Author Archives: Brian F. Chandler

1. Virginia Plaintiffs in Employment Cases Usually Like To Be In State Court

   June 8, 2010 6:05 pm Leave a Comment

   In Virginia, plaintiffs’ attorneys frequently attempt to keep employment discrimination and harassment claims in state court.  There are many reasons why plaintiffs frequently prefer to bring their case in state court, even if it means avoiding a Title VII action.  Some of these reasons include the reluctance of Virginia state courts to dismiss cases through the use of summary judgment; the ability of plaintiffs to nonsuit their case (a voluntary dismissal with the ability to re-file the action); and the tight time constraints imposed by many federal courts in Virginia.

   As most Virginia attorneys are aware, it is very difficult to convince a Virginia state court to dismiss a plaintiff’s claim through summary judgment.  There are many reasons behind this general reluctance for summary judgment, including certain rules limiting what evidence may be considered by the judge in deciding a summary judgment motion.  These restrictions nearly guaranty that a plaintiff’s case will make it in front of a jury.  This fact alone will often incentivize plaintiff’s to file their case in state court.

   In order to file in Virginia state court, a plaintiff must rely upon Virginia statutes or common law claims, instead of federal claims deriving from Title VII.  In the discrimination or harassment context, these claims usually involve assault and battery; defamation; negligent retention; or intentional infliction of emotional distress.

   If you are a Virginia employer and you are served with a discrimination or harassment claim from a former employee, do not be surprised if the claim is filed in state court.  Many of the Virginia state claims can still be attacked and a strong demurrer (similar to a motion to dismiss) will often be an employer’s best defense.

2. The Virginia Computer Crimes Act and Punitive Damages

   June 4, 2010 6:05 pm Leave a Comment

   Recently, a Fairfax County Circuit Judge ruled that the Virginia Computer Crimes Act, §18.2-152.7:1, does not provide for the recovery of punitive damages.  Employees alleging harassment often include violations of this statute in cases where the alleged harassment occurs through emails or text messages.  Under Virginia law, a party may seek up to $350,000 in punitive damages.

   The Virginia Computer Crimes Act prohibits anyone from using a computer or computer network to “communicate obscene, vulgar, profane, lewd, lascivious or indecent language, or make any suggestion or proposal of an obscene nature . . .”   Any alleged sexual harassment involving computers, blackberries, or text messages likely fall within the prohibitions of this statute.

   Va. Code §18.2-152.12 allows a plaintiff to seek civil relief for any violation of §18.2-152.7:1 and authorizes the recovery of any “damages sustained and the costs of suit.” The statute expressly states that “‘damages’ shall include lost profits.”

   In this particular case, I represented an individual (a former supervisor of the plaintiff) who was sued under the Virginia computer harassment statute.  In addition to seeking to recovery attorneys’ fees, the plaintiff asked the court for punitive damages, claiming that Virginia generally allows for the recovery of punitive damages in the case of intentional torts.  We demurred to the punitive damages claim on the basis that the statute only provided for “damages sustained” and attorneys’ fees and that the Virginia General Assembly would have included language expressly authorizing an award of attorneys’ fees if it intended to allow for the recovery of punitive damages.  There was little case law on this subject, but there was one Virginia Circuit Court, McGladrey & Pullen, L.L.P., et al. v. Shrader, 62 Va. Cir. 401, 411 (Rockingham County 2003), which previously held that punitive damages could not be recovered under §18.2-152.12.

   The judge agreed with my argument that punitive damages were not authorized under §18.2-152.12.  The unpublished Circuit Court decision is not binding upon other courts in the Commonwealth.  But the decision, if followed, may reduce the number of claims filed under the Virginia Computer Crimes statute because a plaintiff’s recovery would be limited to the plaintiff’s actual damage and attorneys’ fees rather than hope for a jury to be angry enough to award punitive damages.