Bailey v. Scott-Gallaher, Inc., SCOTT-GALLAHE

• Decision Date: 10 January 1997
• Docket Number: INC,No. 960530,SCOTT-GALLAHE,960530
• Citation: 480 S.E.2d 502,253 Va. 121
• Parties: , 72 Fair Empl.Prac.Cas. (BNA) 1288, 69 Empl. Prac. Dec. P 44,474, 133 Lab.Cas. P 58,213, 12 IER Cases 594 Lisa BAILEY v. Record
• Court: Virginia Supreme Court

Page 502

480 S.E.2d 502

253 Va. 121, 72 Fair Empl.Prac.Cas. (BNA) 1288,

69 Empl. Prac. Dec. P 44,474,

133 Lab.Cas. P 58,213, 12 IER Cases 594

Lisa BAILEY v. SCOTT-GALLAHER, INC.

Record No. 960530.

Supreme Court of Virginia.

Jan. 10, 1997.

Terry N. Grimes (King, Fulghum, Snead, Nixon & Grimes, on briefs), Roanoke, for appellant.

Clinton S. Morse (Todd A. Leeson, Flippin, Densmore, Morse, Rutherford & Jessee, on brief), Roanoke, for appellee.

Amicus Curiae: Commonwealth of Virginia (James S. Gilmore III, Attorney General; David E. Anderson, Chief Deputy Atty. Gen.; William H. Hurd, Deputy Atty. Gen.; Margaret A. Browne, Asst. Atty. Gen., on brief), in support of appellant.

Present: All the Justices

KOONTZ, Justice.

In this appeal, we consider whether a former employee who alleged that she was terminated from her at-will employment because of her gender pled a cause of action against her former employer for wrongful discharge.

The trial court decided this case on demurrer. Accordingly, we recite as true the material facts alleged in the motion for judgment and the fair factual inferences deducible therefrom. Palumbo v. Bennett, 242 Va. 248, 249, 409 S.E.2d 152, 152 (1991).

On June 20, 1995, Lisa Bailey filed her motion for judgment against Scott-Gallaher, Inc., a Virginia corporation. ¹ That pleading contains the following allegations of fact. Bailey was employed by Scott-Gallaher in September, 1990. In 1994, she became pregnant. As a result of premature onset of labor, Bailey's physician ordered her to cease work on July 21, 1994. She was released by her physician to return to work on October 3, 1994. Bailey promptly contacted Ronald E. Scott, Scott-Gallaher's president, to inquire "when she should return to work." Scott told Bailey that she had been terminated "because she was no longer dependable since she had delivered a child; that [her] place was at home with her child; that babies get sick sometimes and [she] would have to miss work to care for her child; and that [Scott-Gallaher] needed someone more dependable."

Bailey's motion for judgment alleges, citing Lockhart v. Commonwealth Education Systems Corp., 247 Va. 98, 439 S.E.2d 328 (1994), that Scott-Gallaher "is subject to the common law of Virginia prohibiting employment discrimination based upon sex." The pleading further alleges, citing the Virginia Human Rights Act, Code § 2.1-715, that it is the public policy of the Commonwealth to safeguard individuals from gender-based discrimination. Finally, under the facts and law set forth above, the pleading alleges that Scott-Gallaher had, in violation of the public policy of the Commonwealth of Virginia, "(a) discriminated against Bailey with respect to the terms, conditions or privileges of her employment because of her sex; and (b) fired Bailey on account of her sex."

Scott-Gallaher filed a demurrer, asserting, inter alia, that Bailey's common law claim was not actionable because she was an employee-at-will and, therefore, terminable without need for cause. The trial court sustained the demurrer, holding that Bailey had not stated a cognizable claim for wrongful discharge under Virginia's public policy exception to the employment-at-will doctrine. We awarded Bailey an appeal.

Virginia strongly adheres to the common law employment-at-will doctrine. As recently as last year, we stated:

"Virginia adheres to the common-law rule that when the intended duration of a contract for the rendition of services cannot be determined by fair inference from the terms of the contract, then either party is ordinarily at liberty to terminate the contract at will, upon giving the other party reasonable notice.

An employee is ordinarily at liberty to leave his employment for any reason or no reason, upon giving reasonable notice, without incurring liability to his employer. Notions of fundamental fairness underlie the concept of mutuality which extends a corresponding freedom to the employer."

Lawrence Chrysler Plymouth Corp. v. Brooks, 251 Va. 94, 97, 465 S.E.2d 806, 808 (1996)(quoting Miller v. SEVAMP, Inc., 234 Va. 462, 465, 362 S.E.2d 915, 916-17 (1987) (citations omitted)).

We have also held, however, that the common law employment-at-will doctrine is not absolute, and we have recognized certain narrow public policy exceptions to this doctrine. For example, in Bowman v. State Bank of Keysville, 229 Va. 534, 540, 331 S.E.2d 797, 801 (1985), citing former Code § 13.1-32 (now Code § 13.1-662), which guarantees every shareholder the right to vote his or her stock "free of duress and intimidation," we recognized a narrow public policy exception to the employment-at-will doctrine where employee/shareholders were terminated after they complained that they had been coerced into voting for a merger. We reasoned that

[b]ecause the right conferred by [Code § 13.1-32] is in furtherance of established public policy, the employer may not lawfully use the threat of discharge of an at-will employee as a device to control the otherwise unfettered discretion of a shareholder to vote freely his or her stock in the corporation.

Id.

Subsequently, in Lockhart, supra, we permitted two former employees who alleged that they had been terminated because of their race or gender to prosecute causes of action against their respective former employers. In Lockhart, we stated:

In Bowman, we recognized the plaintiffs' rights to bring actions for wrongful discharge based upon violations of Virginia's public policy that a stockholder should be permitted to exercise the right to vote stock free of duress and intimidation from corporate management. Here, however, we are concerned with rights of even greater importance, the personal freedom to pursue employment free of discrimination based upon race or gender. Indeed, there are few, if any, greater restrictions on personal freedoms that an employee can suffer than to be terminated because of discrimination based upon race or gender.

Id. at 104, 439 S.E.2d at 331. We explained in Lockhart that the plaintiffs were able to pursue their common-law causes of action because their claims were within the scope of the narrow public policy exception that we applied in Bowman:

We recognize that the Virginia Human Rights Act does not create any new causes of action. Code § 2.1-725. Here, we do not rely upon the Virginia Human Rights Act to create new causes 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.

Id. at 105, 439 S.E.2d at 331.

In Lockhart the former employers' alleged discriminatory acts, if proven, would have violated Virginia's strong public policy against race and gender discrimination as reflected in Code § 2.1-715, which is a part of the Virginia Human Rights Act. That it is the strongly held public policy of this Commonwealth to protect employees against employment discrimination based upon race or gender is beyond debate or challenge. Thus, in Lockhart we stated:

Without question, it is the public policy of this Commonwealth that all individuals within this Commonwealth are entitled to pursue employment free of discrimination based on race or gender. Indeed, racial or gender discrimination practiced in the work place is not only an invidious violation of the rights of the individual, but such discrimination also affects the property rights, personal freedoms, and welfare of the people in general.

Id.

Our decision last year in Lawrence Chrysler Plymouth Corp., supra, is consistent with the narrow public policy exception to the employment-at-will doctrine we have previously recognized. There, the plaintiff's claim was that he was terminated when he refused to follow the employer's directions to repair a car by utilizing an allegedly unsafe method of repair. The plaintiff, who had recovered a favorable jury verdict confirmed by the trial court, contended on appeal that even though he was an employee-at-will, his employer wrongfully discharged him in violation of Virginia's public policy and that "the public policy of Virginia need not be found in any express statutory command." 251 Va. at 96, 465 S.E.2d at 808. Distinguishing Lawrence Chrysler Plymouth Corp. from Bowman and Lockhart, we unanimously stated:

In Bowman and Lockhart, the plaintiffs, who were permitted to pursue causes of action against their former employers, identified specific Virginia statutes in which the General Assembly had established public policies that the former employers had contravened. Unlike the plaintiffs in Bowman and Lockhart, Brooks does not have a cause of action for wrongful discharge because he is unable to identify any Virginia statute establishing a public policy that Lawrence Chrysler violated.

Lawrence Chrysler Plymouth Corp., 251 Va. at 98-99, 465 S.E.2d at 809.

Guided by these settled principles, we turn now to consider Bailey's claim. Bailey argues that she pled a viable cause of action for gender discrimination and that the trial court erred by sustaining the demurrer. The Attorney General of Virginia, who filed a brief amicus curiae pursuant to Rule...