On November 1, 2012, the Supreme Court of Virginia held that a supervisor may be subject to tort liability for wrongful discharge in violation of public policy where the individual participated in the wrongful firing and was the violator of public policy. VanBuren v. Grubb, 120348 (Va. Nov. 1, 2012) (Millette, J.). The Court addressed the issue upon certification from the Fourth Circuit.
Angela VanBuren was a nurse at Virginia Highlands Orthopedic Spine Center, LLC from December 2003 until her termination in March 2008. From the beginning of her employment, VanBuren was the recipient of numerous sexual advances by her supervisor, Dr. Stephen Grubb. Grubb was Spine Center’s owner. Despite VanBuren’s rejection of the sexual advances as “offensive” and “unwelcome,” Grubb’s conduct persisted.
The sexual harassment culminated in March 2008 when Grubb asked VanBuren whether she would leave her husband for him. When VanBuren said no, she was fired. Grubb offered VanBuren one month’s severance if she would agree to remain silent about his conduct.
VanBuren filed suit in March 2010, claiming gender discrimination against Spine Center and wrongful discharge against Spine Center and Grubb. With respect to the wrongful discharge claim, VanBuren argued that she was fired in violation of public policy–namely, for refusing to engage in adultery and open and gross lewdness and lasciviousness, which are criminal acts under Virginia law.
The Court determined that the termination fit within Virginia’s public policy exception to at-will employment as a “discharge based on the employee’s refusal to engage in a criminal act.” First, the Court concluded that wrongful discharge is a tort claim, and therefore, tort, not contract, principles apply. Second, wrongful discharge exists as a tort claim in order to deter discharges that violate public policy, and this purpose is best served when individuals with authority are held liable for their conduct. Third, “[i]n a wrongful discharge case, the tortious act is not the discharge itself; rather, the discharge becomes tortious by virtue of the wrongful reasons behind it.” Under this reasoning, the individual offender should be liable for the tortious conduct.
While expanding the applicability of wrongful discharge claims, the court was careful to emphasize the narrow boundaries of its holding. In order for a discharged employee to have a cognizable claim against an individual, the charged employee must have acted in violation of established public policy and taken part in the termination.