Va. SC rules for fired employee in response to Fourth Circuit's question

RICHMOND, Va. (Legal Newsline) - The Virginia Supreme Court has ruled that Virginia law recognizes 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.

The individual charged must have been the actor in violation of public policy, and have participated in the wrongful firing of the plaintiff, such as in the capacity of a supervisor or manager.

Justice Leroy F. Millette, Jr. authored the opinion for the divided 4-3 majority and Chief Justice Cynthia D. Kinser wrote the dissenting opinion.

The decision was rendered by the court in response to the United States Court of Appeals for the Fourth Circuit's certified request to the Virginia court to 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 March 2010, Angela VanBuren filed suit in the United States District Court for the Western District of Virginia, asserting a claim for wrongful discharge against both Dr. Stephen A. Grubb and her former employer, VirginiaHighlands OrthopedicSpine Center, LLC.

VanBuren was hired as a nurse by Virginia Highlands in December 2003 and remained until she was terminated in March 2008.

She alleged that she was subjected to sexual harassment by her supervisor and Virginia Highland's owner, Dr. Stephen Grubb, from shortly after she was hired until she was finally terminated for not acquiescing to his sexual demands.

Grubb was married and VanBuren got married during the time of her employment, which did not seem to influence Grubb's advances, VanBuren claimed. She alleged Grubb did "hug her, rub her back, waist, breast and other inappropriate areas, and attempt to kiss her" on numerous occasions.

The record reflects several examples of the doctor's inappropriate behavior. After rejecting his demand that she leave her husband so that she "could accept his love for what it was and what it could be," Grubb fired her and "offered her a month's severance pay to remain silent about the sexual harassment."

The district court dismissed her claim against Grubb, "concluding 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 appealed the district court's decision to the Fourth Circuit, which certified the question to the Virginia Supreme Court.

The Court exercised its discretion and restated 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?"

After an extensive analysis of wrongful discharge as a contract or a tort action, the Court held, "The purpose of the wrongful discharge tort - namely, the deterrence of discharge in violation of public policy - is best served if individual employees in a position of power are held personally liable for their tortious conduct."

The court noted that in response to this suit, Grubb left VirginiaHighlands and joined another healthcare provider. "If the Court does not recognize individual liability in such cases, there may be nothing to prevent other business owners from following this model in an attempt to avoid liability," Millette concluded.

Dissenting Chief Justice Kinser stated, "The majority fails to account for both what a tort is as a general matter and what this particular tort is by completely ignoring the employer-employee relationship at issue, the duty that arises from that relationship, and how such duty can be breached. In other words, the majority does not address the specific elements of the common law tort of wrongful discharge.

"Deterrence of wrongful discharges in violation of public policy is a laudable goal but cannot change the fact that an individual employee is incapable of committing the tort of wrongful discharge. Moreover, such policy determinations are for the General Assembly, not this Court."

The certified question was answered in the affirmative and the case will now presumably work its way back to the District Court for a ruling consistent with the affirmative answer.