Virginia Supreme Court Denies Expansion of Public Policy Exception for Wrongful Termination Claims

The Supreme Court of Virginia, in Francis v. National Accrediting Commission of Career Arts & Sciences, Inc., No. 160267 (Feb. 23, 2017), reaffirmed that the public policy exception to Virginia’s employment at-will doctrine is a narrow one.  In Francis, the court held that to state a valid claim of wrongful termination based on public policy, an employee must allege either that the termination itself violated the public policy stated in the relevant statute, or that the employer prevented the employee from exercising statutory rights.

The plaintiff in the case was an at-will employee who claimed a co-worker confronted her, yelled obscenities, and threatened bodily harm.  A week later, the plaintiff filed a petition for a preliminary protective order (PPO) against the co-worker.  The trial court granted the PPO, and a police officer served the PPO on the co-worker at the company’s office.  A few days later, the company terminated the plaintiff because she “did not fit the vision of the organization.”

The plaintiff then filed suit against her former employer, alleging wrongful discharge in violation of public policy.  The trial court sustained the defendant’s demurrer because she set forth no specific allegations of a viable public policy violation.  The plaintiff then filed an amended complaint, alleging the employer wrongfully discharged her in violation of the public policy embodied in Virginia’s Protective Order statutes.  Specifically, she claimed that her exercise of her statutory right to obtain a protective order was a motivating factor for her termination.  The defendant filed an amended demurrer asserting failure to state a claim, which the court sustained, dismissing the case with prejudice.

On appeal, the Supreme Court of Virginia affirmed the lower court’s ruling, finding that the plaintiff failed to state a claim for wrongful termination under Bowman v. State Bank of Keysville, 229 Va. 534, 331 S.E.2d 797 (1985).  The court reiterated that “while virtually every statute expresses a public policy of some sort, we continue … 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.”  Rather, the Bowman exception to the employment at-will doctrine is a narrow exception and is recognized in three scenarios only: (1) when an employer violated a policy enabling the exercise of an employee’s statutorily created right; (2) when the public policy violated by the employer was explicitly expressed in the statute and the employee was clearly a member of that class of persons directly entitled to the protection enunciated by the public policy; and (3) when the discharge was based on the employee’s refusal to engage in a criminal act.

The plaintiff alleged that the first two scenarios were applicable to her case.  Under the first scenario, courts must “discern what right was conferred on an employee by statute, and then whether the employer’s termination of employment violated the public policy underlying that right.”  The Protective Order statutes grant an individual the right to seek a protective order, and state that the public policy is to protect the health and safety of the petitioner and his or her family or household members.  Accordingly, the plaintiff must show that the termination itself violated the stated public policy of protection of health and safety.  However, the plaintiff did not allege that her termination violated the relevant public policy by endangering her health and safety, nor did she allege that her employer prevented her from exercising her rights under the Protective Order statutes.  This is in contrast, the court noted, to Bowman, where the relevant public policy existed to protect the exercise of certain statutory rights.  There, the employer fired two employee-shareholders of a bank after the employee-shareholders failed to vote their shares in favor of a proposed merger.  In contrast, the plaintiff in Francis alleged that the company terminated her because she merely exercised her rights under the Protective Order statutes.  The court noted that there is no public policy in the Protective Order statutes protecting the exercise of the right to seek a protective order, which precluded the plaintiff from establishing that the defendant violated public policy by terminating the plaintiff’s employment.  In particular, the court reiterated that Bowman does not recognize a generalized tort of retaliatory discharge.   

Similarly, under the second recognized scenario for a wrongful discharge claim, the court held that the plaintiff failed to state a claim for relief.  The court reasoned that the public policy expressly stated in the Protective Order statutes is to protect the health and safety of a person seeking a protective order, but the plaintiff did not allege that her employer’s action in terminating her employment violated the public policy to protect her health and safety.  As a result, the court affirmed the judgment of the trial court.

Implications for Virginia Employers

The Supreme Court of Virginia’s unwillingness to expand the scope of the public policy exception to Virginia’s at-will employment rule, and its clear declaration that there is no generally recognized cause of action for the tort of retaliatory discharge, is welcome news for employers.  That said, the analysis of what constitutes, or does not constitute, a wrongful discharge can be complicated.  Employers, therefore, should continue to consider carefully terminations of at-will employees, keeping in mind any applicable public policies that may be at issue.