GRUMMAN DATA SYSTEMS
and NORTHROP GRUMMAN CORPORATION
JUNE 6, 1997
Record No. 962531
GRUMMAN DATA SYSTEMS CORPORATION
and NORTHROP GRUMMAN CORPORATION
OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.
UPON A QUESTION OF LAW CERTIFIED BY THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT
Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell and
Koontz, JJ., and Whiting, Senior Justice
By order entered on January 15, 1997, this Court accepted the
certification, by the United States Court of Appeals for the
Fourth Circuit, of the following question of Virginia law:
Does the common law of Virginia provide a wrongful
discharge remedy to an employee of an employer covered by the
Rehabilitation Act of 1973, 29 U.S.C. ? 701 et seq.,
where the employee is discharged on account of his disability
or the employer’s perception of his disability?
The question arises from a civil action brought by Andrew
Bradick against his former employer, Grumman Data Systems
Corporation (Grumman Data), in which Bradick alleges that the
employer wrongfully discharged him from employment on account of
disability in violation of the common law of Virginia.
The relevant facts are not in dispute and are contained within
the order of certification. Bradick was an employee-at-will of
Grumman Data in Virginia from October 15, 1990 until he was
discharged on May 26, 1994. Bradick’s job performance was
satisfactory to his employer. However, while on vacation in
Mexico in 1993, Bradick contracted a severe case of
Because the disease caused Bradick to have recurrent attacks of
extreme fatigue, Bradick’s physician recommended that he take a
leave of absence from his employment with Grumman Data on three
occasions. Bradick’s discharge occurred following the third of
Bradick asserts in his pleading that he was and is able to
adequately perform the duties of his former job. Therefore, he
asserts that his discharge was in violation of public policy
because it was based on his physical disability or Grumman Data’s
perception that he suffers from a physical disability.
Beginning with Bowman v. State Bank of Keysville, 229
Va. 534, 331 S.E.2d 797 (1985), we have recognized a narrow
public policy exception to this Commonwealth’s employment-at-will
doctrine, which ordinarily permits either the employer or the
employee to terminate the employment relationship without
incurring liability. We have explained that this exception
applies to discharges which violate public policy. See
Lawrence Chrysler Plymouth Corp. v. Brooks, 251 Va. 94,
98-99, 465 S.E.2d 806, 809 (1996). We also have explained that
the cause of action arises not from the statute or statutes which
express the public policy relied on by the employee, but from the
narrow exception within the common law recognized in Bowman.
See Bailey v. Scott-Gallaher, 253 Va. 121, 125, 480
S.E.2d 502, 504 (1997); Lockhart v. Commonwealth Educ. Systems
Corp., 247 Va. 98, 105, 439 S.E.2d 328, 331 (1994). Upon
these principles, we have permitted former at?will employees to
maintain common law actions for wrongful discharge under the
narrow exception recognized in Bowman where the conduct
alleged would have violated Virginia’s public policy against race
and gender discrimination as reflected in the Virginia Human
Rights Act (VHRA), Code ? 2.1?715.
See Bailey, supra (gender); Lockhart,
supra (race and gender).
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 VHRA and
the Virginians with Disabilities Act (VDA), Code ?? 51.5-1 to 51.5-52,
contain clear expressions of Virginia’s public policy opposing
discrimination against disabled persons.
In the present case, unlike Lockhart and Bailey,
in order to determine the applicability of the exception
recognized in Bowman, we must determine whether the common
law cause of action has been abrogated by the General Assembly
when it enacted the VDA. The VDA creates a comprehensive
administrative procedure to combat discrimination on account of
disability in employment, education, commerce, and civic affairs.
Code ? 51.5?41,
which contains the Act’s prohibitions against employment
discrimination, specifically provides in subsection (F) that
"[t]his section shall not apply to employers covered by the
federal Rehabilitation Act of 1973." Code ? 51.5?46 provides for
the relief available for violation of the substantive provisions
of the VDA, and subsection (C) specifically provides that
"[t]he relief available for violations of this chapter shall
be limited to the relief set forth in this section."
Grumman Data is subject to the federal Rehabilitation Act of 1973
and, thus, is exempt from the employment discrimination
provisions of the VDA. The issue presented in this case, then, is
whether the exclusivity provision of Code ? 51.5?46(C) abrogates
any action employees like Bradick might have under Virginia
common law for wrongful discharge from at-will employment based
on disability. We hold that it does not.
While it is true that the VDA and the federal Rehabilitative Act
of 1973 have similar purposes, nothing in the VDA expressly makes
either the federal Act part of the VDA’s statutory scheme or the
provisions of the one applicable to the other. The exemption
provision of Code ? 51.5?41(F)
applies "to employers covered by the federal
Rehabilitation Act of 1973." (Emphasis added.) Nothing in
this language expressly addresses or otherwise implicates the
claims an employee in this situation might have under the
federal or state Acts. Rather, this code section expressly
exempts certain employers from the application of one section of
the VDA. The VDA was enacted in derogation of the common law and,
therefore, it must be strictly applied and not "enlarged in
[its] operation by construction beyond [its] express terms."
See C. & O. Railway v. Kinzer, 206 Va. 175,
181, 142 S.E.2d 514, 518; see also Baumgardner
v. Southwestern Virginia Mental Health Inst., 247 Va. 486,
489, 442 S.E.2d 400, 401 (1994).
The exclusivity provision of Code ? 51.5?46(C) applies
to "violations of this chapter." Because employers,
such as Grumman Data in this case, who are covered by the federal
Rehabilitative Act of 1973 are not subject to the employment
discrimination provisions of the VDA, pursuant to Code ? 51.5?41(F), actions
by such employers which constitute disability discrimination in
employment are not "violations of this chapter." Thus,
it is clear that Code ? 51.5?46(C)
limits only the relief for claims that are brought under the
substantive provisions of the VDA, and has no application to a
claim which might be brought against an employer subject to the
federal Rehabilitation Act of 1973. Moreover, a statute which
does not apply to acts of an employer, and provides no remedy to
an employee if those acts violate public policy, cannot be said
to be a statutory abrogation of an employee’s common law cause of
action based on those acts.
For these reasons, we hold that, based on the public policy
expressed in the VDA and 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, such as
Bradick, 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.
Certified question answered in the affirmative.
JUSTICE COMPTON, with whom CHIEF JUSTICE CARRICO and JUSTICE
STEPHENSON join, dissenting.
I would answer the certified question in the negative.
The statement of Virginia’s public policy against disability
discrimination is contained in the Virginians With Disabilities
Act (VDA), Code ?? 51.5-1
through -52. The General Assembly has stated explicitly that the
VDA provides the exclusive state remedy for employment
discrimination based on disability: "The relief available
for violations of this chapter shall be limited to the relief set
forth in this section." Code ? 51.5-46(C).
Violations "of this chapter" refers to disability
discrimination generally. Code ? 51.5-41(A)
("No employer shall discriminate in employment or promotion
practices against an otherwise qualified person with a disability
solely because of such disability.").
The majority argues that the VDA does not apply because the
employer, a government contractor, was not covered by the VDA.
Clearly, the VDA does not apply to employers "covered by the
federal Rehabilitation Act of 1973." Code ? 51.5-41(F). But this
does not save Bradick’s claim.
The VDA’s clear statement that it does not apply to employers
covered by the federal Act plainly indicates that the General
Assembly did not intend employees, who could proceed against
their employers under the federal Act, to have the option of
proceeding under the VDA, the exclusive state remedy.
 Bradick’s suit was initially
filed in the Circuit Court of Fairfax County and subsequently
removed by the defendants to the United States District Court for
the Eastern District of Virginia. Northrop Grumman Corporation,
an initial defendant, was dismissed by stipulation of the
parties. Following an adverse decision in the district court,
Bradick has appealed to the United States Court of Appeals for
the Fourth Circuit.
Histoplasmosis is a fungal infection of the lungs.
The federal statute addresses, inter alia,
employment discrimination against persons with disabilities by
employers with federal contracts.