to determine the agreement’s meaning. The Court found the wife’s own actions especially telling: when the husband filed a motion to reduce child support, the wife sought full reimbursement of her attorney’s fees; but when the husband disputed custody of their children, the wife consented to pay her own fees. These actions, the Court said, were consistent with the trial court’s interpretation of the agreement—that the husband would pay for only those attorney’s fees associated with his attempts to reduce child support.
Finally, the husband challenged the wife’s attorney’s fees as excessive. The Court of Appeals rejected this argument, stating that the wife could recover her full attorney’s fees associated with two attempts by the husband to reduce child support, but not the additional costs associated with expedited deposition transcripts the wife requested.
Let this opinion be a warning: draft settlement agreements with the utmost care because a period in the wrong place could cost you. Although the temptation might be to adopt a 'form' settlement agreement to save expenses, one can end up penny wise and pound foolish if sufficient care is not given.
Premarital Agreement Possibly Void Because Unconscionable
The Virginia Court of Appeals has reversed a trial court's decision to strike a wife's evidence that a premarital agreement was void because it was unconscionable. In Chaplain v. Chaplain, the wife contended a premarital agreement was void because she did not understand the terms of the agreement. The prenuptial agreement at issue gave the wife nothing, except the right to $100,000 if she were married to husband when husband died. However, the husband was allegedly worth 20 million dollars. The wife was born in Morocco and claimed she spoke little english when she signed the premarital agreement in 1997. She further claimed that she did not understand the agreement and that she was not provided with a copy of the prenuptial agreement either before or after she signed it. Further, the husband represented that he was a "poor man."The trial court found that wife failed to make a prima facie case, but the Court of Appeals reversed and remanded the case for further evidence to be taken. The Court noted that there "ample evidence" of a gross disparity in the division of assets, and overreaching to support a finding of unconscionability.
The decision appears to be significant in 2 ways. First, perhaps arguments of unconscionability may hold sway in future cases. Generally, unconscionability arguments fail, but in this case at least, it was successful, and perhaps courts will be more willing to accept such arguments in the future. Second, it shows the appellate court's disapproval of striking evidence prematurely.
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Virginia Supreme Court Denies Applicability of Employer's Arbitration Agreement for Employee's Lawsuit.
The Supreme Court of Virginia denied the applicability of an arbitration agreement between Dillard’s Inc. and its employees. This case arose when Dillard’s terminated two employees for suspicion of embezzlement and then filed criminal charges against the employees. Thereafter, the criminal charges were dismissed and the employees brought a civil action of malicious prosecution against Dillard’s. Dillard’s attempted to enforce an arbitration agreement with the employees but the trial court denied its request. The Supreme Court of Virginia granted an interlocutory appeal but decided against Dillard’s. The Supreme Court reasoned that the language in the contract was too narrow to include actions take between the employee and employer after the employee was terminated.Labels:
Bus Accident Leaves Child In Emergency Brain Surgery
A school bus accident in Charlotte, North Carolina has left an 11-year old boy in the hospital after emergency brain surgery. Police say the bus driver lost control of the bus causing the accident. The driver has been charged with reckless driving. The treating physician commented on the child's injuries saying, "he didn't report any significant loss of consciousness, but he was acting a bit dazed and was ... lethargic and answering things slowly." Doctors have to make quick decisions as to whether or not to operate in brain injury cases, because delay can mean serious injury to the brain and permanent consequences. The boy is now recovering, following surgery.Employment Discrimination - Title VII - Back Pay - Attorney’s Fees
Lawyers for the plaintiff in a federal employment discrimination lawsuit pending in the U.S. District Court for the Eastern District of Virginia in Richmond were awarded attorneys’ fees of $107,000 on December 23, 2008. At trial, a jury awarded Hartnett $200,000 for her claim under Title VII of the Civil Rights Act of 1964 against the Brunswick County school board. Judge Henry Hudson, in addition to awarding attorneys’ fees, awarded Hartnett back pay in the amount of $34,167. In reaching its determination as to the appropriate award of fees to make, the court looked at the prevailing market rate for attorneys with similar experience in Richmond, Virginia.
Labels: discrimination Title VII
Qimonda plant to lay off 1,500 workers
Qimonda AG will shut down its Henrico plant, and will lay off approximately 1,500 Richmond area workers. Labor and employment lawyer Mark Dix was recently interview by WTKR TV6 regarding the plant closing.
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Whistleblowers win partial victory
The U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia reversed a lower court’s decision to set aside a $10 million verdict rendered by a jury against a government contractor and in favor of two whistleblower employees of the company, in a civil fraud case arising as a result of government contractor services provided by the company in Iraq.
$540,000 will settle NN police death suit
U.S. District Judge Jerome B. Friedman in Norfolk, Virginia approved a $540,000 settlement in a civil rights lawsuit filed as a result of the death of Robert L. Harper, who was shot and killed by a Newport News police officer. The lawsuit, filed in federal court, alleged excessive force by police and sought damages under, among other things, § 1983 of the Civil Rights Act of 1871. Under Virginia law, wrongful death settlements have to be court-approved.
Hopewell Discrimination Lawsuit Settles
The U.S. Equal Employment Opportunity Commission has announced a settlement in an employment discrimination case brought in the U.S. District Court in Richmond. The defendant in the lawsuit, Airgas Carbonic, Inc., is a Pennsylvania based company with a plant in Hopewell, Virginia. The lawsuit accused the company of refusing to promote an employee at its Hopewell plant because he is black. Airgas Carbonic will pay $40,000, revise its anti-discrimination policy and provide training to its supervisors about federal anti-discrimination laws.Private Consultation
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