United States: Individual Liability For Managers And Supervisors In Wrongful Discharge Claims

In a stunning recent development in Virginia employment law, the Supreme Court of Virginia held that an individual supervisor or manager may be held personally liable for wrongful discharge of an employee. On November 1. 2012, the Court issued its opinion in Angela VanBuren v. Stephen A. Grubb, Record No. 12038 (Nov. 1, 2012). The 4-3 decision has opened the door for a new wave of litigation against employers and their supervisors and management personnel that participate in the wrongful termination of an employee.

VanBuren was employed as a nurse by the Virginia Highlands Orthopedic Spine Center, LLC ("Virginia Highlands") from December 2003 to March 2008. Soon after she began working at Virginia Highlands she was allegedly subjected to sexual harassment by her supervisor and Virginia Highland's owner, Dr. Grubb. VanBuren alleged that the sexual harassment consisted of inappropriate hugs and touching and his encouragement that she leave her husband to be with him. VanBuren resisted his advances telling him that they were "offensive" and "unwelcome".

In March, 2008, VanBuren claimed that Dr. Grubb suggested that VanBuren leave her husband to be with him. When she refused, Dr. Grubb fired VanBuren. VanBuren ultimately filed suit against Virginia Highlands and Dr. Grubb individually alleging a claim of wrongful discharge. VanBuren's claim against Dr. Grubb was based upon her allegation that she was discharged in violation of public policy because she refused to engage in criminal conduct under Virginia law – specifically adultery (Va. Code §18.2-365) and open and gross lewdness and lasciviousness (Va. Code §18.2-345).

Dr. Grubb moved to dismiss the claim against him in an individual capacity. The motion was granted by the trial court which held that in Virginia wrongful discharge claims are only recognized against employers and not individual supervisors. VanBuren appealed to the Fourth Circuit who decided to let the Virginia Supreme Court decide the question of Virginia law.

The Supreme Court of Virginia rejected Dr. Grubb's argument that only employers have the ability to effect a discharge and, therefore, the liability must cease there. Rather, the Supreme Court stated that in a wrongful discharge case the tortuous act is not the discharge alone, but the discharge becomes tortuous by virtue of the wrongful reasons behind it. The Supreme Court went on to state that "[w]here those tortuous reasons arise from the unlawful actions of the actor effecting the discharge, he or she should share in liability." Specifically the Court stated that because VanBuren was terminated by Dr. Grubb, her supervisor, for failing to submit to Dr. Grubb's unlawful demands that he should share in the liability.

Recognizing the ramifications to employers and supervisors, the Court tried to downplay the impact of its decisions by stating that "[w]e believe...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."

Those are words of little comfort to managers and supervisors across the Commonwealth who will undoubtedly be subjected to a rash of lawsuits by terminated employees. If nothing else, the Supreme Court of Virginia has given employees and their attorneys a perceived increase in leverage as they attempt to negotiate employment claims.

It is now more important than ever that employers ensure that supervisors and management personnel are trained in how to handle terminations. Ideally, terminations should be handled by HR or a centralized upper level management. Terminations need to be treated as potential liability causing events for the employer where all steps are carefully documented and planned. As always, the Woods Rogers employment attorneys are happy to help guide employers through the increasingly complicated legal ramifications of terminations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.