8.2 Case Law Development

• Library: Employment Law in Virginia (Virginia CLE) (2020 Ed.)

8.2 CASE LAW DEVELOPMENT

8.201 Discharge of Employee in the Exercise of a Statutory Right.

A. Bowman v. State Bank of Keysville. The landmark case of Bowman v. State Bank of Keysville ⁶ established the common law tort of retaliatory discharge in violation of public policy. Two bank employees were fired after they exercised their public right to vote their own stock opposing the bank's merger and refused to comply with management's orders to vote their stock in favor of the merger.

The Virginia Supreme Court noted that the two employees were employees at will, citing Stonega Coal & Coke Co. v. Louisville & Nashville Railroad. ⁷ The court held, however, that the issue was not whether the employment-at-will doctrine as it exists in Virginia should be altered, but whether the employer should be permitted, with impunity, to discharge employees in retaliation for the proper exercise of their statutory rights as stockholders. The court noted that the "discharges were premised solely upon the proper exercise of their protected rights as shareholders" and "had nothing to do with their job performance." ⁸

The plaintiffs also brought an action for tortious conspiracy against the bank and its officers. The court held that the action against the bank and its executives could not be maintained because conspiracy requires more than one person, and the defendant bank and its officials were part of a single corporate person.

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B. Miller v. SEVAMP, Inc. Two years after Bowman, the Virginia Supreme Court addressed the issue of what constitutes a "public policy." In Miller v. SEVAMP, Inc., ⁹ a former employee brought a Bowman public policy claim based upon the employer's alleged violation of its own personnel manual. The court held that an employment manual confers private rights only, not public rights. Consequently, the court noted, a plaintiff must base a public policy wrongful discharge claim on an existing law designed to protect the "property rights, personal freedoms, health, safety, or welfare of the people in general." ¹⁰

C. Lockhart v. Commonwealth Education Systems Corp. In Lockhart v. Commonwealth Education Systems Corp., ¹¹ the court significantly broadened the public policy foundation established in Bowman by allowing wrongful discharge claims in two cases based on one plaintiff's status as an African-American and the other plaintiff's status as a female. The two discrimination appeals were heard together.

The court relied on the Virginia Human Rights Act (VHRA) ¹² as the basis for finding that the plaintiffs had been terminated against Virginia's public policy as embodied in that statute. ¹³ The court went on to explain: "We recognize that the Virginia Human Rights Act does not create any new cause of action. . . . Rather, we rely solely on the narrow exception that we recognized in 1985 in Bowman, decided two years before the enactment of the Virginia Human Rights Act." ¹⁴

With the court's pronouncement, not only were employee actions in reliance on the state's public policy protected, but an employee's status also

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received protection. Following Lockhart, when an employee fell within a protected "class" of persons defined by a Virginia statute, discharge of that person because of membership in that class violated Virginia's public policy and provided the basis for an action for a public policy wrongful discharge claim.

In 1995, however, one year after Lockhart, the General Assembly amended the VHRA to provide that the exclusive remedy available for "torts" based on any public policy reflected in the VHRA would prospectively be the administrative procedures provided in the Act itself. ¹⁵

D. Doss v. Jamco, Inc. In Doss v. Jamco, Inc., ¹⁶ the court certified the question of the applicability of the 1995 amendments to the VHRA to wrongful discharge actions. Several lower courts had interpreted the 1995 amendments as constraining only statutory claims under the VHRA, leaving untouched the ability of claimants to pursue a Bowman claim based on the VHRA. ¹⁷ Chief Justice Carrico, writing for the entire court, held that the 1995 amendments abrogated Bowman claims based on the public policies reflected in the VHRA. However, he further noted:

[I]n answering the certified question, we are limited by the terms of the certification order to "the public policies reflected in the Virginia Human Rights Act." Therefore, we express no opinion concerning the public policy of Virginia as it might be articulated in sources other than the Virginia Human Rights Act. ¹⁸

Although the court appeared to leave the door open to Bowman claims based on the public policy against discrimination based on certain protected classes, that door was soundly closed two years later.

E. Conner v. National Pest Control Ass'n. Not long after Doss, in Conner v. National Pest Control Ass'n, ¹⁹ the court considered a plaintiff's allegation that she was terminated based on her gender, which she asserted

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violated Virginia's public policy reflected in not only the VHRA but also in other provisions of Virginia and federal law. The employer asserted that the decision in Doss v. Jamco controlled, stating that the VHRA restricted wrongful discharge actions based on violations of public policy reflected in the VHRA. The plaintiff countered that the VHRA did not prohibit reliance on "other state or federal laws, or upon the public policies enunciated elsewhere." ²⁰ Determining that the 1995 amendments to the VHRA "eliminated a common law cause of action for wrongful termination based on any public policy which is reflected in the VHRA, regardless of whether the policy is articulated elsewhere," the court sustained the defendant's demurrer and dismissed the plaintiff's case. ²¹

The decision in Conner effectively put an end to the reliance on a characteristic typically protected by anti-discrimination statutes as the basis for a public policy wrongful discharge claim. ²²

F. Francis v. National Accrediting Commission of Career Arts & Sciences, Inc. In 2017, the Supreme Court of Virginia declined to expand its Bowman doctrine and instead reaffirmed that the public policy exception to Virginia's employment-at-will doctrine is a decidedly narrow one. In Francis v. National Accrediting Commission of Career Arts & Sciences, Inc., ²³ the plaintiff obtained a preliminary protective order against a co-worker who allegedly threatened her. Several days later, the defendant terminated both the plaintiff and the co-worker, and the plaintiff filed suit alleging wrongful discharge in violation of public policy.

The plaintiff contended that her termination was unlawful because (i) she exercised her statutory right to obtain a protective order and was terminated for doing so, and (ii) Virginia's protective order statutes ²⁴ express Virginia's public policy "to protect the health and safety of" the plaintiff. In rejecting the plaintiff's arguments, the court reiterated that, "[w]hile virtually every statute expresses a public policy of some sort, we continue . . . to hold that termination of an employee in violation of the policy underlying any one

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statute does not automatically give rise to a common law cause of action for wrongful discharge." ²⁵ The court further concluded that it does not recognize a "generalized cause of action for the tort of retaliatory discharge" and held that the public policy exception did not apply because "a viable Bowman claim in this context would require a showing that the termination of employment itself violated the stated public policy of protection of health and safety." ²⁶ As a result, the court affirmed the judgment of the trial court dismissing the plaintiff's claim.

G. Carmack v. Virginia. In 2019, the United States District Court for the Western District of Virginia adopted the Bowman doctrine and dismissed the plaintiff's claims that he was wrongfully discharged in contravention of a public policy of the Commonwealth of Virginia after he complained about alleged financial improprieties and other workplace misconduct to Virginia's Fraud, Waste, and Abuse Hotline. In Carmack v. Virginia, ²⁷ the plaintiff alleged that he was terminated in contravention of (1) the First Amendment to the United States Constitution; (2) Article 1, Section 12 of the Constitution of Virginia; and (3) Section 2.2-3000 of the Virginia Code. Addressing the United States Constitution first, the court agreed with the Virginia Supreme Court and other courts that had held that federal statutes may not be the source of a public policy exception to the Virginia at-will doctrine. ²⁸ The court also rejected the plaintiff's attempt to rely on Article 1, Section 12 of the Constitution of Virginia, concluding that it was not "sufficiently tailored to a specific class to support a Bowman claim[.]" ²⁹ Finally, the court held that the plaintiff's reliance on Virginia's State Grievance Procedure fared no better, as the statute provided its own remedy for enforcing and vindicating one's rights under the statute (and, more specifically, resolving employment-related disputes). ³⁰ As the court explained, "[t]o allow a Bowman claim under such circumstances would enable a plaintiff to circumvent extensive remedial schemes crafted by the Virginia General Assembly, thereby rendering them a nullity." ³¹

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H. Gerald v. Diversified Protection Corporation. The United States District Court for the Eastern District of Virginia recently affirmed that Bowman claims may not be based on federal statutes and adopted the Virginia Supreme Court's holding in Francis ³² that a plaintiff must show that his or her termination itself violated public policy. In Gerald v. Diversified Protection Corporation, ³³ the plaintiff, who worked as a guard for the defendant, was terminated after he was observed using his cell phone while on duty. ³⁴ The plaintiff claimed that his termination was in retribution for complaints he made about violations of federal...