DISCHARGE IN VIOLATION OF PUBLIC POLICY:

BOWMAN WRONGFUL DISCHARGE CLAIMS

IN THE NEW MILLENNIUM:

THE CONTINUING EROSION

OF EMPLOYMENT AT WILL

Raymond L. Hogge, Jr., Esq.

Payne, Gates, Farthing & Radd, P.C.

Dominion Tower, Suite 1515

999 Waterside Drive

Norfolk, Virginia 23510

(757) 640-1500

RHogge@PayneGates.com

www.VirginiaLaborLaw.com

Raymond L. Hogge, Jr.

I. INTRODUCTION

Historically, Virginia law has provided employers with a favorable business climate. One of the ways it has done so is through adherence to the doctrine of employment at will. Many Virginia cases involving employment disputes contain familiar language, such as the following, claiming adherence to that doctrine:

Virginia adheres to the common-law doctrine of employment-at-will. When a contract calls for the rendition of services, but the period of the contract's intended duration cannot be determined from its provisions, either party ordinarily is at liberty to terminate the contract at will upon giving reasonable notice of intention to terminate.

Dray v. New Market Poultry Products, No. 981767 (Va. S. Ct. 9/17/99). Indeed, there is no question that employment at will is still the norm. However, in recent years employers and their counsel have seen continuing erosion of the doctrine, due in large measure to the claims of discharged employees seeking money damages.

In Virginia, as in most states, there are exceptions to the employment at will doctrine. And in Virginia, as in most states, one of the most important exceptions to the doctrine is the theory of liability known as discharge in violation of public policy, sometimes referred to as "wrongful discharge." Under this theory, tort liability for compensatory and punitive damages can be imposed upon employers, and upon involved individuals personally, if a termination is found to have been in violation of a public policy. These claims are not subject to the damage caps of, for example, Title VII, nor are the subject to exhaustion of remedy requirements. Therefore, these are some of the favorite claims of discharged employees and their lawyers.

In 1985, the Virginia Supreme Court opened the doors to claims for discharge in violation of public policy by its decision in Bowman v. State Bank of Keysville, 229 Va. 534, 331 S.E.2d 797 (1985). Since then, "Bowman claims" has been an ongoing source of litigation and controversy. This outline will examine the history of those claims, and the current state of the law with respect to them, to assist Virginia employers and their counsel.

This outline is for informational purposes only, and nothing in it constitutes or shall be construed to constitute legal advice. For legal advice, employers should consult qualified counsel.

II. THE NATURE AND ORIGIN OF BOWMAN CLAIMS

A. The Bowman Case

Virginia wrongful discharge claims are often called "Bowman" claims, referring to the seminal wrongful discharge case in Virginia, Bowman v. State Bank of Keysville, 229 Va. 534, 331 S.E.2d 797, decided in 1985. In Bowman the plaintiff, Betty Bowman, was employed as a bookkeeper for the State Bank of Keysville and owned common stock in the bank. The bank, after negotiations with NB Corporation, entered into an agreement with NB under which the bank would be merged into NB and the bank's common stock would be converted into NB common stock. In preparation for a special meeting of shareholders called by the bank for the purpose of approving the merger, the bank mailed proxy statements to each of its shareholders.

Betty Bowman opposed the merger, claiming that the proxy statements were false and misleading, violated federal securities laws, and violated state corporations law. The bank's directors named as defendants in Bowman were in favor of the merger, knew that the vote on the merger would be close, and knew of Bowman's opposition to it. The president of the bank told Bowman that her voting against the merger would have "a definite adverse effect on her job," and that she would be fired if she voted against the merger and the merger was voted down.

Bowman submitted her proxy card approving the merger. However, two days after the special meeting, she wrote a letter to the bank's president which withdrew her approval of the merger and alleged that her proxy was invalid because it was obtained illegally and under duress. She advised the bank that the votes favoring the merger were insufficient. The board of directors, following receipt of the letter, voted to abandon the merger. According to Bowman, they did so because they feared discovery of their illegal conduct involving the proxies. A few days later, a majority of the board voted to discharge Betty Bowman.

Bowman filed suit against the bank, and against certain directors of the bank individually (including the bank's president), seeking compensatory and punitive damages for wrongful discharge. She alleged her discharge was wrongful because she was discharged solely in retaliation for her proper exercise of her rights as a stockholder, a reason which was unrelated to her job performance, and because it was part of a scheme by which the defendants sought to influence the exercise of her protected shareholder rights by threatening her employment. The defendants filed a demurrer, arguing that Bowman was employed on an at-will basis and could be discharged at any time, after reasonable notice, for any reason or for no reason at all.

The trial court overruled the demurrer, and the Virginia Supreme Court affirmed that decision. The Virginia Supreme Court explained that it continued to adhere to the employment-at-will doctrine, but that the rule is not absolute. One exception to the rule exists where the employee claims to have been discharged "in violation of an established public policy." The Court held that exception applied in the case of Betty Bowman:

In the present case, the retaliatory discharges were based on violations of public policy by the defendants. Code ' 13.1-32 conferred on these plaintiffs as stockholders the right to one vote, for each outstanding share of stock held, on each corporate matter submitted to a vote at a meeting of the stockholders. This statutory provision contemplates that the right to vote shall be exercised free of duress and intimidation imposed on individual stockholders by corporate management. In order for the goal of the statute to be realized and the public policy fulfilled, the shareholder must be able to exercise this right without fear of reprisal from corporate management which happens also to be the employer. Because the right conferred by statute is in furtherance of established public policy, the employer may not lawfully use the threat of discharge of an at-will employee as a device to control the otherwise unfettered discretion of a shareholder to vote freely his or her stock in the corporation.

Thus, ruled the Court, Bowman had stated a cause of action in tort against the bank for wrongful discharge. The Court ruled that the named directors could likewise be sued personally for that same cause of action.

B. Bowman Applies To Violations of Public Policies But Not To Violations of Private Rights

In Miller v. SEVAMP, Inc.,34 Va. 462, 362 S.E.2d 915 (1987), the Virginia Supreme Court placed significant restrictions upon the applicability of Bowman. In Miller, the plaintiff, Kaye Miller, was an employee of SEVAMP who appeared as a witness in an internal grievance proceeding instituted by a fellow employee. Two weeks later, Miller was fired. She sued SEVAMP, claiming she was wrongfully discharged in retaliation for appearing as a witness in the grievance proceeding. The rights she claimed were violated were rights she alleged were given to all SEVAMP employees in the SEVAMP "Personnel and Administrative Procedures" manual to file grievances and to testify freely before grievance review panels. The Virginia Supreme Court, on appeal, made several significant pronouncements concerning the cause of action it had recognized in Bowman.

First, the Court clarified its ruling in Bowman, and explained that Betty Bowman had a wrongful discharge cause of action because "the employer had misused its freedom to terminate the services of an at-will employee in order to subvert a right guaranteed to stockholders by statute." This began an ongoing debate as to which statutes support a Bowman claim.

Second, the Court explained that the Bowman decision did not recognize a generalized cause of action for the tort of "retaliatory discharge," and that such a cause of action was not recognized by the common law of Virginia.

Third, the Court explained that the rights which, if violated, would support a Bowman claim are limited to those which violate public policies, and that discharges violating private rights would not support such a claim:

Declining to follow the sweeping adoption of [a generalized cause of action for retaliatory discharge] in other jurisdictions, Bowman recognized an exception to the employment-at-will doctrine limited to discharges which violate public policy, that is, the policy underlying existing laws designed to protect the property rights, personal freedoms, health, safety, or welfare of the people in general. .... The exception we recognized was not so broad as to make actionable those discharges of at-will employees which violate only private rights or interests.

The Court suggested that examples of private rights, the protection of which should be left to the General Assembly, include the rights of employees filing workers' compensation claims to be free from acts of retaliation by their employer (former Virginia Code Section 65.1-40.1; see Virginia Code Section 65.2-308), the rights of employees filing safety or health complaints to be free from acts of retaliation by their employer (Va. Code Section 40.1-51.2:1 and -51.2:2), and the rights of persons with disabilities to be free from employment discrimination under the Virginia Code (former Virginia Code Section 55.01-41 and 55.01-46; see Va. Code Section 51.5-40 et seq. (Virginians with Disabilities Act)).

Applying these principles to the claim of Kaye Miller, the Court ruled that Miller could not assert a Bowman claim against SEVAMP, since the alleged violations were of private rights rather than public policies. The Court explained that the retaliatory discharge, if proven, "would impinge only upon private rights established by the employer's internal regulations. It would have no impact upon any public policy established by existing laws for the protection of the public generally." 362 S.E.2d at 919.

III. BOWMAN CLAIMS BASED UPON THE VIRGINIA HUMAN RIGHTS ACT

A. The Virginia Human Rights Act

The Virginia Human Rights Act, Va. Code Section 2.1-715, enacted in 1987, provides in pertinent part:

Conduct which violates Virginia or federal statute or regulation governing discrimination or Title VII of the Civil Rights Act of 1964 as amended or the Fair Labor Standards Act on the basis of race, color, religion, national origin, sex, age, marital status or disability shall be an "unlawful discriminatory practice" for the purposes of this chapter.

Until the statute was amended in May of 1995, it also provided:

Nothing in this chapter creates, nor shall it be construed to create, an independent or private cause of action to enforce its provisions. Nor shall the policies or provisions of this chapter be construed to allow tort actions to be instituted instead of or in addition to the current statutory actions for unlawful discrimination.

Va. Code Section 2.1-725.

Can the Virginia Human Rights Act serve as a basis for a Bowman claim? That question was answered, temporarily, by the Lockhart case.

B. The Lockhart Case (Race Discrimination and Sexual Harassment)

In Lockhart v. Commonwealth Education Systems Corp., 247 Va. 98, 439 S.E.2d 328 (1994), the Virginia Supreme Court considered whether a Bowman claim could be based on race discrimination in violation of the Virginia Human Rights Act. In the companion case of Wright v. Donnelly & Company, the Court considered the same question regarding a sexual harassment claim. The Court answered both questions in the affirmative:

We hold that Ms. Lockhart and Ms. Wright pled viable causes of action. In Bowman, we recognized the plaintiff's rights to bring actions for wrongful discharge based upon violations of Virginia's public policy that a stockholder should be permitted to exercise the right to vote stock free of duress and intimidation from corporate management. Here, however, we are concerned with rights of even greater importance, the personal freedom to pursue employment free of discrimination based upon race or gender. Indeed, there are few, if any, greater restrictions on personal freedoms than an employee can suffer than to be terminated because of discrimination based upon race or gender.

The General Assembly has declared this Commonwealth's strong public policy against employment discrimination based upon race or gender [in the Virginia Rights Act, Virginia Code Section 2.1-715].

247 Va. at 104-05.

As to the provisions of the Virginia Human Rights Act declaring that the Act did not create a private cause of action, the Court stated:

We recognize that the Virginia Human Rights Act does not create any new causes of action. Code ' 2.1-725. Here, we do not rely upon the Virginia Human Rights Act to create new causes of action. Rather, we rely solely on the narrow exception that we recognized in 1985 in Bowman, decided two years before the enactment of the Virginia Human Rights Act.

247 Va. at 104-05.

Thus, the Court apparently relied upon the fact that the Bowman cause of action, in general, was "created" prior to the enactment of the VHRA. The Court did not explain how it could reconcile its decision with the express provisions of the Act that "the policies or provisions of this chapter [shall not be] construed to allow tort actions to be instituted instead of or in addition to the current statutory actions for unlawful discrimination," and Justice Compton, along with Chief Justice Carrico and Justice Stephenson, dissented on the grounds that the Court's decision was in conflict with the statute.

Since Lockhart, Bowman claims based upon the Virginia Human Rights Act (as opposed to some other statute) sometimes have been called ALockhart claims.@ That distinction, as we will see, became significant after the Doss decision (discussed below).

C. Age Discrimination

Although Lockhart addressed only claims of race discrimination and sexual harassment, later cases recognized other types of claims as falling within Lockhart. Age discrimination specifically was recognized by the Virginia Supreme Court as a cognizable Lockhart claim in its March 15, 1996 decision in Clark v. Manheim Services Corp., No. 95-1495.

D. Disability Discrimination

Judging by the explosion of claims under the Americans with Disabilities Act, the Virginia Human Rights Act’s prohibition against disability discrimination is a potentially fertile source of Bowman claims, and at least one circuit court has recognized such a Bowman claim. In Litten v. Smith, Law No. CL95-225 (Fauquier County Cir. Ct. 1/17/96) (holding the amendments did not apply to a Lockhart cause of action for age and disability discrimination which arose on August 1, 1994 and which was filed on June 29, 1995), the Fauquier County Circuit Court stated that Ait would be incongruous for a trial court to conclude that the safeguards as to age or disability would be treated differently than those of race or gender” (referring to Lockhart).

E. Pregnancy Discrimination

Can discharge due to pregnancy give rise to a Bowman claim? According to the Twenty-First Judicial Circuit (Henry County, Patrick County, City of Martinsville), it does not. In letter opinions in Spencer v. Tultex Corp., Law No. CL94-310 (Twenty-First Judicial Circuit 2/7/95), and Riddle v. Tultex Corp., Law No. CL94-284 (Twenty-First Judicial Circuit 2/7/95), that court sustained a demurrer to a Bowman claim based on pregnancy discrimination. The court explained, "The Court in Bowman and Lockhart established narrow exceptions to the employment-at will doctrine, limited to discharges that violate public policy as set forth in Virginia statutes. As the Virginia statute in question, '2.1-715, does not specifically enumerate pregnancy as a protected status, to the extent [the motion for judgment alleges] discrimination on the basis of pregnancy, the demurrer is sustained." The Circuit Court for the City of Roanoke reached a similar conclusion in its December 19, 1995 decision in Bailey v. Scott-Gallaher, Inc., CL95-742.

However, in its December 11, 1995 decision in Smith v. Cinebar Productions, Inc., Memorandum Opinion, Law No. 21717-RC (Newport News Cir. Ct. 12/11/95), the Newport News Circuit Court recognized a Bowman claim based on pregnancy discrimination. It stated:

This Court finds that a female fired on account of pregnancy has a state law tort claim for wrongful discharge just as the Lockhart plaintiff had a state cause of action against her employer for sex discrimination in employment. The position of the defendants that the Commonwealth would not include pregnancy discrimination in its public policy against sex discrimination ignores the historical interest of the Commonwealth in pregnancy.

F. Bailey v. Scott-Gallaher, Inc.

On January 10, 1997, the Virginia Supreme Court issued its ruling in Bailey v. Scott-Gallaher, Inc. In Bailey, a pregnant employee requested leave ordered by her doctor, and the employer granted that leave request. After she gave birth and her doctor released her to return to work, the employer discharged her. According to the employee, the reasons given by the employer were that Ashe was no longer dependable since she had delivered a child; [her] place was at home with her child; babies get sick sometimes and [she] would have to miss work to care for her child; and the company needed someone more dependable."

In a four to three decision, the Virginia Supreme Court ruled that the employee’s discharge constituted sex discrimination violating the public policy reflected in the Virginia Human Rights Act, which prohibited employment discrimination on the basis of sex (but did not expressly prohibit employment discrimination on the basis of pregnancy). According to the majority of the Court, ABailey’s factual allegations, if proven true, would support a reasonable inference by the finder of fact that [the company] terminated Bailey solely because of her status as a woman who is also a working mother.@ Justice Compton, Chief Justice Carrico, and Justice Stephenson dissented.

Although Bailey was widely reported as being a pregnancy discrimination case, the case does not appear to involve pregnancy discrimination within the meaning of the federal Pregnancy Discrimination Act (an Amendment to Title VII) -- the requested pregnancy leave was granted by the employer, and the employee had been medically certified as fit to return to work at the time she was fired. Rather, the case involved discrimination based upon the employee’s status as a parent (i.e, Aa working mother").

IV. THE LOCKHART AMENDMENTS

A. The 1995 Amendments to the Virginia Human Rights Act

In response to Lockhart, in May of 1995 the Virginia General Assembly passed what has been come to be known as Athe Lockhart Amendments” to the provisions of the VHRA which had previously disavowed creation of an independent cause of action by the statute. As amended, the VHRA provides in subsection A:

Nothing in this chapter creates, nor shall it be construed to create, an independent or private cause of action to enforce its provisions, except as specifically provided in subsections B and C of this section.

Subsection B provides:

No employer employing more than five but less than fifteen persons shall discharge any such employee on the basis of race, color, religion, national origin or sex, or of age if the employee is forty years or older.

Subsection C provides, in pertinent part:

The employee may bring an action in a general district or circuit court having jurisdiction over the employer who allegedly discharged the employee in violation of this section.

Subsection C then defines the remedies available to an employee in a VHRA suit. Those remedies are limited to back pay, usually with a twelve month cap, interest, and attorney's fees of up to twenty-five percent of the amount recovered. The Lockhart Amendments specifically forbid the court from awarding compensatory damages, punitive damages, or reinstatement.

Subsection D, which was clearly addressed to the Lockhart decision, provides in pertinent part as follows:

Causes of action based upon the public policies reflected in this chapter shall be exclusively limited to those actions, procedures and remedies, if any, afforded by applicable federal or state civil rights statutes or local ordinances....

B. The Effect of the Amendments

The legislature's intent to limit Lockhart seemed apparent from these amendments, which became effective July 1, 1995. Nevertheless, it remained to be seen whether the VHRA amendments would be interpreted as preempting Bowman claims based upon the policies involving the Virginia Human Rights Act.

Arguably, all Lockhart claims remained viable on the theory, suggested in Lockhart, that a Bowman cause of action predated the VHRA and is independent of it. The federal court in Alexandria, in fact, reached precisely that conclusion in its November 7, 1995 decision in Ecklund v. Ruisz Technology. Ltd.. According to Judge Brinkema:

Although the Virginia Legislature may have recently tried to overrule Lockhart by stating that causes of action to enforce the public polices reflected in the Virginia Human Rights Act are exclusively limited to those provided by the statute, the new statute merely restates the original statute using slightly different language. The Virginia Supreme Court carefully avoided the restrictions in the old statute in relying instead on its own precedent in Bowman. Because Bowman predates the Va. H.R.A., this line of cases is clearly unaffected by the revised statute.

The same conclusion was reached by the Richmond Circuit Court in its May 20, 1996 decision in Lundy v. Cole Vision Corp., No. LA-3123-1, Letter Opinion (5/20/96).

It also was arguable that the amendments applied only to the six-to fourteen-employee "notch," and that Bowman claims like those asserted in Lockhart would remain viable outside the notch. At least one court, in view of the Lockhart Amendments, followed that lead. In Hunley v. First Union Bank of Virginia, Memorandum Opinion, Civ. Action No. 95-759-R (W.D. Va. 10/31/95), the federal court in Roanoke held that neither a Bowman claim nor a VHRA claim for age discrimination could be asserted by an employee, since the employer employed more than fifteen employees and therefore fell outside the VHRA six to fourteen employee notch.

Two Virginia Supreme Court decisions since the Lockhart Amendments seemed to signal the Court=s continued recognition of Lockhart claims. In its January 12, 1996 decision in Lawrence Chrysler Plymouth Corp. v. Brooks, No. 95-0568, and in its March 15, 1996 decision in Clark v. Manheim Services Corp., No. 95-1495, the Court cited Lockhart as authority for its decision. At least one circuit court -- the York County Circuit Court in Sanders v Matthews, Law No. 6759, Order (5/28/96) (race discrimination), cited Clark as indicating the continued viability of Lockhart. In July of 1996, the federal court in Harrisonburg in Roberts v. Wal-Mart Stores, Inc. opined that Brooks suggested the Virginia Supreme Court did not view the VHRA amendments as overruling Lockhart. Nevertheless, the position of the Virginia Supreme Court on this issue remained an open question until Doss (discussed below), with courts reaching different conclusions and issuing conflicting opinions.

C. Retroactivity of the Lockhart Amendments

Assuming the Lockhart Amendments did effectively overrule Lockhart, another issue was whether the Lockhart Amendments may be applied retroactively. In Litten v. Smith, Law No. CL95-225 (Fauquier County Cir. Ct. 1/17/96), the Fauquier County Circuit Court held that they may not, and a similar conclusion was reached by the Richmond Circuit Court on August 1, 1996 in Wilson v. Continental Cablevision of Richmond, Inc.,Case No. ML-4331, Memorandum Opinion at 7 (Richmond Cir. Ct. 8/1/96).

V. DOSS V. JAMCO, INC.

A. Claims Based on the Policies of the Virginia Human Rights Act

On October 31, 1997, the Virginia Supreme Court issued its decision in Doss v. JAMCO, Inc..

In Doss, Laura L. Doss sued her former employer, JAMCO, Inc., for alleged pregnancy discrimination. The suit was filed in federal court, which certified the following certified question to the Virginia Supreme Court:

Does Va. Code ' 2.1-725(D) [of the Virginia Human Rights Act] prohibit a common law cause of action based upon the public policies reflected in the Virginia Human Rights Act, Va. Code ' 2.1-714 et seq.?

The Virginia Supreme Court, in a 7-0 decision, answered the certified question in the affirmative. The Court ruled that the General Assembly, by passing the Lockhart Amendments, expressed a clear intention to abrogate the common law Lockhart cause of action for wrongful discharge based upon the Virginia Human Rights Act.

Some commentators heralded the decision as the death-knell of wrongful discharge claims in Virginia, but that conclusion turned out to be unwarranted. While Doss probably spelled the end of Lockhart claims, Bowman claims based upon statutes other than the Virginia Human Rights Act remain viable.

B. Claims Based on Other Policies

Because Bowman claims other than Lockhart claims are unlikely to be affected by Doss, it is important to consider the potential grounds for post-Doss Bowman claims.

1. Return to Bowman

What other grounds for liability may exist for a Bowman claim? The Bowman decision identified a few. According to Bowman, discharge of an employee for the employee refusing to ask to be excused from jury duty would support a Bowman claim, would be available to an employee who is discharged for refusal to perform an illegal act (see Mitchell v. Counts, discussed below), and would likewise be available to an employee who is discharged in retaliation for insisting the employer comply with state or federal laws relating to food labeling or consumer credit protection.

2. The Virginia Constitution

A Bowman claim cannot be based upon the Virginia Constitution. See Conner v. National Pest Control Association, Inc. (Va. S. Ct 2/26/99); Gochenour v. Beasley (Rockingham County Cir. Ct. 10/19/98) (Virginia Constitution Article 1, Section 1) (because Constitution applies only to public entities); Joyner v. Fillion (E.D. Va. at Norfolk (Jackson) 8/11/98) (Virginia Constitution Article 1, Section 11 (race discrimination) (because same policy is reflected in VHRA); Williamson v. Virginia First Savings Bank (E.D. Va. at Richmond (Spencer) 4/27/98) (Virginia Constitution Article 1, Section 11 (sex discrimination) (because same policy is reflected in VHRA).; McCarthey v. Texas Instruments, Inc. (E.D. Va. at Alexandria (Ellis) 4/7/98).

3. Virginia Workers' Compensation Act

In Kerns v. Shirley Well Drilling, 11 V.C.O. 15 (Frederick County 1986), the Frederick County Circuit Court suggested that a Bowman claim could be established if an employee proved he was discharged in retaliation for filing a workers' compensation claim for a work-related injury. The public policy supporting such a Bowman claim was articulated in the Virginia Workers' Compensation Act at Virginia Code Section 65.1-40.1 (now Virginia Code Section 65.2-308), which prohibited discharge of an employee "solely" because he filed a workers’ compensation claim.

4. Virginia Unemployment Compensation Act

In 1990, the Richmond Circuit Court held that discharge in retaliation for seeking unemployment compensation under the Virginia Unemployment Compensation Act would give rise to a Bowman claim. In Roland v. Bon Air Cleaners, Inc., 19 V.C.O. 184 (Richmond Cir. Ct. 1990). Linda Roland filed a V.E.C. claim for partial unemployment compensation benefits after Bon Air Cleaners reduced her workload. Bon Air Cleaners then reduced her workload to nothing, but several days before the V.E.C. hearing rehired her. On the date of the V.E.C. hearing, however, Bon Air Cleaners fired her, allegedly in retaliation for her filing an unemployment compensation claim. The Richmond Circuit Court held that Roland’s allegation, if proven, would constitute a discharge in violation of the statutorily-guaranteed rights of unemployed or underemployed workers to seek benefits under the Virginia Unemployment Compensation Act. These were not mere private rights granted by an employer, according to the court, and therefore would support a Bowman claim.

5. The Virginia Payment of Wage Law

The Fairfax Circuit Court in its 1990 decision in Millsap v. Synon, Inc.,19 V.C.O. 261 (Fairfax Cir. Ct. 1990), recognized a Bowman claim based upon the Virginia Payment of Wage Law, Virginia Code section 40.1-29. In Millsap, the employee claimed the employer was routinely late in paying sales commissions. The employee filed a V.E.C. wage claim, and was terminated. This, if true, was held to be actionable under Bowman. But see Eslami v. Global One Communications, Inc. (Fairfax County Cir Ct. (Klein) 1/11/99) (rejecting Bowman claim based on Virginia Payment of Wage Law).

6. The Virginians with Disabilities Act

The Virginians with Disabilities Act, Va. Code Section 51.5-1 et seq., prohibits discrimination against an otherwise qualified person with a disability solely because of their disability. Could it serve as the basis for a Bowman claim for disability-related discharge?

In 1994, the federal court in Richmond said no. In Mannell v. American Tobacco Co., 871 F. Supp. 854 (E.D. Va. 1994), an employee brought an action against her employer under the Americans With Disabilities Act and ERISA, alleging her employer discriminated against her on the basis of a disability, namely Chronic Fatigue Immune Deficiency Syndrome. She also asserted a Bowman claim, relying upon the Virginians with Disabilities Act. The court held that the VDA could not support a Bowman claim, because the VDA provided that "the relief available for violations of this chapter shall be limited to the relief set forth in [Virginia Code section 51.5-46]," the private remedies section of the VDA. The court rejected the plaintiff's argument that Lockhart, by analogy, suggested the VDA would support a Bowman claim. The Court noted that the VDA, unlike the VHRA, did authorize a private cause of action under the statute. In 1996, a similar conclusion was reached by the federal court in Charlottesville in Shiflett v. GE FANUC Automation, Civil Action No. 95-0073-C, Memorandum Opinion at 4-5 (W.D. Va. 7/23/96).

In Bradick v. Grumman Data Systems Corp., 254 Va. 156, 486 S.E.2d 545 (6/6/97), however, the Virginia Supreme Court held otherwise. In Bradick, a federal court certified the following question to the Virginia Supreme Court:

Does the common law of Virginia provide a wrongful discharge remedy to an employee of an employer covered by the [federal] Rehabilitation Act of 1973 ..., where the employee is discharged on account of his disability or the employer’s perception of his disability?

The Virginia Supreme Court answered the question in the affirmative. The Court explained:

We have never before considered whether the narrow exception recognized in Bowman permits a cause of action for unlawful discharge from at-will employment based upon a disability. However, it is not disputed that both the [Virginia Human Rights Act] and the Virginians with Disabilities Act ... contain clear expressions of Virginia’s public policy opposing discrimination against disabled persons.

Accordingly, the Court ruled:

[B]ased on the public policy expressed in the VDA and the VHRA at the time of Grumman data’s alleged act of discrimination, the common law of Virginia provides a wrongful discharge remedy to an employee ... of an employer covered by the federal Rehabilitation Act of 1973 where the employee is discharged on account of his disability or the employer’s perception of his disability under the narrow exception recognized in Bowman.

Doss appears to prevent Bowman claims such as those asserted in Bradick from being asserted, to the extent such claims are based upon the Virginia Human Rights Act. On the other hand, nothing in Doss suggests that conclusion should be applied to Bowman claims based upon the Virginians with Disabilities Act. But see Lamb v. Qualex, Inc. (E.D. Va. Richmond (Williams) 12/16/98) (rejecting VDA as basis for Bowman claim).

7. The Virginia Fair Employment Contracting Act

One of the newest types of Bowman claims was recognized by the Richmond Circuit Court on August 1, 1996 in Wilson v. Continental Cablevision of Richmond, Inc. There, the plaintiffs were former employees of a government contractor who were terminated by the contractor. They asserted a Bowman claim based upon the Virginia Fair Employment Contracting Act, Va. Code Section 2.1-374, which prohibits discrimination on the basis of race, color, religion, sex, or national origin by the Commonwealth, its agencies, and government contractors. The circuit court overruled the defendant's demurrer to that claim. See also Dearing v. Thor, Inc. (Roanoke Cir Ct. 6/18/98) (sexual harassment claim accepted); Williamson v. Virginia First Savings Bank (E.D. Va. at Richmond (Spencer) 4/27/98) (sex discrimination claim rejected because same policy is reflected in VHRA).

8. Virginia Criminal Statutes

Can Virginia criminal statutes support a Bowman claim? According to the Virginia Supreme Court's decision in Mitchem v. Counts, discussed below, the answer is "sometimes." See also Peyton v. United Southern Aluminum Products Inc., No. LE-3005-4, VLW 099-8-260 (Richmond Cir. Ct (Johnson) 6/8/99) (court approved a Bowman constructive discharge claim based on criminal statutes where the plaintiff alleged she was forced to resign her job in order to be free of defendant's criminal conduct of indecent exposure, assault and battery and sexual battery); Gochenour v. Beasley (Rockingham County Cir. Ct. 10/19/98) (accepting Bowman claim based on Virginia Code Section 18.2-386.1 prohibiting unauthorized filming, videotaping, or photographing of another's private parts where employee quit when she discovered employer allegedly placed secret camera so as to look up her skirt when she was typing); Oakley v. The May Department Store Companies (E.D. Va. at Norfolk (Smith) 9/25/98) (rejecting Bowman claim based on Virginia Code Section 18.2-57 prohibiting assault and battery); Anderson v. ITT Industries Corp., 92 F. Supp. 2d 516 (E.D. Va. Alexandria (Ellis) 4/18/00) (accepting Bowman claims based on Virginia Code Section 18.2-172, which prohibits forgery, and Virginia Code Section 18.2-178, which prohibits obtaining money by false pretenses).

9. Federal Statutes

The Virginia Supreme Court, in its January 12, 1996 decision in Lawrence Chrysler Plymouth Corp. v. Brooks, No. 950568, provided guidance in regard to what claims fall within Bowman and what claims do not:

Brooks contends that even though he is an employee at-will, Lawrence Chrysler wrongfully discharged him in violation of Virginia's public policy and that Athe public policy of Virginia need not be found in an express statutory command.” We disagree.

Unlike the plaintiffs in Bowman and Lockhart, Brooks does not have a cause of action for wrongful discharge because he is unable to identify any Virginia statute establishing a public policy that Lawrence Chrysler violated. We also reject Brooks' attempt to expand the narrow exception we recognized in Bowman by relying upon so called "common law duties of the dealership."

Brooks thereby suggested, but did not expressly hold, that public policy supporting a Bowman claim must be identifiable from a Virginia statute. In its January 18, 1996 decision in Stallings v. Leeds, Case No. CL95-171, the Martinsville Circuit Court followed Brooks and has dismissed a Bowman sexual harassment claim which did not identify an applicable Virginia statute.

An argument to the contrary, however, can be made, for at least two reasons. First, the Virginia Supreme Court in Brooks did not have before it an issue involving a federal statute, and so did not have occasion to rule on this issue. Second, one of the examples of a Bowman claim offered by the Virginia Supreme Court in Bowman was Afederal consumer credit protection laws.”

Virginia courts have reached varying conclusions on this issue, some finding that a Bowman claim can be based upon a federal statute. For example, in the 1988 case of Fielder v. Southco, Inc. of South Carolina, 699 F. Supp. 577 (W.D. Va. 1988), the United States District Court for the Western District of Virginia allowed a Bowman claim to go forward based upon a federal anti-retaliation statute. In Fielder, William Fielder claimed he was discharged in retaliation for reporting instances of sexual harassment of female employees by his supervisor. The court found such a claim was actionable under Bowman:

The public policy advanced by the plaintiff was the protection of female employees from sexual harassment by their supervisors. This is clearly a policy which is designed to protect the rights of all employees to be free from a sexually hostile work environment. Indeed, Congress has codified this public policy at 42 U.S.C. ' 2000e-3, which provides in pertinent part that it is an unlawful employment practice to discriminate against any employee because that employee has "opposed any practice made an unlawful employment practice by this subchapter."

A similar conclusion was reached in October of 1995 by the federal court in Harrisonburg, which held in Hensler v. O'Sullivan Corp., Memorandum Opinion, Civ. Action No. 94-0040-H (W.D. Va. 10/31/95), that a Bowman claim could be based upon Title VII of the Civil Rights Act of 1964. The court, noting that the Bowman opinion cited federal consumer protection laws, stated that it "believes that the public policy referred to in Bowman and Lockhart was not limited to state laws." The York County Circuit Court in its 1995 decision in Sanders v Matthews, Law No. 6759, Order (5/28/96) (race discrimination), also appears to have recognized Title VII as supporting a Lockhart claim, in that case for race discrimination. In 1995 the Fairfax Circuit Court in McBroom v. DynCorp., Letter Opinion, At Law No. 139027 (Fairfax Cir. Ct. 8/7/95), allowed a Bowman claim to proceed based upon Virginia Code section 18.2-178 (larceny by false pretenses) and the Federal False Claims Act. In McBroom, the court stated, "although the statutes whose policies were violated in Bowman and Lockhart were state statutes, no language in either of those Supreme Court opinions limited the applicable public policies to those underlying state, rather than federal, statutes."

Contrary authority, however, can be found. For example, a footnote in the Virginia Supreme Court's 1994 Lockhart decision suggests that a federal statute would not support a Bowman claim. In Lockhart, the Court stated that "a common law tort action alleging wrongful discharge ... is governed solely by state, not federal, law." 247 Va. at 105 note. The rule suggested by the Lockhart footnote has been followed in some recent cases. For example, in Spencer v. Tultex Corp, Law No. CL94-310 (Twenty-First Judicial Circuit 2/7/95), and Riddle v. Tultex Corp., Law No. CL94-310 (Twenty-First Judicial Circuit 2/7/95), the circuit court for the Twenty-First Judicial Circuit held that Bowman claims are "limited to discharges which violate public policy set forth in the Virginia statutes." A similar conclusion was reached by the federal court in Richmond in Childress v. City of Richmond, Law No. CL94-310 (Twenty-First Judicial Circuit 2/7/95), in which the court opined that the Bowman exception to the employment-at-will rule "is limited to policy as embodied by state statutes, not federal ones." See also Conner v. National Pest Control Association, Inc. (Va. S. Ct 2/26/99) (Title VII will not support Bowman claim); Oakley v. The May Department Store Companies (E.D. Va. at Norfolk (Smith) 9/25/98); (Title VII will not support Bowman claim); Joyner v. Fillion (E.D. Va. at Norfolk (Jackson) 8/11/98) (Title VII will not support Bowman claim); McCarthey v. Texas Instruments, Inc. (E.D. Va. at Alexandria (Ellis) 4/7/98) (Title VII will not support Bowman claim); McCarthey v. Texas Instruments, Inc. (E.D. Va. at Alexandria (Ellis) 4/7/98) (Bowman claim cannot be based on 14th Amendment of the United States Constitution).

10. Contract Renewal

Bowman applies to situations where an employee is discharged. What if an employee has a contract for a definite term, and the employer refuses to renew it? If the refusal was in violation of a public policy, might that support a Bowman claim?

The Virginia Supreme Court has not addressed this question directly. However, the views of Justice Whiting and Chief Justice Carrico can be discerned from their dissent in a 1995 non-Bowman case. In Commercial Business Systems, Inc. v. Bellsouth Services, Inc., 453 S.E.2d 261 (1995), they stated:

We apply two "narrow" exceptions to the termination rights of at-will employment contracts. Each is based on public policy articulated in statutory provisions. [Citing Lockhart.] ....

Here, we are dealing with a claim of an allegedly improper refusal to renew a contract rather than an allegedly improper termination of an at-will contract. However, the same principles apply in both instances.

This appears to suggest that at least some of the Justices of the Virginia Supreme Court would recognize a Bowman refusal-to-renew claim, although a reliable answer to this question is not yet available.

11. Constructive Discharge

What if the employee quits, allegedly due to intolerable working conditions? Is there such a thing as a Bowman claim for constructive discharge?

A number of courts have refused to recognize such Bowman claims. Cases to that effect include Reed v. Cardiology Associates, P.C, Order, Law Nos. 93-1481 and 94-790 (Portsmouth Cir. Ct. 11/8/94) (sexual harassment), Jones v. Professional Hospitality Resources, Inc, Letter Opinion, Law No. CL94-2421 (Virginia Beach Cir. Ct. 2/24/95) (sexual harassment), and Whitehurst v. Liosatos, Law No. CL95-374 (Virginia Beach Cir. Ct. 12/95) (sexual harassment).

Contrary authority, however, can be found. For example, in its October 1995 decision in Hensler v. O'Sullivan Corp., Memorandum Opinion, Civ. Action No. 94-0040-H (W.D. Va. 10/31/95), the federal court in Harrisonburg held that a Bowman claim could arise in a situation involving constructive discharge rather than actual discharge. "Discharge is discharge whether the employer simply comes out and says so or conducts itself in such a manner to force the employee out of his job," according to that court. In the November 1995 decision in Ecklund v. Fuisz Technology. Ltd., Memorandum Opinion, Civ. Action No. 95-469-A (E.D. Va. 11/7/95), the Alexandria federal court allowed a Bowman constructive discharge claim based on same-sex harassment to go forward. And in its December 1995 decision in Dowdy v. Bower, CL95-534, the Circuit Court for the City of Roanoke expressly recognized constructive discharge in the context of a Bowman claim for sexual harassment. The court adopted the federal courts' view on constructive discharge, which has long recognized such claims in actions brought under Title VII and other federal statutes. Although this state court decision relied upon the Fourth Circuit's 1986 decision in Bristow v. Daily Press, Inc, 770 F.2d 1251 (4th Cir.), cert. denied, 457 U.S. 1082 (1986), as providing the federal test for constructive discharge, the March 10, 1995 Fourth Circuit decision in Martin v. Cavalier Hotel Corp., 1995 U.S. App. Lexis 4786, should also be considered in regard to the Fourth Circuit's current criteria for constructive discharge claims.

For a time, it appeared that federal courts in Virginia might be compelled to refuse to recognize Bowman constructive discharge claims. On March 19, 1996, the Fourth Circuit ruled in an unpublished decision in Hairston v. Multi-Channel TV Cable Co, Law No. CL94-310 (Twenty-First Judicial Circuit 2/7/95), that dismissal of such a claim under Federal Rule 12(b)(6) was appropriate because Ano Virginia court has expanded the Lockhart exception to a claim of constructive discharge.” Since that decision, however, a Virginia court did recognize such a claim. Specifically, the Richmond Circuit Court in its May 20, 1996 decision in Lundy v. Cole Vision Corp., No. LA-3123-1, Letter Opinion (5/20/96), overruled a demurrer to a motion for judgment alleging constructive discharge resulting from race discrimination. Nevertheless, in July of 1996 the federal court in Norfolk in Dixon v. Denny's, Inc, No. 2:95cv901, Opinion and Order at 11-12 (E.D. Va. 7/29/96), held that "as a matter of law that a claim for constructive discharge does not yet exist under Virginia law."

12. Other Theories

The following cases also have addressed Bowman claims asserted under various theories.

In McDaniel v. Kinder Care Learning Center, Inc. (Va. Beach Cir Ct. (Whitehurst) 10/20/98), the court rejected a Bowman claim based on a public policy against race discrimination independent of Virginia Human Rights Act.

In McCarthey v. Texas Instruments, Inc. (E.D. Va. at Alexandria (Ellis) 4/7/98), the court rejected a Bowman claim based the Fairfax Human Rights Ordinance, because the policy also was reflected in VHRA.

In Humphrey v. Columbia/ HCA John Randolph, Inc. (Chesterfield County Cir Ct. 6/26/98), the court rejected a whistleblower Bowman claim based on Virginia Code Section 54.1-3400, which prohibits criminal prohibition against misbranding a drug.

In Gochenour v. Beasley (Rockingham County Cir. Ct. 10/19/98), the court rejected a Bowman claim based on Virginia Code Section 8.01-40, which prohibits unauthorized use of photograph in trade, and rejected a Bowman claim because the cited code section, Virginia Code Section 19.2-59 (prohibition of searches without warrants) applies only to public entities.

In Leverton v. Allied Signal, Inc. (E.D. Va. at Richmond (Payne) 1/13/98), the court rejected a Bowman whistleblower based on the Virginia Consumer Protection Act, Va. Code § 59.1-196 et seq., because the plaintiff had no protected interest.

In Harris v. Bon Secours - St. Mary's Hospital of Richmond (Richmond Cir. Ct. (Markow) 10/31/97), the court rejected a Bowman whistleblower claim based on Virginia Code Section 54.1-3007, which addresses disciplinary actions by the Board of Nursing.

In Shifflett v. Lewis (Rockingham County Cir Ct. (McGrath) 8/12/98), the court accepted a Bowman claim based on the right to consult a lawyer).

VI. MOST RECENT DECISIONS OF THE VIRGINIA SUPREME COURT

A. Conner v. National Pest Control Association, Inc.

In Conner v. National Pest Control Association, Inc., No. 981088, (Va. S. Ct. 2/26/99), the plaintiff, Deborah A. Conner, was terminated by her employer, the National Pest Control Association, Inc., in September of 1995. She filed a Bowman lawsuit, claiming her termination "constituted discrimination based on her gender, and that it violated the public policy against retaliation for complaints of discrimination in employment as articulated in the VHRA and other provisions of Virginia and federal law." The Fairfax County Circuit Court, relying on Doss v. Jamco, Inc., supra, dismissed the claim on the grounds the 1995 Lockhart Amendments to the VHRA made Bowman claims unavailable as a remedy for wrongful termination of employment based on violations of public policies found in the VHRA.

Conner appealed, arguing that "even if the 1995 amendments to the VHRA as interpreted in Doss effectively prohibited a victim of discrimination from relying on the public policy articulated in the VHRA as the basis for a common law action, they do not prohibit reliance upon other state or federal laws, or upon the public policies enunciated elsewhere." The Virginia Supreme Court rejected that argument. It explained:

In this case, just as in Doss, subsection D's exclusivity requirement would be circumvented and rendered meaningless if Conner could maintain her common law action based upon an alleged violation of a policy enunciated in the VHRA by simply citing a different Code section or other source of public policy which enunciated the same policy. Furthermore, the General Assembly did not limit the exclusivity provision to those causes of action relying on the VHRA itself as the source of the public policy statements. Rather, it made statutory causes of action the exclusive avenues for pursuing a remedy for an alleged violation of any public policy "reflected in" the VHRA. Therefore, we conclude that the General Assembly, in enacting the 1995 amendments to the VHRA, eliminated a common law cause of action for wrongful termination based on any public policy which is reflected in the VHRA, regardless of whether the policy is articulated elsewhere.

Thus, in Conner, the Virginia Supreme Court held that the Lockhart Amendments eliminated Bowman claims "based on any public policy which is reflected in the VHRA." Moreover, according to the Court, this preemption occurred "regardless of whether the policy is articulated elsewhere." This was widely interpreted to mean that, for example, a Bowman claim could not be asserted for sexual harassment, since that type of claim was actionable under the Virginia Human Rights Act.

The Virginia Supreme Court, however, had more to say about that in the later case of Mitchem v. Counts, discussed below.

B. Dray v. New Market Poultry Products, Inc.

In Dray v. New Market Poultry Products, Inc., No. 981767 (Va. S. Ct. 9/17/99), an employee, Dray, worked for New Market Poultry as a quality control inspector on the employer's production lines. According to Dray, in the two months prior to her termination she experienced difficulty in getting other employees to follow proper sanitary rules. "When management ignored and failed to correct the noted deficiencies," according to Dray, "in conformance to her training and assigned duties [she] informed the plant's on-site governmental inspectors," forced New Market Poultry to correct the deficiencies. Subsequently, according to Dray, she was told by her supervisor "that she would be fired if she ever again brought plant sanitary deficiencies to the attention of the governmental inspectors." Dray brought a lawsuit in which she asserted a Bowman claim based upon the public policy allegedly expressed in the Virginia Meat and Poultry Products Inspection Act (the Act), Virginia Code Section 3.1-884.17 et seq., which the Rockingham County Circuit Court dismissed, finding that Dray "failed to extrapolate from the broad declaration found in the Act, of an intent to serve the public good generally, a specific public policy intended to benefit the class of individuals to which the plaintiff belonged."

The Virginia Supreme Court affirmed. "The plaintiff," the Court explained, "seeks to mount a generalized, common-law "whistleblower" retaliatory discharge claim. Such a claim has not been recognized as an exception to Virginia's employment-at-will doctrine, and we refuse to recognize it today." Explaining further, the Court stated:

The Act upon which this plaintiff relies does not confer any rights or duties upon her or any other similarly situated employee of the defendant. Instead, the Act's objective is "to provide for meat and poultry products inspection programs that will impose and enforce requirements with respect to intrastate operations and commerce." Code § 3.1-884.19.

The plaintiff identifies two of the Act's provisions that she says articulate a public policy allowing her to evade the employment-at-will doctrine. She relies upon Code § 3.1-884.22, which forbids intrastate distribution of uninspected, adulterated, or misbranded meat and poultry products. She also relies upon Code § 3.1-884.25(2), which establishes criminal penalties for any person who "resists, . . . impedes, . . . or interferes" with state meat inspectors. These provisions do not secure any rights to this plaintiff, nor do any other provisions of the Act. Rather, the Act establishes a regulatory mechanism directed only to government inspectors and industry management.

In essence, the plaintiff claims she has been wrongfully terminated because she had a right to disregard management's requirements that she report to her company superiors, and not directly to government inspectors, when she believed she was acting to assure the safety of the employer's products. However, the Act affords plaintiff no express statutory right in this regard that is in specific furtherance of the state's public policy regarding inspections of meat and poultry products.

Dray clearly is good news for Virginia employers. Nevertheless, it must be remembered that it only rejected "a generalized, common-law whistleblower retaliatory discharge claim." It did not reject a whistleblower claim under Bowman where, for example, retaliation is expressly prohibited by law. In such a case, a different result may be reached, and a Bowman claim still might be recognized.

C. City of Virginia Beach v. Harris

The first of the two most recent decision from the Virginia Supreme Court on Bowman claims is City of Virginia Beach v. Harris, No. 99-0535 (Va. S. Ct. 1/14/00).

In Harris, the Virginia Supreme Court began by reaffirming its stated commitment to limiting the application of Bowman claims, stating, "in our previous cases dealing with Bowman-type exceptions to the employment-at-will doctrine, this Court has consistently characterized such exceptions as narrow." The Court then undertook to summarize the grounds for valid Bowman claims.

It began by recognizing that "all statutes of the Commonwealth reflect public policy to some extent, since otherwise they presumably would not have been enacted by our General Assembly." However, explained the Court, "termination of an employee in violation of the policy underlying any one of them does not automatically give rise to a common law cause of action for wrongful discharge." Rather, "this Court has found a public policy sufficient to allow a common law wrongful discharge claim to go forward as an exception to the employment-at-will doctrine in only two instances." These instances involve explicit policy statements and implicit policy statements.

The first instance, stated the Court, involves explicit policy statements, i.e., "laws containing explicit statements of public policy." By way of example, the Court cited the statement of public policy set forth in the Virginia Human Rights Act ("It is the public policy of the Commonwealth of Virginia [that] . . ."), upon which it relied in Lockhart.

The second instance, stated the Court, involves implicit policy statements, i.e., "laws that do not explicitly state a public policy, but instead are designed to protect the property rights, personal freedoms, health, safety, or welfare of the people in general." "Such laws," the Court explained, "must be in furtherance of an underlying established public policy that the discharge from employment violates." Looking back to the seminal Bowman case, the Court noted that "each of the illustrative cases cited in Bowman involved violations of public policies of that character."

The analysis, however, does not end there. "Even if a specific statute falls within one of these categories," the Court explained, "an employee must also be a member of the class of individuals that the specific public policy is intended to benefit in order to state a claim for wrongful termination in violation of public policy." In support of this proposition, the Court cited Dray v. New Market Poultry Products, Inc., supra. This may be thought of as a "membership" requirement, which is applicable to claims based on explicit or implicit policy statements.

The Court then turned to the facts of the Harris case, and applied these rules to those facts.

In Harris, the plaintiff was a Virginia Beach police officer. A question arose as to whether Harris had properly handled an incident involving two individuals, Gamble and Grey, with whom Harris had been involved in an on-duty altercation . Therefore, one of his superiors, a Lieutenant Van Auken, ordered him not to file charges against or arrest Gamble, pending the department's determination on the matter. Harris, however, later appeared before a magistrate in uniform and obtained warrants against Gamble and Grey. When Van Auken learned of this, he ordered Harris to turn over the warrant against Grey, which had not yet been served. Harris did so, and the warrant against Grey was not served. The warrant against Gamble was served, but the charges were nolle prossed at the request of Van Auken. Subsequently, Harris appeared in uniform before a magistrate and obtained warrants for Van Auken, charging him with violation of Virginia Code Section 18.2-460, which prohibits obstruction of justice, and Virginia Code Section 18.2-469, which prohibits delay in executing lawful process. The Chief of Police, after learning of this, discharged Harris for disobedience of an order and abuse of his position.

Harris filed a lawsuit against the City and certain named individuals claiming, among other things, that he was discharged in violation of public policies reflected in Virginia Code Section 18.2-460 and Virginia Code Section 18.2-469. The jury returned a verdict for Harris and awarded him compensatory and punitive damages. After a number of appeals and remands, the Bowman claim was nonsuited and refiled in state court. At trial, the circuit court struck the City’s evidence and found it liable, as a matter of law, for wrongful discharge, reasoning that "it is mandatory that police officers arrest people who violate the law, and that no one - including a police supervisor – may lawfully order a police officer to refrain from doing so." The circuit court then submitted the case to the jury, which returned a verdict finding all the individual defendants liable, awarding Harris compensatory damages from the City and the individual defendants jointly and severally, and assessing punitive damages against the individual defendants.

The Virginia Supreme Court examined each of the statutes upon which Harris relied, and concluded that neither of them would support a Bowman claim. It explained:

Applying these principles regarding the public policy exception to the employment-at-will doctrine in the present case, we conclude that the statutes relied upon by the circuit court do not fit within either of the instances where we have found public policies that support a Bowman-type cause of action.

Code § 18.2-460 defines the elements of, and sets forth the criminal penalties for, the crime of obstruction of justice, and, accordingly, reflects the General Assembly’s intent to prohibit interference with the administration of justice. That section does not explicitly state any public policy, but, like all criminal statutes, it has as an underlying policy the protection of the public’s safety and welfare. However, Harris’ reliance on the statute is not in accord with that policy. Instead, Harris is attempting to use Code § 18.2-460 as a shield to protect himself, not the public, from the consequences of his decision to charge Van Auken with obstruction of justice despite his supervisor’s order to take no further action in an official capacity with regard to any aspect of the incident involving Grey and Gamble. To utilize this criminal statute as Harris suggests would allow wrongful discharge lawsuits to be pursued by virtually any police officer who believes that personnel decisions obstructed the officer’s enforcement of the law. In light of our prior decisions addressing the public policy exception to the employment-at-will doctrine, we find no established public policy underlying Code § 18.2-460 that would support Harris’ wrongful discharge cause of action.

A similar analysis applies to former Code § 15.1-138. That statute provided, in pertinent part, that a police officer "shall endeavor to prevent the commission . . . of offenses against the law of the Commonwealth . . . ; shall observe and enforce all such laws . . . ; [and] shall detect and arrest offenders . . . ." By its terms, the statute did not state any public policy but merely described the powers and duties of a police force. Nor was the statute designed to protect any public rights pertaining to "property . . . , personal freedoms, health, safety, or welfare." Miller, 234 Va. at 468, 362 S.E.2d at 918. See also Childress v. City of Richmond, 907 F. Supp. 934, 942 (E.D. Va. 1995), aff’d per curiam, 134 F.3d 1205 (4th Cir.) (en banc), cert. denied, 524 U.S. 927 (1998) (holding that statute did n