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Present: All the

Record No. 011732





March 1, 2002


Pursuant to the
provisions of Rule 5:42, the United States District Court for the
Western District of Virginia entered a certification order
requesting that we exercise our certification jurisdiction and
answer the following question:

Does a complaint
state a Bowman claim under ? 18.2-460 when
the plaintiff, an at-will employee, alleges that her
employer terminated her employment because she refused to
yield to employer’s demand that she discontinue pursuing
criminal charges of assault and battery against a fellow

The district court
concluded that the issue presented by this question was a matter
of first impression under Virginia law and that resolution of the
issue was dispositive of the matter before the district court. We
accepted the certification by order entered September 6, 2001.
For the reasons stated below, we will answer the certified
question in the negative.


The facts as stated in
the certification order are as follows.
[1] Linda Rowan (Rowan) was employed
as an administrative cashier for Tractor Supply Company (TSC)
from May 10, 1999 to February 16, 2000. During the course of her
employment, Rowan discovered information that led her to believe
that her manager, Jerry Michael Snider, and other employees, were
embezzling money and property from TSC. When Rowan expressed her
concerns to Snider about this activity, "he reacted
violently by twisting her arm and pushing her forcefully against
the desk."

The next day, September
8, 1999, Rowan reported this incident to Rodney Carter, Snider’s
supervisor and area manager. Carter did not express
concern for Rowan, and "appeared more interested in keeping
news of the incident from spreading." Rowan met with another
employee of TSC who told her to "keep her mouth
shut" and that Rowan would "’suffer the
consequences’" if she engaged in further action
regarding the matter.

Rowan filed a civil
action against Snider in the General District Court of Montgomery
County. Rowan was awarded $1,500 in damages plus interest and costs
by order entered January 19, 2000. No appeal was taken from this

Rowan reported the
attack to the police on September 11, 1999 and charges were filed
against Snider.

Following the conclusion
of the civil suit, Mike Jones, the new manager of TSC’s
Christiansburg store, told Rowan that TSC wanted her to drop the
charges against Snider and that TSC would not
"black-ball" her any further if she did. Jones also
indicated that Carter wanted the charges dropped and that he was
a dangerous and powerful person who could "hurt her."
Despite these admonitions, Rowan did not drop her charges against
Snider. TSC terminated Rowan’s employment on February 16, 2000.

Rowan served as the
primary witness against Snider at his criminal trial, where he
was convicted of criminal assault and battery on March 7, 2000.

On May 12, 2000, Rowan
filed this action in the Circuit Court of the City of Roanoke
against TSC claiming that she was wrongfully terminated in
violation of Virginia public policy.
[2]TSC removed the case to federal court
pursuant to 28 U.S.C. ? 1441. After discovery, TSC filed a
Motion for Judgment on the Pleadings, pursuant to Fed. R. Civ. P.
12(c). In response, Rowan filed a Motion to Certify a Question of

In a memorandum opinion
dated June 6, 2001, the district court concluded that Rowan’s
pleadings did not state a wrongful termination claim based on
either Code ? 18.2-456.1 (employer may not take
action against employee for missing work because of court
appearance pursuant to subpoena or summons), or Code
? 19.2-11.01(A)(3) (employer should minimize
crime-victim-employee’s loss of benefits or pay resulting from
court proceedings) because she was terminated before her
appearance in the criminal trial and thus not penalized for
complying with a court obligation. The district court also held
that Rowan did not state a cause of action based on Code
?? 19.2-267 and –456 (offense to disobey witness
summons in criminal case) because she did not allege that TSC
attempted to coerce her to disobey a lawful subpoena.

The district court,
however, could not determine whether, based on current Virginia
law, Rowan would be entitled to maintain a cause of action for
wrongful termination based on the public policy embodied in Code
? 18.2-460, the obstruction of justice statute.
Accordingly, the district court denied TSC’s Motion for Judgment
on the Pleadings and granted Rowan’s Motion to Certify.


The phrase "Bowman
claim" stems from this Court’s decision in Bowman
v. State Bank of Keysville
, 229 Va. 534, 331 S.E.2d 797
(1985), in which we first recognized an exception to the doctrine
of employment-at-will based on an employer’s violation of public
policy in the discharge of an employee. In Bowman, several
employees were discharged because they refused to
vote shares of stock in the manner directed by the employer.
Former Code ? 13.1-32 (currently codified in Code
? 13.1-662) gave shareholders the right to vote their
shares. To fully realize the public policy underlying the
shareholders’ statutory right, shareholders had to be allowed to
vote such shares free from duress or intimidation. Thus, we
concluded that the employer’s actions in discharging the
employees violated the public policy that shareholders are
entitled to vote their shares free of duress or intimidation
reflected in the right conferred on the shareholder/employee by
the statute. Id. at 540, 331 S.E.2d at 801.

Since Bowman, we
have considered a number of cases in which this public policy
exception to the employment-at-will doctrine has been asserted.
While virtually every statute expresses a public policy of some
sort, we continue to consider this exception to be a
"narrow" exception and to hold that "termination
of an employee in violation of the policy underlying any one
[statute] does not automatically give rise to a common law cause
of action for wrongful discharge." City of Virginia Beach
v. Harris
, 259 Va. 220, 232, 523 S.E.2d 239, 245 (2000). In
only three circumstances have we concluded that the claims
were sufficient to constitute a common law action for wrongful
discharge under the public policy exception.

We have just discussed
the first instance in which we recognized a common law action for
wrongful discharge: an employer violated a policy enabling the
exercise of an employee’s statutorily created right. Bowman v.
State Bank of Keysville
. We have also allowed such an action
to proceed when the public policy violated by the employer was
explicitly expressed in the statute and the employee was clearly
a member of that class of persons directly entitled to the
protection enunciated by the public policy. Bailey v.
Scott-Gallaher, Inc.
, 253 Va. 121, 480 S.E.2d 502 (1997), and
Lockhart v. Commonwealth Education Systems Corporation,
247 Va. 98, 439 S.E.2d 328 (1994), involved discharges based on
the public policy expressly stated in former Code
? 2.1-715.
[4] (Currently codified in Code
? 2.2-3900). That statute provided in relevant part that it
is "the policy of the Commonwealth" to "safeguard
all individuals within this Commonwealth" against unlawful
discrimination in employment based on gender. The employees in
these cases alleged they were discharged based on their gender.

Finally, we have
recognized a cause of action for wrongful discharge where the
discharge was based on the employee’s refusal to engage in a
criminal act. Although criminal statutes do not contain explicit
statements of public policy, the protection of the general
public from lawless acts is an unquestioned policy underlying
such statutes. We recognized that allowing the employment-at-will
doctrine to "serve as a shield for employers who seek to
force their employees, under the threat of discharge, to engage
in criminal activity" would violate this most compelling
public policy. Mitchem v. Counts, 259 Va. 179, 190, 523
S.E.2d 246, 252 (2000).

In this case, the common
law action is not based on a public policy expressly set out in
the statute as it was in Lockhart. Nor does Rowan claim
that she is entitled to maintain her common law action because
she was terminated for refusal to engage in a criminal act as did
the employee in Mitchem. Rowan asserts that Code
? 18.2-460 is " ‘consistent with the policy of
the Commonwealth to protect the public from criminals by
shielding those who participate in the prosecution and trial of
suspected wrongdoers.’ " As a person involved in a
criminal prosecution, Rowan argues that, to effectuate the public
policy she posits, the statute must provide her with a
right to such protection and the violation of such right by her
employer is a violation of public policy sufficient to support
her common law cause of action. We disagree with Rowan.

The premise of Rowan’s
position is that by virtue of Code ? 18.2-460, she is
vested with a right to be free from intimidation with regard to
her pressing criminal charges and participating in the legal
processes connected to those charges. However, unlike
the shareholders’ right to vote shares granted by the statute in Bowman,
Code ? 18.2-460 does not grant a person involved in a
criminal prosecution any specific right. Also, in Bowman
the public policy violated existed to protect the exercise
of the statutory right, but here there is no statutory right and,
therefore, there exists no corresponding public policy necessary
to protect the right.

Further, Rowan’s
description of the public policy that does underlie Code
? 18.2-460 is inconsistent with our prior case law. We
have previously described the public policy underlying the
obstruction of justice statute as reflecting "the General
Assembly’s intent to prohibit interference with the
administration of justice" and as protecting "the
public’s safety and welfare." Harris, 259 Va. at 233,
523 S.E.2d at 246. The goal of this policy is not to protect individuals
from intimidation, but to protect the public from a flawed legal
system due to impaired prosecution of criminals. Thus, TSCs
actions in discharging Rowan did not violate a right granted
to her but rather violated a criminal statute enacted to ensure
that the administration of justice is not subverted.

In summary, Code
? 18.2-460 did not create any statutory right or a
corresponding public policy of the type that would support
an exception to the employment-at-will doctrine and thus allow a
common law action for wrongful termination.

Accordingly, the
certified question is answered in the negative.

Certified question
answered in the negative.


[1] Because the matter was considered by the
district court on a Motion for Judgment on the Pleadings under
Federal Rule 12(c), the district court accepted as true the
factual allegations in the plaintiff’s pleadings and presented
the facts in that light.

[2] Rowan filed a two-count Complaint,
alleging wrongful termination in violation of public policy and
retaliatory firing for bringing a workers’ compensation claim. A
Consent Decree was issued March 9, 2001 dismissing the second

[3] The district court also granted Rowan’s
motion to file an amended complaint; however, we restrict our
consideration to the facts and issue presented in the
certification order and thus the amended complaint is not before

[4] In 1995, the General Assembly amended Code
? 2.2-2639 which limited the remedies available to an
employee alleging unlawful discharge in violation of this policy.

[5] The certified question was limited to
consideration of Code ? 18.2-460 and thus we do not address
Rowan’s arguments that other statutes support the public policy
at issue and recognize certain rights of crime victims and
persons involved in criminal prosecution.