Hunton Employment & Labor Perspectives

The Supreme Court of Virginia recently ruled in VanBuren v. Grubb that supervisors or managers who participate in the termination of an employee may be held liable in claims of wrongful discharge.  This ruling is significant because it places supervisors in the shoes of their employers and threatens them with liability.

Background

The case was originally brought before the United States District Court for the Western District of Virginia when Angela VanBuren sued both her employer, Virginia Highlands Orthopedic Spine Center, LLC (“Virginia Highlands”), and her supervisor, Stephen Grubb, for wrongful discharge under Virginia law.  VanBuren also asserted a claim of gender discrimination under Title VII against Virginia Highlands.  The federal court dismissed her Virginia wrongful termination claim against Grubb finding that such a claim could only be brought against her actual employer.  On appeal the Fourth Circuit found that the Supreme Court of Virginia had not ruled on the issue and requested the Virginia Supreme Court to exercise its jurisdiction to address whether Virginia law recognizes “a claim of wrongful discharge in violation of 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.”

VanBuren was employed by Virginia Highlands as a nurse where she worked under the supervision of Grubb.  During her employment, Grubb allegedly subjected her to sexual harassment by engaging in unwanted touching and sexual advances and encouraging her to leave her husband.  Van Buren’s employment allegedly ended when she was terminated by Grubb for refusing to leave her husband.  Van Buren claimed that she was wrongfully discharged in violation of public policy because she was terminated for refusing to engage in criminal conduct – adultery in violation of Virginia Code § 18.2-365 and open and gross lewdness and lasciviousness in violation of Virginia Code § 18.2-345.

Ruling

In its 4-3 opinion, the Virginia Supreme Court began its analysis by noting that wrongful discharge in violation of public policy or Bowman claims as they are referred to, are a narrow exception to employment at will.  The Court then clarified that in a wrongful discharge claim, the tortious act is not the discharge itself, but rather “the discharge becomes tortious by virtue of the wrongful reasons behind it.”  Based on this reasoning, where the tortious reasons arise because of the unlawful actions of the individual effecting the discharge, that individual should be held liable.  The Court concluded its opinion by arguing that the purpose of the tort - deterring discharge in violation of public policy - is satisfied by imposing liability on supervisors and therefore holding the actor accountable.

Increased Risk

As a result of this decision, supervisors who participate in the termination of employees are now at risk for liability.  Although the Virginia Supreme Court recognized that this may cause supervisors to hesitate in discharging at-will employees, it believes that supervisors will be protected because of the narrow nature of wrongful discharge claims and the requirement that the supervisor must be shown to have personally violated the relevant public policy.  Nevertheless, it seems more than likely that this decision will lead to an increase in wrongful discharge claims against supervisors.