11.06.2012 Virginia Supreme Court Ruling Extends Wrongful Discharge Liability to Individuals
BY: REBA MENDOZA
On November 1, 2012, the Virginia Supreme Court, addressing a question of law certified by the United States Court of Appeals for the Fourth Circuit, held that individuals such as supervisors and managers who participate in the firing of an employee can be subject to tort liability for wrongful discharge. In doing so, the court effectively extended liability for wrongful discharge to non-employers. The court ruled that allowing such personal liability was consistent with the principles of tort liability and that the decision was in furtherance of public policy.
The underlying suit, VanBuren v. Grubb, 471 Fed. Appx. 228 (4th Cir. 2012), was filed by Angela VanBuren against Virginia Highlands Orthopedic Spine Center, LLC (“Virginia Highlands”) and Dr. Stephen Grubb. VanBuren was employed as a nurse by Virginia Highlands from December 2003 to March 2008. VanBuren alleged that, throughout her employment with Virginia Highlands, she was subjected to “offensive” and “unwelcome” sexual harassment by her supervisor and Virginia Highlands’ owner, Dr. Grubb. VanBuren also alleged that when she refused to leave her husband and engage in an adulterous relationship with Dr. Grubb, she was terminated. VanBuren sued, claiming that Virginia Highlands engaged in gender discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.§§2000e-2(a) and 2000e-3(a). VanBuren also brought wrongful discharge claims against both Virginia Highlands and Dr. Grubb under Virginia law. Virginia recognizes a narrow public policy exception to its stringent employment at-will doctrine and allows an individual to bring a wrongful termination claim if he or she was fired for, among other things, refusing to engage in an act made criminal under Virginia law. VanBuren claimed that she was terminated because she refused to engage in the criminal acts of adultery and open and gross lewdness and lasciviousness.
The United States District Court for the Western District of Virginia dismissed the wrongful discharge claim against Dr. Grubb, stating that such claims cannot be sustained against supervisors and co-workers, but are limited to the actual employer. On appeal, the Fourth Circuit determined that the Supreme Court of Virginia had not squarely addressed the issue of whether a non-employer may be held liable for wrongful discharge under Virginia law. Thus, the federal court certified the question to the Supreme Court of Virginia.
In a 4-3 opinion, the Supreme Court of Virginia held that an employee can maintain a wrongful discharge claim against a non-employer, such as a supervisor or manager, when such individual acts in violation of certain Virginia public policies and participates in the termination of the employee. In the majority opinion, Justice Millette emphasized that wrongful discharge is a tort claim and not a contract claim. In tort actions, the majority reasoned, individuals are responsible for their own torts, even when individuals are agents acting on behalf of their employers. The court defined the tortious act in a wrongful termination claim as stemming from the wrongful reasons behind the termination and not the mere act of termination itself. Thus, when the tortious reasons behind the discharge arise from the unlawful actions of the individual effecting the discharge, such individual should share in the liability. Moreover, the majority noted that its holding was in furtherance of public policy because the purpose behind the wrongful discharge exception to the employment at-will doctrine is to prevent individuals from discharging employees in violation of public policy. The majority concluded that this intention is best effectuated when employees have a cause of action against the individual in the position of power in addition to the employer. The majority held that limiting liability to the employer is not sufficient to deter wrongful discharge. Notably, the majority acknowledged that its decision to recognize this cause of action could have a chilling effect on supervisors who seek to discharge at-will employees for legitimate reasons. However, the majority argued that the limited nature of the cause of action provides sufficient protection against the abuse of this cause of action. Specifically, the tort of wrongful discharge continues to be a narrow exception to the employment at-will doctrine, and individual liability under a wrongful discharge claim is limited to situations where the individual’s personal actions violate the public policy.
This ruling will likely spur an increase in wrongful discharge claims against individual defendants. At the very least, employers should expect to see individual supervisors named in most employment discrimination cases. In addition, and notwithstanding Justice Millette’s assurances, this ruling will undoubtedly cause supervisors considerable angst when considering a legitimate termination decision. Thus, this is an excellent opportunity to review employment policies with pertinent managers and supervisors to ensure compliance with such policies, and thereby reduce both employer and individual liability under wrongful termination claims. It may also be prudent for employers to provide supervisors and managers with additional training and/or limit the ability of these individuals to make discharge decisions.
For more information about this topic, please contact the authors or any member of the Williams Mullen Labor & Employment Team.