Mitchem v. Counts

• Decision Date: 14 January 2000
• Docket Number: Record No. 990399.
• Citation: 523 S.E.2d 246,259 Va. 179
• Court: Virginia Supreme Court
• Parties: Vicki Lynn MITCHEM v. Durwood L. COUNTS.

523 S.E.2d 246

259 Va. 179

Vicki Lynn MITCHEM v. Durwood L. COUNTS.

Record No. 990399.

Supreme Court of Virginia.

January 14, 2000.

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

Bruce M. Steen (John E. Davidson; McGuire, Woods, Battle & Boothe, on brief), Charlottesville, for appellee.

Present: All the Justices.

KEENAN, Justice.

In this appeal, we consider two issues: 1) whether Code § 2.1-725(D) of the Virginia Human Rights Act (VHRA), Code §§ 2.1-714 through -725, bars a common law action for wrongful termination of employment based on a violation of public policy not reflected in the VHRA, when the conduct alleged also violates a public policy reflected in the VHRA; and 2) whether a violation of the public policies embodied in two criminal statutes may support such a common law action.

Vicki Lynn Mitchem filed a motion for judgment against her former employer Durwood L. Counts,¹ alleging that he had wrongfully discharged her from her position as an insurance marketing representative after she refused to engage in a sexual relationship with him. Mitchern asserted that Counts repeatedly tried to persuade her to have a "sexual affair" with him and promised in return that she would receive money and "a lot of nice things."

In her motion for judgment, Mitchem also asserted that, on many occasions, Counts "massaged her shoulders, patted her buttocks, touched her leg, rubbed her knee, and hugged her against her will." Mitchem further alleged that on another occasion, Counts "pulled [Mitchem] onto his lap, wrapped both arms around her, and tried to kiss her on the lips." Finally, Mitchem alleged that because she "steadfastly refused to enter into a sexual relationship with Counts," he retaliated in several ways and ultimately fired her in May 1998.

Relying on these allegations, Mitchem asserted in Count I of her motion for judgment that her discharge violated the Commonwealth's public policy "that all persons ... are entitled to pursue and maintain employment free of discrimination based upon gender." She also claimed, among other things, that the Commonwealth's public policy is violated when a female employee "must either consent to the commission of a crime against her person, or engage in a conspiracy to commit a crime, or both, to maintain her employment." Mitchem cited several sources of public policy in support of her claim, including the VHRA and Code §§ 18.2-57, -344, and -345.²

Counts filed a demurrer to Count I, which the trial court sustained. The court concluded, in essence, that the 1995 amendments to the VHRA eliminated the VHRA as a source of public policy to support a common law cause of action for wrongful termination. The trial court also held that Code §§ 18.2-57, -344, and -345 do not articulate public policies that will support a common law action for wrongful termination.³ The court entered an order dismissing Count I of Mitchem's action with prejudice, and Mitchem appeals from this judgment.

Although Mitchem based her wrongful termination action in part on public policies found in the VHRA and sources of law other than criminal statutes, she withdrew this part of her claim during her oral argument before this Court. She argued that the criminal statutes identified in her motion for judgment embody a public policy against the commission of the stated acts of a sexual nature and, thus, that an employer is subject to a common law wrongful termination claim if he discharges an at-will employee because she refuses to commit those criminal acts.

Mitchem contends on appeal that she was not discharged from her employment because of her gender, but because she rejected her employer's demands that she perform sexual acts in violation of Code § 18.2-344, which prohibits fornication, and Code § 18.2-345, which prohibits lewd and lascivious cohabitation. She also asserts that she was discharged because she would not "consent to commission of a battery upon her person," in violation of Code § 18.2-57.⁴

In response, Counts (the employer) argues that Code § 2.1-725(D) abrogates Mitchem's common law cause of action because the allegations of wrongful termination, if proved, would violate the public policies reflected in the VHRA. In support of this argument, the employer notes that the facts in this case are very similar to those alleged by a plaintiff in Lockhart v. Commonwealth Educ. Sys. Corp., 247 Va. 98, 439 S.E.2d 328 (1994),⁵ in which we held that an employer's conduct and termination of that plaintiff violated the public policy against gender discrimination stated in the VHRA. The employer also asserts that our decision in Conner v. National Pest Control Ass'n., 257 Va. 286, 513 S.E.2d 398 (1999), requires dismissal of Mitchem's action based on our application in that case of the preclusive language of Code § 21-725(D). Finally, the employer contends that criminal statutes will not support Mitchem's common law action because they do not "announce public policies in their texts" and to use the statutes in this manner would eviscerate the employment-at-will doctrine.

Although Mitchem has withdrawn her reliance on the VHRA as a source of public policy to support her wrongful termination action, we nevertheless begin our analysis with the VHRA because its limiting provision in Code § 2.1-725(D) is the controlling statute in this appeal. That provision, included in the 1995 amendments to the VHRA, states in relevant part:

Causes of action based upon the public policies reflected in this chapter shall be exclusively limited to those actions, procedures and remedies, if any, afforded by applicable federal or state civil rights statutes or local ordinances. Code § 2.1-725(D).

Citing Doss v. Jamco, 254 Va. 362, 492 S.E.2d 441 (1997), the trial court held that the 1995 amendments to the VHRA bar Mitchem from asserting a common law action for wrongful termination based on any of the sources of public policy set forth in her motion for judgment. In Doss, we held that "in amending the [VHRA] by adding subsection D to Code § 2.1-725 in 1995, the General Assembly plainly manifested its intention to alter the common law rule with respect to `[c]auses of action based upon the public policies reflected in [the VHRA]. " Id. at 371, 492 S.E.2d at 446.

Following Doss, we next addressed the scope of Code § 2.1-725(D) in Conner. There, the plaintiff alleged that she had asserted a valid cause of action for wrongful termination because, in addition to the public policy against gender discrimination in the VHRA, her employer's conduct violated the same public policy embodied in sources other than the VHRA. 257 Va. at 288,513 S.E.2d at 399. We disagreed, holding that "the General Assembly, in enacting 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." Id. at 290, 513 S.E.2d at 400.

Our holdings in Conner and Doss, however, do not address the issues before us. In those cases, unlike the present case, the plaintiffs did not identify any public policy different from those reflected in the VHRA as the basis for their common law claims. Thus, in those cases, we did not address the central issue in the present appeal, whether Code § 2.1-725(D) bars a common law action for wrongful termination based on public policies not reflected in the VHRA, when the conduct alleged in the motion for judgment also violates a public policy reflected in the VHRA.

This issue of first impression is raised by Mitchem's allegations in her motion for judgment that the employer's conduct violated the Commonwealth's public policies against fornication and lewd and lascivious behavior embodied in Code §§ 18.2-344 and -345. Code § 18.2-344 provides that an unmarried person who voluntarily has sexual intercourse with any other person is guilty of fornication. Code § 18.2-345, in relevant part, prohibits persons not married to each other from lewdly and lasciviously associating and cohabiting together.

In considering whether Code § 2.1-725(D) defeats Mitchem's reliance on these public policies as a basis for her wrongful termination action, we first observe that the preclusive language of Code § 2.1-725(D) was enacted by the legislature in derogation of the common law. Statutes in derogation of the common law must be strictly construed and not enlarged by construction beyond their express terms. Chesapeake & O. Ry. Co. v. Kinzer, 206 Va. 175, 181, 142 S.E.2d 514, 518 (1965); see Williams v. Matthews, 248 Va. 277, 282-83, 448 S.E.2d 625, 628 (1994); Wackwitz v. Roy, 244 Va. 60, 65, 418 S.E.2d 861, 864 (1992). A statutory change in the common law is limited to that which is expressly stated in the statute or necessarily implied by its language because there is a presumption that no change was intended. Boyd v. Commonwealth, 236 Va. 346, 349, 374 S.E.2d 301, 302 (1988); Strother v. Lynchburg Trust & Savings Bank, 155 Va. 826, 833, 156 S.E. 426, 428 (1931). Thus, "[w]hen an enactment does not encompass the entire subject covered by the common law, it abrogates the common-law rule only to the extent that its terms are directly and irreconcilably opposed to the rule." Boyd, 236 Va. at 349, 374 S.E.2d at 302; Newport News v. Commonwealth, 165 Va. 635, 650, 183 S.E. 514, 520 (1936).

We must construe Code § 2.1-725(D) narrowly under these principles because the VHRA does not encompass the entire subject of common law causes of action for wrongful termination of employment. The relevant language of Code § 2.1-725(D) provides that "[clauses of action based upon the public policies reflected in this chapter shall be exclusively limited to those actions, procedures and remedies, if any, afforded by applicable federal or state civil rights statutes or local ordinances." (Emphasis added.) This provision, by its plain terms, abrogates only...