Harris v. Wash. & Lee Univ.

82 Va. App. 175

906 S.E.2d 128

Kelly Leigh HARRIS

v.WASHINGTON & LEE UNIVERSITY

Record No. 1083-23-3

Court of Appeals of Virginia, Lexington.

October 1, 2024

FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY, Christopher B. Russell, Judge

Thomas E. Strelka (L. Leigh Rhoads; Brittany M. Haddox, Roanoke; Monica L. Mroz; Strelka Employment Law, on brief), for appellant.

Tracy Taylor Hague, Richmond, (Anne Graham Bibeau, Norfolk; Elaine D. McCafferty, Charlottesville; Woods Rodgers Vandeventer Black PLC; Woods Rogers PLC, on brief), for appellee.

Present: Judges Huff, Athey and Fulton

OPINION BY JUDGE CLIFFORD L. ATHEY, JR.

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"), Code § 40.1-27.3. Harris assigns error to the circuit court: 1) for determining, based upon the VWPL and "undisputed evidence," that Harris was not an employee of W&L 2) for misinterpreting the terms "employer" and "employee" in Code § 40.1-2; 3) for determining that Harris could not have reported any alleged violations to a supervisor "as she did not have a supervisor at [W&L]"; 4) for holding that W&L’s plea in bar did not "involve[ ] … disputed factual issue[s]" based upon the factors enunciated in Butler v. Drive Auto. Industries of America, 793 F.3d 404 (4th Cir. 2015); and 5) for failing to rule on "whether [she] reported any alleged violations of any federal or state law or regulation as required by [the VWPL]." Finding no error, we affirm the circuit court’s judgment.

I. Background¹

On June 1, 2015, Harris began her employment as the house director for the Zeta Deuteron chapter of the Phi Gamma Delta ("PGD") fraternity located on the campus of W&L. Harris had previously applied for the position of house director by sending her employment application to Mark Muchmore ("Muchmore"), the President of PGD’s House Corporation. Muchmore subsequently interviewed Harris and offered her the position as house director that she accepted. Before Harris commenced her employment, both she and Muchmore executed an Employment Agreement ("Agreement"), which contained the terms and conditions of her employment with House Corporation.

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 requirements. 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 before allowing them to return to fraternity housing. A reporter from the newspaper had contacted W&L for comment on January 21, 2021, and the request for comment was then forwarded to W&L’s Dean of Student Life, David Leonard ("Leonard"). Leonard advised in an email chain to other W&L staff members that he had "[n]o doubt this is from … Harris at [PGD]." Leonard also advised in the email chain that he was going to have Reid "reach out" to Harris to "discuss the concern and her poor judgement in [supposedly] contacting the paper." He further noted that he had discussed with Muchmore PGD "cut[ting] her loose."

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 they were "supposed to report violations of rules or guidelines" to Reid. When asked what "entities" she considered to be her employer, she considered PGD one of her employers because she "got [her] paychecks from [PGD]." Although Harris also considered W&L to be her employer because "[she] had to follow their rules and regulations," she conceded multiple times during her deposition that she was not an "employee" of W&L. Harris also admitted that her actual employer was House Corporation and that...