7.5 Individual Liability for Bowman Claims

• Library: Virginia Business Torts (Virginia CLE) (2019 Ed.)

7.5 INDIVIDUAL LIABILITY FOR BOWMAN CLAIMS

In 2012, the Virginia Supreme Court addressed in the affirmative a question that never had been squarely answered since the recognition of Bowman claims in 1985: could an individual (such as the employee's manager) be held personally liable for a wrongful discharge claim?

In VanBuren v. Grubb, ⁹⁸ a doctor terminated the plaintiff (a nurse) allegedly after she refused his sexual advances, which purportedly persisted for a prolonged period. The doctor was the owner and medical director of the medical facility that employed the plaintiff and was also her supervisor. After her termination, the plaintiff sued both the medical facility and the doctor personally for wrongful discharge on the ground that she was fired because she refused to engage in criminal activity, including adultery and lewd and lascivious activity. The United States District Court for the Western District of Virginia (where the case was pending) dismissed the wrongful termination claim against the doctor, holding that the Virginia Supreme Court would most likely allow wrongful discharge claims only against employers, not supervisors or other co-employees. ⁹⁹ The plaintiff appealed.

The Fourth Circuit concluded it could not affirm the district court's holding because the Virginia Supreme Court had not squarely addressed the issue of individual liability for wrongful termination claims. ¹⁰⁰ Consequently, it certified the following question to the Supreme Court:

Does Virginia law recognize a common law tort claim of wrongful discharge in violation of...