On November 1, 2012, the Viriginia Supreme Court ruled that an employee may sue her manager or supervisor — in addition to her employer — on a state law claim of wrongful discharge in violation of public policy.
Angela VanBuren was employed as a nurse by Virginia Highlands Orthopedic Spine Center from December 2003 to March 2008. Soon after she joined Virginia Highlands, VanBuren was subjected to sexual harassment by her supervisor, Virginia Highlands’ owner Dr. Stephen Grubb. He would “hug her, rub her back, waist, breast and other inappropriate areas, and attempt to kiss her.” Although VanBuren told Dr. Grubb that his sexual advances were “offensive” and “unwelcome,” he continued to pursue her. In May 2006, while the two were travelling for business, Dr. Grubb went to VanBuren’s hotel room and “began rubbing her back, waist, breast and hair while stating that he loved her.” VanBuren broke free of his embrace and told him that “she was not going to have sex with him,” that “he was a married man,” and that “he needed to leave.”
Dr. Grubb’s sexual harassment continued after VanBuren’s marriage in 2007. Dr. Grubb tried to “console” VanBuren regarding her subsequent marital problems. His “consoling” entailed “encouraging [her] to leave her husband and then proceeding to hug, kiss, and grope her.” VanBuren “continued to insist that [Dr. Grubb's] advice and sexual advances were unwelcomed and offensive.”In March 2008, Dr. Grubb again suggested during a closed-door meeting that VanBuren leave her husband so that she “could accept his love for what it was and what it could be.” A few days later, Dr. Grubb called VanBuren into his office and asked whether she planned to stay with her husband. When she responded in the affirmative, he fired her. He then offered her roughly a month’s severance pay to remain silent about the sexual harassment. Dr. Grubb gave no other explanation for terminating VanBuren’s employment with Virginia Highlands.
In March 2010, VanBuren filed 1) a gender discrimination claim against Virginia Highlands under Title VII of the Civil Rights Act of 1964 and 2) a wrongful discharge claim against Virginia Highlands and Dr. Grubb. As to the wrongful discharge claim, she alleged that she had been discharged from Virginia Highlands because she had refused to engage in criminal conduct — specifically, a) adultery and b) open and gross lewdness and lasciviousness. Accordingly, she contended that her discharge violated public policy.
The Virginia Supreme Court had never squarely addressed whether a wrongful discharge claim can be brought against an individual employee — as opposed to an employer — but the issue was certified to the Court by the United States Court of Appeals for the Fourth Circuit (VanBuren had initially filed suit in federal court). Here, VanBuren was fired because she would not give in to Grubb’s unlawful demands. As Grubb was her supervisor and owner of the company, the Court concluded that, if her allegations are proven, he too should be subject to liability, just as he would be had he engaged in any other tortious conduct.
In an opinion by Justice Leroy F. Millette, Jr., the Virginia Supreme Court stated that “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 tortious conduct. Employer-only liability would be insufficient to deter wrongful discharges, as this case clearly demonstrates.” Further, the Court concluded that “Virginia recognizes a common law tort claim of wrongful discharge in violation of established public policy against an individual who was not the plaintiff’s actual employer but who was the actor in violation of public policy and who participated in the wrongful firing of the plaintiff, such as a supervisor or manager.”
In response to the suit, Grubb left Virginia Highlands, the medical practice he himself started, and joined another healthcare provider. “If the Court does not recognize individual liability in such cases, there may be nothing to prevent other business owners from following this model in an attempt to avoid liability.”
Nevertheless, the Court “recognize[d] the concern that supervisors will be hesitant to rightfully discharge at-will employees for fear of suit. We believe, however, that the extremely narrow nature of wrongful discharge actions, and the requirement that the defendant employees’ personal actions be shown to have violated the relevant public policy, provides sufficient protection from the overuse of wrongful discharge claims.”
