If the Supreme Court of Virginia were looking for an opportunity to expand its Bowman doctrine—the narrow public policy exception to Virginia’s at-will employment rule—it had the perfect chance to do so. But, in a recent decision, Francis v. NACCAS, Inc., the Court reiterated the narrow and restrictive application of the Bowman exception.
Noemie Francis was an administrative assistant at the National Accrediting Commission of Career Arts & Sciences (“NACCAS”). Francis alleged that, in the presence of over a dozen other employees, an angry co-worker physically and verbally threatened her to the point that the co-worker had to be physically restrained. Francis reported the incident to management, who allegedly took no formal disciplinary action against the co-worker. Fearing for her safety, Francis filed for, and was granted, a Preliminary Protective Order—the Virginia equivalent of a restraining order. Within days of presenting NACCAS with the Protective Order, Francis was terminated because she “did not fit the vision of the organization.”
Those facts have to satisfy the Bowman exception, right? Not so fast.
In over 30 years since Bowman, the Court has recognized a wrongful discharge action in only three narrow circumstances: (1) the employer violates a public policy enabling the exercise of an employee’s statutorily-created right; (2) the public policy violated by the employer is explicitly expressed in a statute and the employee is clearly a member of the class of persons directly entitled to the protection enunciated by the public policy; and (3) the discharge is based upon the employee’s refusal to engage in a criminal act.
Francis, whose complaint was dismissed on a demurrer, claimed on appeal that her termination implicated the first two Bowman scenarios. Regarding the first scenario, Francis argued that she exercised her statutory right to file for a Protective Order, that the public policy behind such orders is to protect people from violence, force, or threats resulting in harm, and that she was terminated for exercising this right. For the second scenario, she argued the same, adding that she is a person directly entitled to the public policy protections of a Protective Order.
The Court disagreed, holding that Francis failed to state a claim under either Bowman scenario. Because Virginia’s Protective Order statute does not contain a public policy protecting the right to seek a Protective Order, the Court reasoned, Francis could not prove her termination violated public policy. She could have only proven this if NACCAS’s action in terminating her violated the public policy of protecting her health and safety, which she had not alleged. Nor did she claim that NACCAS prevented her from exercising her statutory right to file a Protective Order. Francis, the Court concluded, merely alleged that she was terminated for exercising her rights under the Protective Order statute, and this was insufficient because Virginia does not recognize a common law claim for retaliatory discharge.
While the Court has slowly and methodically expanded the breadth of Bowman in the last three decades, including creating individual liability a few years ago, the Court, at least at this point, seems unwilling to go any further. The Francis decision reaffirms that the Bowman exception is narrow and will not apply solely because a public policy concern may be implicated.