DOSS v. JAMCO, INC.


DOSS v. JAMCO, INC.


October 31, 1997

Record No. 970703

LAURA L. DOSS

v.

JAMCO, INC.

OPINION BY CHIEF JUSTICE HARRY L. CARRICO

UPON A QUESTION OF LAW CERTIFIED BY THE UNITED STATES

DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA

Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Kinser, JJ., and Whiting, Senior Justice


By a "STIPULATED ORDER OF CERTIFICATION" entered
April 9, 1997, the United States District Court for the Western
District of Virginia (Lynchburg Division) certified to this
Court, pursuant to our Rule 42, the following question of law:

Does Va. Code ? 2.1-725(D) 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.?

 

By order dated April 28, 1997, we accepted the certified
question of law.

The question arose when, on December 23, 1996, Laura L. Doss
(Doss) filed in the District Court a two-count complaint alleging
that her former employer, Jamco, Inc. (Jamco), had unlawfully
terminated her employment "because of her sex and because
she was pregnant." In Count 1, which is not involved in this
proceeding, Doss sought to recover damages for Jamco’s alleged
violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C.
? 2000e et seq.). In Count 2, which is
implicated here, Doss sought to recover damages for Jamco’s
alleged violation of "the statutorily expressed public
policy of the Commonwealth of Virginia as embodied in the
Virginia Human Rights Act (Va. Code ? 2.1-714 et seq.)
and as expressed in Title VII of the Civil Rights Act of 1964 (42
U.S.C. ? 2000e et seq.) and elsewhere."

The relevant facts are recited in the stipulated order of
certification, as follows:

[Doss] was hired by [Jamco] and agreed to begin work
on March 11, 1996. . . . [P]rior to
reporting to work for [Jamco] on March 11, 1996, [Doss] learned that she was pregnant. Upon reporting for work,
[Doss] told [Jamco's] employees who were to be her
supervisors about her pregnancy. . . .
[O]n March 12, 1996, [Jamco's] supervisors informed
[Doss] that her employment was being terminated because
her maternity leave would cause her to be out during the
Company’s busy time which was unacceptable to [Jamco].

 

We note that Doss grounds her claim for unlawful discharge
upon the public policy of Virginia as embodied in the Virginia
Human Rights Act and "as expressed in Title VII of the Civil
Rights Act of 1964 (42 U.S.C. ? 2000e et seq.)
and elsewhere." However, in answering the certified
question, we are limited by the terms of the certification order
to "the public policies reflected in the Virginia Human
Rights Act." Therefore, we express no opinion concerning the
public policy of Virginia as it might be articulated in sources
other than the Virginia Human Rights Act.

Ever since this Court decided Stonega Coal and Coke Co. v.
Louisville and Nashville R.R.
, 106 Va. 223, 55 S.E. 551
(1906), Virginia has adhered to the rule that when an employment
contract provides for the rendition of services but its intended
duration cannot be determined from its provisions, "either
party is ordinarily at liberty to terminate it at will on giving
reasonable notice of his intention to do so." Id. at
226, 55 S.E. at 552. However, the rule is not absolute. Bowman
v. State Bank of Keysville
, 229 Va. 534, 539, 331 S.E.2d 797,
801 (1985).

In Bowman, which predated the adoption of the Virginia
Human Rights Act, we recognized a limited exception to the
employment-at-will rule. This exception allowed two bank
employees who were also stockholders of the bank corporation to
maintain a common law action in tort against their employer. The
employees were discharged after failing to heed a threat from the
employer that their employment would be terminated if they failed
to vote their stock according to the wishes of corporate
management. Such action by the employer, we said, violated the
public policy established by Va. Code ? 13.1-32 (now Va.
Code ? 13.1-662), which contemplated "that the right
to vote [shares of stock] shall be exercised free of duress and
intimidation imposed on individual stockholders by corporate
management." Id. at 540, 331 S.E.2d at 801.

Bowman was followed by Miller v. SEVAMP, Inc.,
234 Va. 462, 362 S.E.2d 915 (1987), where the events giving rise
to the litigation predated the adoption of the Virginia Human
Rights Act. There, the employee alleged that her termination was
in retaliation of her appearance as a witness at a co-employee’s
grievance hearing. The trial court sustained a demurrer to the
employee’s motion for judgment, and we affirmed. We noted the
exception recognized in Bowman that allows recovery for
"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." Id. at 468, 362 S.E.2d at 918. We
held, however, that the Bowman exception was not
applicable because the "retaliatory act [of discharging the
employee] would impinge only upon private rights established by
the employer’s internal regulations [and] would have no impact
upon any public policy established by existing laws for the
protection of the public generally." Id., 362 S.E.2d
at 919.

At its 1987 session, the General Assembly adopted the Virginia
Human Rights Act (the Act). 1987 Va. Acts ch. 581 (Chapter 43 of
Title 2.1 of the Code of Virginia, ?? 2.1-714 through
-725). In 1996, when Doss’s termination occurred, Va. Code
? 2.1-715 provided that "[i]t is the policy of the
Commonwealth of Virginia . . . [t]o safeguard all
individuals within the Commonwealth from unlawful discrimination
because of race, color, religion, national origin, sex, age,
marital status or disability . . . in employment
. . . ."[1] Following adoption of the Act,
this Court considered the case of Lockhart v. Commonwealth
Educ. Sys. Corp.
, 247 Va. 98, 439 S.E.2d 328 (1994). [2] Lockhart involved the
claims of two female at-will employees who alleged they were
wrongfully discharged from employment, one because of her race
and the other because of her sex. The claims of both employees
were dismissed on demurrer, and this Court reversed. After citing
Va. Code ? 2.1-715 as declarative of the
"Commonwealth’s strong public policy against employment
discrimination based upon race or gender," 247 Va. at 105,
439 S.E.2d at 331, the Court stated as follows:

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.

 

Id. Accordingly, the Court held that the two employees
had "pled viable causes of action." Id. at 104,
439 S.E.2d at 331. [3]

Lockhart was decided in 1994. At the 1995 session of
the General Assembly, a bill was introduced that would have had
the effect of overruling Lockhart. (S. 1025.) Two versions
submitted as amendments in the nature of substitutes expressly
stated their purpose was the "nullification" of Lockhart.
(S. 1025, Committee Amendment in the Nature of a Substitute; S.
1025, Floor Amendment in the Nature of a Substitute.) However, in
its enacted form, the legislation did not employ the
"nullification" language, but amended Va. Code
? 2.1-725 in several respects.

As originally enacted, Va. Code ? 2.1-725 provided as
follows:

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.

 

The 1995 amendments deleted the second sentence of Va. Code
? 2.1-275, made the first sentence subsection A, and
changed its language. The subsection reads as follows:
"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."

Subsections B and C are new. They create a statutory cause of
action against an employer of more than five but less than
fifteen persons. Subsection B provides that no such employer
shall discharge an employee "on the basis of race, color,
religion, national origin or sex, or of age if the employee is
forty years or older." [4] Subsection C provides that
"[t]he 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." A
court may award up to twelve months back pay, with interest, and
the award may be increased or decreased if either party engages
in tactics to delay resolution of the complaint. A court may also
award attorney’s fees from the amount recovered, not to exceed
twenty-five percent of the back pay awarded, but the court shall
not award other damages, compensatory or punitive, nor shall it
order reinstatement of the employee.

Subsection D, upon which the certified question focuses, is
also new. It 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.

Doss maintains, in effect, that nothing has changed. She says
that Lockhart remains the controlling law and that all the
General Assembly accomplished with its 1995 amendments to the Act
is the creation of a statutory cause of action against employers
of more than five but less than fifteen persons.

Doss points out that the cause of action recognized in Bowman
and Lockhart "is a tort action arising solely under
common law." She says that although the General Assembly may
abrogate or alter the common law, its intent to do so must be
plainly manifested, Peoples Sec. Life Ins. Co. v. Arrington,
243 Va. 89, 92, 412 S.E.2d 705, 707 (1992), and she insists that
the 1995 amendments to the Act do not manifest an intent to alter
the common law as articulated in Lockhart.

Doss maintains that despite the language in the original
version of Va. Code ? 2.1-725 disavowing the creation of an
independent or private cause of action, this Court had no trouble
finding in Lockhart that the Act did not prohibit a Bowman-type
action in tort for the unlawful termination of employment. And
Doss says that nothing in new subsection D supports such a
prohibition. Indeed, she opines, with the 1995 deletion of the
language in the second sentence of Va. Code ? 2.1-725
abjuring tort actions, "any alleged prohibition against Lockhart-type
tort claims [is made] even less clear."

Furthermore, Doss submits, if a statute is ambiguous, the
court may resort to legislative history and the enactment process
to ascertain legislative intent. Doss says that the language in
the Act is ambiguous and that we should examine the enactment
process involving the 1995 amendments to ascertain their meaning.

Doss says such an examination would reveal that while the
original 1995 bill and its subsequent substitute amendments all
contained clear declarations of intent to nullify Lockhart,
these declarations were not retained in the final enacted version
of the bill. Hence, the fair inference to be drawn, Doss
concludes, is that the General Assembly did not intend to nullify
Lockhart.

The issue, then, is whether, in the enactment of the 1995
amendments, the General Assembly plainly manifested an intent to
abrogate or alter the common law with respect to causes of action
for unlawful termination of employment. Settled principles guide
our resolution of this issue.

When the legislature has spoken plainly it is not the
function of courts to change or amend its enactments
under the guise of construing them. The province of
construction lies wholly within the domain of ambiguity,
and that which is plain needs no interpretation.

 

Winston v. City of Richmond, 196 Va. 403, 407-08, 83
S.E.2d 728, 731 (1954).

In the absence of ambiguity, a court may look only to the
words of the statute to determine its meaning, and when the
meaning is plain, resort to rules of construction, legislative
history, and extrinsic evidence is impermissible. Harrison
& Bates, Inc. v. Featherstone Assoc.
, 253 Va. 364, 368,
484 S.E.2d 883, 885 (1997); Va. Dept. of Labor v. Westmoreland
Coal Co.
, 233 Va. 97, 99, 353 S.E.2d 758, 760 (1987); Brown
v. Lukhard
, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985).

We disagree with Doss that the Act as amended in 1995 is
ambiguous. What we said of the statute involved in Harrison
& Bates
applies with equal force to the enactment
involved here:

Nothing in the language of this statute is inherently
difficult to comprehend, of doubtful import, or lacking
in clarity and definiteness. Accordingly, it is not
necessary to look beyond the plain language of the
statute to ascertain its underlying legislative intent.

 

253 Va. at 369, 484 S.E.2d at 886.

In our opinion, in amending the Act by adding subsection D to
Va. Code ? 2.1-725 in 1995, the General Assembly plainly
manifested its intention to alter the common law rule with
respect to "[c]auses of action based upon the public
policies reflected in [the Act]
." (Emphasis added.) And,
just as plainly, the General Assembly altered the common law rule
by providing that such causes of action "shall be exclusively
limited
to those actions, procedures and remedies, if any,
afforded by applicable federal or state civil rights statutes or
local ordinances." (Emphasis added.)

This is what the Act as amended says, and this is the meaning
that must be given to the Act to carry out the clear intent of
the General Assembly. To say, as Doss would have us say, that the
1995 amendments changed nothing would render meaningless the
General Assembly’s use of the words "exclusively
limited" and reduce to an absurdity its creation of a
statutory cause of action against employers of more than five but
less than fifteen persons.

The rules of statutory interpretation argue against
reading any legislative enactment in a manner that will
make a portion of it useless, repetitious, or absurd. On
the contrary, it is well established that every act of
the legislature should be read so as to give reasonable
effect to every word . . . .

 

Jones v. Conwell, 227 Va. 176, 181, 314 S.E.2d 61, 64
(1984).

Finally, in her reply brief, Doss cites Va. Code
? 2.1-717, a part of the Act, which provides in part as
follows:

The provisions of this chapter shall be construed
liberally for the accomplishment of the policies herein.
Nothing contained in this chapter shall be deemed to
repeal, supersede or expand upon any of the provisions of
any other state or federal law relating to discrimination
because of race, color, religion, national origin, sex,
age, marital status or disability.[5]

 

Doss argues that, in this Code section, the Act creates
"its own rule of statutory construction," and, under
the rule, the Act "cannot be used as the basis for repealing
or superseding the common-law expressed in Bowman and Lockhart."
The Act, however, is not the basis for the General Assembly’s
authority to abrogate or alter the common law. The basis for the
General Assembly’s authority is found in Va. Code ? 1-10,
which provides as follows:

The common law of England, insofar as it is not
repugnant to the principles of the Bill of Rights and
Constitution of this Commonwealth, shall continue in full
force within the same, and be the rule of decision, except
as altered by the General Assembly
.

 

(Emphasis added.) To adopt Doss’s argument would lead to the
conclusion that, in enacting Va. Code ? 2.1-717, the
General Assembly effectively repealed or superseded Va. Code
? 1-10 insofar as its authority to alter the common law
with respect to a substantial class of cases is concerned, and
that would be an unreasonable conclusion to reach. So we reject
Doss’s argument.

Finding that, in enacting the 1995 amendments to Va. Code
? 2.1-725, the General Assembly plainly manifested an
intent to abrogate the common law with respect to causes of
action for unlawful termination of employment based upon the
public policies reflected in the Act, we will answer the
certified question in the affirmative.

Certified question answered in the affirmative.

 

 

FOOTNOTES:

[1] At its 1997 session, the
General Assembly amended Va. Code ? 2.1-715 by adding
"pregnancy, childbirth or related medical conditions"
to the list of unlawful bases for discrimination in employment.

[2] Wright v. Donnelly & Co.,
Record No. 930205, was decided at the same time as Lockhart
and by the same opinion.

[3] Subsequent to Lockhart,
this Court applied the original version of the Virginia Human
Rights Act in deciding Bailey v. Scott-Gallaher, Inc., 253
Va. 121, 480 S.E.2d 502 (1997) (maintenance of common law action
in tort allowed for wrongful discharge based upon gender), and Bradick
v. Grumman Data Sys. Corp.
, 254 Va. 156, 486 S.E.2d 545
(1997) (maintenance of common law action in tort allowed for
wrongful discharge based upon disability). We decided another
wrongful discharge case post-Lockhart, but disallowed a
common law recovery because the employee was unable to identify
any Virginia statute establishing a public policy that was
violated by the employer. Lawrence Chrysler Plymouth Corp. v.
Brooks
, 251 Va. 94, 465 S.E.2d 806 (1996).

[4] The stipulated order of
certification notes that, because Jamco employs more than fifteen
persons, it is not subject to a claim under Va. Code
? 2.1-725(B) and (C).

At its 1997 session, the General Assembly added
"pregnancy, childbirth or related medical conditions"
to the prohibited bases for discharge listed in Va. Code
? 2.1-725(B).

[5] A 1997 amendment to Va. Code ?
2.1-717 added "pregnancy, childbirth or related medical
conditions" to the list of unlawful bases for discrimination
in employment.

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