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CONNER v. NAT'L PEST CONTROL ASSOC., INC. (59833)


CONNER

v.

NAT’L PEST CONTROL ASSOC.,
INC.


February 26, 1999
Record No. 981088

DEBORAH A. CONNER

v.

NATIONAL PEST CONTROL ASSOCIATION, INC.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge
Present: All the Justices
OPINION BY JUSTICE ELIZABETH B. LACY


In this appeal we consider whether Code
Sect. 2.1-725 of the Virginia Human Rights Act (VHRA), Code
Sects. 2.1-714 et seq., prohibits a common law
cause of action for wrongful termination based on a violation of
public policies enunciated in both the VHRA and other provisions
of state, federal, or local statutes or ordinances.

Deborah A. Conner was terminated by her
employer, the National Pest Control Association, Inc. (NPCA), in
September of 1995. She filed a common law cause of action for
wrongful termination against NPCA, alleging that 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.
[1] Conner sought $1,000,000 in
compensatory damages, $350,000 in punitive damages and attorneys’
fees.

NPCA filed a demurrer claiming that Conner’s
motion for judgment failed to state a cause of action because the
common law cause of action asserted was eliminated by the 1995
amendments to the VHRA. NPCA, relying on Doss v. Jamco, Inc.,
254 Va. 362, 492 S.E.2d 441 (1997), contended that the 1995
amendments to the VHRA restricted the remedy for wrongful
termination of employment based on a violation of a public policy
found in the VHRA to a statutory remedy. The trial court agreed
and entered an order dismissing Conner’s motion for judgment for
failure to state a cause of action.

On appeal Conner asserts, as she did in the
trial court, 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." We
disagree.

The plaintiff in Doss, relying on Bowman
v. State Bank of Keysville
, 229 Va. 534, 331 S.E.2d 797
(1985), and Lockhart v. Commonwealth Education Systems,
247 Va. 98, 439 S.E.2d 328 (1994), filed a common law action
against her employer claiming that her termination violated
Virginia’s public policy against discrimination on the basis of
gender as enunciated in the VHRA and Title VII of the Civil
Rights Act of 1964, 42 U.S.C. Sects. 2000e et seq..
She maintained that the 1995 amendments to the VHRA did not alter
her common law cause of action. In response to a question
certified to us by the United States Court of Appeals for the
Fourth Circuit, we held that the plain meaning of the 1995
amendments required the conclusion that the General Assembly
abrogated the common law action for wrongful termination based
upon a violation of the public policies contained in the VHRA. Doss,
254 Va. at 372, 492 S.E.2d at 447. Although the decision in Doss
was limited to a cause of action for wrongful termination relying
on the VHRA as the source of the public policy allegedly
violated, id. at 366, 492 S.E.2d at 443, the rationale of
that decision controls the disposition of this case.

Our decision in Doss centered on the
application of subsection D of Code Sect. 2.1-725, which was
added to the VHRA in 1995. That subsection provides:

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.

We concluded that this subsection plainly
manifested the General Assembly’s intent to alter the common law
and to limit actions based on violations of the policies
reflected in the VHRA to applicable statutory causes of action
and remedies. Id. at 371, 492 S.E.2d at 446. Thus, we held
that the plaintiff in Doss could not maintain her common
law action based on alleged violations of policy stated in the
VHRA, because allowing her to do so would circumvent and render
meaningless the mandate of subsection D that the actions for
violations of such policies be "exclusively limited" to
statutory causes of action. Id.

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.

Accordingly, we will affirm the trial court’s
order sustaining the demurrer of NPCA and dismissing Conner’s
motion for judgment for failure to state a cause of action.
[2]

Affirmed.

 

JUSTICE HASSELL, with whom JUSTICE
KEENAN joins, concurring

Gender discrimination should not be
countenanced in any manner and victims of such discrimination
should be accorded a tort remedy that fully and fairly
compensates them for injuries caused by an employer’s repugnant
conduct. As this Court recognized in Lockhart v. Commonwealth
Educ. Sys.
, 247 Va. 98, 105, 439 S.E.2d 328, 331 (1994):

"Without question, it is the
public policy of this Commonwealth that all individuals
within this Commonwealth are entitled to pursue
employment free of discrimination based on race or
gender. Indeed, racial or gender discrimination practiced
in the work place is not only an invidious violation of
the rights of the individual, but such discrimination
also affects the property rights, personal freedoms, and
welfare of the people in general."

However, the General Assembly of this
Commonwealth has chosen to impose limitations on the right of a
woman to recover damages against an employer who discriminates
against her because of her gender. See Code
Sects. 2.1-714, et seq. And, this Court, which
does not, and constitutionally cannot, act as a super-legislative
body, is required to apply these restrictions as expressed by the
General Assembly. For this reason solely, I am compelled to
concur with the majority’s opinion.

 

 

FOOTNOTES:

[1] Specifically Conner relied on art. 1,
Sect. 1 of the Virginia Constitution, Chapter 11,
Sect. 11-1-1 et seq. of the Fairfax County
Code, Virginia Code Sects. 2.1-374, 8.01-42.1, 11-44, 11-51,
15.1-37.3:8 (repealed and reenacted in substance as
Sect. 15.2-965 (1997)), 15.1-48.1 (repealed and reenacted in
substance as Sect. 15.2-1604 (1997)), 36-96.1,
38.2-2212(C1), 38.2-2213, 38.2-4312(3)(E)(1994), as amended
38.2-4312(D)(1998), 59.1-21.21:1 and Title VII of the Civil
Rights Act of 1964, 42 U.S.C. Sects. 2000e et seq..

[2] We do not consider Conner’s assignment
of error that the trial court erred in holding that the 1995
amendments to the VHRA do not violate the equal protection clause
of the United States Constitution, because the trial court’s
order does not reflect such a holding, and the issue of the
constitutionality of a statute is not properly before us on
review of an order sustaining a demurrer.

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