United States: Virginia Supreme Court Refuses To Expand Bowman Doctrine For Wrongful Termination Of An At-Will Employee

Executive Summary: In Bowman v. State Bank of Keysville, the Virginia Supreme Court first recognized an exception to the employment at-will doctrine based upon an employer's violation of public policy in the discharge of an employee. In subsequent cases dealing with the Bowman exception, the Court has consistently characterized such exceptions as "narrow." In its recent opinion in Francis v. National Accrediting Commission of Career Arts & Sciences, Inc., a case handled by FordHarrison attorneys, the Court again limited the ability of plaintiffs to rely on Bowman to bring a wrongful discharge claim.

Background: In March 2014, the National Accrediting Commission of Career Arts & Sciences, Inc. (NACCAS) hired Noemie Francis as an administrative assistant on an at-will basis. In January 2015, while Francis was at work, another NACCAS employee yelled obscenities at Francis. On January 30, 2015, Francis filed an ex parte petition for a preliminary protective order against her co-worker, which police served on the co-worker at the NACCAS office on February 5. On February 9, NACCAS terminated both employees.

On June 11, 2015, Francis filed suit in the Circuit Court of the City of Alexandria alleging wrongful discharge in violation of public policy under Bowman. The Court rejected her claim, finding she failed to sufficiently allege a true public policy violation. Francis filed an amended complaint, asserting that the public policy of the protective order statute "grants individuals the right to seek a civil protective order to protect the health and safety of the petitioner." She further alleged that the exercise of this right was a motivating factor in her termination.

On September 9, 2015, NACCAS argued that Francis' amended complaint failed to state any valid claim for wrongful discharge in violation of public policy, as Francis was an at-will employee and did not identify any statutorily protected right that NACCAS violated by her termination. On December 9, 2015, the Circuit Court agreed and dismissed the complaint with prejudice. Francis appealed the decision to the Virginia Supreme Court.

Decision: The Virginia Supreme Court reiterated Virginia's long adherence to the at-will employment doctrine, which allows that "an employer is free to terminate the employment relationship without the need to articulate a reason." The Court then discussed the Bowman exemption, which it first recognized in 1985. In the subsequent 30 years, the Court has consistently characterized the exception as "narrow." In fact, the Court has only found three circumstances or "Scenarios" where a public policy claim was sufficient to constitute a common- law cause of action for wrongful discharge of an at-will employee under the Bowman doctrine:

  • When an employer violates a public policy enabling the exercise of an employee's statutorily created right;
  • When the public policy violated by the employer was explicitly expressed in the statute and the employee was a clear member of that class of persons entitled to the protection communicated by the public policy; and
  • When the discharge was based on the employee's refusal to engage in a criminal act.

Francis contended that her claim fell under Scenarios One and Two. She claimed that she stated a cause of action under Scenario One because she exercised her statutory right to obtain a protective order and NACCAS allegedly terminated her employment due to the exercise of that right. She further contended that she stated a claim under Scenario Two because the public policy expressly stated in the protective order statutes is to protect the health and safety of the petitioner.

The Court rejected both Scenarios. It first stated that the protective order statutes grant an individual the right to seek a protective order. Therefore, a viable Bowman claim would require a showing that the termination of employment itself violated the stated public policy of protection of health and safety. In this case, it did not. The Court pointed out that Francis did not allege the termination violated the public policy by endangering her health and safety. Nor did she allege that NACCAS prevented her from exercising her rights under the protective order statutes. Rather, she merely alleged that she was terminated because she exercised her rights under the statute. However, the Virginia Supreme Court has repeatedly stated that it does not recognize a "generalized cause of action for the tort of retaliatory discharge." Here, the Court held, there is no public policy in the protective order statutes protecting the exercise of the right to seek a protective order. Accordingly, Francis failed to state a claim under Bowman Scenario One.

The Court further held that Francis failed to state a claim under Bowman Scenario Two because the public policy expressly stated in the protective order statutes is to protect the health and safety of the person seeking the protective order. Even if Francis is a member of the class of persons entitled to protections under those statutes, which the Court declined to address, she did not allege that NACCAS' action in terminating her employment violated the public policy to protect her health and safety. Therefore, because Francis failed to state a claim for wrongful termination under Bowman, the Court affirmed the judgment of the Circuit Court in dismissing the matter with prejudice.

Bottom Line for Employers: Fortunately for employers, the Virginia Supreme Court has consistently held that wrongful discharge claims brought under public policy must be construed narrowly. The Court has repeatedly stated that while virtually every statute expresses a public policy of some sort, termination of employment in violation of the policy underlying the statute does not automatically give rise to the common-law cause of action for wrongful discharge. However, Virginia employers should still rely on well-documented, job-related reasons for a termination of employment.

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.

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