Until recently, the answer to this question has not been clear. After all, it’s the employer that does the hiring and firing, not necessarily the individual managers and supervisors. Employment defense lawyers have argued that by definition, a supervisor cannot be liable for wrongful termination when the supervisor is not the one effecting the termination. But on November 1, 2012, the Supreme Court of Virginia clarified that Virginia law does, in fact, recognize a cause of action for wrongful discharge in violation of public policy against a supervisor who was not the plaintiff’s actual employer but who participated in the wrongful firing and who was responsible for the violation of Virginia public policy. The case is Angela VanBuren v. Stephen A. Grubb.
VanBuren was a nurse at Virginia Highlands Orthopedic Spine Center when (according to her allegations) she was sexually harassed by her supervisor, Virginia Highlands’ owner Dr. Stephen Grubb. The harassment escalated and resulted in Grubb firing VanBuren when she rejected his advances and told him she planned to stay with her husband. VanBuren sued both Dr. Grubb and Virginia Highlands in federal court for wrongful discharge. The district court granted Dr. Grubb’s motion to dismiss, finding that the Supreme Court of Virginia would most likely hold that wrongful discharge claims are only recognized against the employer and not against supervisors in their individual capacity. VanBuren appealed to the Fourth Circuit, and that court certified the question to the Supreme Court of Virginia.
Although Virginia strongly adheres to the employment-at-will doctrine, it does recognize an exception when a discharge violates public policy. The exception is narrow and not every policy violation will give rise to a wrongful discharge claim. Discharge based on the employee’s refusal to engage in a criminal act is one of the narrow exceptions to the employment-at-will doctrine, and the court found that VanBuren’s claim fell within this exception (adultery and “open and gross lewdness and lasciviousness” are crimes in Virginia).
The court held that the claim against Dr. Grubb could proceed. The court reasoned that in a wrongful discharge case, the discharge is tortious because of the wrongful reasons behind it and that where the person carrying out the discharge is also the one acting unlawfully, he or she should share in liability with the employer. The court also found that the purpose of the wrongful discharge tort–the deterrence of discharge in violation of public policy–is best served if individual employees in positions of power are held personally liable for their tortious conduct.