Court Refuses to Dismiss State Law Claims in Norfolk Retaliation Suit

The US District Court for the Eastern District of Virginia has refused to dismiss the state law claims of a fire investigator with Norfolk Fire-Rescue who alleges sexual harassment, discrimination, retaliation, and violation of Virginia’s Whistleblower Protection Act.

Karen Baka filed the suit last year. It was her second suit against the city. Baka had previously filed a gender discrimination suit in 2019. That suit ultimately settled for $87,000.

According to the decision handed down last Friday, almost immediately after filing the 2019 suit, Baka faced extensive retaliation. Quoting from the decision:

• Defendant required Plaintiff to take multiple drug tests.
• [A male supervisor Captain Michael] Rose accompanied Plaintiff to one of the drug tests.
• Plaintiff alleges Rose would leave her out of important intra-department correspondence to the point that she felt ostracized and shunned by management.
• When Rose would communicate with her, he would often become easily angered and yell at her over minor issues.
• Rose did not exhibit such behavior toward similarly situated male employees.
• On December 19, 2019, Rose sent a work-related text message to all of the male fire investigators, but specifically excluded Plaintiff and Criswell – the only two female investigators left in the department.
• Rose and the Norfolk Fire Marshall’s Office required female investigators to strictly adhere to a policy requiring they wear a full uniform when appearing to testify in court proceedings.  
• Defendant did not require similarly situated male employees to adhere to the purported mandatory dress policy.
• On April 27, 2020, Plaintiff alleges Rose continued to display hostility, retaliation, and gender discrimination against her at the scene of a fire in which Plaintiff was the lead investigator.
• Plaintiff alleges that Rose came upon the scene, belittled her in front of coworkers, and told her coworkers, “I am the captain. I outrank her. I am going to make sure she knows that I do.”
• Rose then ordered Plaintiff to perform punitive physical labor.
• Rose did not order a similarly situated male investigator to perform such physical labor and advised him, in Plaintiff’s presence, that he could relax as Plaintiff worked by herself.
• Captain Wayne Oporto, who was present at the scene, made a verbal and written complaint to his supervisor about how offended he was by witnessing Rose’s conduct toward Plaintiff.
• From November 15, 2019 through June of 2020, Plaintiff alleges that Defendant regularly charged her and other female employees for sick leave or vacation time for any time off, but, did not do the same to similarly situated male employees.
• On January 6, 2020, Plaintiff alleges that she and Criswell were verbally reprimanded for not answering phone calls from a lieutenant when they were off duty and not on call.
• Defendant did not reprimand any similarly situated male employees for failing to answer such calls.
• On January 13, 2020, Plaintiff alleges that Lieutenant Phillips, who is a male, advised her during a work meeting that she was “being watched by all of the supervisors” because of the lawsuit.

The city sought to dismiss Baka’s three state law claims:  a retaliation claim under Virginia’s Human Rights Act; a whistleblower violation claim; and a claim for punitive damages for violations of Virginia’s Human Rights Act. US District Court Judge Raymond A. Jackson refused to dismiss the first two state law claims, rejecting the city’s contention that it was entitled to sovereign immunity. Discussing the discretionary – ministerial dichotomy that so often accompanies sovereign immunity claims, Judge Jackson concluded the conduct Baka endured (assuming it can be proven) was ministerial in nature. Sovereign immunity would only be available to the city for discretionary acts.

Judge Jackson dismissed the punitive damages claim concluding it was not applicable to governmental employers under the Human Rights Act.

Here is a copy of the decision: