VanBuren v. Grubb

• Decision Date: 01 November 2012
• Docket Number: Record No. 120348.
• Citation: 733 S.E.2d 919
• Parties: Angela VANBUREN v. Stephen A. GRUBB.
• Court: Virginia Supreme Court

733 S.E.2d 919

Angela VANBUREN

v.Stephen A. GRUBB.

Record No. 120348.

Supreme Court of Virginia.

Nov. 1, 2012.

James J. O'Keeffe, IV (Monica T. Monday; Paula G. Klockenbrink; Gentry Locke Rakes & Moore, on briefs), Roanoke, for plaintiff-appellant.

Terry N. Grimes (Grimes & Williams, on brief), Roanoke, for defendant-appellee.

Amici Curiae: The Virginia Employment Lawyers Association and the Metropolitan Washington Employment Lawyers Association (R. Scott Oswald; Nicholas Woodfield; Employment Law group, on brief), in support of plaintiff-appellant.

Amici Curiae: Virginia Trial Lawyers Association and the Metropolitan Washington Employment Lawyers Association (John E. Davison; Davidson & Kitzmann, on brief), Charlottesville, in support of plaintiff-appellant.

Present: All the Justices.

Opinion by Justice LEROY F. MILLETTE, JR.

On March 1, 2012, the United States Court of Appeals for the Fourth Circuit entered an order of certification requesting that we exercise our jurisdiction pursuant to Article VI, Section 1 of the Constitution of Virginia and Rule 5:40, and answer the following question:

Does Virginia law recognize a common law tort claim of wrongful discharge in violation of established public policy against an individual who was not the plaintiff's actual employer, such as a supervisor or manager, but who participated in the wrongful firing of the plaintiff?

In an order dated April 19, 2012, we accepted the certified question, and, for the reasons stated herein, we now restate the question pursuant to our authority under Rule 5:40(d) and answer in the affirmative.

BACKGROUND

A. Factual History

Because this case arises from the granting of a motion to dismiss by the United States District Court for the Western District of Virginia, we must take the factual allegations in Angela VanBuren's complaint as true “for the purposes of framing an answer that is responsive to the needs of the [Fourth Circuit].” Wyatt v. McDermott, 283 Va. 685, 689, 725 S.E.2d 555, 556 (2012) (citing Zinermon v. Burch, 494 U.S. 113, 118, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990)). Accordingly, the facts presented herein are those alleged in VanBuren's complaint.

VanBuren was employed as a nurse by Virginia Highlands Orthopedic Spine Center, LLC, from December 2003 to March 2008. Soon after she joined Virginia Highlands, VanBuren was subjected to sexual harassment by her supervisor, Virginia Highland's owner Dr. Stephen Grubb. He would “hug her, rub her back, waist, breast and other inappropriate areas, and attempt to kiss her.” Although VanBuren told Dr. Grubb that his sexual advances were “offensive” and “unwelcome[ ],” he continued to pursue her. In May 2006, while the two were travelling for business, Dr. Grubb went to VanBuren's hotel room and “began rubbing her back, waist, breast and hair while stating that he loved her.” VanBuren broke free of his embrace and told him that “she was not going to have sex with him,” that “he was a married man,” and that “he needed to leave.”

Dr. Grubb's sexual harassment continued after VanBuren's marriage in 2007. Dr. Grubb tried to “console” VanBuren regarding her subsequent marital problems. His “consoling” entailed “encouraging [her] to leave her husband and then proceeding to hug, kiss, and grope her.” VanBuren “continued to insist that [Dr. Grubb's] advice and sexual advances were unwelcomed and offensive.”

In March 2008, Dr. Grubb again suggested during a closed-door meeting that VanBuren leave her husband so that she “could accept his love for what it was and what it could be.” A few days later, Dr. Grubb called VanBuren into his office and asked whether she planned to stay with her husband. When she responded in the affirmative, he fired her. He then offered her roughly a month's severance pay to remain silent about the sexual harassment. Dr. Grubb gave no other explanation for terminating VanBuren's employment with Virginia Highlands.

B. Procedural History

In March 2010, VanBuren filed suit, asserting a claim for gender discrimination against Virginia Highlands under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2(a) and 2000e–3(a), and asserting a claim for wrongful discharge against Dr. Grubb and Virginia Highlands. As to the latter claim, she alleged that she had been discharged from Virginia Highlands because she had refused to engage in criminal conduct—specifically, adultery in violation of Code § 18.2–365 and open and gross lewdness and lasciviousness in violation of Code § 18.2–345. Accordingly, she contended that her discharge violated public policy. See Bowman v. State Bank of Keysville, 229 Va. 534, 331 S.E.2d 797 (1985).

Both Dr. Grubb and Virginia Highlands moved to dismiss. The district court granted the motion as to Dr. Grubb, “conclud[ing] that, were the Virginia Supreme Court to directly address this issue, it would find that wrongful discharge claims by an employee are cognizable only against the employer and not against supervisors or co-employees in their individual capacity.” VanBuren then moved the district court to enter final judgment against Dr. Grubb so that she could appeal its decision. The district court granted the motion, and VanBuren appealed to the Fourth Circuit. After briefing and oral argument, the Fourth Circuit determined that it could not predict with confidence how this Court would rule as to whether a wrongful discharge claim is cognizable against an individual such as Dr. Grubb. The Fourth Circuit accordingly certified the question to this Court, and we accepted.

A certified question must be “determinative of the proceeding[s] in the certifying court.” Rule 5:40(c). Upon examination of the certified question, we conclude that the question as posed encompasses a larger body of employees than is essential to produce a determinative answer in these proceedings. We therefore exercise our discretion under Rule 5:40(d) to restate the question as follows:

Does Virginia law recognize a common law tort claim of wrongful discharge in violation of established public policy against an individual who was not the plaintiff's actual employer but who was the actor in violation of public policy and who participated in the wrongful firing of the plaintiff, such as in the capacity of a supervisor or manager?

DISCUSSION

A. The Public Policy Exception to Employment–at–Will in the Commonwealth

Virginia “strongly adheres to the employment-at-will doctrine,” Lockhart v. Commonwealth Educ. Sys. Corp., 247 Va. 98, 102, 439 S.E.2d 328, 330 (1994), 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.” Miller v. SEVAMP, Inc., 234 Va. 462, 465, 362 S.E.2d 915, 916–17 (1987).

This rule, however, is not absolute. In Bowman, 229 Va. at 540, 331 S.E.2d at 801, we held that a corporate employer could be held liable in tort for the discharge of two employees who were also shareholders of the corporation. The corporation had discharged the employees because they had refused to vote their shares in accordance with the wishes of the corporation's board of directors. Id. at 537–38, 331 S.E.2d at 799–800. We observed that the corporation's coercion violated the public policy underlying former Code § 13.1–32 (now Code § 13.1–662), which grants each shareholder the right to cast one vote for each share held. Id. at 540, 331 S.E.2d at 801. “Because the right conferred by statute is in furtherance of established public policy,” we reasoned, “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. Thus, “applying a narrow exception to the employment-at-will rule,” the Court held that “the [employees] ha[d] stated a cause of action in tort against the [corporation] and the named directors for improper discharge from employment.” Id.

Since Bowman, the Court has considered several cases in which a public policy exception was asserted. In each case, the Court has emphasized that the exception is “narrow”: “termination of an employee in violation of the policy underlying any one [statute] does not automatically give rise to a common law cause of action for wrongful discharge.” Rowan v. Tractor Supply Co., 263 Va. 209, 213, 559 S.E.2d 709, 711 (2002) (alteration in original) (internal quotation marks and citation omitted).

VanBuren's claim falls under one such narrow exception previously recognized by the Court: discharge based on the employee's refusal to engage in a criminal act. Mitchem v. Counts, 259 Va. 179, 190, 523 S.E.2d 246, 252 (2000) (holding discharge based upon refusal to engage in fornication and lewd and lascivious cohabitation to be against public policy). VanBuren similarly alleges that her discharge resulted from her refusal to engage in the criminal acts of adultery and lewd and lascivious cohabitation. There is no question that VanBuren has stated a cognizable wrongful discharge claim against her employer, Virginia Highlands. We now address the issue of whether she has done the same against Grubb, since the Court has never squarely addressed whether a wrongful discharge claim can be brought against an individual employee.

B. Personal Liability of Employees for Wrongful Discharge

Although we have not specifically addressed the personal liability of employees for wrongful discharge, we have twice allowed wrongful discharge claims to proceed against individual defendants who both committed the acts in violation of public policy and effected the termination. In Bowman, we held that “the plaintiffs ha[d] stated a cause of action in tort against the Bank and the named directors for improper discharge from employment.” 229 Va. at 540, 331 S.E.2d at 801 (emphasis added). Nearly a...