KELLY LEIGH HARRIS v. WASHINGTON & LEE UNIVERSITY
Record No. 1083-23-3
COURT OF APPEALS OF VIRGINIA
OCTOBER 1, 2024
OPINION BY JUDGE CLIFFORD L. ATHEY, JR.
Present: Judges Huff, Athey and Fulton
Argued at Lexington,
PUBLISHED
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
Christopher B. Russell, Judge
Thomas E. Strelka (L. Leigh Rhoads; Brittany M. Haddox; Monica L. Mroz; Strelka Employment Law, on brief), for appellant.
Tracy Taylor Hague (Anne Graham Bibeau; Elaine D. McCafferty; Woods Rodgers Vandeventer Black PLC; Woods Rogers PLC, on brief), for appellee.
On June 7, 2023, the Circuit Court of Rockbridge County (“circuit court“) sustained a plea in bar dismissing wrongful termination claims made by Kelly Leigh Harris (“Harris“) against Washington & Lee University (“W&L“) under the Virginia Whistleblower Protection Law (“VWPL“),
I. BACKGROUND1
On June 1, 2015, Harris began her employment as the house director for the Zeta
W&L owned the PGD fraternity house. As a consequence of the terms in its lease of the fraternity house to PGD, W&L required PGD to comply with W&L‘s policies. W&L‘s policies required all Panhellenic organizations to employ and maintain house directors during the school year. However, W&L was neither a party nor signatory on the Agreement between House Corporation and Harris, and W&L did not participate in either Harris‘s job interview or in the hiring decision.2
The terms of the Agreement also made clear that Harris‘s employment was “at[-]will” and that she was to receive a monthly paycheck from House Corporation consistent with the salary outlined in the Agreement. In addition, pursuant to terms of the Agreement, Harris was: 1) to receive a stipend from House Corporation to assist her in purchasing her own health insurance; 2) given permission to seek reimbursement from House Corporation when Harris incurred personal expenses on behalf of PGD in her role as house director; and 3) to live in a cottage located on the grounds of the PGD fraternity house. The cottage was also owned by W&L and leased to PGD. The Agreement also required House Corporation to cover the utility and other miscellaneous costs necessary for Harris to occupy the cottage. But W&L was neither a payor of Harris‘s salary, nor did W&L pay for her health insurance stipend, nor did W&L provide her a W-2 form for tax purposes.
The Agreement generally charged Harris, as house director, with being “responsible to the house corporation for managing the day-to-day affairs of the chapter house,” which included caring for the house, arranging for repairs, and “mak[ing] sure the boys complied with all of the rules of [W&L].” The House Corporation maintained supervisory authority over the house directors,3 but Harris was required to communicate with “liaison[s]” at W&L regarding issues pertinent to the fraternity or to maintaining its house.
During her employment as house director, Harris was a self-described “squeaky wheel,” taking issue with students for failing to comply with PGD‘s rеquirements. In March of 2020, W&L circulated guidelines to help mitigate the deleterious effects of the COVID-19 pandemic. The guidelines tasked house directors with reporting guideline violations to Chris Reid (“Reid“), W&L‘s Director of Resident Life. Harris subsequently reported to Reid that students had returned to fraternity housing seven days before W&L had begun testing for COVID-19, that some PGD members and visitors were not masking and socially distancing while at the PGD fraternity house, and that the fraternity house‘s services were not in compliance with W&L‘s COVID-19 policies. As a result of the reported violations, Reid coordinated with House Corporation to address Harris‘s various violation reports. However, Reid did not reprimand the reported students as requested by Harris.
The week of January 21, 2021, a local newspaper reported receiving an anonymous report from an unnamed house director that W&L was not testing students for COVID-19
The following week, on January 28, 2021, Harris‘s frustrations with W&L‘s failure to discipline certain members of the PGD fraternity finally boiled over. She emailed Reid demanding that he reprimand certain students whom she had previously reported for violations of the COVID-19 policy. She also accused Reid and W&L of ignoring her previous complaints of COVID-19 related violations. She further accused W&L of violating executive orders issued by the Governor of Virginia related to the COVID-19 pandemic. Finally, she criticized Reid‘s previous responses to her concerns, stating that they were insufficient to address the issues. Her email exchange with Reid was copied to various officials at W&L. Reid responded by rebuking Harris for sending a “highly inappropriate email” and for “cop[ying] everyone on [it].” Reid also warned Harris that he would “be addressing this with M[uchmore] and others in Student Affairs” in the near future.
That same day, Leonard contacted Muchmore concerning his suspicion that Harris was the anonymous house director who had contacted the local reporter. He also forwarded the email sent by Harris to Reid and copied to numerous W&L employees. Leonard further advised Muchmore that in his opinion, Harris “[h]a[d] lost the respect of the majority of those of us working for [W&L].” He suggested that Harris‘s conduct should be addressed by “directly confronting her behavior from here on out.” Muchmore forwarded Leonard‘s email to House Corporation‘s treasurer commenting: “I think this is it. We‘ve talked to her multiple times about this kind of communication. She may not be wrong about her frustrations, but her tone and approach keep creating an issue with [W&L].” Muchmore also emailed Harris that he had “heard from multiple people” and that he and Harris “need[ed] to discuss this tonight.” Muchmore then called Harris on January 30, 2021, and terminated her at-will employment as PGD‘s house director.
Following her termination, Harris signed a Separation and Release Agreement (“Separation and Release“) with House Corporation. Pursuant to the terms of the Separation and Release, she received six months of severance pay, six months of supplemental payments to cover her health insurance costs, and $1,000 for moving expenses. In exchange, she agreed not to bring any suit, including but not limited to a suit for wrongful termination against House Corporation or its employees. W&L was not a party nor a signatory regarding the Separation and Release.
On January 24, 2022, Harris filed a complaint against W&L asserting that it had violated the VWPL by retaliating against her for reporting alleged violations of its COVID-19 policies that resulted in the termination of her employment by House Corporation. W&L responded to Harris‘s complaint by filing a demurrer and an answer on March 10, 2022. Harris and W&L subsequently conducted discovery, including depositions of Harris, Muchmore, Reid, and Leonard.4
During her deposition, Harris asserted that “[W&L] expect[ed] House Corporation to provide a substitute house director if the regular house director was going to be away from the house for more than one night,” impeding her ability to leave the cottage for more than one night. Harris further stated that she thought Reid, a W&L employee, was her “go-to person” because “he was over the house directors, and we were to send things to him about the students.” She also contended that W&L had told house directors that
During his deposition, Muchmore contended that W&L‘s lease of the PGD fraternity house to House Corporation required PGD to hire a house director “in specific language in the lease with [W&L].” He also acknowledged that a “key component” of the house director position was to “regularly communicate with people at W&L.” However, Muchmore explained that, even though W&L required fraternities to hire house directors, those directors did not work for W&L. Finally, Muchmore contended that Harris performed her duties as house director at the direction of House Corporation, reported to him as her supervisor, and was terminated by him without W&L‘s input.
Similarly, both Reid and Leonard confirmed the nature of the relationship between house directors and W&L. For example, Leonard specifically stated that W&L does not “provide any oversight of house directors,” and house directors are not required to “report to” W&L officials. Leonard also stated that he was unaware of how these house directors were hired and unsure if W&L reviewed application materials submitted for the positions. Although Reid confirmed Leonard‘s impression of the relationship between W&L and house directors, he did acknowledge that Harris had reported “university [COVID-19] policy violations” to him previously and that she had done so at the time of the emails in question.
On March 20, 2023, W&L filed a plea in bar asserting that Harris‘s claim was barred because her suit fell outside of the ambit of the VWPL for three reasons: 1) she was not a W&L employee; 2) the VWPL only protects employees reporting violations of a federal or state law or regulation, not violations of school policy; and 3) she could not have reported any alleged violations of a federal or state law or regulation to her supervisor at W&L since she was not an employee of W&L and thus had no W&L supervisor. Harris moved to strike W&L‘s plea in bar on March 24, 2023. Harris also demanded thе empaneling of a jury to consider and resolve the issues raised in W&L‘s plea in bar. W&L responded by moving to strike Harris‘s jury demand, asserting that the plea in bar addressed solely a matter of law. Harris opposed W&L‘s motion to strike the jury demand, contending that a factual dispute existed concerning whether W&L and PGD were her joint employers consistent with the holding in Butler v. Drive Automotive Industries of America, Inc., 793 F.3d 404 (4th Cir. 2015). Following the April 5, 2023 motions hearing, the circuit court issued a letter opinion striking the jury demand after finding that no disputed facts existed based upon the meaning of “employee” in the VWPL.
The parties subsequently filed briefs in support of and in opposition to the plea in bar. W&L contended that, because Harris failed to provide any evidence that she received any wages, salaries, or commissions from W&L, she lacked standing as a whistleblower employee pursuant to the VWPL. Harris opposed the plea in bar, asserting that W&L was Harris‘s “joint emplоyer” consistent with the holding in Butler and thus that she possessed standing to bring suit as a statutorily protected whistleblower.
After hearing argument on May 4, 2023, the circuit court deliberated and then pronounced its decision from the bench,5 which was later summarized into its final written
II. ANALYSIS
A. Standard of Review
Where the “parties presented evidence on the plea ore tenus, the circuit court‘s factual findings are accorded the weight of a jury finding and will not be disturbed on appeal unless they are plainly wrong or without evidentiary support.” Massenburg v. City of Petersburg, 298 Va. 212, 216 (2019) (quoting Hawthorne v. VanMarter, 279 Va. 566, 577 (2010)).6 We review “pure legal questions, including questions of statutory construction” underpinning the circuit court‘s judgment de novo. Id.
B. Although Code § 40.1-2 contemplates the existence of a shared employment arrangement, the statute‘s text and the evidence before the circuit court support its finding that Harris was not an employee shared with W&L.
Harris assigns error to the circuit court for sustaining the plea in bar against her claims. She asserts that the circuit court erred because: 1) the definitions of “employer” and “employee” within
1. The plain language of the “employer” and “employee” definitions within Code § 40.1-2 contemplates that an employee could have more than one employer.
As a threshold matter, Harris asserts that the text of the definitions of “employer” and “employee” within
To resolve this assignment of error, we must interpret the text of the definitions for “employer” and “employee” contained within
[A] statute is ambiguous when its language is capable of more senses than one, difficult to comprehend or distinguish, of doubtful import, of doubtful or uncertain nature, of doubtful purport, open to various interpretations, or wanting clearness of definiteness, particularly where its words have either no definite sense or else a double one.
Shepherd v. Conde, 293 Va. 274, 284 (2017) (quoting Newberry Station Homeowners Ass‘n v. Bd. of Supervisors of Fairfax Cnty., 285 Va. 604, 614 (2013)). But where “the language of a statute is unambiguous, we are bound by the plain meaning of that language.” Nalls v. Commonwealth, 79 Va. App. 712, 718 (2024) (quoting Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 425 (2012)). As such, “[t]he plain, obvious, and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction.” Stanton v. Va. Beach - Fire Operations, 79 Va. App. 587, 592 (2024) (quoting Ford Motor Co. v. Gordon, 281 Va. 543, 549 (2011)).
In addition, where possible, “[w]e ordinarily resist а construction of a statute that would render part of a statute superfluous.” Loch Levan Land Ltd. P‘ship v. Bd. of Supervisors of Henrico Cnty., 297 Va. 674, 685 (2019) (quoting Davis v. MKR Dev., LLC, 295 Va. 488, 494 (2018)). And “we have a duty, whenever possible, ‘to interpret the several parts of a statute as a consistent and harmonious whole so as to effectuate the legislative goal.‘” Stanton, 79 Va. App. at 592 (quoting Oraee v. Breeding, 270 Va. 488, 498 (2005)). A corollary to this rule “is that when a term is used in different sections of a statute, we give it the same meaning in each instance unless there is a clear indication the General Assembly intended a different meaning.” Eberhardt v. Fairfax Cnty. Emps. Ret. Sys. Bd. of Trs., 283 Va. 190, 195 (2012). These interpretive rules are in accordance with the time-honored principle that we “presume that the legislature chose, with care, the words it used when it enacted the relevant statute.” Cornell, 301 Va. at 349 (quoting Tvardek v. Powhatan Vill. Homeowners Ass‘n, Inc., 291 Va. 269, 277 (2016)).
Under the VWPL, “[a]n employer shall not discharge, discipline, threaten, discriminate against, or penalize an employee, or take other retaliatory aсtion . . . , because the employee . . . in good faith reports a violation of any federal or state law or regulation.”
“[e]mployer” means an individual, partnership, association, corporation, legal representative, receiver, trustee, or trustee in bankruptcy doing business in or operating within this Commonwealth who employs another to work for wages, salaries, or on commission and shall include any similar entity acting directly or indirectly in the interest of an employer in relation to an employee.
(Emphases added). It also provides that “‘[e]mployee’ means any person who, in consideration of wages, salaries or commissions, may be permitted, required or directed by any employer to engage in any employment directly or indirectly.” Id. (emphases added). We have “previously held that ‘wages,’ is a term applied to compensation
Also, for purposes of interpreting a statute, the term “shall” may be read as “mandatory or directory—depend[ing] entirely on the legislature‘s intended meaning as discerned from ‘the nature, context, and purpose’ of the relevant statute.” Bland-Henderson v. Commonwealth, 303 Va. 212, 219 (2024) (quoting Huffman v. Kite, 198 Va. 196, 202 (1956)). We further find that
“the use of the disjunctive word ‘or,’ rather than the conjunctive ‘and,’ signifies the availability of alternative choices.” Williams v. Commonwealth, 61 Va. App. 1, 8 (2012) (quoting Rose v. Commonwealth, 53 Va. App. 505, 514 (2009)). Also, “‘[a]ny’ is defined, in part, as ‘one or some indiscriminately of whatever kind‘; ‘one or more indiscriminately from all those of a kind‘; or ‘one that is selected without restriction or limitation of choice.‘” Botkin v. Commonwealth, 296 Va. 309, 314 (2018) (quoting Any, Webster‘s Third New Int‘l Dictionary (2002)).
Finally, “[t]he maxim of noscitur a sociis provides that the meaning of doubtful words in a statute may be determined by reference to their association with related words and phrases.” Cuccinelli, 283 Va. at 432 (quoting Andrews v. Ring, 266 Va. 311, 319 (2003)). Thus, “[w]hen general words and specific words are grouped together, the general words are limited and qualified by the specific words and will be construed to embrace only objects similar in nature to those objects identified by the specific words.” Id.
Turning to the interpretation of the term “employer” within
Here, by analyzing the plain text of the definitions for the term “employer” and “employee” in
directly or indirectly in the interest of an employer in relation to an employee.”
Continuing to parse the text of the “employer” definition, we find three qualifications that apply to “similar entit[ies]” who may be additional employers of an employee.
Hence, extrapolating from the plain language within
exchange for “wages, salaries, оr . . . commission“; and 3) an employer/entity that owes some duty or has some form of privity with the principal employer/entity. Id.
In addition, although we find that much of the definition of employer in the statute is unambiguous, we acknowledge that the term “similar entity” in the “employer” definition in
2. The circuit court did not err in analyzing the application of Butler v. Drive Automotive Industries of America, Inc. to this matter since the Virginia common law borrowed employee doctrine controls in determining what is a similar entity in this case.
Harris next asserts that, because the definitions of “employer” and “employee” in
In order to resolve this assignment of error, we first note that the terms to be defined are terms of art related to Virginia‘s common law tradition pertaining to nonstandard employer-employee arrangements. We further note that:
when a statute employs a common-law term of art, the General Assembly “is presumed to have known and to have had the common law in mind in the enactment of a statute.” Thus, we must “giv[e] effect to both ‘unless it clearly appears from exprеss language or by necessary implication that the purpose of the statute was to change the common law.“’
Game Place, L.L.C. v. Fredericksburg 35, LLC, 295 Va. 396, 402 (2018) (quoting Jenkins v. Mehra, 281 Va. 37, 44 (2011)). “Abrogation of the common law thus occurs only when ‘the legislative intent to do so is plainly manifested,’ as ’there is a presumption that no change was intended.‘” Jenkins, 281 Va. at 44 (emphasis added) (quoting Isbell v. Com. Inv. Assocs., Inc., 273 Va. 605, 613-14 (2007)).
In accordance with Supreme Court of Virginia precedent, we have “recognized that, at common law, an employee may be borrowed by one employer from another.” Liberty Mut. Ins. Corp. v. Herndon, 59 Va. App. 544, 563 (2012). “Under the borrowed [or loaned] [employee] doctrine, a worker, although directly employed by one entity, may be transferred to the service of another so that he becomes the employee of the second entity ‘with all the legal consequences of the new relation.‘” Metro Machine Corp. v. Mizenko, 244 Va. 78, 82 (1992) (quoting Standard Oil v. Anderson, 212 U.S. 215, 220 (1909)). In these dual employment relationships, “it is generally understood that ‘the lending employer is known as the “general employer” and the borrowing employer, the “speciаl employer.“‘” Smith v. McMillan Pers. Serv., 48 Va. App. 208, 217 (2006) (quoting 3 Arthur Larson & Lex K. Larson, Larson‘s Workers’ Compensation Law § 67.01[1], p. 67-2 (2001) (interpreting the Virginia Workers’ Compensation Act)). The general employer is the
employers and employees applies to determine whether an individual was acting as an employee of another).
“To determine whether a party is a special employer, we examine four elements of the [employer-employee] relationship: (1) selection and hiring of the [employee]; (2) payment of his or her wages; (3) power of dismissal; and (4) power of control of the [employee‘s] actions.”
Frye, 6 Va. App. at 593 (quoting Smith v. Grenadier, 203 Va. 740, 746 (1962)). At common law, “control over the employee is the most important factor in consideration of the borrowed [emplоyee] status, although it alone may not be dispositive.” Liberty Mut. Ins., 59 Va. App. at 564. However, applying this doctrine, “‘an employee who is lent to a special employer . . . becomes the [employee] of the employer to whom he is lent’ only if the employee ‘assents to the change in employment.‘” Smith, 48 Va. App. at 219 (quoting Ideal Steam Laundry, 153 Va. at 181-82). “The employee‘s assent may be shown by ‘explicit or implied consent to working for an employer other than [the general employer].‘” Id. (quoting Marshall Erdman & Assocs. v. Loehr, 24 Va. App. 670, 677 (1997) (alteration in original)).
Hence, when interpreting the meaning of the term “similar entity” in
However, since
explicitly or implicitly “assent[] to the change in employment.” Smith, 48 Va. App. at 219. In addition, “control over the employee is [an] . . . important factor in consideration of the borrowed [employee] status.” Liberty Mut. Ins., 59 Va. App. at 564. But, in light of the plain text of
By adopting the application of the borrowed employee doctrine, we decline to adopt the reasoning of Butler, as requested by Harris. “While this Court considers Fourth Circuit decisions as persuasive authority, such decisions are not binding precedent for the decisions of this Court.” Toghill v. Commonwealth, 289 Va. 220, 227 (2015). As persuasive authority, Butler provides some guidance concerning what evidence at a granular level is needed to support a finding that W&L is a “similar entity” for our purposes. But even Butler “note[d] that none of these factors are dispositive and that the common-law element of control remains the ‘principal guidepost’ in the analysis.” 793 F.3d at 414. Moreover, the definitions of “employer” and “employee” contained within
C. The circuit cоurt was not plainly wrong in finding that the facts in the record did not create a factual dispute regarding whether Harris was an employee of W&L or had a supervisor at W&L.13
Finally, Harris assigns error to the circuit court for finding that W&L‘s plea in
“A plea in bar asserts a single issue, which, if proved, creates a bar to a plaintiff‘s recovery.” Cornell, 301 Va. at 349 (quoting Massenburg, 298 Va. at 216). “The party asserting a plea in bar bears the burden of proof on the issue presented.” Hawthorne, 279 Va. at 577. “Simply holding an evidentiary hearing does not convert all of the arguments for and against the
plea in bar into factual disputes.” Cal. Condo. Ass‘n, 301 Va. at 23. Hence, “[a]n argument asserting a purely legal bar to the pleaded facts, assumed arguendo to be true, can be and should be decided in that manner—so, too, should a purely legal rejoinder to an argument offered in support of a plea in bar.” Id.
Here, viewing the evidence in the record in the light most favorable to W&L, the circuit court was not plainly wrong in concluding that Harris did not show that a factual dispute existed regarding her putative borrowed employment at W&L. The record before the circuit court showed that Harris was an “at will” employee of House Corporation and that House Corporation was the sole payor of her salary and the party responsible for her employment benefits. Harris failed to adduce any evidence that directly or indirectly established that W&L paid or owed her “wages, salaries, or . . . commission” for her work as PGD‘s house director. In fact, the record reflected that W&L did not pay any part of Harris‘s salary, that W&L did not cover any portion of her health insurance stipend, that W&L did not provide her a W-2 form for tax purposes, that W&L did not pay her severance, and that W&L was neither a signatory to Harris‘s Agreement nor her Separation and Release. Also, contrary to Harris‘s position at oral argument that “things of value,” such as “housing” or “utilities,” could constitute “wages, salaries, or commission,” we find this assertion rebutted by how this Court and the Supreme Court of Virginia have defined the terms in question. See, e.g., Home Beneficial, 181 Va. at 820, 821 (quoting Purifoy, 16 So. at 703); Key Risk, 60 Va. App. at 339; see also Eley v. Commonwealth, 70 Va. App. 158, 165 (2019) (holding that “in ascertaining [the ordinary] meaning of terms we may consult “dictionary definitions and pertinent analysis in prior case law“). These facts together compel the conclusion that W&L could not be deemed her special employer under
whatsoever. Thus, the circuit court was permitted to conclude from the evidence at the prior hearing that no factual disputes existed and was not plainly wrong for doing so.15
III. CONCLUSION
In sum, we hold that the terms “employer” and “employee” in
Affirmed.