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Protected Activity: How Far Can an Employee Go to Collect Evidence?

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The Fourth Circuit recently explored the contours of what constitutes “protected activity” under Title VII (and by implication other similar civil rights laws). The employee argued that her unauthorized review, copying and disclosure of confidential personnel files in order to gain support for her race and religious discrimination claims constituted a protected activity under Title VII.  The Fourth Circuit disagreed.[1]

The employee, a black Muslim woman, worked for the local Sheriff for a number of years with an unblemished disciplinary record until she received a disciplinary sanction which barred her from testing for a promotion. She filed an EEOC Charge alleging that similarly situated officers who were neither black nor Muslim had not been disciplined for the same conduct. To support her claim, she reviewed, copied, and supplied the local HR investigator with two confidential personnel files she retrieved from the file cabinet in the office where she worked. She also obtained the personnel files of three other employees who worked at an adjacent facility which she obtained through a request to a co-worker. She did not, however, seek permission from any of the five employees or her own supervisor to copy and disclose the records. Copies of these materials were later given to the EEOC and her lawyer.

Once discovery began in her Title VII case, the Sheriff’s attorney inquired during her deposition as to how she obtained the records. Based on her deposition testimony, the Sheriff concluded that she violated not only department policy restricting the unauthorized review, duplication and dissemination of personnel records but also violated a state law that protected the personnel files of local and state government employees. In a bold move, the Sheriff then discharged the employee while the case was still pending. Soon after, she filed a new EEOC charge alleging retaliation, which was added to the pending case. After all discovery concluded, the district court granted summary judgment on all claims.

Noting the Supreme Court’s directive to give a broad scope to what constitutes protected activity under Title VII, the Fourth Circuit noted this case required an analysis under both the participation and opposition provision. The participation clause provides absolute protection to a limited range of conduct. In contrast, the opposition clause covers a much broader range of conduct, but it only provides a qualified level of protection, which requires a showing of reasonableness.

The employee argued that her entire course of conduct constituted protected participation activity, and in the alternative, she suggested that her review, copying, and disclosure of the personnel files constituted protected opposition activity. The court quickly disposed of the alternative argument, noting that the unauthorized disclosure of confidential information to third parties is generally unreasonable.[2]  The employee attempted to argue that it was reasonable for her to believe that the County’s HR investigator had the right to access the employee personnel files. However, the court noted “we are loathe to provide employees an incentive to rifle through confidential files looking for evidence,” and even if the investigator had a right to files, she had no right to review their contents.

In reviewing the participation clause argument, the court observed the protection seeks to account for the evidentiary difficulties plaintiffs often face when pursuing workplace discrimination claims. It is often true that salaries, disciplinary infractions and other similar evidence remains confidential, which may cause difficulty for an employee to realize – let alone prove – that such evidence exists.[3]  In light of these realities, the Fourth Circuit declined to read the participation clause so narrowly as to eliminate an employee’s ability to gather evidence for a bona fide Title VII claim. However, it drew the line in this case because this employee’s unauthorized inspection and copying of the personnel files of a local government agency constituted a violation of a valid, generally applicable state law.[4]  There is nothing about the North Carolina statute that contradicts Title VII’s provisions or meaningfully impairs anyone’s ability to pursue a Title VII claim.

The Court, however, declined to go further and hold, as urged by the Sheriff, that any disclosure of information in violation of an employer’s internal confidentiality policies falls beyond the scope of protection provided by the participation clause. The Sheriff argued that while disclosure of records to the EEOC can constitute protected participation activity if doing so results in a violation of the employee’s confidentiality policy, the employer should have a legitimate, nondiscriminatory basis for termination. The Court disagreed. It noted that the underlying act of disclosing evidence to the EEOC and a violation of an employer’s policy, are “so inextricably related” that separating the two for retaliation purposes is too difficult. Accordingly, the Fourth Circuit declined to embrace the proposed rule suggested by the Sheriff.

In summary, this case clarifies, but does not change the law as to what constitutes “protected activity” when an employee takes company records and gives them to the EEOC. If those actions violate a neutral state law (e.g. unauthorized computer trespass) then it is now likely that the Court will not consider such unlawful behavior to be “protected activity.” On the other hand, if the copying and dissemination violates a private company’s confidentiality policies (but not a state law), it is likely that this “improper” activity will continue to be considered “protected activity.” With the number of retaliation and whistleblower claims on the rise, employers need to stay abreast of changes in the law in this area. For assistance with access disciplinary action or representation in defense of whistleblower and/or retaliation claims, contact the members of the Gentry Locke Employment Law team.

[1] Netter v. Barnes, No. 18-1039, 2018 U.S. App. LEXIS 32358 (4th Cir. Nov. 15, 2018).

[2] Laughlin v. Metro Wash. Airports Auth., 149 F.3d 253, 260 n. 4 (4th Cir. 1998) (Under the opposition clause, the employer’s interest in maintaining security and confidentiality of sensitive personnel documents outweighs the employee’s interest in providing them to former co-workers.)

[3] The Court notes that employees have no subpoena power and also have no right to access or obtain copies of documents the EEOC subpoenas from employers as part of its investigation, until after the Charge is dismissed.

[4] The North Carolina law in question made it a Class III misdemeanor to knowingly and willfully examine, remove or copy any portion of a confidential personnel file held by a local or state government agency without authorized access.

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DOE’s New Title IX Notice Proposes Dramatic Changes for Colleges

On November 16, 2018, the Department of Education published its proposed new Title IX regulations, as well as a one-page fact sheet and six-page background and summary document. You can find the DOE’s Press Release here.  The proposed regulations (also referred to as a “Notice of Proposed Rulemaking” or “NPRM”) were formally published in the Federal Register on November 29, 2018.  The DOE requests comments through January 28, 2019. As you may recall, in September 2017 the DOE advised the public that these proposed new regulations were coming. On September 22, 2017, the DOE rescinded previous guidance issued by the […]

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Gentry Locke again named to “Most Generous Workplaces” List by United Way of Roanoke Valley

Listed at #15; sole law firm on Top 25 list Gentry Locke has again been named to the United Way of Roanoke Valley’s list of “Most Generous Workplaces.”  We are listed as the 15th most generous workplace in the Roanoke Valley, and are the only law firm on the top 25 list. The list of Top 50 counts philanthropic contributions to the United Way workplace campaign made by both organizations and employees. Gentry Locke receives a lot of awards and accolades throughout the year. We consider this placement a high honor. It speaks volumes about our caring people and how important we […]

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Ten Gentry Locke attorneys named to 2018 “Legal Elite” list

ROANOKE, Va. (December 1, 2018 ) – The Virginia law firm of Gentry Locke is pleased to announce that ten attorneys have been named “2018 Legal Elite” by Virginia Business magazine. The 2018 Legal Elite list is Virginia Business magazine’s 19th annual report. It is determined by peer votes and is divided into 18 specialties. The Gentry Locke attorneys listed as “Legal Elite” for 2018 are: J. Rudy Austin: Construction Law  (Retired in 2018) Thomas J. Bondurant, Jr.: Criminal Law Christen C. Church: Intellectual Property Michael J. Finney: Litigation W. William Gust: Business Law Kevin Walker Holt: Litigation K. Brett Marston: Construction Law Monica […]

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Size No Longer Matters: ADEA Applies to All State and Local Government Employees

The Supreme Court of the United States has ruled that state and local government entities must comply with the Age Discrimination and Employment Act (“ADEA”) even if the entity employs fewer than twenty (20) employees. For the past forty (40) years, lower courts have disagreed on whether the ADEA’s requirement for an employer to have at least twenty (20) employees applied to small local government agencies. Many courts have held that government agencies with less than twenty (20) employees were not covered by the ADEA. This decision issued on November 6, 2018 involves a case brought after a local fire […]

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Employers: Update Your Summary of Rights Form for Background Checks

Pursuant to new regulations, employers must disclose additional information to applicants and employees before conducting background checks. In May 2018, Congress enacted the Economic Growth, Regulatory Relief, and Consumer Protection Act (the “Act”). The Act requires consumer reporting agencies to provide “national security freezes” to consumers free of charge. The Act also extended the 90-day period to one year for which national consumer reporting agencies must include an initial fraud alert in a consumer’s file. The Act also provides that whenever the Fair Credit Report Act (“FCRA”) requires an entity to provide a consumer with a “Summary of Consumer Rights,” […]

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Gentry Locke earns 2019 ‘Best Law Firms’ honors in 26 practice areas

ROANOKE, Va. (November 1, 2018) – The Virginia law firm of Gentry Locke is pleased to announce its inclusion in the 2019 “Best Law Firms” rankings published by U.S. News & World Report and Best Lawyers®. The firm secured rankings in 26 practice areas, including 18 rankings as Metropolitan Tier 1, which is the highest tier for regional recognition. Metropolitan Tier 1 – Roanoke Antitrust Law Appellate Practice Banking and Finance Law Commercial Litigation Construction Law Corporate Law Employment Law — Individuals Employment Law — Management Financial Services Regulation Law Labor Law — Management Litigation — Construction Litigation — Labor & Employment Medical Malpractice Law — Plaintiffs Personal Injury Litigation — Plaintiffs Product Liability […]

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Gentry Locke Attorneys K. Brett Marston and Daniel R. Sullivan honored by Virginia Lawyers Media

ROANOKE, Va. (October 25, 2018) – The Virginia law firm of Gentry Locke is pleased to announce that Roanoke partner K. Brett Marston was named to Virginia Lawyers Weekly’s 2018 class of “Leaders in the Law” and Roanoke partner Daniel R. Sullivan was named to the publication’s 2018 class of “Up & Coming Lawyers.” All 2018 recipients were formally honored during an awards ceremony on October 25. Now in its 13th year, Virginia Lawyers Weekly’s Leaders in the Law program recognizes attorneys who are setting the standard for other practitioners in Virginia. Leaders are named for changing the law, serving the community, changing practice, or […]

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CLE co-presenter, The Life of an Appeal in the Court of Appeals of Virginia

On October 18, 2018, Gentry Locke Managing Partner Monica Monday and The Honorable Glen A. Huff, Chief Judge of the Court of Appeals of Virginia, presented a CLE session to attendees of the Solo & Small-Firm Practitioner Forum held in Wytheville, Virginia. “The Life of an Appeal in the Court of Appeals of Virginia” focused on some of the essentials lawyers need to know to effectively practice in the Court of Appeals of Virginia, including preserving error, filing the appeal, briefing and oral argument, and post-appeal filings and proceedings. The event was presented by the Virginia State Bar’s Conference of Local and Specialty Bar Associations, in […]

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Landowners in Virginia fighting for private property rights file Appeal with United States Supreme Court

Orus Ashby Berkley, et al. v. Federal Energy Regulatory Commission, et al. (FERC)   FOR IMMEDIATE RELEASE Contact: Mia Yugo, Yugo@gentrylocke.com, 540.983.9444 Thomas J. Bondurant, Jr., Bondurant@gentrylocke.com, 540.983.9389 ROANOKE, Va. (October 24, 2018): Landowners in Virginia and West Virginia filed a Petition for a Writ of Certiorari to the United States Supreme Court. The Petition seeks to appeal the judgment of the Fourth Circuit Court of Appeals. It seeks reversal by the nation’s highest Court on the lower courts’ subject matter jurisdiction to hear Petitioners’ constitutional challenges. According to Mia Yugo, Gentry Locke attorney for the Landowners, “This case is […]

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Mother’s Day shooting death case settles in Bedford County Circuit Court

The results of client matters depend on a variety of factors unique to each matter. Past successes do not predict or guarantee future successes.

Gentry Locke for the Plaintiff Bedford County Circuit Court On Mother’s Day in 2015, our client learned that her husband had been shot in the back of his head and killed. The shooter was taken into police custody and acknowledged that he had been drinking alcoholic beverages over the last 30 hours and had been burning brush in a barrel, having had little sleep. The shooter alleged that he saw his victim driving too fast and decided to confront the man. The shooter acknowledged a heated confrontation, but he claimed he acted in self-defense and that the victim acted as an aggressor. Specifically, the shooter alleged […]

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Gentry Locke Welcomes Associate Caley A. DeGroote

ROANOKE, Va. (September 30, 2018) – The Virginia law firm of Gentry Locke is pleased to announce that Caley A. DeGroote has joined the firm’s Roanoke office as an associate on the Personal Injury and Medical Malpractice teams, where she will assist with complex litigation matters. Before joining Gentry Locke, Caley researched criminal and civil legal issues in preparation for hearings and trials as a law clerk for the Twenty-third Judicial Circuit Court. Prior to that, she analyzed legal issues and helped create opinions and legal orders as a summer intern for The Honorable J. Michelle Childs at the U.S. District […]

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Legal Alert for Restaurants: Tip Pooling Rules

The laws for restaurants regarding “tip pooling” (and other pay practices) can be complex and confusing. For example, did you know that the almost 900-page Consolidated Appropriations Act of 2018, which took effect March 23, 2018, contained a passage that also amended the “tip pooling” laws?  Moreover, the statutory remedies for a violation of the “tip pooling” laws can be harsh, even for innocent mistakes. In 2018 alone, the following restaurants paid large settlement amounts in Fair Labor Standards Act (FLSA) wage-hour collective action cases for allegedly violating tip pooling (and other FLSA) laws:  Bob Evans ($3 Million); P.F. Chang’s ($2.65 […]

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Trial Tales: Detailed analysis of Eramo v. Rolling Stone

On September 27, 2018, Gentry Locke Partner David Paxton was a panelist for attendees of the 2018 Media Law Resource Center (MLRC) Media Law Conference in Reston, Virginia. David joined two additional panel members, providing analysis of the Eramo v. Rolling Stone case, which was a complex and highly publicized defamation case he handled that concluded in 2017. The MLRC is a non-profit membership association for content providers in all media, and for their defense lawyers. It provides a wide range of resources on media and content law and policy issues.  These include news and analysis of legal, legislative and […]

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#MeToo – Sexual Harassment: New Initiatives for Companies

On September 20, 2018, Gentry Locke partner Todd Leeson spoke at the Legal Update event sponsored and attended by the New River Valley SHRM chapter. Todd’s session focused on how sexual harassment continues to be a significant problem in the workplace, and management training has proven to be largely ineffective in preventing inappropriate conduct at work. Todd updated attendees on the legal and practical steps their companies must take to make real progress.

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Long-term Commercial Leases Must be Signed, Sealed and Delivered

Commercial landlords and tenants should be aware of a Virginia law that could invalidate long-term leases in Virginia. The Supreme Court of Virginia recently ruled that a 15-year commercial lease was unenforceable because it did not include a seal or seal substitute. See, Game Place, L.L.C. v. Fredericksburg 35, LLC, 295 Va. 396 (2018). The Court reviewed the applicability of a Virginia law that requires leases with a term longer than five years to be in the form of a deed and include either a seal or a seal substitute. Seal substitutes include, among other things, an imprint or stamp […]

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Gentry Locke Announces Opening of New Richmond Office and Welcomes New Partner John G. ‘Chip’ Dicks

Firm also launching Government and Regulatory Affairs Practice Group ROANOKE, Va. (September 4, 2018) – The Virginia law firm of Gentry Locke is pleased to announce that it is expanding its presence across the state with the launch of its new Richmond office. Litigation partner Gregory D. Habeeb will oversee the office, with John G. “Chip” Dicks joining the firm as a partner in Richmond. In addition to forming Gentry Locke’s new office and expanding its outreach to existing clients in the Richmond market, Dicks and Habeeb are launching the firm’s Government and Regulatory Affairs Practice Group. “This is an […]

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Gentry Locke Welcomes New Associate David R. Berry

ROANOKE, Va. (August 13, 2018) – The Virginia law firm of Gentry Locke is pleased to announce that David R. Berry  has joined the firm’s Roanoke office as an associate. Dave will practice on the Commercial Litigation team, helping clients to resolve complex business disputes. Before joining Gentry Locke, Dave served for two years as a law clerk to The Honorable Donald W. Lemons, Chief Justice of the Supreme Court of Virginia. He has also held roles in the United States Attorney’s Office and Office of the Attorney General of Virginia. Dave earned his J.D. summa cum laude from the […]

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21 Gentry Locke Attorneys Named to 2019 “Best Lawyers in America®”

Anthony M. Russell and Powell M. (Nick) Leitch, III Selected for ‘Lawyer of the Year’ Awards ROANOKE, Va. (August 15, 2018) – The Virginia law firm of Gentry Locke is pleased to announce that 21 of the firm’s attorneys were selected for inclusion in The Best Lawyers in America® (2019 edition), a national legal ranking. Attorneys were nominated by their peers and recognized for their outstanding professional achievement in numerous legal practice areas, including appellate, banking and finance law, bet-the-company litigation, commercial litigation, criminal defense, employment law, insurance law, medical malpractice law, real estate law, tax law, trusts and estates, and others. […]

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Gentry Locke named to Vault’s “Top 150 Under 150” list

ROANOKE, Va. (July 30, 2018) – The Virginia law firm of Gentry Locke is pleased to announce that it has been named to Vault’s 2019 “Top 150 Under 150” list, which recognizes leading midsize law firms based on the following criteria: firm culture, quality of life, satisfaction, diversity, pro bono, hours, compensation and selectivity. “We are pleased to have earned a position on Vault’s 2019 list,” said Gentry Locke Managing Partner Monica Taylor Monday. “We are very proud to be considered a top law firm at which to work. We value and foster a collaborative, inclusive culture, and appreciate that Vault’s […]

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Landowners consider options after temporary setback in Mountain Valley Pipeline challenge

On July 25, 2018 the Fourth Circuit Court of Appeals issued its decision in Berkley, et al. v. Mountain Valley Pipeline, LLC, et al, and found that landowners cannot challenge the constitutionality of the Natural Gas Act in federal district court. Instead, landowners must present such constitutional claims first to the Federal Energy Regulatory Commission (FERC), the same body that landowners challenge cannot lawfully act under the Natural Gas Act. FERC consistently states that it does not and cannot decide such issues. Once FERC issues its decision, including findings that it cannot even consider challenges to the Natural Gas Act, […]

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Partner Greg Habeeb lauded as “legislative all-star” in Editorial by The Roanoke Times

Gentry Locke Partner Gregory D. Habeeb, who specializes in complex business and catastrophic injury cases at Gentry Locke while also serving in the Virginia House of Delegates representing Virginia’s 8th District, was recently noted in a list of “legislative all-stars” in an editorial by The Roanoke Times. The editorial cited how Habeeb’s bill to make court records accessible to the public through a single source, which became law, has made it easier for the public and researchers to access the information. Here is how The Roanoke Times described the impact this law has on the Commonwealth: If you believe government should […]

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Federal contracting client prevails in teaming agreement appeal

The results of client matters depend on a variety of factors unique to each matter. Past successes do not predict or guarantee future successes.

Gentry Locke for the Defense Supreme Court of Virginia Gentry Locke attorney Monica Monday represented FCi Federal, Inc., the appellee, in an appeal involving a dispute between government contractors. On June 27, 2018, the Supreme Court of Virginia affirmed the circuit court’s decision to set aside a multi-million dollar jury verdict. This case provides guidance on breach of contract claims arising out of teaming agreements. Additionally, the Supreme Court also addressed a question of first impression, holding that lost profits for fraudulent inducement are not recoverable when they are based on the terms of an unenforceable agreement. CGI Federal, Inc. entered into a […]

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Judge Reduces Jury Verdict Due to Defect in Plaintiff’s Complaint

The results of client matters depend on a variety of factors unique to each matter. Past successes do not predict or guarantee future successes.

Gentry Locke for the Defendant City of Winchester Circuit Court The City of Winchester circuit court has reduced a $125,000 jury verdict to $50,000 due to a defect in the plaintiff’s Complaint. The Complaint contained an ad damnum seeking the amount of damages sought. It specifically sought “not less than $50,000” in compensatory damages, “plus punitive damages.” The jury returned a verdict in favor of the plaintiff for $50,000 in compensatory damages and $75,000 in punitive damages. The defendant retained Gentry Locke after the jury verdict to handle post-trial motions. The defense moved the court to set aside the entire […]

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Contract case involving home purchase settled, all fees recovered

The results of client matters depend on a variety of factors unique to each matter. Past successes do not predict or guarantee future successes.

Gentry Locke for the Plaintiffs Henry County Circuit Court Our clients, a married couple, lost their home in a house fire. They entered into a written real estate contract to purchase another home. They would pay cash using their homeowners insurance payment from the fire loss. The parties signed the contract, set a closing date, and completed the home inspection. The sellers performed a septic cleaning and inspection and had a termite inspection done. The sellers then purported to terminate the contract. They cited a provision in the contract requiring the buyers to show proof of funds to close. They buyers had submitted a USAA […]

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Navigating the Defense of Multi-Defendant Litigation to Avoid Ethical and Professional Negligence Issues

On June 15, 2018, Gentry Locke partner Paul Klockenbrink co-presented a program that covered the ethical and potential liability issues involved in representing multiple defendants. The program was presented at ALFA International’s conference for members of ALFA International’s Insurance Law, Labor & Employment and Professional Liability Practice Groups. The conference took place in New York City from June 13-15, 2018.

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J. Rudy Austin named to Virginia Lawyers Hall of Fame

ROANOKE, Va. (June 12, 2018) – The Virginia law firm of Gentry Locke is pleased to announce that Roanoke Retired Partner J. Rudy Austin has been named to the Virginia Lawyers Hall of Fame, a Virginia Lawyers Weekly awards program designed to recognize Virginia’s most significant senior lawyers. Rudy was formally recognized at the Hall of Fame event on June 12. “We are thrilled for Rudy, who is highly deserving of this honor,” said Gentry Locke Managing Partner Monica Taylor Monday. “He is an unwavering example of the ethical practice of law, with innumerable career accomplishments.” Membership in the Hall […]

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Gentry Locke Welcomes New Associate Kelsey M. Martin

ROANOKE, Va. (May 29, 2018) – The Virginia law firm of Gentry Locke is pleased to announce that Kelsey M. Martin  has joined the firm’s Roanoke office as an associate. Kelsey will practice on the Employment & Labor team. In her practice, Kelsey will advise business owners and management on employment matters. She will also defend federal and state court claims involving employment-related issues, including claims related to the Americans with Disabilities Act, Age Discrimination in Employment Act, Title VII, Fair Labor Standards Act, Family and Medical Leave Act, affirmative action plans, noncompete agreements, trade secrets, and related matters. Kelsey […]

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Gentry Locke and Managing Partner Monica Monday recognized by Chambers USA

  ROANOKE, Va. (May 29, 2018) – The Virginia law firm of Gentry Locke is pleased to announce its recognition as a leading Virginia firm for commercial litigation by Chambers USA 2018: America’s Leading Lawyers for Business, a prestigious annual ranking of law firms and attorneys. Additionally, Chambers USA recognized Gentry Locke Managing Partner Monica Monday as a notable practitioner “who enjoys a commanding reputation as ‘one of the go-to practitioners for appellate work.’” This was Monday’s second annual recognition by Chambers USA. In addition to her role as managing partner, Monday chairs the firm’s Appellate practice. She was most recently ranked in the 2018 Virginia […]

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Robert Chambliss (“Cham”) Light, Jr. joins Gentry Locke as Of Counsel

LYNCHBURG, Va. (May 29, 2018) – The Virginia law firm of Gentry Locke is pleased to announce that Robert Chambliss (“Cham”) Light, Jr.  has joined the firm’s Lynchburg office as of counsel. Light will practice with the Business Litigation team. “Cham is well-known, well-respected, and very involved in the Lynchburg community,” said Gentry Locke Managing Partner Monica Taylor Monday. “Our clients will undoubtedly benefit from his talents, dedication to the field, and industry connections. It’s an honor to have him join our growing Lynchburg office.” Light is versed in a broad range of litigation matters, though he is particularly skilled and […]

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Risk Management presentation to AGC of Virginia 2018 Young Construction Leaders

On June 7, 2018, Gentry Locke attorney Andrew Gay will co-present a session on Risk Management to attendees at the Association of General Contractors of Virginia (AGCVA) Young Construction Leaders Program. Andrew will present with members of the Marsh & McLennan Agency in Richmond, Virginia. For more information or to register, contact Courtney Baker at (540) 323-0311.  

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Motions Craving Oyer: A Powerful, but Limited Tool in Virginia Practice

While its name may suggest it is a vestige of Virginia’s legal history, a motion craving oyer remains a powerful, but limited tool in Virginia practice. When a plaintiff sues based on a written contract or other document but fails to attach it to his complaint, a defendant should consider “craving oyer” of the document. “[A] motion to crave oyer is a request of the Court to require that a document sued upon, or a collateral document which is necessary to the Plaintiff’s claim, be treated as though it were part of the Plaintiff’s pleadings.” Ragone v. Waldvogel, Poe and […]

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Can a Defendant Successfully Avoid Rule 3:20 in Virginia Circuit Courts?

Using Sworn Testimony in Support of a Motion for Summary Judgement in Virginia Circuit Courts One of the biggest distinctions between federal practice and Virginia practice is that, in Virginia practice, summary judgment cannot be based upon deposition testimony. However, that doesn’t necessarily mean that all previously given sworn testimony is off-limits. Rule 3:20 of the Rules of the Supreme Court of Virginia states, in part: No motion for summary judgment or to strike the evidence shall be sustained when based in whole or in part upon any discovery depositions under Rule 4:5, unless all parties to the action shall […]

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Piercing the Corporate Veil: Pursuit and Defense of Shareholders’ Individual Assets

On May 30, 2018 two Gentry Locke partners will present a CLE to Virginia CLE attendees at Virginia CLE’s Charlottesville, Virginia headquarters. Michael J. Finney and Alicha Grubb will present alongside an attorney from a Charlottesville firm, Jonathan T. Blank. The event website page describes the session thusly: Our experienced speakers will address this complex issue from both the plaintiff’s and the defendant’s point of view, highlighting the issues at stake and sharing practical tips to assist your representation of your client’s interests. Among the issues they will address are: How strong is the presumption of the corporate veil? What can a […]

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#MeToo and the Male Business Executive: A Call For Proactive Leadership

Gentry Locke employment law partner Todd Leeson recently published an important article for business executives. The article was inspired by contrasting images of women in an upscale steakhouse. Todd implores executives to take action to ensure a culture of respect in the workplace. Read the formatted PDF of the article Reprinted with permission from the April 27, 2018 edition of CorporateCounsel© 2018 ALM Media Properties, LLC. All rights reserved. Picture an upscale steakhouse in a bustling downtown of a mid-size southern city—a swanky joint where every night hundreds of patrons happily pay $50+ for a delicious steak, and $15 for […]

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Gentry Locke awarded The Roanoker’s “Best of Roanoke” Best Law Firm for second consecutive year

ROANOKE, Va. (May 4, 2018) – The Virginia law firm of Gentry Locke is pleased to announce that it has been awarded “Best Law Firm – Platinum” within The Roanoker magazine’s 2018 “Best of Roanoke” reader poll. The platinum award is the highest honor in each category. Gentry Locke was also named “Best Law Firm – Platinum” in the 2017 “Best of Roanoke.” The Roanoker’s “Best of Roanoke” poll tabulates more than 68,000 reader votes in more than 150 categories. The 2018 “Best of” issue, which marks the 31st annual poll, published on May 4. The Roanoker is the longest continuously […]

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#HR: 2018 Employment Law Symposium

ROANOKE: MAY 10 – Full The Hotel Roanoke & Conference Center LYNCHBURG: MAY 14 The Craddock Terry Hotel and Event Center Human Resources is buzzing along at the speed of NOW. Is your company able to keep up? Gentry Locke’s Employment Law Team will help your company be prepared for and inoculated against some of the most potent viral movements we’ve ever seen. Register now to learn about the most click-worthy issues affecting businesses this year! Registration is open for Lynchburg (May 14) Professional Credits: As a SHRM Recertification Provider, Gentry Locke is recognized by SHRM to offer 6.5 hours […]

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Seasoned Medical Malpractice Attorney Powell M. “Nick” Leitch III Joins Gentry Locke

ROANOKE, Va. (April 23, 2018) – The Virginia law firm of Gentry Locke is pleased to announce that Powell M. “Nick” Leitch, III has joined as a partner in Gentry Locke’s Medical Malpractice practice group. He previously served as a partner at LeClairRyan. “We have an enormous amount of respect for Nick, and are so pleased that he will bring such a wealth of experience to our medical malpractice team,” said Gentry Locke Managing Partner Monica Taylor Monday. “We welcome him to our firm and look forward to further servicing our clients with him aboard.” “Gentry Locke is an esteemed […]

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Law and Medicine: Physicians in the Courtroom presentation

Gentry Locke attorneys Ben Byrd and Nick Leitch will present a seminar to Virginia Tech/Carilion School of Medicine’s 4th-year students on Monday, April 30 at the Riverside complex in Roanoke.  The “Law and Medicine: Physicians in the Courtroom” course will deal with the various ways in which the lives of these physicians can intersect with the legal system throughout their careers, both in terms of being witness-advocates for their patients, as well as expert witnesses and/or witnesses on their behalf in medical litigation. Attorneys Byrd and Leitch will be joined by Professor Tim MacDonnell of Washington & Lee School of […]

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28 Gentry Locke Attorneys Named 2018 Virginia Super Lawyers or Rising Stars

ROANOKE, Va. (April 17, 2018) – Gentry Locke is pleased to announce that 28 of the firm’s attorneys were selected for inclusion in the 2018 Virginia Super Lawyers® list, a national legal ranking. Attorneys were nominated by their peers and recognized for their outstanding professional achievement in several legal practice areas, including civil litigation, appellate law, criminal defense, business litigation, business/corporate law, construction litigation, land use and zoning, employment & labor law and litigation, personal injury, professional liability, and tax law. Of those selected, 18 of the firm’s attorneys from the Roanoke and Lynchburg offices were named as Virginia Super […]

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J. Rudy Austin Named Roanoke Bar Association Lifetime Achievement Award Winner

ROANOKE, Va. (April 11, 2018) – The Virginia law firm of Gentry Locke is pleased to announce that Roanoke Retired Partner J. Rudy Austin has been selected as the 2018 recipient of the Roanoke Bar Association (RBA) Frank W. “Bo” Rogers, Jr., Lifetime Achievement Award. Austin will be formally presented with the award at the RBA Law Day Luncheon on May 1. “This is a tremendous honor that recognizes Rudy’s remarkable career, and sustained contributions to the profession and the bar,” said Gentry Locke Managing Partner Monica Taylor Monday. “Rudy is a model lawyer who has upheld the highest ideals […]

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CLE Panel on Coal Ash Issues

The Virginia Bar Association will hold its summer program at the Homestead Resort in Hot Springs, Virginia, where on July 20, 2018, Gentry Locke Partner Charles L. Williams will appear on a panel discussing coal ash issues. As head of the Environmental Law Group at Gentry Locke, Charlie Williams has abundant experience in such matters. His role as a negotiator for the City of Danville after a coal ash spill polluted the Dan River in 2014 makes him particularly suited to present on the topic. Attorneys from all over Virginia will converge and will receive CLE credit for their attendance.

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AIA Contract Documents 2017 Updates – Time is Running Out

On April 3, 2018, Gentry Locke Partner Brett Marston was a panelist on a webinar provided by ALFA International, the international legal network Gentry Locke has been a member of since 1988. The webinar helped construction industry professionals gain an understanding of the changes in the April, 2017 updated AIA contract forms, which must be adopted into use by October 31, 2018. These contract forms include the standard forms of agreement between owner and contractor and owner and architect, as well as the A201 General Conditions. The panelists included two other Construction Law attorneys from ALFA International affiliated law firms in Tennessee and Ohio. […]

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Summary Judgment in Breach of Contract action defeats $700,000 claim

The results of client matters depend on a variety of factors unique to each matter. Past successes do not predict or guarantee future successes.

Gentry Locke for the Defendant Campbell County Circuit Court Gentry Locke attorneys Kevin Holt, Amanda Morgan and Glenn Pulley represented a crane, rigging and erection service company in a breach of contract and quantum meruit case. The plaintiff, a former company vice president, alleged that our client breached a 1994 Split Dollar Life Insurance Agreement that involved $500,000 in life insurance coverage, plus the payment of monthly post-retirement benefits for 15 years based on the policy’s cash value.  The written agreement was terminated pursuant to its terms in 2012, but then was allegedly reinstated in 2013 in a conversation between the […]

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Lawsuit over sale of impounded auto reaches settlement, is in the news

A local couple is very pleased with the settlement reached in a lawsuit that revealed a towing company was not advertising the sale of towed, impounded, or stored vehicles in a public place as required by law, and the towing company owner had been selling hundreds of such vehicles to himself or back to his own towing company. Dan Casey, columnist for The Roanoke Times, recently wrote an article about the couple’s ordeal and this legal resolution. Stephen and Melanie Pence were represented by Gentry Locke attorneys Matthew W. Broughton and Andrew M. Bowman in a suit filed in the United States […]

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Circuit Court – Challenging Defendant’s Medical Evidence CLE

On May 9, 2018 and May 15, 2018 Gentry Locke partner Benjamin D. Byrd will present a CLE session to members of the Virginia Trial Lawyers Association (VTLA) at their 2018 May Tort Seminar. Ben’s presentation will cover 4:10 Examinations as they relate to challenging medical evidence presented by Defendants. The session covers the Virginia state court rule, not the federal rule.

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Legal Malpractice case now included on “Million-Dollar Settlements of 2017” list by Virginia Lawyers Weekly

Virginia Lawyers Weekly recently corrected their 2017 list of Million-dollar Settlements to include a legal malpractice matter handled by Gentry Locke attorneys Matthew W. Broughton, Gregory D. Habeeb, and Andrew D. Finnicum. The case, which settled for $5M, warrants a #9 spot on a list of more than two dozen cases that settled for more than $1M in 2017. Read the Virginia Lawyers Weekly list (PDF opens in a new window)  

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Bondurant and Wright are Inaugural Gentry Locke Pro Bono Award recipients

To support our ongoing commitment to pro bono work, Gentry Locke has created two awards to recognize outstanding pro bono efforts. These awards were presented for the first time on February 11, 2018. The first award is the Gentry Locke Pro Bono Promise Award. It will be awarded annually to recognize pro bono work that exceeds the 2% yearly aspirational goal set by the Supreme Court of Virginia, in either a quantitative (sheer hours) or qualitative way (great project or impact). The award can be given to an individual Gentry Locke attorney or group of attorneys. The 2017 recipient of […]

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Breach of Fiduciary Duty claim against national bank denied in Motion to Dismiss

The results of client matters depend on a variety of factors unique to each matter. Past successes do not predict or guarantee future successes.

Gentry Locke for the Defendant United States District Court, Eastern District of Virginia We represented a large national bank in a long-term disability (LTD) claim arising under the Employee Retirement Income Security Act (ERISA).  The plaintiff was a bank employee until she ended her employment due to physical disabilities. She was paid LTD benefits until the results of an independent medical examination revealed that her current symptoms no longer supported a finding of total disability. Accordingly, her LTD benefits were terminated. The plaintiff brought a claim for breach of fiduciary duty under ERISA against the bank in addition to a more […]

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Partner Bill Gust presenting at two ESOP events: NCEO (Atlanta) and ESOP Association (Charlottesville)

Gentry Locke Partner Bill Gust will be a featured speaker at two upcoming conferences geared toward employee-owned businesses. “Mitigating Cyber Security Risk from a Fiduciary Perspective” will be presented at the ESOP Association Mid-Atlantic/Carolinas Chapter’s Spring Conference in Charlottesville, VA on Friday, March 9, 2018, and also at the National Center for Employee Ownership (NCEO) Conference in Atlanta, Georgia on Wednesday, April 18, 2018. Learn more about the events and register to attend by clicking on these links: Charlottesville event    Atlanta event  

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Overview of the Tax Cuts and Jobs Act of 2017

Bill Gust is a Senior Tax Partner with Gentry Locke. For more than 30 years, Bill has worked with closely held business owners relative to tax, employee benefits, corporate, and sophisticated estate planning matters. With his expertise in implementing business succession strategies, Bill has assisted in the successful transition of many privately held businesses, through sales, mergers and implementation of numerous ESOPs. The Tax Cuts and Jobs Act (the “Act”) will bring significant changes to many areas of the tax law affecting individuals and businesses beginning January 2018 through 2025. In 2026, the pre-Act rules are scheduled to come back into effect. This […]

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Cyber Security Risk From a Fiduciary Perspective — ESOP Association Conference

On March 9, Gentry Locke Partner Bill Gust will speak at the ESOP Association Mid-Atlantic/Carolinas Chapter’s 2018 Spring Conference. Bill’s topic will cover “Cyber Security Risk From a Fiduciary Perspective.” Gentry Locke is a Bronze Sponsor of the chapter’s 2018 Spring ESOP Conference and Golf Tournament. This year’s conference offers a great line-up of expert speakers, roundtables, and workshops designed for all levels of employee-ownership. For more information or to register, click here.    

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Mitigating Cyber Security Risk from a Fiduciary Perspective — NCEO Conference

On April 18, 2018, Gentry Locke Partner Bill Gust will be presenting a session at the National Center for Employee Ownership (NCEO) Conference in Atlanta, Georgia. Bill’s topic will cover “Mitigating Cyber Security Risk from a Fiduciary Perspective.” Representatives from employee-owned companies from around the world attend the conference, which runs from April 18–20, with preconference sessions on April 17. Gentry Locke is pleased to be a sponsor of this event. As a sponsor, we’re pleased to offer the following discount codes. Just provide them when you register on their website: $35 off main conference per attendee: 18Save35 $25 off […]

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Roanoke City jury renders unanimous verdict of $1.5 million for victim of radiology malpractice

The results of client matters depend on a variety of factors unique to each matter. Past successes do not predict or guarantee future successes.

Gentry Locke for the Plaintiff Roanoke City Circuit Court There are two important rules in the practice of radiology: (1) a radiologist must communicate all pertinent anatomy and diagnoses on imaging studies; and (2) a radiologist must clearly and effectively communicate, leaving no room for misunderstandings by clinicians. If a radiologist does not do both of these things, patients will suffer misdiagnoses that will cause serious injury and/or death. On August 16, 2016 our client presented to the LewisGale Medical Center Emergency Department with abdominal pain, nausea and vomiting after having undergone a colonoscopy the day before. Our client’s clinicians […]

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Catherine J. Huff appointed to Virginia State Bar Board of Governors

The Virginia law firm of Gentry Locke is pleased to announce that Roanoke Partner Catherine J. Huff was named to the Virginia State Bar’s Young Lawyers Conference (YLC) Board of Governors. Huff is serving a two-year term as the 8th District Representative. The YLC was founded in 1973 as a subset of the Virginia State Bar. Its members are considered to be the voice of Virginia’s young lawyers in front of the Virginia State Bar and the American Bar Association. YLC activities include semi-annual admission and orientation ceremonies, the Virginia Domestic Violence Safety Project, a board match program, minority recruitment […]

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Accident caused by paving truck results in $350k settlement

The results of client matters depend on a variety of factors unique to each matter. Past successes do not predict or guarantee future successes.

Gentry Locke for the Plaintiff Warren County Circuit Court In May of 2016, our client traveled northbound on Interstate 81 in Warren County, Virginia. When our client approached an interstate crossover, a work truck for an asphalt and paving company illegally used the crossover to go from I-81 South to I-81 North. This resulted in a substantial crash which caused our client’s vehicle to catch fire. The driver of the work truck was charged with reckless driving and illegal use of a crossover, and was ultimately found guilty of both charges. Our client suffered a broken leg which required surgery, extensive […]

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Who Controls the Sandbox? Gender Disparity in Law Firms

On Thursday, February 8, 2018, Gentry Locke Senior Counsel Cynthia Kinser will deliver the keynote address at The Success Project for Women Attorneys, an event sponsored by the Roanoke Chapter of the Virginia Women Attorneys Association. Justice Kinser’s speech will address the barriers that women attorneys still face and have to overcome in order to reach the same level of success as men attorneys.

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Preemptive “forum shopping” fails against our client’s Trade Secret litigation

The results of client matters depend on a variety of factors unique to each matter. Past successes do not predict or guarantee future successes.

Gentry Locke for the Defendant United States District Court, Western District of Virginia After being informed that our client intended to file a trade secret misappropriation case in Ohio on behalf of its business, the opposing company filed a declaratory judgment action in Franklin County Circuit Court seeking a ruling that it had not misappropriated any of our client’s trade secrets. Gentry Locke attorneys Kevin Holt and Alicha Grubb then removed the Virginia case to Federal Court and moved to have it dismissed.  The Virginia Federal Court granted the motion, finding that the opposing company had improperly filed the declaratory judgment action first in “an improper attempt […]

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Gentry Locke Partners Russell and Moore achieve largest verdict in Virginia in 2017

On January 22, 2018, Virginia Lawyers Weekly noted that a medical malpractice case handled by Gentry Locke Partners Anthony M. Russell and S.D. Roberts Moore topped their list of Largest Verdicts for Virginia in 2017. The case was unusual as the wrongful death of a 55-year-old woman during surgery resulted in the surgeon and anesthesiologist blaming one another. According to the Largest Verdicts article, which requires a subscription to access, the Fairfax County jury delivered a $7 million verdict for the patient’s family on July 19, 2017 and also provided interest dating from the surgery date back in 2013. The verdict […]

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Jonathan D. Puvak honored with The Virginia Bar Association’s Emerson G. Spies Award

ROANOKE, Va. (February 2, 2018) – The Virginia law firm of Gentry Locke is pleased to announce that Roanoke Partner Jonathan D. Puvak was presented with the Emerson G. Spies Award during The Virginia Bar Association’s 128th Annual Meeting in Williamsburg, Virginia on January 19, 2018. The award is given annually to a member of The Virginia Bar Association’s Young Lawyers Division (YLD) for loyalty, dedication, and enthusiasm. Puvak was named as this year’s Emerson G. Spies Award recipient specifically in recognition of his efforts chairing the YLD’s CLE Committee. Puvak planned and coordinated continuing legal education programming for all […]

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Partial Summary Judgment thwarts request for $1.4M

The results of client matters depend on a variety of factors unique to each matter. Past successes do not predict or guarantee future successes.

Gentry Locke for the Defendant Fairfax County Circuit Court Gentry Locke attorneys successfully defended a large, residential real estate brokerage firm in a breach of contract case.  The plaintiff, a North Carolina consulting firm, designed new commission plans for our client’s thousands of real estate agents in the mid-Atlantic region. The plaintiff contended that it was owed $1.4 million in cumulative incentive payments based on improvement to the brokerage’s “company dollar” percentage, or profit margin, over the five-year period following adoption of the plans. However, under a plain reading of the contract and the brokerage’s financial performance, no incentive payments were […]

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Two Gentry Locke lawyers elevated to Partner

ROANOKE, Va. (January 1, 2018) – Gentry Locke is pleased to announce that Roanoke office attorneys Jonathan D. Puvak and Daniel R. Sullivan have been promoted to the position of Partner, effective January 1, 2018. Puvak practices on the firm’s Business & Corporate team, assisting businesses, business owners, and governmental entities with corporate governance, commercial transactions, employee benefits, and tax and real estate matters. Before attending law school, Puvak gained business and real estate development experience by working with NVR Inc., one of the nation’s largest homebuilders. He is a member and holds leadership positions with the Virginia State Bar’s Young Lawyers Conference, […]

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