In a significant decision that contains lessons for all employers, the Virginia Supreme Court has declined to expand the narrow exceptions to the employment-at-will doctrine based on an employer’s violation of public policy when it discharges an employee.
In the case, a former employee filed suit, claiming she had been wrongfully discharged in violation of public policy because she was terminated for obtaining a protective order against a coworker. The circuit court for the city of Alexandria dismissed the case, finding the employee failed to identify a statutorily protected right that the employer violated by terminating her. The employee then appealed to the Virginia Supreme Court. Read on for the Court’s ruling.
Employee Obtains Protective Order After Coworker’s Threats
Noemies Karina was employed by the National Accrediting Commission of Career Arts & Sciences (NAC). According to her complaint, a coworker yelled obscenities at her and threatened to hurt her. Two other workers had to pull the coworker away from Karina, but the aggressive coworker continued to come back at her with additional threats. Karina e-mailed her supervisor to express her concern for her safety, but NAC failed to investigate the incident and took no action.
Karina then went to court and obtained a preliminary protective order against the coworker. The order prohibited the coworker from committing any further “acts of violence, force or threat” against Karina and prohibited all contact with her except “lawful conduct.” Karina alleged that 2 business days after the protective order was served on the coworker at their workplace, NAC terminated her because she “did not fit the vision of the organization.”
Public Policy Protections
Karina asserted that her termination was wrongful under the Virginia Supreme Court’s 1985 decision in Bowman, the supreme court first recognized an exception to Virginia’s employment-at-will doctrine for terminations based on a violation of public policy. The supreme court has limited this exception to a narrow set of circumstances, however. Thus, a public policy wrongful discharge claim will arise only when:
- The termination violated a policy enabling an employee’s exercise of a statutorily created right. (See Bowman.)
- The public policy that was violated was explicitly expressed in the statute, and the employee was a member of the class of persons directly protected by the public policy. (See the court’s 1997 decision in Bailey v. Scott-Gallaher, Inc.)
- The discharge was based on the employee’s refusal to engage in a criminal act. (See the court’s 2000 ruling in Mitchem v. Counts.)
No Bowman Claim for Karina
Karina argued that her termination violated Bowman because she exercised her statutory right to obtain a protective order, and the stated public policy for such an order is “to protect the health and safety of the petitioner . . . from an act of violence, force or threat . . . that may result in injury to person or property.”
In ruling against Karina, the Virginia Supreme Court focused its analysis on the right that was conferred on her by the protective order statute and whether her termination violated the public policy underlying that right.
The court determined that the protective order statute granted Karina a right to seek a protective order under the public policy of protecting her health and safety. However, the court reasoned that her termination from employment didn’t violate the stated public policy. The court found it significant that Karina didn’t allege that the termination endangered her health and safety or that NAC attempted to prevent her from exercising her right to obtain a protective order.
The court reiterated that “Bowman does not recognize ‘a generalized cause of action for the tort [wrongful act] of “retaliatory discharge.”‘” Francis v. National Accrediting Commission of Career Arts & Sciences, Inc., 293 Va. 167 (February 23, 2017).
The Way I See It . . .
The Virginia Supreme Court has sent a clear message to employees and employers alike that it isn’t inclined to expand the exception to the employment-at-will doctrine. Karina was a sympathetic plaintiff. She was threatened by a coworker, her employer failed to take action to protect her after the threats, she exercised her right to obtain a protective order against the coworker, and she was the one who was terminated.
Nevertheless, the supreme court avoided the temptation to let sympathy guide its decision. Instead, the court strictly analyzed the language of the statute to find that its public policy was limited to protecting Karina’s health and safety, not her employment. Hence, the doctrine of employment at will remains alive and well in the Old Dominion.
Michael Barnsback is a partner with O’Hagan Meyer, practicing in the firm’s Alexandria office. Barnsback is an editor of Virginia Employment Law Letter and may be contacted at mbarnsback@ohaganmeyer.com.