Silverman v. Town of Blackstone
843 F. Supp. 2d 624
E.D. Va.2011Background
- Silverman, employed as Superintendent of Water Utilities for the Town of Blackstone since 1997, was fired on June 22, 2010 by town manager Larry Palmore.
- Silverman allegedly warned Palmore about deficiencies in water treatment and wastewater systems that violated state/federal regulations and suggested costly fixes which were not pursued.
- Silverman claims he was fired for whistle-blowing to expose those deficiencies and to cover up nepotism and as a scapegoat for the water system’s problems.
- On March 10, 2011, Silverman filed a three-count complaint alleging: count I, First Amendment retaliation; count II, common law wrongful termination in violation of Virginia public policy; count III, FAWBPA retaliation.
- Town moved to dismiss under Fed. R. Civ. P. 12(b)(6); court granted dismissal of counts II and III and deferred ruling on count I, with argument scheduled for July 11, 2011.
- Court concludes FAWBPA protects state employees only; Silverman, as a town employee, is not within the statute’s protected class.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FAWBPA protection extends to town employees? | Silverman argues FAWBPA covers whistle-blowers, including town employees via instrumentality. | Town contends FAWBPA only protects state employees; towns are not state agencies or instrumentalities. | FAWBPA does not cover town employees; counts III and II fail. |
| Count III viability (FAWBPA retaliation)? | FAWBPA retaliation claim based on reporting wrongdoing. | Not a protected class due to FAWBPA scope limitation. | Count III dismissed. |
| Count II viability (public policy wrongful termination)? | Termination violated public policy protecting whistle-blowers under FAWBPA. | Public policy does not apply because plaintiff is not a state employee. | Count II dismissed. |
| Remainings on count I arbitration or dismissal? | First Amendment claim survives dismissal. | Not addressed here; court will hear count I at July 11 hearing. | Count I deferred for later ruling; dismissal denied at this stage. |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
- Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (plausibility standard applied to pleadings)
- Dolgaleva v. Va. Beach City Sch., 364 F. App’x 820 (4th Cir. 2010) (pleading standards under Rule 12(b)(6))
- Francis v. Giacomelli, 588 F.3d 186 (4th Cir. 2009) (explains plausibility standard in Fourth Circuit)
- Rowan v. Tractor Supply Co., 263 Va. 209 (2002) ( Bowman at-will exception framework)
- Bowman v. State Bank of Keysville, 229 Va. 534 (1985) (common law wrongful termination exception factors)