I. INTRODUCTION
Dispositive motions in Virginia state court, while not quite extinct, nonetheless remain an endangered and increasingly rare species. Moving parties are prohibited from relying on deposition testimony or affidavits to support summary judgment absent agreement of the non-moving party. See Va. S. Ct. R. 3:18. The Supreme Court of Virginia further has admonished repeatedly that trial courts should not “preempt” litigation and decide disputes without permitting the parties to reach trial on the merits, unless they are certain that the dispositive motion is correct as a matter of law. See Catercorp, Inc. v. Catering Concepts, Inc., 246 Va. 22, 24, 431 S.E.2d 277, 279 (1993) (holding that trial court improperly sustained defendant’s demurrer and, thereby, incorrectly short-circuited litigation pretrial); Renner v. Stafford, 245 Va. 351, 352, 429 S.E.2d 218, 219 (1993); Carson v. LeBlanc, 245 Va. 135, 427 S.E.2d 189 (1993). The Supreme Court of Virginia has also stated “on several occasions that [it] disapprove[s] the grant of motions which ‘short circuit’ the legal process thereby depriving a litigant of his day in court and depriving this Court of an opportunity to review a thoroughly developed record on appeal.” Seyfarth, Shaw, Fairweather & Geraldson v. Lake Fairfax Seven, L.P., 253 Va. 93, 95 (1997) (citations omitted). Invariably, trial courts cite to these decisions in opining that they can grant dispositive motions only if it is clear that dismissal is the sole appropriate result. As such, the plaintiff’s bar enjoys an appreciable advantage in avoiding dismissal on summary judgment or other dispositive motions in Virginia state courts.
Notwithstanding this stringent standard of review, defense counsel representing employers in Virginia state courts have enjoyed considerable success in dismissing wrongful termination claims on the pleadings. This is especially true when the claim is based on discrimination. This article discusses why such wrongful termination claims often are susceptible to attack on the pleadings. Specifically, this article will first discuss the genesis of wrongful termination claims, and then examine the vitality of wrongful termination claims based on alleged discrimination.
II. The Genesis And Evolution Of Wrongful Termination Claims.
Virginia adheres to the employment-at-will doctrine, which bars wrongful termination claims generally unless the plaintiff can identify a specific Virginia statute “in which the General Assembly had established public policies that the former employers had contravened.” Lawrence Chrysler Plymouth Corp. v. Brooks, 251 Va. 94, 98, 465 S.E.2d 806, 809 (1996).
In 1985, the Supreme Court of Virginia recognized the tort of wrongful termination for the first time by articulating this public policy exception to the employment-at-will doctrine. Bowman v. State Bank of Keysville, 229 Va. 534, 311 S.E.2d 797 (1985). The Bowman Court established that allegations of wrongful discharge based on violations of the public policy embodied in Va. Code § 13.1-32, satisfy the very narrow exception to the employment-at-will doctrine. Bowman, 229 Va. at 540, 311 S.E.2d at 803. The public policy embodied in Va. Code § 13.1-32 is the right to one vote free of duress and influence for each outstanding share of stock held. Because Bowman and the other aggrieved employees could demonstrate that their terminations were based on their refusal to vote shares as the employer directed, they stated a valid claim for wrongful termination. Bowman, 229 Va. at 540, 311 S.E.2d at 803. Thus, Bowman established for the first time that if a terminated employee was exercising a right protected by public policy, and he could establish that his termination was based on the exercise of this right, then the resulting termination could give rise to a claim of wrongful termination.
Two years later, the Supreme Court of Virginia clarified that in Bowman it intended to create “an exception to the employment-at-will doctrine limited to 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.” Miller v. SEVAMP, Inc., 234 Va. 462, 468, 362 S.E.2d 915 (1987).
In 1996, the Supreme Court of Virginia held that plaintiffs seeking to state a wrongful termination claim must satisfy another caveat to the public policy exception by demonstrating that the public policy on which the claim is based is enunciated in, or underlying, a relevant Virginia statute. Lawrence Chrysler Plymouth Corp. v. Brooks, 251 Va. 94, 98, 465 S.E.2d 806, 809 (1996).
In 2000, the Supreme Court of Virginia refined its position on the public policy exception yet again holding that a statute expresses a relevant public policy supporting a claim for wrongful termination only if two conditions are met:
(a) (i) the statute contains an explicit statement of public policy that the termination violates, or
(ii) the statute lacks an explicit statement, but is designed to protect either “property rights, personal freedoms, health, safety, or welfare of the people in general” and the termination violates this statutory protection, and
(b) the plaintiff is also a member of the class of individuals that the specific public policy is intended to benefit.
City of Virginia Beach v. Harris, 259 Va. 220, 231-32, 523 S.E.2d 239 (2000). In so doing, the Supreme Court of Virginia made clear that not every Virginia statute may serve as the predicate upon which a plaintiff may base a wrongful termination claim.
On March 1, 2002, the Supreme Court of Virginia provided additional support to employers in Virginia by establishing that identification of a relevant statute enunciating a relevant policy is necessarily and appropriately difficult, because the narrow exception to the employment-at-will doctrine is precisely that – narrow:
| Since Bowman, we have considered a number of cases in which [the] public policy exception to the employment-at-will doctrine has been asserted. While virtually every statute expresses a public policy of some sort, we continue to consider this exception to be a “narrow” exception and to hold that “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.” City of Virginia Beach v. Harris, 259 Va. 220, 232 (2000). In only three circumstances have we concluded that the claims were sufficient to constitute a common law action for wrongful discharge under the public policy exception. |
Rowan v. Tractor Supply Co., 263 Va. 209, 213, 559 S.E.2d 709 (2002) (emphasis added). Accordingly, a common-law action for wrongful termination exists only in the following circumstances:
1. An employer violates a policy enabling the exercise of an employee’s statutorily created right;
2. The public policy that the employer violates is explicitly expressed in the statute on which the action is based and the employee was clearly a member of that class of persons directly entitled to the protection enunciated by the public policy; and
3. The employer based its discharge on the employee’s refusal to engage in a criminal act.
Rowan, 263 Va. at 213-14, 559 S.E.2d at 711.
III. The Vitality Of Wrongful Termination Claims Based On Discrimination.
In 1994, the Supreme Court of Virginia held that race and gender discrimination violated the public policy of Virginia as articulated in the Virginia Human Rights Act (“VHRA”), Va. Code § 2.1-715 et seq. Lockhart v. Commonwealth Edu. Sys. Corp., 247 Va. 98, 105, 439 S.E.2d 328, 331 (1994). Not surprisingly, this decision gave rise to a flood of common-law claims for wrongful termination. Va. Code § 2.1-715 served as the springboard for this flood of claims, because it embodies the Commonwealth’s policy to safeguard all residents from unlawful workplace discrimination based on race, gender, disability, etc. VA. CODE ANN. § 2.1-715(1) (Michie 1987).
In 1999, the Supreme Court of Virginia responded to legislative amendments to the VHRA by eliminating wrongful termination as a cause of action available to discrimination victims. Consequently, claims for wrongful termination based on the public policy embodied in Va. Code § 2.1-715 reflect nothing more than a wrongful discharge claim identical to one that the Supreme Court prohibited in Conner v. National Pest Control Assoc., Inc., 257 Va. 286, 513 S.E.2d 398 (1999).
The Conner Court held that Va. Code § 2.1-725 prohibits a common law cause of action for wrongful discharge based on a violation of the public policies enunciated in both the VHRA, and other provisions of local, state, or federal statutes or ordinances. Conner v. National Pest Control Assoc., Inc., 257 Va. 286, 289-90, 513 S.E.2d 398, 400 (1999). The plaintiff based her claim for wrongful discharge on allegations that her discharge “constituted discrimination . . . based on her gender,” and also violated the public policy against retaliation for complaints of discrimination in employment as articulated in the VHRA and other provisions of Virginia and federal law. Id. at 288, 399.
Even though the allegations in Conner were fairly specific, the defendant advanced a motion to dismiss for failure to state a claim (i.e., a demurrer) on grounds that the 1995 amendments to the VHRA (the addition of subsection (D) to section 2.1-725—the VHRA’s remedial provision) eliminated all common law causes of action for wrongful termination based on a violation of public policies enunciated in both the VHRA and other provisions of state, federal, or local statutes or ordinances. Id. The defendant, relying on Doss v. Jamco, Inc., 254 Va. 362, 492 S.E.2d 441 (1997), argued that the 1995 amendments restricted the remedy for wrongful discharge in violation of the VHRA to those expressly articulated within the VHRA. Conner, 257 Va. at 288, 513 S.E.2d at 399.
In Doss, the Supreme Court of Virginia concluded that the 1995 amendments “plainly manifested the General Assembly’s intent to alter the common law and to limit actions based on violations of the policies reflected in the VHRA to applicable statutory causes of action and remedies.” Doss, 254 Va. at 371, 492 S.E.2d at 446. Based on this holding, the Conner Court held that subsection (D)’s exclusivity requirement would be circumvented and rendered meaningless if the plaintiff could maintain a common law action based on the alleged violation of a policy enunciated in the VHRA, simply by citing a different code section or some other source of public policy echoing the VHRA policy. Conner, 257 Va. at 289, 513 S.E.2d at 400.
In light of Conner, plaintiffs are seemingly precluded from seeking to maintain a wrongful termination claim by simply “citing a different Code section or other source of public policy which enunciates the same policy.” Conner, 257 Va. at 289, 513 S.E.2d at 400. This is true because the General Assembly did not limit the exclusivity requirement to those causes of action relying on the VHRA itself as the source of the public policy. Id. at 289-90, 400. Instead, the General Assembly made statutory causes of action the exclusive avenues for pursuing remedies for alleged violations of any public policy that is even “reflected in” the VHRA. Id. at 290, 400. Construing the plain language of the VHRA’s remedial provision, the Conner Court prohibited all common law actions for wrongful discharge based on any public policy reflected in the VHRA, “regardless of whether the policy is articulated elsewhere.” Id. Consequently, an aggrieved employee cannot maintain a wrongful termination claim if the underlying termination violates a public policy enunciated in the VHRA (i.e., termination based on disability), regardless of whether the underlying termination also violates the provisions of a separate local, state, or federal statute or ordinance.
The Supreme Court of Virginia published a second opinion in 1999 that provided additional support to employers and their counsel. Specifically, in Dray v. New Market Poultry Prods., Inc., 258 Va. 187, 518 S.E.2d 312 (1999), the Court held that aggrieved employees are precluded from maintaining a wrongful termination claim asserting retaliatory discharge, unless the prospective plaintiff can point to a specific statute conferring him with explicit rights or duties:
| In the present case, the plaintiff seeks to mount a generalized, common-law “whistleblower” retaliatory discharge claim. Such a claim has not been recognized as an exception to Virginia’s employment-at-will doctrine, and we refuse to recognize it today. . . The Act upon which this plaintiff relies does not confer any rights or duties upon her or any other similarly situated employee of the defendant. |
Dray, 258 Va. at 191, 518 S.E.2d at 314.
More recently, and as the Supreme Court of Virginia continues to refine the common-law of wrongful discharge, the Court created a potential argument for avoiding dismissal on demurrer. Specifically, in Mitchem v. Counts, 259 Va. 179, 523 S.E.2d 246 (2000), the Court held that Va. Code § 2.1-725(D) of the VHRA does not bar a wrongful termination claim based on violations of public policies that may be enunciated in Va. Code § 2.1-725(D), but are also reflected elsewhere, stating a separate public policy. The Mitchem Court conceded that although the conduct alleged by Mitchem would violate the VHRA’s policies – sex discrimination in the form of sexual harassment – her claim was distinct from the claim rejected in Conner, because Conner was only able to articulate sources other than the VHRA for the same public policy against employment discrimination. Mitchem, 259 Va. 186, 523 S.E.2d at 250. In Mitchem however, the adverse employment action also violated the public policies underlying Va. Code §§ 18.2-344 and 18.2-345, which prohibit fornication and lewd and lascivious cohabitation respectively. Mitchem, 259 Va. at 187, 523 S.E.2d at 251. As the Mitchem Court stated:
| In the present case, the absence of an express statement of public policy in Code §§ 18.2-344 and -345 does not preclude their use as a basis for a common law action for wrongful termination. These criminal statutes were enacted for the protection of the general public, and Mitchem is a member of that class of persons whom these statutes were designed to protect. (citations omitted) Further, the public policies inherent in Code §§ 18.2-344 and -345 are equally, if not more, compelling than the public policy in Bowman that provided the basis for our recognition of a narrow exception to the employment-at-will rule. |
Mitchem, 259 Va. at 189, 523 S.E.2d at 252. In short, Mitchem recognized that conduct in violation of an express public policy set forth in a statute other than the VHRA may serve as the predicate for an action for wrongful termination.
IV. Conclusion
Historically, aggrieved employees have filed their employment discrimination claims in federal court to avail themselves of federal statutory and common-law, and based on the perception that larger recoveries are available in federal court. Recently, however, aggrieved employees have been searching for an alternative to the dispositive motions that the federal bench routinely grants in the Eastern and Western Districts of Virginia. To that end, more wrongful termination claims are being filed in state court. Although Mitchem may provide some hope to plaintiffs, the overwhelming corpus of Virginia’s common-law on wrongful termination demonstrates that the chances of surviving a motion to dismiss on the pleadings remain remote in Virginia state court.