Luis Rivera v. Mantech International Corporation ( 2024 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Friedman, Frucci and Senior Judge Humphreys
PUBLISHED
Argued at Fredericksburg, Virginia
LUIS RIVERA
OPINION BY
v. Record No. 0962-23-4 JUDGE ROBERT J. HUMPHREYS
JUNE 25, 2024
MANTECH INTERNATIONAL CORPORATION
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Dontaé L. Bugg, Judge
(Valerie A. Teachout; Young (Evelyn) Eun Ko; The Spiggle Law
Firm, on briefs), for appellant. Appellant submitting on briefs.
Edward Lee Isler (Micah E. Ticatch; Isler Dare, P.C., on brief), for
appellee.
Luis Rivera appeals the circuit court’s judgment sustaining ManTech International
Corporation’s plea in bar of the statute of limitations and dismissing with prejudice his claim under
the Virginia Whistleblower Protection Law (VWPL), Code § 40.1-27.3. Rivera argues that the
circuit court erred in holding that notice of termination triggered the statute of limitations, rather
than the date of his actual termination.
BACKGROUND1
Rivera worked for ManTech at the United States Embassy compound in Baghdad as a
Global Security Corporation (GSC) Technician III. During his employment, Rivera’s co-worker
reported to the Office of Inspector General that a ManTech supervisor had instructed employees,
including Rivera, to forge official documents, in violation of federal laws and regulations. That
1
Because this case was dismissed on a plea in bar, for context we recite the allegations as
stated in the complaint.
report prompted an investigation by the United States Department of State’s Regional Support
Office (RSO). As a part of the investigation, Rivera confirmed to an RSO investigator that his
supervisor had instructed him to recreate missing documents and forge signatures, which he refused
to do. Rivera’s co-workers later informed him that the supervisor stated that “Rivera would the first
one to be let go, if it came down to laying off ManTech employees” because of the investigation.
On January 14, 2022, ManTech informed Rivera in writing that it was terminating his
employment due to “contract reduction” and that his last day of employment would be on February
7, 2022. The letter advised Rivera that he was eligible for “ManTech’s Mobility Program to
identify a suitable position to continue [his] employment with ManTech,” although the program did
not guarantee Rivera a placement. The letter further stated that Rivera might be eligible for rehire if
a “suitable position” became available.
Also on January 14, 2022, ManTech revoked Rivera’s “special Embassy ID card and
provided him with a temp card with no security clearance.” Without security clearance, Rivera was
unable to perform his employment duties as a GSC Technician. Rivera remained on ManTech’s
payroll until February 7, 2022.
On February 7, 2023, Rivera filed a complaint against ManTech, alleging that it violated the
VWPL. Rivera argued that his participation in the investigation was a protected activity under the
VWPL and that his termination was in retaliation for this protected activity. Rivera requested actual
damages for back and front pay, non-pecuniary compensatory damages, and attorney fees.
ManTech filed a plea in bar asserting that the statute of limitations had expired, citing the
one-year statute of limitations period contained in Code § 40.1-27.3(C). ManTech claimed that the
January 14, 2022 letter triggered the VWPL limitation period, rendering Rivera’s complaint, filed
on February 7, 2023, untimely. Rivera countered that his complaint was timely because February 7,
2022, was the effective date of his termination; thus, his claim accrued on that date.
-2-
Following a hearing, the circuit court sustained ManTech’s plea in bar. The circuit court
held that Rivera’s injury occurred on January 14, 2022, when ManTech notified him that his
position had been eliminated and revoked his security clearance, even though he remained on
ManTech’s payroll until February 7, 2022. The circuit court dismissed Rivera’s complaint with
prejudice. Rivera appeals.
ANALYSIS
Since the parties have not raised or briefed the issue in either this Court or the trial court,
we will assume without deciding that the VWPL applies to the actions taken by ManTech against
Rivera for conduct that did not occur in the Commonwealth.
“A plea in bar asserts a single issue, which, if proved, creates a bar to a plaintiff’s
recovery.” Massenburg v. City of Petersburg, 298 Va. 212, 216 (2019). The movant bears the
burden of proof on such a plea. A circuit court’s “decision on a plea in bar of the statute of
limitations involves a pure question of law that we review de novo.” Radiance Cap. Receivables
Fourteen, LLC v. Foster, 298 Va. 14, 19 (2019) (quoting Van Dam v. Gay, 280 Va. 457, 460
(2010)). However, because this case was dismissed on a plea in bar based on the pleadings, for
the context of our review, we consider the allegations as stated in the complaint, assuming them
to be true.
Under the VWLP, “[a]n employer shall not discharge, discipline, threaten, discriminate
against, or penalize an employee, or take other retaliatory action . . . , because the employee . . . in
good faith reports a violation of any federal or state law or regulation.” Code § 40.1-27.3(A)(1). “A
person who alleges a violation of this section may bring a civil action in a court of competent
jurisdiction within one year of the employer’s prohibited retaliatory action.” Code § 40.1-27.3(C).
The narrow question presented here is whether the circuit court correctly held that the
“prohibited retaliatory action,” under the VWLP, occurred when ManTech informed Rivera of his
-3-
pending termination. Rivera resists that conclusion, arguing that a claim does not accrue until there
is some consequence from the retaliatory action, which Rivera contends was the last day of
employment. Rivera emphasizes that ManTech had informed him of the opportunity to pursue
continued employment with ManTech beyond the specified February 7, 2022 termination date.
ManTech notes, however, that the same day it notified Rivera of the pending termination, his
security clearance was revoked, rendering him unable to perform his employment duties as a GSC
Technician.
Statutory interpretation is a question of law we review de novo. Robinson v.
Commonwealth, 68 Va. App. 602, 606 (2018). When interpreting a statute, “our primary
objective is to ascertain and give effect to the legislative intent, which ‘is initially found in the
words of the statute itself.’” Chaffins v. Atl. Coast Pipeline, LLC, 293 Va. 564, 568 (2017)
(quoting Crown Cent. Petroleum Corp. v. Hill, 254 Va. 88, 91 (1997)). The proper course is “to
search out and follow the true intent of the legislature, and to adopt that sense of the words which
harmonizes best with the context, and promotes in the fullest manner the apparent policy and
objects of the legislature.” Smith v. Commonwealth, 66 Va. App. 382, 389 (2016) (quoting
Marshall v. Commonwealth, 58 Va. App. 210, 215 (2011)). Additionally, “the plain, obvious,
and rational meaning of a statute is always to be preferred to any curious, narrow, or strained
construction.” Id. at 388 (quoting Williams v. Commonwealth, 57 Va. App. 341, 351 (2010)).
Generally, Virginia courts have held that a cause of action accrues at the time of injury
although the injured party may not suffer damages until later.2 “Any amount of damages,
2
Neither our Supreme Court nor this Court has previously addressed when a cause of
action accrues under the VWPL. To date, the only court to do so is the United States District
Court for the Eastern District of Virginia, which recently concluded that the limitations period
began running when the employer provided the employee written notice that it was going to
terminate her employment. Kulshrestha v. Shady Grove Reproductive Sci. Ctr., P.C., 668
F. Supp. 3d 411, 418 (E.D. Va. Apr. 6, 2023).
-4-
‘however slight,’ triggers the accrual of the cause of action, and for this reason, ‘it is immaterial
that all the damages resulting from the injury do not occur at the time of the injury.’” Kerns v.
Wells Fargo Bank, N.A., 296 Va. 146, 159 (2018) (quoting Van Dam, 280 Va. at 463); Kiser v.
A.W. Chesterton Co., 285 Va. 12, 22 (2013) (explaining that a statute of limitations begins to run
“when any injury, though slight, is sustained as the consequence of an alleged wrong, despite the
fact that greater damage from the same wrong may be sustained at a later date” (quoting Lo v.
Burke, 249 Va. 311, 317 (1995))).
Relying on authority interpreting the two-year statute of limitations governing personal
injury claims under Code § 8.01-243(A), Rivera argues that he could not have brought suit
against ManTech on January 14, 2022, the date he was notified of his pending termination. The
Supreme Court has held that “[a] right of action cannot accrue until there is a cause of action”
and that “[i]n the absence of injury or damage to a plaintiff or his property, he has no cause of
action and no right of action can accrue to him.’” First Virginia Bank-Colonial v. Baker, 225
Va. 72, 82 (1983) (quoting Caudill v. Wise Rambler, 210 Va. 11, 13 (1969)). In Baker, as in
many personal injury cases, the injury did not occur until several years after the wrong occurred,
and because the right of action accrues when the injury occurs the statute of limitations began to
run on the date of the injury. Id. at 83. Rivera argues that because he might have had the
opportunity to continue working for ManTech beyond February 7, 2022, if he had identified a
suitable position within ManTech, his cause of action did not ripen into a right of action until his
termination on February 7, 2022.
In response, ManTech points to a number of what it asserts are analogous cases involving
federal statutes. For example, in a denial of tenure case arising under Title IX analogous to the
present matter, the United States Supreme Court held that the limitations period begins to run
when the tenure decision is made and the plaintiff is notified, and not when the effect of the
-5-
denial of tenure is felt. Delaware State Coll. v. Ricks, 449 U.S. 250, 259 (1980). As the Court
explained, “[t]he proper focus is upon the time of the discriminatory acts, not upon the time at
which the consequences of the acts became most painful.” Id. at 258. Likewise, actions brought
under 42 U.S.C. § 1983 accrue “when the plaintiff knows or has reason to know of the injury
which is the basis of his action.” Bd. of Supervisors v. Thompson Assoc., 240 Va. 133, 138
(1990). Similarly, in considering a cause of action for retaliation under Title VII of the Civil
Rights Act of 1964, the Supreme Court held that the statute of limitations accrues on the day the
“discrete retaliatory or discriminatory act . . . happened,” not on the day when the plaintiff was
ultimately terminated. AMTRAK v. Morgan, 536 U.S. 101, 110 (2002).
Rivera attempts to distinguish Ricks, arguing that in Ricks, the termination of the
plaintiff’s contract was the inevitable consequence of the denial of tenure but his termination was
not inevitable. Rivera notes that the January 14, 2022 letter gave him the option to seek and
obtain alternative, suitable positions. Rivera concludes that because he could have continued
working for ManTech beyond February 7, 2022, had he located a suitable position within
ManTech, his cause of action did not ripen into a right of action until after February 7, 2022.
Rivera’s argument is unpersuasive, and we need not rely on precedents involving federal
statutes that bear only a passing resemblance to the VWLP. The plain language of the VWLP
states that the limitations period begins to run as of the date of the employer’s “prohibited
retaliatory action,” not from the date that the employee felt the full impact of the action. Code
§ 40.1-27.3(C). Here, the allegedly prohibited retaliatory action was ManTech’s decision to
eliminate Rivera’s position; that decision was clearly communicated to Rivera in the January 14,
2022 letter. Any new position Rivera may have found would only have reduced the magnitude of
Rivera’s injury; it would not have wholly cured the allegedly retaliatory nature of the decision to
eliminate Rivera’s current position.
-6-
The January 14, 2022 letter clearly notified Rivera of ManTech’s decision to eliminate his
position. The notification that he was losing his position at ManTech as a result of conduct
protected by the VWPL is the “prohibited retaliatory action” contemplated by the statute, thus
triggering the one-year limitation period under Code § 40.1-27.3(C). Thus, Rivera’s complaint,
filed on February 7, 2023, was beyond the one-year limitations period. For these reasons, we affirm
the circuit court’s judgment.
Affirmed.
-7-