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If you can’t get arrested for it, you can be fired for refusing to do it.

Twigg v. Triple Canopy, Inc., Civil Action No. 1:10-cv-00122-JCC-JFA (E.D.Va. June 2, 2010). The Plaintiff, Twigg, a South Carolina resident, was an at-will employee of Defendant, Triple Canopy, Inc., a security contractor based in Herndon, Virginia. In April 2009, Triple Canopy was awarded a contract with the State Department to provide security for U.S. diplomats serving in Baghdad. When the State Department decided not to renew the contract of the previous security provider, it directed Defendant to hire Plaintiff, an employee of the previous contractor, as a Deputy Program Manager. About seven months later, Triple Canopy fired Twigg. In response to the State Department’s request for more information about the termination, Triple Canopy offered a list of reasons that, in its judgment, showed that Twigg had “demonstrated [a] pattern of poor leadership and poor judgment and preferential treatment.”

Twigg filed a Complaint alleging, in part, wrongful termination. The premise of this claim was that Triple Canopy terminated Twigg in response to his cooperation with the State Department in its “investigation of Defendant’s false claims, that is, its unlawful billing and invoicing practices.”

Twigg’s wrongful termination claim was of the sort sometimes referred to as a “Bowman claim,” so called because of the case in which it originated, Bowman v. State Bank of Keysville. By default, in Virginia, employment is at-will, allowing parties to enter into an employment agreement under which either party may terminate the agreement for any reason or no reason at all. Virginia recognizes a narrow and closely guarded exception to at-will employment: A termination that violates Virginia’s stated public policy may give rise to a Bowman claim. Not any public policy will do – the public policy on which a plaintiff relies to qualify for this exception must be specifically expressed in an existing Virginia statute.

There are three situations where a Bowman claim may arise:

  1. when an employee is fired for having exercised a statutorily-protected right;
  2. when an employee is fired in violation of a statutory public policy that directly applies to or protects him (i.e. he is a “protected class”); and
  3. when an employee is fired for refusing to engage in criminal conduct.

One thing a Bowman claim does not encompass, however, is a generalized “whistleblower” claim of retaliatory termination. The Court, therefore, looked at Twigg’s allegations to see whether the second or third situations might apply.

For the second situation to apply, Twigg would have to show that a statute imposed upon him an affirmative duty which he was terminated for refusing to violate. For the third situation to apply, Twigg would have to show that he could have been prosecuted under Virginia criminal law had he engaged in the conduct demanded by his employer.

The statutes upon which Twigg relied to make this showing were Va. Code § 18.2-172, prohibiting forgery, and Va. Code § 18.2-178, prohibiting obtaining money under false pretenses. In his complaint, Twigg alleged that “both [Virginia] statutes plainly impose a duty on Twigg not to commit the crimes of forgery or obtaining money under false pretenses,” (the second situation) and that Defendant fired him for “refusing to engage in statutorily prohibited conduct” (the third situation). Triple Canopy moved to dismiss the case, arguing that because Plaintiff was in Iraq at the time of the relevant conduct, a Virginia criminal statute could not impose a duty on him nor could he violate such a statute while there. (The Virginia Supreme Court has, for a long time, held that “[e]very crime to be punished in Virginia must be committed in Virginia.”) Twigg was not a citizen of Virginia and his Complaint did not describe any conduct that occurred in Virginia, and so, Defendant argued, Twigg could have had no duty to abide by Virginia law nor could Defendant have fired him for refusing to break an inapplicable law. In order for Twigg to keep his case from being dismissed, the Court noted, he would have to show that these Virginia statutes applied to his conduct in Iraq.

Twigg argued, ultimately unsuccessfully, that forged documents would pass through Virginia and that ill-gotten gains would be deposited in the Defendant’s Virginia bank accounts. Twigg, however, had never alleged any such thing and the Court would not consider “hypothetical” statements to support Twigg’s claim. Twigg also argued that forgery and false pretenses were continuing offenses which, if they had an immediate impact in Virginia, could give rise to prosecution in Virginia. Twigg, however, had no case law to support the argument that the criminal statutes could apply to conduct outside the country, especially when he lacked any allegation connecting such conduct to criminal conduct in Virginia.

The Court granted Triple Canopy’s Motion to Dismiss Twigg’s Complaint.

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