Manager beware: You may find yourself named as a defendant in a wrongful discharge case.
VanBuren v. Grubb, Record No. 120348 (Va. Sup. Ct., November 1, 2012). Angela VanBuren sued her former employer, Virginia Highlands Orthopedic Spine Center, LLC (“Virginia Highlands”) and her former supervisor, Dr. Stephen Grubb, in the District Court for the Western District of Virginia. Ms. VanBuren asserted several causes of action in her complaint, but for the purposes of this blog post only one cause of action is relevant: her allegation of wrongful termination against her former supervisor, Dr. Grubb.
According to the allegations of Ms. VanBuren’s complaint (which, for the purposes of the Court’s opinion and this blog post, must be taken as true in their entirety), Dr. Grubb subjected Ms. VanBuren to sexual harassment. More specifically, Ms. VanBuren alleged that Dr. Grubb was physically affectionate to her and that she found his advances to be offensive and unwelcome. The situation came to a head one day in a meeting between Ms. VanBuren and Dr. Grubb in which, Ms. Grubb alleges, Dr. Grubb asked Ms. VanBuren whether she planned to stay with her husband and, when she answered in the affirmative, Dr. Grubb fired her.
In Virginia, the fundamental tenet of the employment relationship is that employment is at-will. This means that an employer may fire an employee for any reason or no reason at all. Virginia courts have, however, recognized a narrow exception to this doctrine. A wrongful termination claim is available to plaintiffs under certain specific circumstances; more specifically, when an employee is terminated in violation of an established public policy (as articulated in a statute) of the Commonwealth. (In Virginia, this public policy exception to the employment-at-will relationship is often called a “Bowman claim,” because the Court first described it in the case of Bowman v. State Bank of Keysville, 229 Va. 534, 331 S.E.2d 797 (1985).)
Ms. VanBuren filed her suit in federal court in the Western District of Virginia, alleging sex discrimination in violation of Title VII, and a Bowman claim. The public policy violation that formed the basis of her Bowman claim was that she had refused to engage in criminal conduct, specifically adultery in violation of Code § 18.2-365 and open and gross lewdness and lasciviousness in violation of Code § 18.2-345. For the Bowman claim, she named two defendants: Virginia Highlands and Dr. Grubb.
The District Court dismissed Ms. VanBuren’s case against Dr. Grubb on the basis that Virginia law did not recognize a wrongful termination claim against anyone other than an employer. (Although Dr. Grubb was the owner of Virginia Highlands and Ms. VanBuren’s supervisor, he was her fellow employee, not her employer.) Ms. VanBuren appealed the District Court’s decision to the Court of Appeals for the Fourth Circuit, which referred the question to the Virginia Supreme Court. The Virginia Supreme Court took up this question as follows:
Does Virginia law recognize a common law tort claim of wrongful discharge in violation of established public policy against an individual who was not the plaintiff’s actual employer but who was the actor in violation of public policy and who participated in the wrongful firing of the plaintiff, such as in the capacity of a supervisor or manager?
The Virginia Supreme Court decided that, yes, Virginia law would recognize such a claim.
To get to this answer, the Court first examined long-existing principles of agency relationship. In Virginia, employers and employees (principals and agents) are deemed to be jointly liable for the employee’s wrongful act. Relying on this tenet, the Court decided that, in wrongful termination cases where the reasons for termination arise from the unlawful actions of the actor effecting the discharge, he or she should share in liability.
The Court pointed out that other Bowman claim decisions had tacitly recognized that non-employers could be liable for wrongful termination. Additionally, the Court cited with approval decisions from a half-dozen other jurisdictions that had addressed the question and come to the same answer. The Court considered the argument that imposing individual liability on a supervisor would deter “rightful” discharges by supervisors afraid of being sued, but rejected that argument and emphasized that limiting liability to employers would not be sufficient to deter wrongful discharge.
The Court’s statement of its ruling was carefully worded: in order for an individual other than the plaintiff’s actual employer to be individually liable for a Bowman claim, the individual must also (1) be the actor who violates the public policy that forms the basis of the Bowman claim and (2) participate in the plaintiff’s wrongful firing.
The Virginia Supreme Court opinion is here.