Virginia Supreme Court Affirms Dismissal of Bowman Claim Based on Protective Order Statutes

On February 23, 2017, the Virginia Supreme Court sustained a demurrer to a complaint alleging a Bowman claim of wrongful termination.  Francis v. National Accrediting Commission of Career Arts & Sciences, Inc. No. 160267.  The Court rejected an employee’s claims that the public policy embodied in Virginia Code §§ 19.2-152.7:1 through 19.2-152.10 (the Protective Order Statutes) provides the basis for a wrongful discharge claim.

According to the Amended Complaint filed in the Circuit Court for the City of Alexandria, the case arose when the Appellant, Ms. Francis, was threatened by her co-worker, Ms. Blow.  Francis alleged that Blow called her derogatory names and threatened to “f — her up.” Francis felt her employer did not take sufficient action in response to the threats made against her, and, as a result, filed an ex parte petition for a Preliminary Protective Order (“PPO”) against Blow in the General District Court of Prince William County.   The Court granted the PPO, ordering Blow not to commit “any further act of violence, force or threat” against Francis.   A police officer served the PPO on Blow at work.  Several days later, the employer fired Francis because she “did not fit the vision of the organization.”

Francis filed a Bowman claim against her employer, alleging that the public policy in the Protective Order Statutes “grants individuals the right to seek a civil protective order ‘to protect the health and safety of the petitioner.'” Francis further alleged that she was fired for exercising her statutory right to seek a protective order.  The Circuit Court sustained the demurrer with prejudice, concluding that Francis had failed to identify a statutorily protected right that had been violated.

On appeal, the Supreme Court held that the Circuit Court did not err in sustaining the demurrer.   The Court noted that the Protective Order Statutes grant an individual the right to seek a protective order, and state a public policy “to protect the health and safety of the petitioner or any family of household member of the petitioner.”  In order to base a Bowman claim on these statutes, Francis must show that her termination violated the stated public policy of protecting health and safety. According to the Court, Francis failed to do so, as she did not allege that her termination endangered her health and safety.   Thus, the facts of Francis’s claim differed from those of the seminal Bowman decision, where two employee-shareholders were fired because they exercised their statutory right to vote their shares free of duress.

The Francis decision shows the very narrow scope of Bowman wrongful discharge claims in Virginia. While the equities of this case seem to lie with Ms. Francis, the onerous pleading requirements of a Bowman claim  left her without a viable cause of action.

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