Present: All the Justices 

THERESA A. MULLINS 

v. Record No. 960961 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 January 10, 1997 

VIRGINIA LUTHERAN HOMES, INC. 

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE 

Clifford R. Weckstein, Judge 

 In this appeal, we consider whether the trial court erred in 

striking the plaintiff's evidence in an action alleging that she 

was unlawfully discharged from her employment for filing a 

workers' compensation claim. 

 Theresa A. Mullins filed a motion for judgment against her 

former employer, Virginia Lutheran Homes, Inc. (the employer). 

She alleged under Code § 65.2-3081 that the employer discharged 

her because she had filed a claim under the Virginia Workers' 

Compensation Act. Code §§ 65.2-100 to -1310. 

 In a jury trial, the evidence showed that Mullins was hired 

 

 1Code § 65.2-308 provides, in relevant part: 

 A. No employer or person shall discharge an 

employee solely because the employee intends to file or 

has filed a claim under this title or has testified or 

is about to testify in any proceeding under this title. 

 . . . 

 B. The employee may bring an action in a circuit 

court having jurisdiction over the employer or person 

who allegedly discharged the employee in violation of 

this section. The court shall have jurisdiction, for 

cause shown, to restrain violations and order 

appropriate relief, including actual damages and 

attorney's fees to successful claimants and the 

rehiring or reinstatement of the employee, with back 

pay plus interest at the judgment rate as provided in 

§ 6.1-330.54. 
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in February 1993 as a certified nursing assistant at Brandon Oaks 

Retirement Home, a facility owned by the employer. Her daily 

duties included helping the residents bathe, dress, and eat. 

 Mullins testified that on September 5, 1993, she entered the 

room of an elderly woman, who was attempting to hold onto the 

bathroom sink to keep from falling. Mullins injured her left 

hand in the process of grabbing hold of the woman. Mullins' 

supervisor, Louise Hill, told her to place ice on her hand and 

complete her shift before seeking medical attention. After she 

finished her shift, Mullins went to a hospital emergency room 

where a doctor placed a metal splint on her hand and referred her 

to an orthopedist. 

 Mullins testified that she reported to work two days later 

and showed Hill her splint. According to Mullins, Hill asked, 

"Why didn't you just let her fall instead of getting hurt?" 

Mullins also testified that Rob Bianco, Brandon Oaks' 

administrator, asked her if she "made it a habit of catching 

people falling." 

 On October 3, 1993, an orthopedist diagnosed Mullins' injury 

as a hyperextension of her left thumb, and ordered her to stop 

all work that required use of her left hand. Mullins testified 

that when she informed Hill of her orthopedist's instruction that 

she perform only light-duty work, Hill stated that there were no 

such positions available at that time. 

 Based on her orthopedist's instruction and the fact that 
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Brandon Oaks had no light duty positions available, Mullins 

stopped working at the end of October 1993. The employer paid 

Mullins for approximately 48 hours of accumulated "sick and 

holiday pay" for the period from October 28, 1993 to November 5, 

1993. The record does not show that the employer made any 

further wage payments to Mullins. 

 Mullins filed an application for benefits with the Virginia 

Workers' Compensation Commission on November 5, 1993. In a 

letter dated December 2, 1993, the employer advised Mullins that 

her extended medical leave would expire on December 6, 1993. The 

letter stated that if Mullins was unable to return to work after 

this leave expired, her position would be filled by another 

applicant. 

 On December 6, 1993, Mullins and her mother, Elizabeth 

Heppert, met with Louise Hill. Heppert testified that Hill told 

Mullins that her job was terminated due to her injury. Mullins 

testified that Hill told her that she was being discharged 

because her "sick" leave had expired and she was unable to return 

to work. 

 About three months later, Mullins received medical 

authorization to return to work. She testified that she spoke 

with Hill about returning to Brandon Oaks, but was told that 

there was no work available for her. 

 At the conclusion of Mullins' evidence, the trial court 

granted the employer's motion to strike the evidence on the 
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unlawful discharge claim. The court stated that it struck the 

evidence because the jury could only find that the employer 

violated Code § 65.2-308 "by speculation, by picking and choosing 

among alternative explanations that the Plaintiff has offered." 

The court later entered an order dismissing Mullins' unlawful 

discharge action. 

 On appeal, Mullins argues that the evidence was sufficient 

to raise a jury question whether the employer discharged her 

solely because she filed a workers' compensation claim. Mullins 

contends that the evidence of the employer's conduct was 

sufficient to support a finding by the trier of fact that her 

employment was terminated for this reason. 

 In response, the employer asserts that Mullins' evidence did 

not show that she was fired solely because she filed a workers' 

compensation claim. The employer contends that the evidence 

showed only that when Mullins had used all her sick leave, she 

was still unable to return to work. We disagree with the 

employer. 

 In reviewing the trial court's decision to strike a 

plaintiff's evidence, we must consider the evidence, and all 

reasonable inferences which can be drawn from the evidence, in 

the light most favorable to the plaintiff. Any reasonable doubt 

about the sufficiency of the evidence must be resolved in the 

plaintiff's favor. Waters v. Safeway Stores, Inc., 246 Va. 269, 

270, 435 S.E.2d 380, 380 (1993); Artrip v. E.E. Berry Equip. Co., 
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240 Va. 354, 357, 397 S.E.2d 821, 823 (1990). 

 An employer's motivation in discharging an employee is a 

fact ordinarily established by circumstantial, rather than 

direct, evidence. In Charlton v. Craddock-Terry Shoe Corp., 235 

Va. 485, 369 S.E.2d 175 (1988), we addressed this aspect of 

proving an unlawful discharge claim under the Virginia Workers' 

Compensation Act. There, the plaintiff alleged that she was 

discharged from her employment because she had incurred a jobrelated injury for which she intended to file a workers' 

compensation claim. During cross-examination, however, the 

plaintiff agreed that she was fired because she had refused to 

sign a waiver of her right to claim compensation benefits. 

 Based on this testimony, the defendant argued that the 

plaintiff's evidence showed that she was not fired solely because 

she intended to file a workers' compensation claim, and that her 

refusal to sign the waiver constituted a separate reason for her 

dismissal. The trial court agreed and entered final judgment for 

the defendant. 

 We reversed the trial court's judgment, noting that the 

plaintiff did not know the actual reason for her dismissal. We 

stated that "[h]er employer's innermost motivation was a matter 

necessarily outside the realm of her knowledge." Id. at 489, 369 

S.E.2d at 177. We concluded that since the plaintiff's 

testimony, considered in its entirety, presented a question of 

fact concerning the employer's motivation, the plaintiff was 
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entitled to have that evidence weighed by the jury together with 

all the other evidence in the case. Id. at 489-90, 369 S.E.2d at 

177. 

 These observations apply equally to the present case. The 

employer's motivation for discharging Mullins was a question 

outside the realm of Mullins' knowledge to be resolved by the 

trier of fact. See id. at 489, 369 S.E.2d at 177. 

 The evidence showed that Mullins was discharged about one 

month after filing her workers' compensation claim. Heppert 

testified that Hill told Mullins she was being discharged due to 

her job-related injury. In addition, the comments allegedly made 

by Hill and Bianco are circumstantial evidence that the employer 

felt that avoiding employee injury claims was more important than 

providing for the safety of residents in the facility. Viewed in 

the light most favorable to Mullins, this evidence was sufficient 

to raise a question of fact whether Mullins was discharged solely 

for filing a workers' compensation claim. 

 The employer's articulated reasons for discharging Mullins, 

her job-related injury and the expiration of her sick leave, did 

not constitute "alternative explanations" which would require the 

jury to speculate before finding that the employer violated Code 

§ 65.2-308. An employer's articulated reasons for discharging an 

employee are merely evidence relevant to the issue of the 

employer's motivation, which the jury is entitled to consider 

along with all the other evidence of the employer's conduct. 
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Thus, we conclude that the trial court erred in striking Mullins' 

evidence.2

 

 For these reasons, we will reverse the trial court's 

judgment and remand this case for a new trial. 

Reversed and remanded.

 

 2On appeal, the employer argues for the first time that 

Mullins was not entitled to a jury trial on her claim that she 

was discharged in violation of Code § 65.2-308. See Dunn v. 

Bergen Brunswig Drug Co., 848 F. Supp. 645, 649 (E.D. Va. 1994). 

 Based on this argument, the employer contends that we should 

treat the trial court's ruling on the motion to strike as "the 

constructive equivalent of a finding by the trier of fact" that 

Mullins did not prove her case by a preponderance of the 

evidence. However, since the employer's contention is based on 

an argument not raised at trial, we do not consider the merits of 

that contention. Rule 5:25.