Breach of employment severance contract - plaintiff’s verdict reversed in Virginia

In Isle of Wight County v. Nogiec and Small v. Nogiec, Nos. 091693 and 091731 respectfully (Va. Jan. 13, 2011), the Court reversed an award for breach of contract against the County and considered whether statements given to the County's Board of Supervisors were entitled to absolute privilege.

The Plaintiff, after being placed on administrative leave, he entered into a severance agreement with the County that included a nondisparagement clause. Two months later, the County's assistant administrator testified before the County's Board of Supervisors regarding a flood at the County's museum. During his testimony, the assistant administrator accused the Plaintiff of 'suppressing' flood problems at the museum in a way that "border[ed] on negligence."

The County filed a motion to strike and set aside the $45,000 verdict on the basis that the Plaintiff failed to prove damages in his breach of contract claim. The Plaintiff's only evidence on damages was his own testimony that he "believe[d]" that the statements had an effect on his ability to find new employment. The Court found that the Plaintiff's evidence on damages was insufficient to support the jury's verdict.

The Plaintiff attempted to argue that it was proper for the jury to consider his humiliation and embarrassment in determining damages for breach of contract, because those were the injuries that the nondisparagement clause was meant to guard against. The Court declined to carve out an exception to the rule that tort damages are not recoverable for breach of contract.

The Court also held that the assistant administrator's statements were not entitled to absolute immunity. Although the Court agreed that the Board was a legislative body, the testimony was provided to the Board while it was acting in it supervisory or administrative capacity. Absolute privilege will only attach to communications made in proceedings conducted by the Board in its legislative capacity.
Categories: Virginia