MITCHEM v. COUNTS



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MITCHEM

v.

COUNTS


January 14, 2000

Record No. 990399

VICKI LYNN MITCHEM

v.

DURWOOD L. COUNTS

FROM THE CIRCUIT COURT OF ALLEGHANY COUNTY

OPINION BY JUSTICE BARBARA MILANO KEENAN

Present: All the Justices

Duncan M. Byrd, Jr., Judge


In this appeal, we consider two issues: 1)
whether Code ? 2.1-725(D) of the Virginia Human Rights Act
(VHRA), Code ?? 2.1-714 through –725, bars a common
law action for wrongful termination of employment based on a
violation of public policy not reflected in the VHRA, when
the conduct alleged also violates a public policy reflected in
the VHRA; and 2) whether a violation of the public policies
embodied in two criminal statutes may support such a common law
action.

Vicki Lynn Mitchem filed a motion for judgment
against her former employer Durwood L. Counts,
[1] alleging that he had wrongfully
discharged her from her position as an insurance marketing
representative after she refused to engage in a sexual
relationship with him. Mitchem asserted that Counts repeatedly
tried to persuade her to have a "sexual affair" with
him and promised in return that she would receive money and
"a lot of nice things."

In her motion for judgment, Mitchem also
asserted that, on many occasions, Counts "massaged her
shoulders, patted her buttocks, touched her leg, rubbed her knee,
and hugged her against her will." Mitchem further alleged
that on another occasion, Counts "pulled [Mitchem] onto his
lap, wrapped both arms around her, and tried to kiss her on the
lips." Finally, Mitchem alleged that because she
"steadfastly refused to enter into a sexual relationship
with Counts," he retaliated in several ways and ultimately
fired her in May 1998.

Relying on these allegations, Mitchem asserted
in Count I of her motion for judgment that her discharge violated
the Commonwealth’s public policy "that all persons
. . . are entitled to pursue and maintain employment
free of discrimination based upon gender." She also claimed,
among other things, that the Commonwealth’s public policy is
violated when a female employee "must either consent to the
commission of a crime against her person, or engage in a
conspiracy to commit a crime, or both, to maintain her
employment." Mitchem cited several sources of public policy
in support of her claim, including the VHRA and Code
?? 18.2-57, -344, and -345.
[2]

Counts filed a demurrer to Count I, which the
trial court sustained. The court concluded, in essence, that the
1995 amendments to the VHRA eliminated the VHRA as a source of
public policy to support a common law cause of action for
wrongful termination. The trial court also held that Code
?? 18.2-57, -344, and –345 do not articulate public
policies that will support a common law action for wrongful
termination.
[3] The court entered
an order dismissing Count I of Mitchem’s action with prejudice,
and Mitchem appeals from this judgment.

Although Mitchem based her wrongful termination
action in part on public policies found in the VHRA and sources
of law other than criminal statutes, she withdrew this part of
her claim during her oral argument before this Court. She argued
that the criminal statutes identified in her motion for judgment
embody a public policy against the commission of the stated acts
of a sexual nature and, thus, that an employer is subject to a
common law wrongful termination claim if he discharges an at-will
employee because she refuses to commit those criminal acts.

Mitchem contends on appeal that she was not
discharged from her employment because of her gender, but because
she rejected her employer’s demands that she perform sexual acts
in violation of Code ? 18.2-344, which prohibits
fornication, and Code ? 18.2-345, which prohibits lewd and
lascivious cohabitation. She also asserts that she was discharged
because she would not "consent to commission of a battery
upon her person," in violation of Code ? 18.2-57.
[4]

In response, Counts (the employer) argues that
Code ? 2.1-725(D) abrogates Mitchem’s common law cause of
action because the allegations of wrongful termination, if
proved, would violate the public policies reflected in the VHRA.
In support of this argument, the employer notes that the facts in
this case are very similar to those alleged by a plaintiff in Lockhart
v. Commonwealth Educ. Sys. Corp.
, 247 Va. 98, 439 S.E.2d 328
(1994),
[5] in which we held
that an employer’s conduct and termination of that plaintiff
violated the public policy against gender discrimination stated
in the VHRA. The employer also asserts that our decision in Conner
v. National Pest Control Ass’n.
, 257 Va. 286, 513 S.E.2d 398
(1999), requires dismissal of Mitchem’s action based on our
application in that case of the preclusive language of Code
? 2.1-725(D). Finally, the employer contends that criminal
statutes will not support Mitchem’s common law action because
they do not "announce public policies in their texts"
and to use the statutes in this manner would eviscerate the
employment-at-will doctrine.

Although Mitchem has withdrawn her reliance on
the VHRA as a source of public policy to support her wrongful
termination action, we nevertheless begin our analysis with the
VHRA because its limiting provision in Code ? 2.1-725(D) is
the controlling statute in this appeal. That provision, included
in the 1995 amendments to the VHRA, states in relevant part:

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. Code
? 2.1-725(D).

Citing Doss v. Jamco, 254 Va. 362, 492
S.E.2d 441 (1997), the trial court held that the 1995 amendments
to the VHRA bar Mitchem from asserting a common law action for
wrongful termination based on any of the sources of public policy
set forth in her motion for judgment. In Doss, we held
that "in amending the [VHRA] by adding subsection D to 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 VHRA].’" Id. at 371, 492 S.E.2d at 446.

Following Doss, we next addressed the
scope of Code ? 2.1-725(D) in Conner. There, the
plaintiff alleged that she had asserted a valid cause of action
for wrongful termination because, in addition to the public
policy against gender discrimination in the VHRA, her employer’s
conduct violated the same public policy embodied in sources other
than the VHRA. 257 Va. at 288, 513 S.E.2d at 399. We disagreed,
holding 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." Id. at 290, 513 S.E.2d at
400.

Our holdings in Conner and Doss,
however, do not address the issues before us. In those cases,
unlike the present case, the plaintiffs did not identify any
public policy different from those reflected in the VHRA
as the basis for their common law claims. Thus, in those cases,
we did not address the central issue in the present appeal,
whether Code ? 2.1-725(D) bars a common law action for
wrongful termination based on public policies not
reflected in the VHRA, when the conduct alleged in the motion for
judgment also violates a public policy reflected in the VHRA.

This issue of first impression is raised by
Mitchem’s allegations in her motion for judgment that the
employer’s conduct violated the Commonwealth’s public policies
against fornication and lewd and lascivious behavior embodied in
Code ?? 18.2-344 and –345. Code ? 18.2-344
provides that an unmarried person who voluntarily has sexual
intercourse with any other person is guilty of fornication. Code
? 18.2–345, in relevant part, prohibits persons not
married to each other from lewdly and lasciviously associating
and cohabiting together.

In considering whether Code ? 2.1-725(D)
defeats Mitchem’s reliance on these public policies as a basis
for her wrongful termination action, we first observe that the
preclusive language of Code ? 2.1-725(D) was enacted by the
legislature in derogation of the common law. Statutes in
derogation of the common law must be strictly construed and not
enlarged by construction beyond their express terms. Chesapeake
& O. Ry. Co. v. Kinzer
, 206 Va. 175, 181, 142 S.E.2d 514,
518 (1965); see Williams v. Matthews, 248 Va. 277,
282-83, 448 S.E.2d 625, 628 (1994); Wackwitz v. Roy, 244
Va. 60, 65, 418 S.E.2d 861, 864 (1992). A statutory change in the
common law is limited to that which is expressly stated in the
statute or necessarily implied by its language because there is a
presumption that no change was intended. Boyd v. Commonwealth,
236 Va. 346, 349, 374 S.E.2d 301, 302 (1988); Strother v.
Lynchburg Trust & Savings Bank
, 155 Va. 826, 833, 156
S.E. 426, 428 (1931). Thus, "[w]hen an enactment does not
encompass the entire subject covered by the common law, it
abrogates the common-law rule only to the extent that its terms
are directly and irreconcilably opposed to the rule." Boyd,
236 Va. at 349, 374 S.E.2d at 302; Newport News v.
Commonwealth
, 165 Va. 635, 650, 183 S.E. 514, 520 (1936).

We must construe Code ? 2.1-725(D)
narrowly under these principles because the VHRA does not
encompass the entire subject of common law causes of action for
wrongful termination of employment. The relevant language of Code
? 2.1-725(D) provides that "[c]auses 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." (Emphasis added.) This
provision, by its plain terms, abrogates only common law causes
of action for wrongful termination that are based on the public
policies reflected in the VHRA. Thus, we conclude that Code
? 2.1-725(D) does not prohibit a common law cause of action
for wrongful termination based on the public policies against
fornication and lewd and lascivious behavior, because those
policies are not reflected in the VHRA.

We find no merit in the employer’s contention
that since his alleged conduct also violated the public policy in
the VHRA against gender discrimination, he cannot be subject to a
wrongful termination action for firing an employee who refused to
commit the crimes at issue. First, as shown above, the plain
language of Code ? 2.1-725(D) does not contain such a
prohibition.

Second, the same conduct or occurrence can
support more than one theory of recovery. Balzer and Assoc. v.
The Lakes on 360
, 250 Va. 527, 531, 463 S.E.2d 453, 456
(1995); see Code ? 8.01-272; Rule 1:4(k); Fox v.
Deese
, 234 Va. 412, 422-23, 362 S.E.2d 699, 705 (1987).
Moreover, when a plaintiff has alleged facts supporting more than
one theory of recovery, the pleading of one theory is not
rendered insufficient by the insufficiency of the other theory. Balzer,
250 Va. at 531, 463 S.E.2d at 456. Thus, the legal insufficiency
of Mitchem’s allegations of wrongful termination based on the
public policies set forth in the VHRA does not invalidate her
claim founded on the public policies embodied in Code
?? 18.2-344 and –345.

Third, the employer’s argument is untenable
because, when extended to its logical conclusion, the argument
would permit an employer to discharge any employee who refuses to
commit a crime at the employer’s direction, as long as the
employer’s conduct also violates a public policy reflected in the
VHRA. The public policy stated in the VHRA "safeguard[s] all
individuals within the Commonwealth from unlawful
discrimination because of race, color, [and] religion." Code
? 2.1-715 (emphasis added). Thus, under the
employer’s view, an African-American employee could not pursue a
common law action for wrongful termination if she were discharged
for refusing to burn a cross on the property of another
African-American with the intent to intimidate that person. The
African-American employee would be a member of the class of
persons protected by the VHRA public policy because she would
have been fired based on "unlawful discrimination because of
race." Id.; see City of Virginia Beach v.
Harris
, 259 Va. ___, ___, ___ S.E.2d ___, ___ (2000), decided
today; Dray v. New Market Poultry Prod., Inc., 258 Va.
187, 191, 518 S.E.2d 312, 313 (1999).

The burning of a cross is a felony under Code
? 18.2-423. Under the employer’s theory, the language of
Code ? 2.1-725(D) would shield the employer from a common
law action for wrongful termination for violation of the
public policy underlying Code ? 18.2-423, because the
conduct also would violate the public policy against racial
discrimination expressed in the VHRA.

Similarly, under the employer’s view, a Jewish
employee could not maintain a common law action for wrongful
termination if he were discharged for refusing to paint a
swastika on a synagogue with the intent to intimidate worshipers.
This employee would be a member of the class of persons protected
by the public policy stated in the VHRA because he would have
been fired based on "unlawful discrimination because of
. . . religion." Code ? 2.1-715; see Harris,
259 Va. at ___, ___ S.E.2d at ___; Dray, 258 Va. at 191,
518 S.E.2d at 313.

The placement of a swastika on a synagogue is a
felony under Code ? 18.2-423.1. Under the employer’s
theory, the language of Code ? 2.1-725(D) would shield
the employer from a common law wrongful termination action for
violation of the public policy underlying Code
? 18.2-423.1, because the employer’s conduct also would
violate the VHRA public policy against religious discrimination.

Accordingly, we reject the employer’s argument
because it would require us effectively to amend Code
? 2.1-725(D) by adding a provision prohibiting causes of
action based on public policies not reflected in the VHRA.
Such a holding would usurp the function of the General Assembly,
violate the proper construction of a statute in derogation of
common law, and allow repugnant consequences that were
never intended by the General Assembly when it enacted Code
? 2.1-725(D).

The employer argues, however, that the public
policies embodied in Code ?? 18.2-344 and –345 cannot
support a common law action for wrongful termination because
those statutes do not expressly state such public policies. We
find no merit in this contention. Laws that do not expressly
state a public policy, but were enacted to protect the property
rights, personal freedoms, health, safety, or welfare of the
general public, may support a wrongful discharge claim if they
further an underlying, established public policy that is violated
by the discharge from employment. Harris, 259 Va. at ___,
___ S.E.2d at ___; see Miller v. SEVAMP, Inc., 234
Va. 462, 468, 362 S.E.2d 915, 918 (1987); Bowman v. State Bank
of Keysville
, 229 Va. 534, 540, 331 S.E.2d 797, 801 (1985).
Further, as indicated above, to rely on such a statute in support
of a common law action for wrongful termination, an employee must
be a member of the class of persons that the specific public
policy was designed to protect. Harris, 259 Va. at ___,
___ S.E.2d at ___; Dray, 258 Va. at 191, 518 S.E.2d at
313.

For example, in Bowman, we recognized a
common law cause of action for wrongful termination based on the
public policy underlying former Code ? 13.1-32. That
statute conferred on stockholders the right to one vote for each
outstanding share of stock held. Although former Code
? 13.1-32 did not expressly state a public policy, we held
that the statute provided a basis for a common law action for
wrongful termination brought by two employee stockholders of a
bank. We concluded that the statute embodied the public policy
that a stockholder’s right to vote shall be exercised free of
duress and intimidation by corporate management. 229 Va. at 540,
331 S.E.2d at 801.

In the present case, the absence of an express
statement of public policy in Code ?? 18.2-344 and
–345 does not preclude their use as a basis for a common law
action for wrongful termination. These criminal statutes were
enacted for the protection of the general public, and Mitchem is
a member of that class of persons whom these statutes were
designed to protect. See Harris, 259 Va. at ___,
___ S.E.2d at ___; Miller, 234 Va. at 468, 362 S.E.2d at
918; Dray, 258 Va. at 191, 518 S.E.2d at 313. Further, the
public policies inherent in Code ?? 18.2-344 and –345
are equally, if not more, compelling than the public policy in Bowman
that provided the basis for our recognition of a narrow exception
to the employment-at-will rule.

We do not share the employer’s concern that
recognition of a common law cause of action for violation of
these public policies should be rejected as an incursion into the
employment-at-will doctrine. We have narrowly construed the
public policy exception to that doctrine, and we have applied
that exception in few instances. Certainly, the General Assembly
did not intend that the employment-at-will doctrine or the
provisions of Code ? 2.1-725(D) serve as a shield for
employers who seek to force their employees, under the threat of
discharge, to engage in criminal activity. Thus, we conclude that
since Mitchem’s common law action based on the public policies
embodied in Code ?? 18.2-344 and –345 is not
abrogated by Code ? 2.1-725(D), her action based on those
policies falls within the scope of the narrow public policy
exception to the employment-at-will rule recognized in Bowman.

We disagree with the employer’s assertion that
our holding in Lockhart requires a different result.
There, we approved a wrongful termination action involving
conduct very similar to that alleged by Mitchem based on the
public policy against gender discrimination in the VHRA. 247 Va.
at 101-02, 439 S.E.2d at 329-30. However, the fact that this type
of conduct will no longer support a theory of recovery based on
the VHRA, or other sources of law reflecting this same public
policy, does not affect Mitchem’s alternate theory of recovery
based on the different public policies embodied in Code
?? 18.2-344 and –345. Unlike the VHRA provision
against gender discrimination relied on in Lockhart,
Mitchem’s theory of recovery based on Code ?? 18.2-344 and
–345 does not rely on any public policy reflected in the
VHRA and, thus, is not precluded by Code ? 2.1-725(D).
Also, although the conduct Mitchem alleges would be an
"unlawful discriminatory practice" within the meaning
of Code ? 2.1-716,
[6]
this conduct may still form the factual basis of a common law
cause of action for wrongful termination when that action is not
based on a public policy reflected in the VHRA. See Code
? 2.1-725(D).

Finally, we conclude that the trial court did
not err in dismissing the part of Count I in which Mitchem
alleged that the employer wrongfully discharged her in violation
of the public policy embodied in Code ? 18.2-57, which
establishes the crime of simple assault as a Class 1 misdemeanor.
The trial court properly dismissed this claim because Mitchem did
not allege that her employer discharged her for refusing to
commit this crime. Instead, she alleged that she was fired for
refusing to "consent to commission of a battery upon her
person." However, had she consented to having the employer
touch her, there would have been no crime of battery. Gnadt v.
Commonwealth
, 27 Va. App. 148, 151, 497 S.E.2d 887, 888
(1998); see Banovitch v. Commonwealth, 196 Va. 210,
219, 83 S.E.2d 369, 375 (1954). Thus, the public policy embodied
in Code ? 18.2-57 does not support a wrongful termination
action based on this allegation. When the trial court has reached
the correct result for the wrong reason, we will assign the
correct reason and affirm that result. Hartzell Fan, Inc. v.
Waco, Inc.
, 256 Va. 294, 303, 505 S.E.2d 196, 202 (1998); Ridgwell
v. Brasco Bay Corp.
, 254 Va. 458, 462, 493 S.E.2d 123, 125
(1997); Harrison & Bates, Inc. v. Featherstone Assoc. Ltd.
Partnership
, 253 Va. 364, 369, 484 S.E.2d 883, 886 (1997).

For these reasons, we will affirm the trial
court’s judgment dismissing the part of Mitchem’s action for
wrongful termination that is based on the public policy embodied
in Code ? 18.2-57.
[7]We
will reverse the trial court’s judgment dismissing the part of
Mitchem’s action for wrongful termination that is based on the
public policy embodied in Code ?? 18.2-344 and –345,
and remand this remaining part of her action for trial
.[8]

Affirmed in part, reversed in part, and
remanded.

 

JUSTICE KINSER, with whom CHIEF JUSTICE CARRICO
and JUSTICE COMPTON join, dissenting in part and concurring in
part.

I dissent in part from the majority’s
decision because I conclude that the employee in this case has
not stated a viable cause of action. Thus, I would affirm the
circuit court’s judgment sustaining the employer’s
demurrer.

The majority states the issue in this case as
"whether Code ? 2.1-725(D) bars a common law action
for wrongful termination based on public policies not
reflected in the VHRA, when the conduct alleged in the motion for
judgment also violates a public policy reflected in the
VHRA." By accepting Vicki Lynn Mitchem’s purported
distinction between being fired because of "sex"
discrimination and being fired because she refused to engage in
sexual conduct that would have allegedly violated certain
criminal laws, the majority concludes that Code
? 2.1-725(D) does not bar Mitchem’s claim. To
understand why I do not accept this distinction, it is important
to first explain why the conduct in which Durwood L. Counts
allegedly engaged constitutes "sex" discrimination in
violation of a public policy reflected in the Virginia Human
Rights Act (VHRA).

Mitchem’s allegations that Counts fired
her because she rebuffed his alleged sexual advances and refused
to engage in a sexual relationship with him are remarkably
similar to the facts alleged by plaintiff Wright in Lockhart
v. Commonwealth Educ. Sys. Corp.
, 247 Va. 98, 439 S.E.2d 328
(1994). In that case, Wright alleged that her employer
"approached her from behind, kissed her cheek" and
"‘physically seized her, grabb[ed] her and hugg[ed] her
without her consent.’" Id. at 101-02, 439 S.E.2d
at 329. She also alleged that her employer repeatedly made
abusive, inappropriate, and harassing remarks to her, and
ultimately told her to "get out" after she advised her
employer that she did not intend to be subjected to that kind of
treatment at work. Id. at 102, 439 S.E.2d at 330.

Even though she was an at-will employee,
plaintiff Wright alleged that her termination was unlawful, and
therefore actionable, because it violated the public policy of
Virginia as enunciated in the VHRA. The trial court disagreed and
sustained the employer’s demurrer, but this Court reversed
that judgment. Id. at 106, 439 S.E.2d at 332. We concluded
that Wright had pled a viable cause of action based upon
"sex" discrimination. Id. at 104, 439 S.E.2d at
331. While not "retreat[ing] from our strong adherence to
the employment-at-will doctrine[,]" the Court held

that the narrow exception to that doctrine,
which we recognized in Bowman, includes instances where,
as here, [an] employee [is] terminated because of discrimination
based upon gender . . . . The discharge of
. . . Ms. Wright [is] allegedly tortious not because
[she has] a vested right to continued employment, but because
[her] employer misused the freedom to terminate the services of
[an] at-will employee on the basis of . . . gender.

Id. at 106, 439 S.E.2d at 332.

In reaching its decision in Lockhart,
the Court concluded that the nature of the alleged discriminatory
conduct of Wright’s employer fell within the scope of the
public policy enunciated in the VHRA, "[t]o safeguard all
individuals . . . from unlawful discrimination [in
employment] because of . . . sex" Code
? 2.1-715. In order to hold that Wright had pled a cause of
action for wrongful discharge based on the public policy
enunciated in the VHRA, we necessarily had to find that the
alleged actions of her employer fell within the scope of the
phrase "discrimination because of . . . sex"
in Code ? 2.1-715.
[9] Otherwise, Wright could not have utilized the VHRA as
the source of public policy upon which to base her common law
action for wrongful termination. Since the decision in Lockhart,
we have continued to categorize the type of discrimination
alleged by Wright as "gender discrimination." See
Lawrence Chrysler Plymouth Corp. v. Brooks, 251 Va. 94,
98, 465 S.E.2d 806, 809 (1996); Bailey v. Scott-Gallaher, Inc.,
253 Va. 121, 126, 480 S.E.2d 502, 505 (1997).

Accordingly, even though Mitchem disavows any
reliance on the VHRA, the sexual harassment that she allegedly
endured prior to discharge, as well as Counts’ termination
of her employment because she refused to have a sexual
relationship with him, if proven true, would violate a public
policy reflected in the VHRA. The distinction that Mitchem
attempts to make and which the majority accepts, that she was
fired, not because of "sex," but because she refused to
engage in conduct that would have violated certain criminal
statutes, merely places a different label on "sex"
discrimination and thus exalts form over substance. The
re-labeling of her claim does nothing to alter the facts alleged
by Mitchem or the law governing those allegations. Thus, I do not
accept that proffered distinction.
[10]

Nevertheless, Mitchem insists that Counts
discharged her because she refused to commit the crimes of
fornication, and lewd and lascivious cohabitation, and would not
consent to the commission of a battery upon her person.
[11]Thus, according to Mitchem, her termination violated the
public policies contained in the criminal statutes making these
acts unlawful, and the public policy that an employer cannot fire
an employee for refusing to commit a crime. I need not, as the
majority does, decide whether those criminal statutes
sufficiently enunciate public policies to support a Bowman-type
cause of action by an at-will employee for unlawful termination
because, even if they do, I conclude that Mitchem nonetheless is
barred from maintaining her action against Counts.
[12]

After this Court’s decision in Lockhart,
the General Assembly amended the VHRA. One of the changes was the
addition of subsection D to Code ? 2.1-725, which prohibits
a common law cause of action based upon the public policies
reflected in the VHRA. Doss v. Jamco, Inc., 254 Va. 362,
372, 492 S.E.2d 441, 447 (1997).

In Conner v. National Pest Control,
Ass’n
, 257 Va. 286, 513 S.E.2d 398 (1999), we expanded
upon the impact of subsection D, stating 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." Id. at
290, 513 S.E.2d at 400. Thus, after Conner, an at-will
employee in Virginia cannot maintain a cause of action based on
the public policy exception to the at-will employment doctrine if
the public policy is one that is "reflected" in the
VHRA, even when the employee does not rely on or cite the VHRA
because the policy is found in other statutes.

Even if the majority is correct in concluding
that Virginia’s public policy protects an at-will employee
from being terminated as a result of refusing to violate the
Commonwealth’s criminal laws, the facts alleged in this
case, if proven, would contravene not only that public policy,
but also the public policy of safeguarding individuals from sex
discrimination in employment, as reflected in the VHRA. Thus, I
believe that Mitchem cannot maintain this cause of action. See
Conner, 257 Va. at 290, 513 S.E.2d at 400.

I recognize that the present case is slightly
different from Conner to the extent that, in support of
her claim that she was discharged in contravention of a public
policy, Mitchem cites a policy not contained in the VHRA,
specifically her right to refuse to commit a crime. Conner, on
the other hand, asserted that her discharge from employment
violated the public policy against discrimination based on
gender, which is a policy reflected in the VHRA, but she cited
statutes other than the VHRA as the source of that public policy.
Id. at 288, 513 S.E.2d at 399. I believe that this is
another distinction without a difference, and that this
Court’s decision in Conner is controlling because, as
I have already noted, Counts’ alleged conduct, if proven,
would violate the public policies reflected in the VHRA. Thus, I
conclude that Mitchem’s "[c]ause of action [is one] based upon the public policies reflected in [the VHRA],"
Code ? 2.1-725(D), despite her attempt to place a different
label on it.

By permitting her cause of action to proceed,
the majority creates an avenue through which virtually all
employees asserting allegations similar to Mitchem’s can
bypass the General Assembly’s clear intent, as expressed in
Code ? 2.1-725(D), to "abrogate the common law with
respect to causes of action for unlawful termination of
employment based upon the public policies reflected in the
[VHRA]." Doss, 254 Va. at 372, 492 S.E.2d at 447. The
General Assembly’s purpose in enacting subsection D was to
bar claims such as the one brought by Wright in Lockhart,
yet the majority today ignores that clear intent by allowing
allegations similar to those alleged by Wright to go forward
despite the language of Code ? 2.1-725(D).

Contrary to the majority’s argument that
Counts’ position would bar a common law wrongful termination
action by an employee discharged for refusing to engage in
intimidatory conduct such as burning a cross on the lawn of an
African-American, or painting a swastika on a synagogue, those
causes of action would not be barred by Code ? 2.1-725(D).
In the examples utilized by the majority, the discharges would
not be in violation of the policies reflected in the VHRA because
the employer’s act of discrimination based on race or
religion would not be directed toward the employee, but instead
would be directed toward a third party. The public policies
reflected in the VHRA are intended to prohibit discrimination in,
inter alia, employment, on the basis
of the employee’s "race, color,
religion, national origin, sex, pregnancy, childbirth or related
medical conditions, age, marital status, or disability."
Code ? 2.1-715. Those public policies protect an employee,
not a third party, from being the subject or object of a
discriminatory act. In the majority’s hypotheticals, the
employee would not be the object of the discrimination but would
be the person who refuses to engage in the discriminatory
conduct. In other words, Code ? 2.1-725(D) abrogates causes
of action based on policies reflected in the VHRA, but before
those policies are implicated, the person against whom
discriminatory conduct is directed must be a member of the
class of persons protected by those policies. Dray v. New
Market Poultry Prod., Inc.
, 258 Va. 187, 191, 518 S.E.2d 312,
313 (1999). See also Brown v. McLean, 159
F.3d 898, 902 (4th Cir. 1998), cert. denied sub
nom. Brown v. Mayor and City Council of Baltimore,
___ U.S. ___, 119 S.Ct. 1577 (1999) (under Title VII, proof that
plaintiff is a member of a protected group is required to
establish a prima facie case); Childress v. City
of Richmond
, 134 F.3d 1205, 1209 (4th Cir.) (Luttig, J.,
concurring), cert. denied, 524 U.S. 927
(1998) ("in order to qualify as a ‘person
aggrieved’ . . . [under Title VII], a plaintiff
must be a member of the class of direct victims of conduct
prohibited . . . and allege that he, not someone
else, has beendiscriminated against.’")
(Emphasis added); Drake v. Minnesota Mining & Manuf. Co.,
134 F.3d 878, 884 (7th Cir. 1998) (in a Title VII associational
discrimination case, "the key inquiries should be whether
the employee has been discriminated
against and whether that discrimination was ‘because
of’ the employee’s race.") (Emphasis added); Code
? 2.1-725(B) (the plaintiff’s age, not that of any
other person, makes age discrimination contrary to the
Commonwealth’s public policy).
[13]Thus, under my
view, employees terminated because they rightly refused to
participate in such illegal and improper actions would not be
barred by Code ? 2.1-725(D) from pursuing common law
wrongful termination claims.

CONCLUSION

My dissent may be viewed by some as sanctioning
"sex" discrimination in the workplace. In order to
dispel any such misconception, I reiterate the thoughts expressed
in the concurring opinion in Conner:

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.

. . . .

However, the General Assembly of this
Commonwealth has chosen to impose limitations on the right of a[n
employee] to recover damages against an employer who
discriminates . . . because of [the employee’s] gender. . . . 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.

Conner, 257 Va. at 290-91, 513 S.E.2d at
400 (Hassell, J., concurring).

Unlike the majority, I continue to believe that
the proper role of this Court is to interpret the law as enacted
by the General Assembly, and not to function as a
"super-legislative body."

For these reasons, I respectfully dissent in
part and concur in part.

 

 

FOOTNOTES:

[1] Counts was an insurance agent
who, at all times pertinent to this action, employed no more than
five persons.

[2] In Count II of her motion for
judgment, Mitchem asserted a claim of assault and battery against
Counts, which the trial court dismissed without prejudice on
Mitchem’s request for a nonsuit.

[3] The trial court also held that
Mitchem could not base a claim for wrongful discharge on Title
VII of the 1964 Civil Rights Act, the Constitution of the United
States, the Declaration of Independence, or the Constitution of
Virginia. In addition, the trial court concluded that because
Counts’ business had fewer than five employees, Mitchem could not
seek recovery under the limited statutory remedies provided by
Code ? 2.1-725(B) and (C) for workers whose employers have
more than five but fewer than 15 employees. Mitchem does not
contest these rulings in this appeal.

[4] All these crimes are classified
as misdemeanors. On brief, Mitchem also cited Code
? 18.2-346, which prohibits acts of prostitution, and
? 18.2–67.4, which prohibits sexual battery. However,
since Mitchem did not cite these statutes in her motion for
judgment, we will not consider these additional statutes in
reviewing the trial court’s action sustaining the demurrer to
Count I. See Breeding v. Hensley, 258 Va. 207, 212,
519 S.E.2d 369, 371 (1999).

[5] This Court’s opinion in Lockhart
addressed two separate cases. Nancy L. Wright was the plaintiff
in one of the cases. She alleged employment discrimination based
on gender, while the other plaintiff, Lawanda Lockhart, alleged
employment discrimination based on race.

[6] Code ? 2.1-716 provides:
"Conduct which violates any Virginia or federal statute or
regulation governing discrimination on the basis of race, color,
religion, national origin, sex, pregnancy, childbirth or related
medical conditions, age, marital status or disability shall be an
‘unlawful discriminatory practice’ for the purposes of this
chapter."

[7]Since Mitchem has withdrawn from her motion for judgment
any reliance on public policies not based on criminal statutes,
we do not consider the trial court’s rulings with regard to those
other sources of law.

[8]We distinguish our present holding from City of
Virginia Beach v. Harris
, 259 Va. ___, ___ S.E.2d ____
(2000), decided today. In that case, a police officer was
discharged from his employment for obtaining criminal warrants
charging a superior officer with obstruction of justice and a
related offense, because the superior officer had directed the
police officer not to serve certain warrants on a criminal
suspect. We held, among other things, that the officer did not
state a valid cause of action for wrongful termination in
reliance on the public policy expressed in Code ? 18.2-460,
which prohibits the obstruction of a law enforcement officer in
the performance of his duties. We concluded that the police
officer was attempting to use the statute as a shield to protect
himself against the consequences of his decision to charge his
superior officer with crimes. Unlike Mitchem in the case before
us, the officer in Harris was not a member of the public
for whose benefit the statute was enacted and, thus, could not
state a claim for wrongful discharge based on the public policy
embodied in that statute. See also, Dray, 258 Va.
at 191, 518 S.E.2d at 313.

[9] None of the other types of
discrimination included in Code ? 2.1-715 was implicated by
the facts plaintiff Wright alleged.

[10] Likewise, I do not believe that Mitchem stated
alternative theories of recovery just because she alleged that
her termination violated several public policies.

[11] I concur in the result the
majority reaches with respect to Mitchem’s reliance on Code
? 18.2-57 proscribing assault and battery, but reach that
conclusion for the reasons stated in this dissent.

[12] The majority’s statement
that the public policies behind the prohibitions against
fornication, a class 4 misdemeanor punishable by a maximum $250
fine, and lewd and lascivious cohabitation, a class 3 misdemeanor
punishable by a maximum $500 fine, are "equally, if not more
compelling than the public policy in Bowman," which
supported a stockholder’s right to vote free of duress and
intimidation by corporate management, does not support the
majority’s conclusion that these criminal statutes have a
sufficient public policy underlying them to support a Bowman-type
cause of action.

[13] "Associational
discrimination cases," where, for example, a Caucasian
claims he or she was discriminated against due to his or her
relationship with an African-American, are permitted, Drake,
134 F.3d at 884; Fiedler v. Marumsco Christian School, 631
F.2d 1144, 1149-50 (4th Cir. 1980), but the
hypotheticals presented by the majority do not fulfill the
criteria for such an action.

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