By Jonathan Mook
Virtually all states recognize a common law tort claim of wrongful discharge in violation of a state’s established public policy. In most instances, a lawsuit alleging such a claim is brought solely against the plaintiff’s former employer. But may a suit be brought not only against the employer, but also against the plaintiff’s supervisor or a manager who directly participated in the wrongful firing?
States Weigh-in on Wrongful Discharge
When asked to decide on claims against individual supervisors, state courts have reached varying conclusions. Iowa, New Jersey, Pennsylvania and West Virginia are among the states where courts have recognized individual liability for the tort of wrongful discharge in violation of public policy. Other states, without explicitly deciding, have allowed wrongful discharge actions to proceed against individual defendants. These states include Arizona, Arkansas, Hawaii, Missouri, Montana, North Dakota, Ohio, South Carolina, South Dakota and Washington.
Several states, however, have reached the opposite conclusion and have explicitly ruled that wrongful discharge claims may be brought only against the plaintiff’s employer, not against any individuals who may have participated in the wrongful conduct. Those states that have refused to recognize individual liability include California, Illinois, Kansas and Mississippi.
Virginia Supreme Court Ruling
Recently, in Van Buren v. Grubb, 733 S.E. 2d 919 (Va. 2012), the Virginia Supreme Court joined the list of states upholding individual liability for public policy wrongful discharge claims. The court specifically ruled that a plaintiff in Virginia may pursue a common law tort claim of wrongful discharge in violation of established public policy against an individual who was an actor in violating public policy and participated in the wrongful firing of the plaintiff.
Background on Wrongful Discharge Claims
A claim of wrongful discharge in violation of established public policy is a limited exception to the strongly held employment-at-will doctrine. The claim was first recognized in Virginia in 1985 when the Virginia Supreme Court held that a corporate employer could be held liable for the tort of wrongful discharge. In that case, Bowman v. State Bank of Keysville, 229 Va. 534 (1985), the employer terminated employees, who were also shareholders, because they refused to vote their shares as directed by the corporation’s board of directors. The court reasoned that the coercion exercised by the board of directors violated the public policy found in Virginia law that grants shareholders the right to freely cast one vote for each share held. Thus, Bowman created a limited exception to employment-at-will when the termination is used to control an employee’s ability to exercise a right created by statute.
The Virginia Supreme Court has since considered several other cases in which a public policy exception to employment-at-will was asserted. In one case,Mitchem v. Counts, 259 Va. 179 (2000), the court expanded the exception to include a claim for a discharge based upon an employee’s refusal to engage in a criminal act. In Mitchem, the employer terminated a female employee because she refused to engage in the criminal acts of adultery and lewd and lascivious cohabitation. The court held that in these circumstances, the termination could give rise to a public policy wrongful discharge claim.
Van Buren’s Claim
Angela Van Buren raised a claim similar to that in Mitchem when she filed a lawsuit against her supervisor, Stephen Grubb. Grubb terminated Van Buren after she refused to engage in adultery and open and gross lewdness and lasciviousness in violation of Virginia law. Specifically, Van Buren asserted that Grubb engaged in a long-term pattern of sexual advances and harassment, and that he terminated Van Buren when she refused to leave her husband.
How the Supreme Court Found Individual Liability
The Virginia Supreme Court found that there was no question that Van Buren had stated a Mitchem exception claim for wrongful discharge in violation of public policy. The only question was whether Grubb could be personally liable, and in response to that question, the court answered “yes.” In doing so, the court reasoned that where the wrong arises “from the unlawful actions of the actor effecting the discharge, he or she should share in liability.” As the court explained:
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 tortuous conduct. Employer-only liability would be insufficient to deter wrongful discharges, as this case clearly demonstrates.
The Virginia Supreme Court acknowledged the concern that its decision could serve to cause supervisors to “be hesitant to rightfully discharge at-will employees for fear of suit.” Nonetheless, the court believed that supervisors were protected from “the overuse of wrongful discharge claims” because of the extremely narrow nature of the exceptions recognized for such claims and the requirement that the supervisor’s personal actions violated the relevant public policy.
Employer’s Takeaway
The Virginia Supreme Court’s decision in Van Buren may well be a bellwether. The court is known for its conservative views and is not one to heedlessly expand liability or create new causes of action. For Virginia to recognize individual liability for public policy claims, therefore, may sway courts in other states that have yet to address the issue to follow the Van Buren reasoning and impose individual liability for supervisors and managers who participate in the wrongful conduct.
Accordingly, supervisory employees are well warned that their actions may come under legal scrutiny, especially because in Virginia as well as in many other states, they may be subject to legal claims and liabilities. Therefore, supervisors and managers need to know that their decision to terminate an employee may lead to a claim against them individually and they need to carefully consider and fully document the basis for any termination decision. Hopefully, such warnings will have the intended effect and deter unlawful terminations. If not, it is likely that we will see an increase in the number of common law claims plaintiffs (and their attorneys) lodge against individuals, as well as employers, for wrongful termination in violation of public policy.
Jonathan Mook is a partner in the law firm of DiMuroGinsberg, P.C. in Alexandria, Va. and is a member of both the Virginia and District of Columbia Bars. He is a nationally recognized practitioner in employment law and has written two treatises on the Americans with Disabilities Act. He may be reached at jmook@dimuro.com.