Ousted co-founder sues Virginia Rep, alleging age discrimination

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Virginia Repertory Theatre’s November Theatre at 114 W. Broad St. (Jack Jacobs photos)

A legal drama is beginning to unfold between Virginia Repertory Theatre and one of its co-founders.

Phil Whiteway recently filed a lawsuit against Virginia Rep alleging he was forced out of the organization due to his age. When he was fired from Virginia Rep in August 2023, Whiteway was 71 years old.

The former managing director is seeking reinstatement with the organization in addition to lost pay and other compensation for the age discrimination that he says he experienced and retaliatory actions he argues were taken against him for his refusal to retire voluntarily.

The federal Age Discrimination in Employment Act, which the suit alleges Virginia Rep violated in its demands that Whiteway exit, prohibits forced retirement, but does allow some limited exemptions that the filing states weren’t cited by Virginia Rep.

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Phil Whiteway

Whiteway’s complaint claims Virginia Rep leaders pressured him to retire for several years before he was finally fired.

“Plaintiff contends that his treatment, ultimately resulting in the termination of his (Virginia Rep) employment, was inappropriate and unlawful because of age and/or in retaliation for his opposition to age-based discrimination,” the filing read.

Virginia Rep declined to comment on the lawsuit other than to deny Whiteway’s allegations. The case was filed last month in federal court in Richmond.

“Virginia Repertory Theatre will not comment on this pending litigation beyond stating that we categorically deny the allegations,” theater spokeswoman Liz Nance said in a statement to BizSense.

Whiteway is represented in the case by Harris Butler and Paul Falabella of the Butler Curwood law firm. Butler declined to comment. Whiteway didn’t return a phone message seeking comment.

The 15-page complaint claims that, in 2021, Virginia Rep “actively pressed” Whiteway to set a date for his retirement. Whiteway claims he resisted setting a date because he wasn’t ready to retire.

He eventually agreed to a “tentative working date” of July 1, 2023, which the suit describes as a placeholder and that Whiteway didn’t explicitly agree to part ways with the nonprofit on that date.

Efforts by Virginia Rep to commit Whiteway to a specific date ran afoul of federal law, according to the suit, which alleges that his refusal to depart led to his duties in September 2022 being changed and Virginia Rep’s artistic directors being directed to report to the then-board chair Laura Lee Chandler, instead of him, starting the following month.

The suit states that in 2022 a succession planning effort was started at the theater, and claims that the initiative was created to remove Whiteway from the organization.

By February 2023, Virginia Rep began an investigation into Whiteway over “alleged workplace environment concerns,” according to the filing, which framed the move as retaliation against Whiteway because he wouldn’t retire.

The filing states that Whiteway at a later point learned that in February 2023, Virginia Rep board member Chandler allegedly referred to him and co-founder Bruce Miller as “two old white guys,” to then-board member Nancy Harrison.

The following month, March 2023, Whiteway filed a charge of discrimination related to what he saw as age-based discrimination against him with federal agency the Equal Employment Opportunity Commission, several months before he was fired.

The suit suggests that efforts to remove Whiteway took shape against a backdrop of tension in Virginia Rep over the move. In late summer 2023, the suit states that the Virginia Rep board met to consider terminating Whiteway’s employment, an idea that drew opposition from some board members and that resignations from the board followed.

On Aug. 11, Whiteway logged into a Zoom meeting with board member Vivian White, who according to the filing delivered an ultimatum to Whiteway to either leave the organization or be forced out. Whiteway refused to retire and was told later in the day by email that he was fired, effective immediately.

A few days later, on Aug. 16, Virginia Rep issued a brief news release stating that Whiteway and the theater had “parted ways.” The release didn’t elaborate on the nature of Whiteway’s departure and didn’t include any quotations attributed to Whiteway.

In October, the theater named Amy Wratchford interim managing director.

The suit alleges that Virginia Rep has not only discriminated against Whiteway for his age, but generally engages in a pattern of being more favorable to younger employees and treating older employees poorly.

The complaint draws a parallel between Whiteway’s experience and that of his fellow Virginia Rep co-founder Miller. The suit states that Miller was “unlawfully” made to retire as Virginia Rep’s artistic director in 2019, when he was 69 years old. Miller isn’t a plaintiff in the case.

“This was an unlawful age-based constructive discharge on the basis of Mr. Miller’s age and establishes (Virginia Rep’s) pattern of unlawful age-based actions to mandate or force retirement, contrary to the mandates of the ADEA,” Whiteway’s complaint reads.

The suit states that Whiteway opposed efforts to remove Miller. Miller later returned to the organization on a part-time basis in 2020, an arrangement that came to an end in October 2022, according to the filing.

Virginia Rep hadn’t filed a response in the Whiteway case as of Tuesday afternoon, according to online court records. A trial date hasn’t been set.

Whiteway had been involved in the region’s performing arts scene for decades prior to his exit from Virginia Rep. He and Miller founded Theatre IV in 1975, before merging their group with Barksdale Theatre to create Virginia Rep in 2012.

Virginia Rep runs the November Theatre at 114 W. Broad St. in Richmond, as well the Theatre Gym located in the same building. The nonprofit also hosts performances at Hanover Tavern in Hanover County. In 2022, Virginia Rep acquired the Scottish Rite Temple at 4204 Hermitage Road for $3.5 million.

The organization reported $6.5 million in total revenue and $4.6 million in expenses for fiscal year 2022, according to tax filings.

POSTED IN Nonprofits

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Justin Ranson
Justin Ranson
27 days ago

This is all very interesting, but the important question is, Could he still do the job at an acceptable level? I’m not making any accusations at all, but if someone is no longer able to adequately do the job, it’s not age-based discrimination. There is a “factors other than age” clause which allows a person to be removed – for example, if someone refuses to make appropriate changes to keep up with the times, because “it’s the way we’ve always done it,” someone who is let go could try to make the argument that they were terminated illegally because of… Read more »

Last edited 27 days ago by Justin Ranson
Randall Hudgins
Randall Hudgins
27 days ago

If “two old white guys” are leading an innovative, inclusive, and vibrant organization and are forced out, that’s a problem. If they are leading a dusty, sleepy, stagnant organization, then I would say there might be a need for some new blood (not necessarily young blood).

Terry Giles
Terry Giles
26 days ago

Regardless of the legal outcomes, why would anyone every want to return to work at a place they are clearly not wanted? Sure, collect your lawsuit money/whatever, but you really want to resume a job with people that clearly wanted you gone?