When interviewing employees for a job promotion, it is probably best for the employer to have selection criteria that go beyond an employee’s performance during the job interview.
In the case of Hill v. Commonwealth of Virginia Department of Transportation (“VDOT”) (2013), a Virginia Federal District Court held that the employer’s stated reason for passing over the Plaintiff was not enough to grant summary judgment in favor of the employer. Plaintiff, Pamela Hill, applied for the position of assistant district administrator for construction and preliminary engineering. She, along with eight other candidates, interviewed for the position. Ultimately, a male colleague, Christopher Blevins, was chosen for the promotion. Hill alleged gender discrimination under Title VII of the Civil Rights Act of 1964 for being passed over for the position. Hill alleged that she was more qualified than Blevins and cited to her seventeen years of experience working for VDOT, prior promotions, supervisory experience, and her Bachelor’s Degree in Mining Engineering (Blevins did not have a college degree). At summary judgment, VDOT apparently did not argue that Blevins was more qualified than Hill. Instead, VDOT relied solely on its assertion that Blevins provided better answers to the interview questions than Hill.
In denying VDOT’s summary judgment motion, the Court held that Defendant’s nondiscriminatory reason for denying Hill the job promotion – a few lines of interview notes from the candidate interviews – was “entirely subjective and meagerly explained.” While the Court readily acknowledged that prior cases within the Fourth Circuit have upheld subjective employment decisions based (at least in part) upon interviews, it noted that those cases also included some objective criteria upon which the employer based its employment decision. Ultimately, the court held that VDOT’s reliance solely upon a few lines of interview notes was not enough to meet its burden at the summary judgment stage, and the case was allowed to proceed to a jury trial on the merits.
While it is fine to make a promotion based upon performance during an interview, this court decision is a reminder to employers that additional and objective promotion criteria should be utilized and documented in order to provide a clear non-discriminatory reason for the promotion decision.
© Copyright, PCT Law Group 2013, all rights reserved.
If an employee misappropriates their current or former employer’s proprietary information, and discloses such information to its new employer and/or any other unauthorized person(s), that is enough to establish a violation under the Virginia Uniform Trade Secrets Act (“VUTSA”) so says the Virginia Supreme Court. There is no requirement under the Act that the employee or new employer actually use the misappropriated information to compete with the former employer.
In the case of Geographic Services, Inc. v. Collelo, et al. (2012), the Virginia Supreme Court held that once an employer establishes the existence of a trade secret, all that they are then required to show is that the trade secret was misappropriated as that term is defined under the Trade Secrets Act. The entity from which the trade secret was misappropriated does not have to show that defendants used the trade secret in order to establish a claim under the VUTSA and recover damages. Disclosure of the trade secret is sufficient where it can be shown that the new employer and/or person to whom the trade secret was disclosed knew, or had reason to know, that the trade secret was acquired by improper means. In such cases, where the plaintiff cannot readily prove measurable damages, then the VUTSA provides that the court can impose a reasonable royalty upon the wrongdoers for the unauthorized disclosure of the trade secret.
This decision by Virginia’s highest court provides a cautionary note for Virginia employers: if you know, or should have known, that an employee has obtained proprietary information from its prior employer without its knowledge, you could be on the hook for damages if the employee discloses the information to your company – even if your company never uses the information. The disclosure, in and of itself, will be enough to expose companies to monetary damages. Conversely, companies in which an employee has taken proprietary information can seek legal redress and possibly obtain damages even if the employee and its new company did not use the information.
© Copyright, PCT Law Group 2013, all rights reserved.
According to a Virginia Lawyers Weekly survey on the largest Virginia jury verdicts in 2010, verdicts in business disputes lawsuits claimed three of the top four positions.
The top Virginia jury verdict in 2010 was awarded by an Alexandria federal court jury for $26 million in the case of In Re: Outsidewall Tire Litigation. In this case, a tire-mining inventor prevailed in a lawsuit in which he alleged that a Chinese tire manufacturer and a Dubai tire distributor conspired to steal trade secrets and infringe on the inventor’s copyrights and trademarks.
In third place on the survey was the case of Humanscale Corp. v. CompX International, Inc., in which two leading companies in the field of ergonomic office products accused each other of patent infringement with respect to keyboard support systems. A Richmond federal court jury awarded the defendant $19 million in past damages and a royalty of 6% of future sales on the defendant’s counterclaims.
Coming in fourth place on the list of the top Virginia jury verdicts of 2010 was the matter of Perot Systems Government Services Inc. v. 21st Century Systems Inc. In this business case, which was tried in state court, the plaintiff alleged that two of its former employees copied confidential information when they joined the defendant company’s new government contracting division. A Fairfax County jury awarded the plaintiff $14.12 million for the defendants’ breach of fiduciary duty, breach of a non-disclosure agreement, breach of a non-solicitation agreement, tortious interference with a contract, violation of the Virginia Computer Crimes Act, violation of the Virginia Business Conspiracy Act, common law conspiracy, violation of the Virginia Uniform Trade Secrets Act, and conversion.
To participate in the Virginia Lawyers Weekly survey, the verdict must have been: for at least $1 million; returned by a jury in Virginia (not a judge); and during the calendar year 2010. In total, there were 22 Virginia court cases included on the survey, of which 16 of the verdicts were personal injury actions.