Doss v. Jamco, Inc.

• Decision Date: 31 October 1997
• Docket Number: No. 970703,970703
• Citation: 254 Va. 362,492 S.E.2d 441
• Parties: , 75 Fair Empl.Prac.Cas. (BNA) 281, 72 Empl. Prac. Dec. P 45,030, 13 IER Cases 740 Laura L. DOSS v. JAMCO, INC. Record
• Court: Virginia Supreme Court

Page 441

492 S.E.2d 441

254 Va. 362, 75 Fair Empl.Prac.Cas. (BNA) 281,

72 Empl. Prac. Dec. P 45,030, 13 IER Cases 740

Laura L. DOSS v. JAMCO, INC.

Record No. 970703.

Supreme Court of Virginia.

Oct. 31, 1997.

Gary M. Coates (Fralin, Feinman, Coates & Kinnier, on briefs), Lynchburg, for plaintiff.

Lynn F. Jacob (King F. Tower; Williams, Mullen, Christian & Dobbins, on brief), Richmond, for defendant.

Virginia Trial Lawyers Association (Harris D. Butler, III, Richmond; H. Aubrey Ford, Richmond; John M. Bredehoft; Elaine C. Bredehoft; Linda M. Jackson, Reston; Patricia Ann Smith, Alexandria; Butler, Macon, Williams, Pantele & Lowndes, Richmond; Cantor, Arkema & Edmonds, Richmond; Charlson & Bredehoft, Reston, on brief), amicus curiae, in support of plaintiff.

National Employment Lawyers Association (Harris D. Butler, III, Richmond; John M. Bredehoft; Elaine C. Bredehoft; Linda M. Jackson, Reston; Butler, Macon, Williams, Pantele & Lowndes, Richmond; Charlson & Bredehoft, Reston, on brief), amicus curiae, in support of plaintiff.

Virginia Chamber of Commerce, Virginia Manufacturers Association, Virginia Retail Merchants Association, National Federation of Independent Business (Virginia Chapter), Fairfax County Chamber of Commerce, Hampton Roads Chamber of Commerce, Roanoke Regional Chamber of Commerce and Greater Washington Board of Trade (W. Carter Younger; E. Duncan Getchell, Jr., M. Christine Klein; McGuire, Woods, Battle & Boothe, Richmond, on brief), amici curiae, in support of defendant.

MCI Communications Corporation (Thomas F. O'Neil, III; Anthony V. Alfano, Washington, DC; David R. Shopfner, Washington, DC; Scott Kezmen; Kaufman & Canoles, on brief), amicus curiae, in support of defendant.

Present: CARRICO, C.J., and COMPTON, LACY, HASSELL, KEENAN and KINSER, JJ., and WHITING, Senior Justice.

CARRICO, Chief Justice.

By a "STIPULATED ORDER OF CERTIFICATION" entered April 9, 1997, the United States District Court for the Western District of Virginia (Lynchburg Division) certified to this Court, pursuant to our Rule 42, the following question of law:

Does Va.Code § 2.1-725(D) prohibit a common law cause of action based upon the public policies reflected in the Virginia Human Rights Act, Va.Code § 2.1-714 et seq.?

By order dated April 28, 1997, we accepted the certified question of law.

The question arose when, on December 23, 1996, Laura L. Doss (Doss) filed in the District Court a two-count complaint alleging that her former employer, Jamco, Inc. (Jamco), had unlawfully terminated her employment "because of her sex and because she was pregnant." In Count 1, which is not involved in this proceeding, Doss sought to recover damages for Jamco's alleged violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.). In Count 2, which is implicated here, Doss sought to recover damages for Jamco's alleged violation of "the statutorily expressed public policy of the Commonwealth of Virginia as embodied in the Virginia Human Rights Act (Va.Code § 2.1-714 et seq.) and as expressed in Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) and elsewhere."

The relevant facts are recited in the stipulated order of certification, as follows:

[Doss] was hired by [Jamco] and agreed to begin work on March 11, 1996.... [P]rior to reporting to work for [Jamco] on March 11, 1996, [Doss] learned that she was pregnant. Upon reporting for work, [Doss] told [Jamco's] employees who were to be her supervisors about her pregnancy.... [O]n March 12, 1996, [Jamco's] supervisors informed [Doss] that her employment was being terminated because her maternity leave would cause her to be out during the Company's busy time which was unacceptable to [Jamco].

We note that Doss grounds her claim for unlawful discharge upon the public policy of Virginia as embodied in the Virginia Human Rights Act and "as expressed in Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) and elsewhere." However, in 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.

Ever since this Court decided Stonega Coal and Coke Co. v. Louisville and Nashville R.R., 106 Va. 223, 55 S.E. 551 (1906), Virginia has adhered to the rule that when an employment contract provides for the rendition of services but its intended duration cannot be determined from its provisions, "either party is ordinarily at liberty to terminate it at will on giving reasonable notice of his intention to do so." Id. at 226, 55 S.E. at 552. However, the rule is not absolute. Bowman v. State Bank of Keysville, 229 Va. 534, 539, 331 S.E.2d 797, 801 (1985).

In Bowman, which predated the adoption of the Virginia Human Rights Act, we recognized a limited exception to the employment-at-will rule. This exception allowed two bank employees who were also stockholders of the bank corporation to maintain a common law action in tort against their employer. The employees were discharged after failing to heed a threat from the employer that their employment would be terminated if they failed to vote their stock according to the wishes of corporate management. Such action by the employer, we said, violated the public policy established by Va.Code § 13.1-32 (now Va.Code § 13.1-662), which contemplated "that the right to vote [shares of stock] shall be exercised free of duress and intimidation imposed on individual stockholders by corporate management." Id. at 540, 331 S.E.2d at 801.

Bowman was followed by Miller v. SEVAMP, Inc., 234 Va. 462, 362 S.E.2d 915 (1987), where the events giving rise to the litigation predated the adoption of the Virginia Human Rights Act. There, the employee alleged that her termination was in retaliation of her appearance as a witness at a co-employee's grievance hearing. The trial court sustained a demurrer to the employee's motion for judgment, and we affirmed. We noted the exception recognized in Bowman that allows recovery for "discharges which violate public policy, that is, the policy underlying existing laws designed to protect the property rights, personal freedoms, health, safety, or welfare of the people in general." Id. at 468, 362 S.E.2d at 918. We held, however, that the Bowman exception was not applicable because the "retaliatory act [of discharging the employee] would impinge only upon private rights established by the employer's internal regulations [and] would have no impact upon any public policy established by existing laws for the protection of the public generally." Id., 362 S.E.2d at 919.

At its 1987 session, the General Assembly adopted the Virginia Human Rights Act (the Act). 1987 Va.Acts ch. 581 (Chapter 43 of Title 2.1 of the Code of Virginia, §§ 2.1-714 through -725). In 1996, when Doss's termination occurred, Va.Code § 2.1-715 provided that "[i]t is the policy of the Commonwealth of Virginia ... [t]o safeguard all individuals within the Commonwealth from unlawful discrimination because of race, color, religion, national origin, sex, age, marital status or disability ... in employment...." ¹

Following adoption of the Act, this Court considered the case of Lockhart v. Commonwealth Educ. Sys. Corp., 247 Va. 98, 439 S.E.2d 328 (1994). ² Lockhart involved the claims of two female at-will employees who alleged they were wrongfully discharged from employment, one because of her race and the other because of her sex. The claims of both employees were dismissed on demurrer, and this Court reversed. After citing Va.Code § 2.1-715 as declarative of the "Commonwealth's strong public policy against employment discrimination based upon race or gender," 247 Va. at 105, 439 S.E.2d at 331, the Court stated as follows:

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. Accordingly, the Court held that the two employees had "pled viable causes of action." Id. at 104, 439 S.E.2d at 331. ³

Lockhart was decided in 1994. At the 1995 session of the General Assembly, a bill was introduced that would have had the effect of overruling Lockhart. (S. 1025.) Two versions submitted as amendments in the nature of substitutes expressly stated their purpose was the "nullification" of Lockhart. (S. 1025, Committee Amendment in the Nature of a Substitute; S. 1025, Floor Amendment in the Nature of a Substitute.) However, in its enacted form, the legislation did not employ the "nullification" language, but amended Va.Code § 2.1-725 in several respects.

As originally enacted, Va.Code § 2.1-725 provided as follows:

Nothing in this chapter creates, nor shall it be construed to create, an independent or private cause of action to enforce its provisions. Nor shall the policies or provisions of this chapter be construed to allow tort actions to be instituted instead of or in addition to the current statutory actions for unlawful discrimination.

The 1995 amendments deleted the second sentence of Va.Code § 2.1-275, made the first sentence subsection A, and changed its language. The subsection reads as follows: "Nothing in this chapter creates, nor shall it be construed to create, an independent or private cause of action to enforce its provisions, except as specifically provided in subsections B and C of this section."

Subsections B and C are new. They create a statutory cause of action against an employer of more than five but less than fifteen persons. Subsection B provides that no such employer shall discharge an employee "on the basis of race, color, religion,...