RICHMOND, Va. (WRIC) — In another effort to get a $5 million lawsuit against them dismissed, Richmond Mayor Levar Stoney and the city’s police chief are pointing to a federal court decision in a case involving a fired state employee who investigated the Virginia Parole Board.

In June, Richmond Circuit Court Judge W. Reilly Marchant denied a demurrer — a motion to dismiss — filed by attorneys representing Stoney and police chief Gerald Smith in a $5 million wrongful termination lawsuit from former interim police chief William “Jody” Blackwell.

Judge Marchant rejected the argument that Stoney and Smith were protected from liability in the case because they were not “employers” under the Virginia code prohibiting retaliatory actions against employees.

“The Court finds that the Defendants are individuals who in firing the Plaintiff were ‘acting directly or indirectly in the interest of an employer,'” Marchant wrote in his order.

But Stoney and Smith argue a recent federal court opinion in a civil suit filed by a former state investigator who looked into misconduct claims against the parole board “sheds light on the proper construction” of the state code.

Jennifer Moschetti, a former senior investigator in the Office of the State Inspector General, filed a lawsuit seeking $11.3 million after she was fired last year following her whistleblower lawsuit against the state’s inspector general, Michael Westfall, claiming misconduct in the state’s parole board investigation.

In a motion to have Moschetti’s suit thrown out, the state argued it was protected under sovereign immunity and that Westfall did not fall under the statute’s definition of an “employer.” While the case can still move forward, U.S. District Judge Henry E. Hudson in the Eastern District of Virginia agreed to dismiss that claim against Westfall.

“While Westfall supervised Moschetti at OSIG, he did not employ her within the meaning of the statute,” Hudson wrote in the opinion. “Nor does Westfall act ‘directly or indirectly in the interest of an employer,’ because, as mentioned above, the Commonwealth and OSIG are not employers under the meaning of the statute.”

Citing the “new authority and the construction of the statute” after the federal court opinion, Stoney and Smith filed a motion on Aug. 30 asking the Richmond Circuit Court to reconsider Marchant’s decision to deny their demurrer.

The motion from Stoney and Smith did not ask for a hearing, although one could take place if the court decides it would help render a decision.

Stoney and Smith are being sued by Blackwell, a former Richmond police major tapped by Stoney to be interim police chief in June 2020 after the mayor asked the chief at the time to resign following clashes between officers and protesters during the civil unrest that summer.

Blackwell served as chief for 11 days before Smith assumed the role. He was fired seven months later by chief Smith as “retaliation,” Blackwell claims in the suit, for not complying with an order as interim chief from Stoney to have officers stationed around the city’s Confederate monuments as contractors removed them.