Former IW employee wins federal suit over her dismissal

Published 12:30 pm Wednesday, August 16, 2017

By Diana McFarland

Managing editor

Isle of Wight County’ former economic development director was awarded $747,320 in a federal civil suit over her termination three years ago.

Lisa Perry sued Isle of Wight County because officials told her she had “voluntarily resigned” after being out on leave due to a shoulder injury.

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The trial was held in the Eastern District Court in Norfolk, and Judge Raymond A. Jackson ruled that Isle of Wight County had violated Perry’s right to return to work under the federal Family and Medical Leave Act. 

Under dispute was the day that Perry was to return to work under the auspices of FMLA, and if it was lawful for Isle of Wight County to terminate her employment for failing to notify the county of a change within a reasonable number of days. {mprestriction ids=”1,2,3,4,5,6″}

The judge determined that Perry complied with the notice requirement and should have been allowed to return to work.

Jackson ruled that Perry had four business days — after July 31, 2014 — to inform the county about her plans to return to work.

The county sent Perry a certified letter Aug. 1 stating she was terminated. Perry, who did not see the pink slip indicating she had a certified letter in her mailbox until Sunday, Aug. 2, returned to work Monday, Aug. 4, where she was pulled out of a staff meeting and told that she had “voluntarily resigned” under the parameters of the FMLA.

“I just didn’t understand. I was completely blown away,” according to Perry’s testimony.

Perry testified that she was then escorted out of the building.

Perry’s attorney, James H. Shoemaker Jr., argued that Perry’s leave document stated she would return Thursday, July 31, 2014, with the stipulation that she had her doctor’s approval.

Perry had a doctor’s appointment that day and was told by her doctor to return to work on Monday, but the doctor’s office did not deliver his note concerning that advice to the county until Aug. 5 — a day after Perry was told she no longer had a job.

According to Shoemaker, the box on the FMLA document was not checked that asked for periodic updates. Shoemaker also pointed out that the county’s own manual allowed for a few day’s notice following a change in status.

Shoemaker argued that Perry went to the doctor on Thursday, where he told her to wait until Monday to return to work, so she did, not thinking it was a “big deal.”

Shoemaker said Perry, who was 56 when she was terminated, has been unable to find another job, despite about 75 applications, at an income comparable to what she made with Isle of Wight County.

Perry’s salary at the time of her termination was about $98,000 a year.

The county’s attorney, Jim H. Guynn Jr. said it was “unreasonable” for Perry not to notify the county of her status prior to Aug. 4, and that she had done a similar thing in 2012 — not return to work on a pre-specified day.

Perry testified that the county had not told her she was deficient in her duties prior to being “voluntarily resigned.”

Former Isle of Wight County Administrator Anne Seward also testified. Seward, who was deemed a “hostile witness” by the court, testified that she had no plans to fire Perry prior to July 31, but was instead anxious to get loose ends tied up before leaving for a two-week vacation.

However, Seward testified that she had “challenges” with Perry, but believed she was “cultivatable.”

Perry’s attorney stated that his client, who had worked for Isle of Wight County for nearly five years prior to her termination, had been a key player in bringing Keurig Green Mountain to Isle of Wight in 2012 and had worked to reinvigorate the Franklin Mill.

Seward testified she was not familiar with the FMLA policy, or the county’s policy concerning the number of days allowed to notify the county concerning a change in leave status.

Meanwhile, Seward testified that during Perry’s 30-day leave she had appointed an interim economic development director and had adjusted that person’s pay accordingly.

Seward also testified that Perry had a pattern of not keeping her aware of where she was and had orally, and in writing, advised her of that.

Seward denied that the swiftness of her termination action — the morning after July 31 — had anything to do with her “challenges” with Perry.

Seward told the court that while the members of the Board of Supervisors are politicians, it was not her job to keep them happy.

“I’m my own person,” she testified.

However, Seward testified that she resigned in lieu of being fired herself in November 2014 after two years on the job.

Isle of Wight County Human Resources Director Mary Beth Johnson testified that the county would not require an employee to check in weekly during a 30-day leave and that Perry had only consumed half of her 12-weeks of leave under FMLA.

Johnson also testified that she would have granted Perry an extension on her leave if she had called on July 31 or Aug. 1 with a status update, but would have also required a doctor’s note. If she arrived on Aug. 1, and without the note, she would have been sent home until the doctor’s notice arrived, according to Johnson’s testimony.

The doctor’s note arrived Aug. 5.

Johnson testified that Seward had told her to write the termination letter.

In his order, Judge Jackson stated that the county failed to show it had acted in good faith when it did not allow Perry to return to work and that the plaintiff had shown that her position had been filled while she was on leave.

The monetary award was a combination of lost salary and benefits, liquidated damages and front pay, according to the judge’s order.


What is a hostile witness

A hostile witness is one who is antagonistic to the side calling him or her to testify. In this case, Lisa Perry’s attorney called Anne Seward to testify. By having the court declare the witness hostile, the attorney can then ask leading questions. Leading questions are generally only allowed during cross-examination, but a hostile witness designation provides an exception to that.   {/mprestriction}