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et al.



January 14, 2000

Record No. 990535






Present: All the Justices

Leonard B. Sachs, Judge Designate

Brendhan B. Harris was terminated from his
employment as a police officer with the City of Virginia Beach
(the City) Police Department. Harris subsequently filed this
common law cause of action for wrongful discharge against the
City and several members of the police department. The circuit
court struck the City’s evidence and held it liable as a
matter of law, and a jury returned a verdict against the
individual defendants and assessed damages against all the
defendants. We awarded the City and the individual defendants
this appeal.

On appeal, we will address two issues: (1)
whether Harris’ claim against the individual defendants is
barred by the doctrine of res judicata because of
prior proceedings in federal court, and (2) whether Code ?
18.2-460 and former ? 15.1-138
[1] embody
sufficient public policies to support Harris’ cause of
action for wrongful discharge based on the public policy
exception to the employment-at-will doctrine articulated in Bowman
v. State Bank of Keysville
, 229 Va. 534, 331 S.E.2d 797
(1985). See Stonega Coal and Coke Co. v. Louisville and
Nashville R.R.
, 106 Va. 223, 55 S.E. 551 (1906) (stating that
Virginia adheres to the employment-at-will doctrine). Because we
conclude that the principle of res judicata bars
relitigation of Harris’ claim against the individual
defendants, and because we do not find public policies in Code ?
18.2-460 and former ? 15.1-138 sufficient to support
Harris’ wrongful discharge cause of action, we will reverse
the circuit court’s judgment in favor of Harris.

In order to address these two issues, we must
recite not only the facts surrounding Harris’ discharge, but
also the course of proceedings in the action he pursued in
federal court before filing the present case.


While on duty as a police officer on August 28,
1992, Harris investigated a burglary complaint at an apartment
complex in the City. Upon arriving at the apartment complex,
Harris spoke with Terry Grey, an occupant of one of the
apartments. Grey told Harris that a man claiming to be a
maintenance worker used a key to enter her apartment while she
was undressed. Harris then contacted the apartment manager to
determine whether the alleged intruder was indeed a maintenance
worker. In the meantime, Grey’s sister, Dierdre Gamble, and
Anthony Ortiz, a police officer who was assisting Harris, arrived
at the apartment complex.

When the apartment manager returned with a work
order pertaining to the alleged intruder, who was a maintenance
worker, Grey snatched the work order from the apartment
manager’s hand and refused to return it when ordered to do
so by Harris. Harris then grabbed Grey’s wrist in an attempt
to retrieve the work order from her and to enable him to handcuff
her. At that point, Gamble attacked Harris from the rear, and
they exchanged punches until Harris subdued her with pepper

After placing Gamble in handcuffs, Harris
transported her to a hospital, which was standard procedure when
a police officer used pepper spray.
While en route to the hospital, Harris reported the incident to
his supervisor, Lieutenant Gary Van Auken. Meanwhile, Ortiz also
contacted Van Auken and related a version of the events that was
different from Harris’ version. Ortiz believed that Harris
had mishandled the situation, causing it to escalate. Having
received conflicting information about the incident, Van Auken
consulted his supervisor and an attorney for the City, and
decided that, pending the outcome of an investigation of the
incident, formal charges should not be placed against Gamble nor
should she be incarcerated.

After Gamble was treated at the hospital,
Harris took her before a magistrate for the purpose of formally
placing charges against her. However, during the course of
several telephone conversations between Van Auken and Harris, Van
Auken advised Harris of the decision regarding Gamble and ordered
Harris to not place charges against Gamble, and to release
her into the custody of the police department’s internal
affairs division. Harris complied with that order, but later,
after consulting with an attorney, he obtained warrants against
both Gamble and Grey. Harris asked another police officer to
serve the warrants on Gamble, but he kept the ones for Grey in
his possession.

When Van Auken discovered that Harris had sworn
out the warrants against Grey and Gamble, he instructed Harris to
give him the unserved Grey warrants. After complying with Van
Auken’s order, Harris observed Van Auken place the warrants
in his desk drawer. According to Harris, those warrants were
never served on Grey.

However, the warrants against Gamble were
served. When those charges came to trial, Van Auken presented the
general district court with a letter from police Captain M.E.
Beane to the City attorney, which requested that the charges
against Gamble be "nolle prossed" because Harris had
been ordered to not obtain the warrants until all the facts in
the case had been reviewed by the police department.

Following that court proceeding, Harris
received a letter from his precinct captain, E.E. Rorrer,
ordering Harris to take no further action with regard to the
incident in his capacity as a police officer, but advising Harris
that he was free to act in his capacity as a private citizen.
Rorrer also informed Harris that if he had doubts with regard to
what actions he could take, Harris should contact Rorrer

Harris then filed an administrative complaint
against Rorrer and Van Auken, alleging that they had obstructed
justice. Harris also complained that Ortiz had failed to assist
him during the incident at the apartment complex. An
investigation of the complaint by the internal affairs division
resulted in a finding that Harris’ charges were unfounded.

The internal affairs division also received
complaints from Grey and Gamble regarding Harris’ conduct at
the apartment complex. After an investigation of those
complaints, Grey’s allegations were determined to be
founded, while Gamble’s were not. Thereafter, a 24-hour
suspension of Harris was recommended due to his insubordination
and disobedience of an order. He appealed the recommended

On July 30, 1993, while on duty and in uniform,
Harris appeared before a magistrate and obtained warrants for Van
Auken, charging him with two violations of Code ? 18.2-460,
obstruction of justice, and a violation of Code ? 18.2-469,
delay in executing lawful process. After learning about
Harris’ actions, Police Chief Charles R. Wall met with Major
Douglas G. McCloud; Captains Woodrow R. Baker, Beane, and Rorrer;
and Van Auken. They agreed that Harris should be terminated for
appearing in uniform before the magistrate and swearing out the
warrants against Van Auken. According to the August 19, 1993
letter of termination from the chief of police, this action by
Harris constituted disobedience of an order and abuse of his
position. Harris appealed his termination to the City’s
personnel board, which upheld his dismissal.


Harris subsequently filed a lawsuit in the
United States District Court for the Eastern District of Virginia
against the City, Van Auken, Beane, Baker, McCloud, Wall and two
other City officials, alleging that those defendants had violated
his First Amendment rights by terminating him, and further
asserting that he had been wrongfully discharged in violation of
Virginia law. Harris v. City of Virginia Beach, Virginia,
No. 2:93cv1151 (E.D. Va. first amended complaint filed Dec. 7,
1993). A jury returned a verdict for Harris on both counts of his
lawsuit. Importantly, with regard to his state law claim, the
jury found both the City and the individual defendants liable,
awarded compensatory and punitive damages against the City, but
assessed only punitive damages against the individual defendants.
In post-trial orders, the district court directed the City to pay
damages to Harris and to reinstate him to his former position,
but the court set aside the award of punitive damages against the
City and each of the individual defendants.

The City, but not the individual defendants,
appealed the district court’s judgment to the United States
Court of Appeals for the Fourth Circuit. Harris cross-appealed,
assigning as error the district court’s judgment to set
aside the awards of punitive damages.
[4] The court of appeals reversed, holding that Harris had
no First Amendment right to seek the warrants against Van Auken
since his "swearing out of the complaint did not implicate a
subject of public concern." Harris v. City of Virginia
, Nos. 94-2091 and 94-2122, slip. op. at 14 (4th Cir.
Oct. 30, 1995). The court then remanded Harris’ state law
claim to the district court to determine whether it should
survive dismissal of the federal constitutional claim. Id.
at 16.

On remand, the district court entered the same
judgment that it had previously entered in favor of Harris on his
state law claim. The court did so without conducting a new trial.
Only the City appealed the district court’s second judgment
to the court of appeals, which again reversed and remanded the
case with instructions to the district court to grant a new trial
on the state law claim, or alternatively, to decline to exercise
supplemental jurisdiction and dismiss the case without prejudice
in light of the prior dismissal of the federal claim. Harris
v. City of Virginia Beach
, No. 96-1743, slip op. at 8 (4th
Cir. Mar. 31, 1997). The district court dismissed the case
without prejudice, and Harris then filed this action in the
circuit court against the City, Van Auken, Beane, Baker, McCloud
and Wall.

During pre-trial proceedings in the present
case, Harris non-suited his claim against Van Auken. The case
then proceeded to a trial by jury against the remaining
defendants. At the close of all the evidence, the circuit court
struck the City’s evidence and found it liable, as a matter
of law, for Harris’ discharge. The court reasoned that it is
mandatory that police officers arrest people who violate the law,
and that no one – including a police supervisor – may
lawfully order a police officer to refrain from doing so. Thus,
the circuit court held that the order Harris disobeyed was an
unlawful order, and that Harris’ subsequent termination for
violating that order contravened the public policies of the

The court then submitted the case to the jury
on the remaining issues. Those issues were whether the individual
defendants were also liable for Harris’ termination in
violation of Virginia’s public policy, what amount of
damages should be awarded against the City, and what damages
should be assessed against the individual defendants if they were
found liable. The jury returned a verdict finding all the
individual defendants liable; awarding Harris compensatory
damages from the City and the individual defendants, jointly and
severally; and assessing punitive damages against the individual

In a letter opinion denying the
defendants’ post-trial motion to set aside the jury’s
verdict, the court again concluded, as it had at trial, that
Harris’ dismissal for securing the warrants against Van
Auken violated the public policy of Virginia set forth in the
Code sections specified by the magistrate as the basis for
issuing those warrants. The court stated that

[i]t is contrary to the public policy of
Virginia to prohibit a police officer from doing his sworn duty
as mandated by the Code of Virginia where the officer was
justified in fact and in law in attempting to comply with these
statutes which deal with the safety of the public.

The court also overruled the individual
defendants’ renewed plea of res judicata
and concluded that the jury’s verdict was not excessive.


Although the City and the individual defendants

several assignments of error, we conclude that
two of them are dispositive of this appeal: (1) that the circuit
court erred in finding that Harris’ claim against the
individual defendants is not barred by the doctrine of res
judicata because of the federal court proceedings, and (2)
that the court erred by finding that Code ? 18.2-460 and former
? 15.1-138 enunciate public policies that support Harris’
wrongful discharge claim. Accordingly, we will address only those
two assignments of error.

First, we conclude that the circuit court erred
in entering judgment against the individual defendants because
the principle of res judicata bars relitigation of
Harris’ claim against them. We have previously discussed the
rationale for this judicially created doctrine, stating that it

rests upon public policy considerations which
favor certainty in the establishment of legal relations, demand
an end to litigation, and seek to prevent the harassment of
parties. . . . The doctrine prevents "relitigation of the
same cause of action, or any part thereof which could have been
litigated, between the same parties and their privies."

Bill Greever Corp. v. Tazewell Nat’l
, 256 Va. 250, 254, 504 S.E.2d 854, 856 (1998) (quoting Bates
v. Devers
, 214 Va. 667, 670-71, 202 S.E.2d 917, 920-21
(1974)). Because "the same parties" that were present
in Harris’ federal lawsuit are also present in this state
court action, we conclude that the liability of those individual
defendants, which was litigated in federal court, cannot now be
relitigated in this subsequent action.
[6] See
Faison v. Hudson, 243 Va. 413, 419, 417 S.E.2d 302, 304
(1992) (doctrine of res judicata rests upon
principle that one person cannot relitigate with the same person
a cause of action that was tried and finally determined upon the

Harris pled, as a separate Count II of his
federal complaint, a cause of action for wrongful discharge under
Virginia law. That count remained in the case throughout the
preparation stages in the federal litigation, and was presented
to the jury. The federal district court’s jury verdict form
clearly indicates that the jury found that each individual
defendant named in that case had unlawfully discharged Harris, or
caused his discharge, in violation of Virginia’s public
policy. Even though the district court set aside the jury’s
assessment of punitive damages, the court did not set aside the
jury’s finding of liability with regard to the individual
defendants. After the first appeal in which the court of appeals
dismissed Harris’ federal constitutional claim and remanded
the state law claim, the district court specifically stated in
its new order that the judgment in favor of Harris on his state
law claim for wrongful discharge remained the same as the
judgment previously entered by the court. Since neither Harris
nor the individual defendants noted an appeal from that order,
the court of appeals did not have the individual defendants
before it in the second appeal and therefore lacked jurisdiction
over them. Federated Dep’t Stores, Inc. v. Moitie,
452 U.S. 394, 399-400 (1981). Thus, the district court’s
order stands as a final judgment regarding the liability of the
individual defendants for Harris’ discharge and, under the
doctrine of res judicata, bars relitigation of his
claim against them in the present case.

Nevertheless, Harris contends that the federal
district court never entered a final order with regard to the
individual defendants because the court did not specifically
state in either of its judgment orders whether the individual
defendants were liable to Harris along with the City, or whether
they were responsible for payment of the compensatory damages.
Although a final order is an essential element for the bar of res
judicata to apply, Norris v. Mitchell, 255 Va. 235,
239-40, 495 S.E.2d 809, 812 (1998), we find no merit in
Harris’ contention for two reasons.

First, the district court stated in its initial
judgment order that the jury had tried the issues and rendered
its verdict. The court altered the jury’s verdict only with
regard to the award of punitive damages. In an order entered
after the first appeal to the court of appeals, the district
court stated that the judgment in favor of Harris on his state
law wrongful discharge claim remained as previously entered by
the district court. Thus, the district court never modified the
jury’s finding that the individual defendants unlawfully
discharged, or caused the discharge of, Harris in violation of
Virginia’s public policy, but instead implicitly
incorporated such finding in its final orders.

Second, there are only two ways by which the
court of appeals could have acquired jurisdiction to review the
judgment of the federal district court. The federal courts of
appeal have jurisdiction of appeals from the final decisions of
the district courts pursuant to 28 U.S.C. ? 1291. The federal
appellate courts can also exercise jurisdiction over
interlocutory orders if there is an appeal by permission pursuant
to 28 U.S.C. ? 1292(b).
[7] See
Fed. R. App. P. 3(a)(4) and 5 (district court must enter order
granting permission for interlocutory appeal under 28 U.S.C. ?
1292(b) or stating that necessary conditions for such appeal are
met). There is no evidence of an order by the district court in
accordance with ? 1292(b) or Fed. R. App. P. 5(a)(3), nor other
evidence that an appeal of an interlocutory order was permitted
in Harris’ federal lawsuit. Because of that fact, we
conclude that the court of appeals was necessarily reviewing a
final judgment order from the district court in both appeals.
Otherwise, the parties would have been required to utilize the
procedure specified in Fed. R. App. P. 5. Thus, the district
court’s order was final as to all the parties, and that
portion of it pertaining to the individual defendants was not
affected by the court of appeals’ decision in the second
appeal because, as we have already stated, the individual
defendants were not parties to that appeal. Federated
Dep’t Stores
, 452 U.S. at 399-400.

Since relitigation of Harris’ claims
against the individual defendants is barred by the doctrine of res
judicata, we are left only with the claim against the
City. Before addressing the merits of the circuit court’s
judgment holding the City liable as a matter of law, we first
must determine the basis for the court’s ruling that the
City’s discharge of Harris violated certain public policies.

During a discussion between the court and the
attorneys for the parties with regard to proposed jury
instructions, the court stated that the evidence presented did
not establish a "whistle blowing case." Instead, the
court declared that the issue was whether it was a violation of
the public policy of Virginia to attempt to prohibit Harris from
obtaining the warrants against Van Auken and to fire him for
doing so. It is in the context of this discussion that the court
decided to strike the City’s evidence and hold, as a matter
of law, that the City’s termination of Harris was unlawful
because the discharge violated Virginia’s public policy.

However, the circuit court later told the jury
that the City had violated several of Virginia’s public
policies, including the policy "that a Virginia public
employer, such as the City of Virginia Beach, shall not retaliate
against a public employee because the employee has complied with
any law of the United States or the Commonwealth of Virginia or
has reported any violation of such law to a governmental
authority." Nevertheless, in the circuit court’s
post-trial letter opinion, which was incorporated in its final
order, the court clearly did not rely on any public policy
prohibiting retaliatory discharges in its decision to hold the
City liable as a matter of law. The following excerpts from the
court’s letter opinion underscore its rationale.

The Court held at trial and holds today that
[Harris’] dismissal for obtaining those warrants was
contrary to the public policy of Virginia as set forth in the
sections of the code which were specified by the magistrate as
the basis for the warrants and which are a matter of record in
this case.[

It is contrary to the public policy of Virginia
to prohibit a police officer from doing his sworn duty as
mandated by the Code of Virginia where the officer was justified
in fact and in law in attempting to comply with these statutes
which deal with the safety of the public.

Thus, we conclude that when the court struck
the City’s evidence and found it liable for Harris’
discharge as a matter of law, the court relied only on the public
policies underlying Code ?? 18.2-460 and -469, and former ?

Turning now to the merits of the circuit
court’s decision on this issue, we first observe that in our
previous cases dealing with Bowman-type exceptions to the
employment-at-will doctrine, this Court has consistently
characterized such exceptions as "narrow." Lawrence
Chrysler Plymouth Corp. v. Brooks
, 251 Va. 94, 98, 465 S.E.2d
806, 809 (1996); Lockhart v. Commonwealth Educ. Sys. Corp.,
247 Va. 98, 104, 439 S.E.2d 328, 331 (1994); Bowman, 229
Va. at 540, 331 S.E.2d at 801. While all statutes of the
Commonwealth reflect public policy to some extent, since
otherwise they presumably would not have been enacted by our
General Assembly, termination of an employee in violation of the
policy underlying any one of them does not automatically give
rise to a common law cause of action for wrongful discharge.

A review of our prior cases involving this area
of the law also reveals that this Court has found a public policy
sufficient to allow a common law wrongful discharge claim to go
forward as an exception to the employment-at-will doctrine in
only two instances. The first instance involves laws containing
explicit statements of public policy (e.g. "It is the public
policy of the Commonwealth of Virginia [that] . . ."). Lockhart,
247 Va. at 105, 439 S.E.2d at 331. The second one involves laws
that do not explicitly state a public policy, but instead are
designed to protect the "property rights, personal freedoms,
health, safety, or welfare of the people in general." Miller
v. SEVAMP, Inc.
, 234 Va. 462, 468, 362 S.E.2d 915, 918
(1987). Such laws must be in furtherance of "an [underlying] established public policy" that the discharge from
employment violates. Bowman, 229 Va. at 539, 331 S.E.2d at
801. "Each of the illustrative cases . . . cited in Bowman[,
where we first recognized the public policy exception to the
employment-at-will doctrine,] involved violations of public
policies of that character."
Miller, 234 Va. at 468, 362 S.E.2d at 918. Even if a
specific statute falls within one of these categories, an
employee must also be a member of the class of individuals that
the specific public policy is intended to benefit in order to
state a claim for wrongful termination in violation of public
policy. Dray v. New Market Poultry Products, Inc., 258 Va.
187, 191, 518 S.E.2d 312, 313 (1999).

Applying these principles regarding the public
policy exception to the employment-at-will doctrine in the
present case, we conclude that the statutes relied upon by the
circuit court do not fit within either of the instances where we
have found public policies that support a Bowman-type
cause of action. Code ? 18.2-460 defines the elements of, and
sets forth the criminal penalties for, the crime of obstruction
of justice, and, accordingly, reflects the General
Assembly’s intent to prohibit interference with the
administration of justice. That section does not explicitly state
any public policy, but, like all criminal statutes, it has as an
underlying policy the protection of the public’s safety and
welfare. Miller, 234 Va. at 468, 362 S.E.2d at 918.
However, Harris’ reliance on the statute is not in accord
with that policy. Instead, Harris is attempting to use Code ?
18.2-460 as a shield to protect himself, not the public, from the
consequences of his decision to charge Van Auken with obstruction
of justice despite his supervisor’s order to take no further
action in an official capacity with regard to any aspect of the
incident involving Grey and Gamble. To utilize this criminal
statute as Harris suggests would allow wrongful discharge
lawsuits to be pursued by virtually any police officer who
believes that personnel decisions obstructed the officer’s
enforcement of the law. In light of our prior decisions
addressing the public policy exception to the employment-at-will
doctrine, we find no established public policy underlying Code ?
18.2-460 that would support Harris’ wrongful discharge cause
of action.

A similar analysis applies to former Code ?
15.1-138. That statute provided, in pertinent part, that a police
officer "shall endeavor to prevent the commission . . . of
offenses against the law of the Commonwealth . . . ; shall
observe and enforce all such laws . . . ; [and] shall detect and
arrest offenders . . . ." By its terms, the statute did not
state any public policy but merely described the powers and
duties of a police force. Nor was the statute designed to protect
any public rights pertaining to "property . . . , personal
freedoms, health, safety, or welfare." Miller, 234
Va. at 468, 362 S.E.2d at 918. See also Childress
v. City of Richmond
, 907 F.Supp. 934, 942 (E.D. Va. 1995), aff’d
per curiam, 134 F.3d 1205 (4th
Cir.) (en banc), cert. denied, 524 U.S. 927
(1998) (holding that statute did not create any public rights).
As we said in Lawrence Chrysler, 251 Va. at 98, 465 S.E.2d
at 809, the Bowman exception is not broad enough to make
actionable the discharge of an at-will employee that violates
only private rights or interests.

For these reasons, we will reverse the judgment
of the circuit court and enter final judgment here in favor of
the City and the individual defendants.

Reversed and final judgment.



[1]The General Assembly repealed Code ? 15.1-138 effective
December 1, 1997. Code ? 15.2-1704, which became effective on
that date, includes the provisions of Code ? 15.1-138 that are
pertinent to this appeal. We shall cite former Code ? 15.1-138
in this opinion.

[2] Grey was not arrested since she
"took off" after the altercation between Harris and

[3] Because of his termination, a hearing on Harris’
appeal of the recommended 24-hour suspension was not conducted.

[4] Harris assigned other errors in
his cross-appeal, but those issues are not relevant to this

[5] The court had previously denied a pre-trial motion for
summary judgment filed by all the individual defendants except
Van Auken. Relying on the doctrine of res judicata,
they had asserted in that motion that the federal court’s
judgment with regard to them barred relitigation of Harris’
state law claim for wrongful discharge.

[6] Three other individuals, including Van Auken, were also
held liable in federal court but are not parties in the instant

[7] 28 U.S.C. ? 1292(b) provides
that a court of appeals, in its discretion, may permit an appeal
from an interlocutory order if the district court states in
writing that "an order not otherwise appealable under this
section, . . . involves a controlling question of law as to which
there is substantial ground for difference of opinion and that an
immediate appeal from the order may materially advance the
ultimate termination of the litigation."

[8]The Code sections specified in the warrants against Van
Auken were ?? 18.2-460 (obstructing justice) and –469
(refusing or delaying the execution of process for a criminal).

[9] In Mitchem v. Counts, 259
Va. ___, ___ S.E.2d ___ (2000), decided today, this Court holds
that an at-will employee asserted a valid common law cause of
action for wrongful termination of employment when she alleged
that her discharge violated the public policy underlying two
criminal statutes, Code ?? 18.2-344 and -345.

[10]The circuit court generally referenced the statutes
cited in the warrants against Van Auken but did not actually name
them. However, its discussion of Virginia’s public policy
implicated both statutes. Our analysis and conclusion that Code
? 18.2-460 cannot be used as a source of public policy to
support Harris’ wrongful discharge cause of action applies
equally to Code ? 18.2-469.