On November 1, the Virginia Supreme Court held that Virginia law provides a claim of wrongful discharge directly against individuals, such as supervisors or managers, who participate in the firing of an employee, even if they are not the employee’s actual employer. VanBuren v. Grubb, No. 120348 (Va. Nov. 1, 2012). In reaching this holding, the Virginia Supreme Court extended liability to a new group of individuals, finding that employees can be held personally liable for claims of wrongful discharge.
In this case, a nurse sued her former employer, Virginia Highlands Orthopedic Spine Center LLC, and a supervisor for wrongful discharge in violation of public policy. The nurse alleged she was subjected to sexual harassment by the supervisor and ultimately terminated by him when she refused to leave her husband. The supervisor filed a motion to dismiss, arguing that only an employer can be held liable for a wrongful discharge under Virginia law.
The United States District Court for the Western District of Virginia granted the supervisor’s motion to dismiss, finding that the Virginia Supreme Court would not allow wrongful discharge claims against supervisors or other co-workers.
On appeal, the Fourth Circuit held that the Virginia Supreme Court had not squarely addressed the issue of whether an individual may be held liable for wrongful discharge under Virginia state law. Noting the profound implications of extending liability to individuals in wrongful discharge claims and the fact that other states are divided on the issue, the Fourth Circuit determined that the Supreme Court of Virginia was the proper court to address the issue. The Fourth Circuit, thus, certified to the Virginia Supreme Court the question of whether Virginia law recognizes wrongful discharge claims against individuals, such as supervisors or managers, who are not the employee’s actual employer but who participated in the wrongful firing of the employee.
In a 4-3 opinion, the Virginia Supreme Court answered in the affirmative, holding that Virginia law does recognize wrongful discharge claims against non-employer individuals, such as supervisors or managers, who are the actors in violation of public policy and who participate in the wrongful firing of the employee. Under this holding, individual liability appears to attach only when the individual engages in the wrongful conduct in violation of public policy and participates in the termination of the employee.
The majority of the court rejected the dissent’s argument that an individual manager or supervisor who carries out the wrongful discharge acts solely in a representative capacity for the employer, and as such cannot be held personally liable for that discharge.
The court recognized the concern that supervisors will be hesitant to lawfully discharge at-will employees for fear of suit. The court noted, however, that supervisors are protected against the abuse of wrongful discharge claims by both the extremely narrow scope of wrongful discharge actions and the requirement that the supervisor personally violate the public policy on which the unlawful discharge claim is based.
Virginia employers may see more individual defendants in wrongful discharge cases in the future and defense counsel should anticipate the possible conflict of interest issues those allegations may pose.