COURT OF APPEALS OF VIRGINIA
Present: Judges O’Brien, AtLee and Senior Judge Petty PUBLISHED
Argued by videoconference
MICHAEL W. MARTIN OPINION BY v. Record No. 1310-25-3 JUDGE WILLIAM G. PETTY MARCH 17, 2026 THE CITY OF WAYNESBORO, VIRGINIA, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF WAYNESBORO Paul M. Peatross, Jr., Judge Designate
W. Barry Montgomery (KPM Law, on briefs), for appellant.
Richard H. Milnor (Zunka, Milnor & Carter, Ltd., on briefs), for appellees.
Michael W. Martin challenges the circuit court’s judgment dismissing his wrongful
termination claims against the City of Waynesboro and Michael D. Wilhelm. Martin asserts that
he was terminated from his job as a police captain in retaliation for reporting misconduct by
other local law enforcement officers. Martin brought claims against the City and Wilhelm under
Code § 2.2-3011 of the Fraud and Abuse Whistle Blower Protection Act (the “Whistle Blower
Act”) (Code §§ 2.2-3009 to -3014), which protects individuals from retaliation for “report[ing]
instances of wrongdoing or abuse committed by governmental agencies.” Code § 2.2-3009
(whistle blower claims). He also asserted claims against them under Code § 40.1-27.3, which
protects “employees” from retaliation for reporting wrongdoing or abuse committed by their
“employers,” as those terms are defined in Code § 40.1-2 (retaliation claims).
The circuit court granted the City and Wilhelm’s motion to dismiss Martin’s whistle
blower claims for lack of subject matter jurisdiction because it found that they were entitled to sovereign immunity. The court also granted Wilhelm’s motion for summary judgment on the
retaliation claim, finding that he was not Martin’s “employer” under Code §§ 40.1-2 and 40.1-27.3.
Martin assigns error to both rulings.
While ruling in favor of the City on the issue of sovereign immunity, the court overruled the
City’s demurrer to the whistle blower claim, and it denied a motion for summary judgment by the
City and Wilhelm on the whistle blower claims based on their affirmative defense that Martin was
terminated for misconduct rather than out of retaliation. The City and Wilhelm assign cross-error to
these rulings.
We hold that the City is entitled to immunity from the whistle blower claim, but Wilhelm is
not. And the record shows that there are issues of material fact genuinely in dispute barring
summary judgment on the whistle blower claim against Wilhelm. We also hold that Wilhelm is not
Martin’s “employer” under Code § 40.1-2, so there is no error in the circuit court’s summary
judgment ruling on the retaliation claim. Thus, we affirm the circuit court’s judgment in part and
reverse in part.
BACKGROUND1
I. Martin’s Whistle Blower Reports
Martin is a former captain of the Waynesboro Police Department (WPD). Wilhelm is a
former WPD chief of police and was Martin’s direct supervisor. Between 2016 and 2018, Martin
worked on a drug task force composed of law enforcement officers from several adjacent
jurisdictions, including Waynesboro and Augusta County. Martin and certain Augusta County
officials had several disagreements over enforcement methods while working on the task force,
1 On appeal of a summary judgment decision, we review the record applying the same standard the circuit court was required to adopt, “accepting as true those inferences from the facts that are most favorable to the nonmoving party, unless the inferences are forced, strained, or contrary to reason.” Stahl v. Stitt, 301 Va. 1, 8 (2022) (quoting Fultz v. Delhaize Am., Inc., 278 Va. 84, 88 (2009)). -2- which caused interpersonal tensions. Martin alleges that members of the Augusta County Sheriff’s
Office used improper tactics when serving drug-related warrants, curtailing successful drug seizures
in the region. Given his concerns, on at least one occasion, Martin chose to work with a Virginia
State Police (VSP) tactical team, rather than the Augusta County Sheriff’s, in a drug search and
seizure operation that spanned several jurisdictions, including Augusta County. Augusta County
Sheriff Donald Smith was angered when he learned of his office’s exclusion from the operation and
thereafter demanded that all drug warrants in Augusta County be served solely through the Sheriff’s
Office.
In December 2017, Martin observed Augusta County Sheriff’s Sergeant Mike Roane use
what Martin alleges was excessive force in a vehicle stop. Martin also suspected that Roane had
tracked the vehicle illegally. That same month, Martin witnessed Roane destroy several glass pipes
belonging to a suspect during a consensual home search. Roane took one pipe and left it on his desk
as a “trophy” for over a week. Martin expressed concerns about the traffic stop to Wilhelm and
notified several officials of Roane’s potential mishandling of evidence; those officials included
Wilhelm, Waynesboro Commonwealth’s Attorney David Ledbetter, and a member of the VSP.
After learning of Martin’s report, Sheriff Smith asked Ledbetter not to place Roane on the
“Brady list” for the relevant case, despite his misconduct.2 Timothy A. Martin, the
Commonwealth’s Attorney for Augusta County, later commented to a Waynesboro Assistant
Commonwealth’s Attorney that he “couldn’t believe that this guy [Martin] wanted to ruin a cop’s
career over a pipe.” Martin expressed concerns to Wilhelm about these actions by Sheriff Smith
and the Augusta Commonwealth’s Attorney, as well as his continued concerns about Roane’s
2 This list presumably refers to the case of Brady v. Maryland, 373 U.S. 83 (1963), in which the United States Supreme Court held that prosecutors must disclose to the defense any exculpatory evidence in their possession. See Commonwealth v. Tuma, 285 Va. 629, 634-37 (2013). The required disclosures under Brady include evidence that could be used to impeach a witness. Id. at 634. -3- misconduct. In response, Wilhelm told Martin that he “just needed to ‘quit pissing people off.’”
Wilhelm and the City of Waynesboro did not investigate Martin’s reports of misconduct. Despite
Wilhelm’s warning, Martin then reported Sheriff Smith’s and Roane’s asserted misconduct to the
VSP.3
A few weeks later, Sheriff Smith called a special meeting of the drug task force and
successfully lobbied to have Martin voted off the task force and to move the task force’s operational
center from Waynesboro to Augusta County. Martin continued to work on regional drug cases in
his role as a Waynesboro police officer, as well as in coordination with the federal Drug
Enforcement Administration (DEA) as a federal “task force officer.” In late 2018, Sheriff Smith
contacted the Washington Field Office of the DEA and “successfully had Martin’s federal
credentials pulled as a result of false information.”
II. Martin’s Termination
In October 2018, Martin and other law enforcement officers recovered almost a kilogram of
methamphetamine after a confidential informant told Martin where the drugs were located. The
informant divulged the location after Martin promised him that he would not be prosecuted. The
informant was released, and he worked with Martin for the next several months providing helpful
information that supported additional arrests and drug seizures.
Despite the Augusta Commonwealth Attorney’s knowledge that Martin had promised the
informant immunity, he initiated a criminal case against the confidential informant, resulting in a
July 2019 indictment of the informant for possession of methamphetamine, in violation of Code
§ 18.2-248(H). The informant moved to suppress his confession to the police as non-voluntary
because it was made in exchange for the promise of immunity.
3 Martin met with members of the VSP to discuss Sheriff Smith’s and Roane’s conduct, but the complaint does not state whether the VSP investigated the allegations. -4- At a hearing on the suppression motion, Martin testified that he had promised the informant
that he would not be prosecuted if he surrendered the drugs and cooperated with law enforcement
officers. Martin admitted that he lacked authority to make a deal with the informant without
approval from a prosecuting authority, but he stated that he believed that the case involved unusual,
urgent circumstances allowing him to make the promise.4 He added that he believed that
prosecutors would agree and honor the deal. According to Martin, he believed that the Augusta
Commonwealth Attorney’s office had agreed not to charge the informant. In support of this belief,
Martin testified that he “hadn’t even sent the drugs to the lab” for testing when he spoke to the
Augusta Commonwealth’s Attorney about the informant in February 2019. He admitted that he had
not included the immunity promise in a police report that he had prepared about the drug seizure.
He explained the omission was deliberate and done in the ordinary course of business to protect
confidential informants.
Another law enforcement officer who was present at the interview with the informant
testified that he did not recall Martin making any promise of immunity. The Augusta
Commonwealth’s Attorney moved to dismiss the case before the court ruled on the motion. After
the hearing, the Augusta Commonwealth’s Attorney told Wilhelm that Martin had provided false
testimony at the hearing. Wilhelm placed Martin on administrative leave and asked the VSP to
investigate the allegations.
The VSP provided the results of its investigation to Special Prosecutor Jeffrey Einhaus, who
declined to prosecute Martin for perjury. In an April 2021 letter, Einhaus concluded that Martin’s
4 A transcript from the suppression hearing was attached as an exhibit to the City and Wilhelm’s summary judgment motion. During the hearing, the Augusta Commonwealth’s Attorney implied that he was unaware of Martin’s promise. Viewing the facts alleged in the light most favorable to Martin strictly for purposes of reviewing the summary judgment motion, we accept that the Augusta Commonwealth’s Attorney knew of the non-prosecution deal Martin had made. See Stahl, 301 Va. at 8. -5- testimony that he had made the immunity promise conflicted with another law enforcement officer’s
testimony at the same hearing, and his own police report (by deliberate omission), but VSP
investigators had not uncovered sufficient additional evidence to prove that Martin’s claim was
false. Einhaus also concluded that Martin gave demonstrably inaccurate testimony by stating that
he had not sent the drugs to the lab when he discussed the matter with the Augusta
Commonwealth’s Attorney in February 2019, because records showed that he had requested lab
analysis of the drugs in October 2018. Even so, Einhaus noted that the investigation produced no
evidence that Martin “willfully” lied about that fact.
In July 2021, Ledbetter wrote to Wilhelm stating that the Office of the Commonwealth’s
Attorney for the City of Waynesboro would no longer prosecute any case for which Martin
would be a material witness. His decision was based on the findings in Einhaus’s April 5, 2021
letter; conflicting statements Martin had made to Ledbetter and Wilhelm about his role in a
police operation while on administrative leave; and considerations arising from Brady v.
Maryland, 373 U.S. 83 (1963).
Wilhelm initiated an internal investigation to determine whether Martin had violated WPD
policies. Major Sean Reeves of the Albemarle County Police Department conducted the
investigation. In a September 2021 report, Reeves concluded that Martin had violated Waynesboro
Police Department General Order (WPD GO) 20.02 by entering a non-prosecution deal with a
confidential informant without consulting a prosecuting authority. Reeves also determined that
Martin had conducted police work while on administrative leave, had told Ledbetter about that
work, and had then lied to Wilhelm about having conducted the work. Finally, Reeves found
that Martin continued to conduct police work while on administrative leave in violation of a
direct order by Wilhelm not to do so. These actions, according to Reeves, violated WPD GO
5.01 governing standards of conduct.
-6- Wilhelm terminated Martin in January 2022 based on the results of the internal
investigation. In a letter explaining the decision, Wilhelm made five findings: (1) Martin
improperly promised not to charge a confidential informant in exchange for information related
to a drug investigation, in violation of WPD GO 20.02; (2) Martin made contradictory statements
to Ledbetter and Wilhelm about his involvement in police work while on administrative leave, in
violation of WPD GO 5.01; (3) Martin committed insubordination, in violation of WPD GO
5.01; (4) Martin provided false testimony under oath at the confidential informant’s suppression
hearing, in violation of WPD GO 5.01; and (5) Martin omitted exculpatory evidence (the
promise he made to the confidential informant) from a police report, in violation of WPD GO
5.01. Wilhelm also noted that Ledbetter’s decision not to prosecute cases for which Martin
would be a material witness had “rendered [Martin] unable to perform [his] duties as a
Waynesboro Police Officer.” Martin initiated a grievance under the City of Waynesboro’s
grievance procedure, and a grievance panel affirmed all five findings from Wilhelm’s
termination letter without explanation.
III. Procedural History
Martin brought claims against Wilhelm and the City for wrongful termination under Code
§ 2.2-3011 (the “whistle blower claims”) and Code § 40.1-27.3 (the “retaliation claims”), as well as
a common law wrongful termination claim. He sought compensatory and punitive damages,
attorney fees, and an order directing the City to reinstate his employment. The City and Wilhelm
demurred. The circuit court sustained with prejudice the City’s demurrer to Martin’s retaliation
claim, the common law wrongful discharge claim, and Martin’s request for punitive damages. The
court overruled the City’s demurrer to the whistle blower claim. The court sustained with prejudice
Wilhelm’s demurrer to the common law wrongful discharge claim but overruled his demurrer to the
-7- whistle blower claim and retaliation claim. The court took Wilhelm’s demurrer to Martin’s request
for punitive damages under advisement.
The City and Wilhelm then moved to dismiss the whistle blower claims for lack of subject
matter jurisdiction, asserting that they were entitled to sovereign immunity. The circuit court
granted the motions, concluding that the defendants were entitled to sovereign immunity and that
the Whistle Blower Act did not expressly waive their immunity.
The City and Wilhelm also moved for summary judgment on the whistle blower claims,
arguing that they were entitled to terminate Martin because he committed misconduct. At the
parties’ request, the court heard argument on this motion despite having already found that the
defendants were entitled to sovereign immunity. The court denied the motion.
Wilhelm moved for summary judgment on the retaliation claim, arguing that he was not
Martin’s “employer” under Code § 40.1-27.3. The court agreed and granted Wilhelm summary
judgment on that claim.
On appeal, Martin asserts that the circuit court erred by concluding that the Whistle Blower
Act does not waive the City’s and Wilhelm’s immunity. Martin also asserts that the circuit court
erred by concluding that Wilhelm was not his “employer” under Code § 40.1-27.3. The City
assigns cross-error to the circuit court’s overruling its demurrer to the whistle blower claim,
asserting that the City is not an “employer” under the Whistle Blower Act. The City and Wilhelm
also argue that the court should have granted their motions for summary judgment on the whistle
blower claims because the undisputed facts demonstrate that they terminated Martin for misconduct,
which is a defense to the claims.
-8- ANALYSIS
I. Whistle Blower Claims
A. Sovereign Immunity
“It is an established principle of sovereignty, in all civilized nations, that a sovereign
State cannot be sued in its own courts . . . without its consent and permission.” Gray v. Va. Sec’y
of Transp., 276 Va. 93, 101 (2008) (alteration in original) (quoting Bd. of Pub. Works v. Gannt,
76 Va. 455, 461 (1882)). “Thus, ‘as a general rule, the sovereign is immune not only from
actions at law for damages but also from suits in equity to restrain the government from acting or
to compel it to act.’” Id. at 102 (quoting Hinchey v. Ogden, 226 Va. 234, 239 (1983)). “The
existence of sovereign immunity is a question of law that is reviewed de novo.” Ellis v. Jolley,
___ Va. ___, ___ (Dec. 11, 2025) (quoting Lee v. City of Norfolk, 281 Va. 423, 439 (2011)).
Municipalities are entitled to sovereign immunity to the extent they exercise governmental
powers delegated to them by the Commonwealth. See Va. Elec. & Power Co. v. Hampton
Redevelopment & Hous. Auth., 217 Va. 30, 34 (1976); Hoggard v. Richmond, 172 Va. 145, 147-48
(1939). “‘And because the Commonwealth can act only through individuals,’ the doctrine of
sovereign immunity ‘applies not only to the state, but also to certain government officials.’”
Ibanez v. Albemarle Cnty. Sch. Bd., 80 Va. App. 169, 189 (2024) (quoting Gray, 276 Va. at 101).
“The Commonwealth, however, can waive sovereign immunity and consent to being sued
in its own courts.” Gray, 276 Va. at 102. Waiver occurs in two instances: (1) “where statutory
language ‘explicitly and expressly,’ allows a private right of action,” and (2) “where a
constitutional provision is ‘self-executing.’” Ibanez, 80 Va. App. at 190 (quoting Gray, 276 Va.
-9- at 102). The question before us is whether the Whistle Blower Act expressly waives the City’s
and Wilhelm’s immunity.5
A statutory waiver of sovereign immunity occurs “only when the statutory language has
explicitly and expressly announced such a waiver.” Ligon v. County of Goochland, 279 Va. 312,
317 (2010). “[A] waiver of sovereign immunity cannot be implied from general statutory
language.” Id. at 319. The express announcement of a waiver of immunity, however, need not
include the specific terms “waive” or “immunity.” Instead, the analysis turns on whether the
statute expressly provides a procedural mechanism by which the Commonwealth or one of its
agents may be held monetarily liable, restrained, or compelled to act. For example, the Supreme
Court consistently has held that the Virginia Tort Claims Act (VTCA), Code §§ 8.01-195.1
to -195.9, provides “an express, limited waiver of the Commonwealth’s immunity from tort claims.”
Baumgardner v. Sw. Va. Mental Health Inst., 247 Va. 486, 489 (1994); see also Rector & Visitors of
the Univ. of Va. v. Carter, 267 Va. 242, 244 (2004). The waiver applies because Code § 8.01-195.3
provides that the Commonwealth and certain transportation districts “shall be liable for claims for
money” arising from tort claims in certain circumstances.6
5 Martin does not dispute that the City and Wilhelm are entitled to sovereign immunity as a threshold matter; he argues only that the Whistle Blower Act waives their immunity. Issues of law are not subject to concession binding on this Court. Va. Marine Res. Comm’n v. Chincoteague Inn, 287 Va. 371, 389 (2014). We agree, however, that Wilhelm’s act of terminating Martin’s employment was one for which he and the City would otherwise be entitled to immunity if not waived by statute. Municipalities and government officials are generally entitled to immunity in the exercise of discretionary, governmental functions, but not for ministerial, proprietary functions. See Ellis, ___ Va. at ___ (applying “four-factor test to determine whether a governmental employee shares in the immunity enjoyed by the sovereign”); Cromartie v. Billings, 298 Va. 284, 297-98 (2020); Massenburg v. City of Petersburg, 298 Va. 212, 217-21 (2019). 6 Code § 8.01-195.3 does explicitly mention and preserve the immunity of certain government officials, as well as counties, cities, and towns. - 10 - Similarly, the Supreme Court has held that “Code § 62.1-44.29 is an express waiver of the
Commonwealth’s immunity from judicial review of final decisions of the Water Control Board
issuing or denying water protection permits” because it “expressly provides for judicial review of all
final decisions of the Water Control Board relating to the issuance of water protection permits.” All.
to Save the Mattaponi v. Commonwealth Dep’t of Env’t Quality ex rel. State Water Control Bd., 270
Va. 423, 440-41 (2005). Thus, whether a statute expressly waives sovereign immunity turns on
whether the statute expressly makes the Commonwealth or its agents subject to a procedural
remedy. See id.; see also Commonwealth ex rel. Fair Hous. Bd. v. Windsor Plaza Condo. Ass’n,
289 Va. 34, 57 (2014) (noting that Code § 36-96.17(E)(3) waives sovereign immunity because it
expressly states that in a civil action brought by the Commonwealth based on discriminatory
housing practices the prevailing party can recover attorney fees and “[t]he Commonwealth shall
be liable for such fees and costs to the extent provided by the Code of Virginia”); Afzall v.
Commonwealth, 273 Va. 226, 233-34 (2007) (noting that the final paragraph of Code § 8.01-66.9
evinced an intent to waive sovereign immunity by providing “a particular procedure for an injured
person to follow in seeking judicial review”); Va. Bd. of Med. v. Va. Physical Therapy Ass’n, 13
Va. App. 458, 465-66 (1991) (holding that the Virginia Administrative Procedure Act constitutes an
express waiver of agencies’ sovereign immunity because it allows for judicial review of agency
actions).
As relevant here, Code § 2.2-3011 provides that “any whistle blower may bring a civil
action” against his “employer” for wrongful discharge and retaliation. A “whistle blower” is “an
employee” who witnesses or has evidence of wrongdoing and plans to report it. Code
§ 2.2-3010. An “employee” includes a person employed by a government agency. Id. A
“government agency” includes state government agencies and “any county, city, or town or local
or regional governmental authority.” Id. And an “employer” is an employee’s supervisor within
- 11 - that agency. Id. Thus, the Whistle Blower Act expressly creates a private right of action by a
city police officer against his supervisor, and it expressly waives the supervisor’s sovereign
immunity for such claims. See, e.g., Frederick County v. Va. Dep’t of the Treasury, 81 Va. App.
102, 108-16 (2024) (concluding that Code § 58.1-3952 waived the Commonwealth’s sovereign
immunity for actions to enforce tax liens where the statute allowed actions against any indebted
“person” and explicitly defined “person” to include “the Commonwealth and its agencies”).
With this understanding in mind, we hold that Wilhelm is not entitled to sovereign immunity from
Martin’s whistle blower claim. Thus, the circuit court erred by granting Wilhelm’s motion to
dismiss on that basis.7
7 Wilhelm’s focus on the lack of an explicit reference to sovereign immunity in the Whistle Blower Act is understandable, given the repeated admonition by Virginia courts that waiver of sovereign immunity “cannot be implied from general statutory language but must be explicitly and expressly announced in the statute.” Windsor Plaza Condo. Ass’n, 289 Va. at 56 (quoting Afzall, 273 Va. at 230). Yet, as demonstrated by the caselaw, see supra, that statement appears to constitute an oft-repeated but legally misleading “rhetorical flourish,” or “inadequate catch words” of the sort recently referenced by the Supreme Court of Virginia. Mast v. A.A., ___ Va. ___, ___ (Feb. 12, 2026) (first quoting Bonanno v. Quinn, 299 Va. 722, 736 (2021); and then quoting Oliver Wendell Holmes, Law in Science and Science in Law, 12 Harv. L. Rev. 443, 455 (1899)). Although some statutes waive immunity by explicitly referencing it, oftentimes what statutes do is expressly create an action or procedural remedy against a government entity or its agents without referencing immunity at all. Compare Newport News Sch. Bd. v. Z.M., 304 Va. 276, 280 (2025) (analyzing waiver of immunity under Code § 22.1-194, which provides that “the defense of governmental immunity shall not be a bar” to certain claims arising from accidents involving vehicles owned or operated by school boards or localities), with Windsor Plaza Condo. Ass’n, 289 Va. at 57-58 (stating that Code § 36-96.17, which does not reference “immunity,” contains an “explicit waiver of sovereign immunity”). In those latter cases, courts opine that the statutes have waived immunity “expressly,” but the process might be more accurately characterized as waiver by undeniable logical implication. A statute that creates a cause of action against the Commonwealth must also waive the Commonwealth’s immunity, or the statute itself would be pointless. In a sense, then, we often find sovereign immunity by implication, despite declaring that we never will. The more appropriate question is whether a waiver of sovereign immunity must logically follow because the enforceability of the cause of action created by the statute plainly depends on immunity having been waived. As explained in this opinion, we find that the clearer guideline for determining whether the General Assembly intended a statute to waive sovereign immunity is whether the statute enacted clearly provides a cause of action against a defendant who would otherwise be entitled to that immunity. - 12 - But the Act does not waive the City’s sovereign immunity. Code § 2.2-3010 separately
defines the terms “employer” and “governmental agency.” An “employer” is an individual
person who supervises an “employee,” whereas a “governmental agency” is an entity for which
employees and employers work. Code § 2.2-3010. Code § 2.2-3011 creates a civil action only
“for violation of this section,” and prohibits only an “employer” from retaliating against an
employee for whistleblowing. Id. (emphasis added). The statute does not provide for claims
against governmental agencies. By contrast, Code § 2.2-3010.1 prohibits any “governmental
agency” from retaliating against a citizen. “[W]hen the General Assembly has used specific
language in one instance, but omits that language or uses different language when addressing a
similar subject elsewhere in the Code, we must presume that the difference in the choice of
language was intentional.” Windsor Plaza Condo. Ass’n, 289 Va. at 57 (alteration in original)
(quoting Newberry Station Homeowners Ass’n v. Bd. of Supervisors, 285 Va. 604, 616 (2013)).
Thus, Code § 2.2-3011 creates a civil right of action against individual supervisors, not against
governmental agencies, and it waives the sovereign immunity of only the supervisors, not the
agencies. Id. The circuit court correctly granted the City’s motion to dismiss based on its sovereign
immunity to the whistle blower claim.8
B. Summary Judgment
“[S]ummary judgment shall not be entered unless no material fact is genuinely in dispute . . .
and the moving party is entitled to such judgment as a matter of law.” Oreze Healthcare LLC v. E.
Shore Cmty. Servs. Bd., 302 Va. 225, 230 (2023) (first alteration in original) (quoting La Bella
Dona Skin Care, Inc. v. Belle Femme Enters., LLC, 294 Va. 243, 253 (2017)); see Rule 3:20.
“Thus, if the evidence is conflicting on a material point or if reasonable persons may draw different
8 Given our disposition resolving Martin’s whistle blower claim against the City in the City’s favor, the City’s assignments of cross-error to the judgments on its demurrer and motion for summary judgment are moot. - 13 - conclusions from the evidence, summary judgment is not appropriate.” Fultz v. Delhaize Am., Inc.,
278 Va. 84, 88 (2009). A genuine dispute of material fact can arise “not only from the facts asserted
but also from the reasonable inferences arising from those facts.” AlBritton v. Commonwealth, 299
Va. 392, 403 (2021) (citation omitted) (quoting Fultz, 278 Va. at 88). “[T]he trial court’s
determination that no genuinely disputed material facts exist and its application of law to the facts
present issues of law subject to de novo review.’” Oreze Healthcare LLC, 302 Va. at 230 (quoting
La Bella Dona Skin Care, Inc., 294 Va. at 253).
“Nothing in [the Whistle Blower Act] shall prohibit an employer from disciplining or
discharging a whistle blower for his misconduct or any violation of criminal law.” Code
§ 2.2-3011(E). Wilhelm raised Code § 2.2-3011(E) as an affirmative defense in his motion for
summary judgment, asserting that he terminated Martin for misconduct rather than out of
retaliation. “A party seeking summary judgment on an affirmative defense must demonstrate
that no reasonable factfinder governed by the applicable legal standard could reject the asserted
defense on the merits.” AlBritton, 299 Va. at 404.
A grant of summary judgment must be based upon undisputed facts established by “the
pleadings, the orders . . . made at a pretrial conference, [or] the admissions . . . in the proceedings.”
Rule 3:20; see Corriveau v. State Farm Mut. Auto. Ins. Co., 298 Va. 273, 278 (2019). Wilhelm
relies heavily on exhibits to his summary judgment motion to support his affirmative defense. The
documents include, among other things, a transcript of the suppression hearing, Einhaus’s April
2021 letter, Ledbetter’s July 2021 letter, Reeves’s September 2021 report, and Wilhelm’s January
2022 termination letter. But while Martin admitted the authenticity of those documents in
discovery, he generally disputes their contents and the allegations that he violated any WPD
policies. Moreover, Martin disputes that Wilhelm terminated him based on the alleged policy
violations, rather than in retaliation for his whistle blower complaints.
- 14 - The allegations in the complaint paint a complicated picture of interpersonal tensions and
shifting power dynamics between numerous individuals across jurisdictions. On at least one
occasion, Wilhelm directly rejected Martin’s attempts to report Sheriff Smith’s and Roane’s actions
and told him that rather than reporting the alleged misconduct, he should “quit pissing people off.”
Viewing the facts in the light most favorable to Martin, reasonable factfinders could draw different
conclusions about whether Wilhelm terminated Martin in retaliation for his reports of misconduct,
rather than for violating WPD policy. Granting summary judgment based on this record would
impermissibly “short-circuit litigation by deciding disputed facts without permitting the parties to
reach a trial on the merits.” Stockbridge v. Gemini Air Cargo, Inc., 269 Va. 609, 618 (2005). Thus,
the circuit court correctly denied Wilhelm’s motion.
II. Retaliation Claim
Code § 40.1-27.3 prohibits employers from taking retaliatory action for whistle blowing and
creates a civil cause of action for employees to remedy violations of that section. For purposes of
Martin’s retaliation claim, an “employer” is “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” as well
as “any similar entity acting directly or indirectly in the interest of an employer in relation to an
employee.” Code § 40.1-2; see Harris v. Washington & Lee Univ., 82 Va. App. 175, 196 (2024);
Cornell v. Benedict, 301 Va. 342, 348-51 (2022).
It is undisputed that Wilhelm does not pay Martin’s wages, so he is not his “employer”
under the basic definition of the word in Code § 40.1-2. See Code § 40.1-2; Cornell, 301 Va. at
348-51; Harris, 82 Va. App. at 196. Nor is Wilhelm “any similar entity acting directly or
indirectly in the interest of an employer in relation to an employee.” Code § 40.1-2. In Cornell, the
Supreme Court concluded that the “any similar entity” clause did not include individual supervisors.
- 15 - 301 Va. at 348-51 (addressing claims for unpaid wages under Code § 40.1-29(J)). The definition of
“employer” used in the federal Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 to 219, which is
similar to but predates Code § 40.1-2, includes “any person acting directly or indirectly in the
interest of an employer.” Cornell, 301 Va. at 350 (quoting 29 U.S.C. § 203(d) (emphasis added)).
The Court found that, by using the word “entity,” the General Assembly intended to adopt a more
limited definition of the term “employer” than the one used in FLSA. Id. at 349-51; see id. (holding
that plaintiffs could not sue individual board members for joint employer liability along with the
company). By the same reasoning, Martin cannot bring a retaliation claim under Code § 40.1-27.3
against an individual supervisor rather than the entity that employed him. See id.; see also Harris,
82 Va. App. at 196-97 (holding that for an entity to qualify as an “employer” under the “any
similar entity” clause of Code § 40.1-2, it must meet the same requirements applicable to
“employers” generally).
Wilhelm is an individual supervisor who did not pay Martin’s wages. He was not Martin’s
“employer” under either the definition in Code § 40.1-2 or the “any similar entity” clause. Thus,
the circuit court correctly granted Wilhelm’s motion for summary judgment on the retaliation claim.
CONCLUSION
The Whistle Blower Act waives sovereign immunity for individual supervisors but not
for government agencies for claims under Code § 2.2-3011, so the City is entitled to sovereign
immunity from Martin’s whistle blower claim, but Wilhelm is not. Thus, the circuit court’s
judgment granting the motion to dismiss that claim against the City is affirmed. But we reverse
the ruling granting Wilhelm’s motion to dismiss. We do not reach the City’s arguments on the
circuit court’s judgments on the demurrer and summary judgment motion because they are moot.
There are genuine issues of material fact in dispute concerning the basis of Wilhelm’s
decision to terminate Martin, so the circuit court correctly denied summary judgment on the
- 16 - whistle blower claim. Wilhelm was not Martin’s employer under Code § 40.1-2, so the circuit
court correctly granted summary judgment for Wilhelm on the retaliation claim under Code
§ 40.1-27.3. For these reasons, we affirm the circuit court’s judgment in part, reverse it in part,
and remand the case for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
- 17 -