Home / Fulltext Opinions / Supreme Court of Virginia / DRAY v. NEW MARKET POULTRY PRODUCTS


NOTICE: The opinions posted here are
subject to formal revision. If you find a typographical error or
other formal error, please notify the Supreme Court of Virginia.




September 17, 1999

Record No. 981767







John J. McGrath, Jr., Judge

Present: All the Justices


This is another case in which an employee seeks
to create an exception to the Commonwealth’s established
employment-at-will doctrine in order to pursue a common-law claim
for wrongful discharge.

In August 1997, appellant April L. Dray, the
employee, filed a motion for judgment against appellee New Market
Poultry Products, Inc., the employer, seeking damages for alleged
wrongful termination of her employment. The employer filed a
demurrer, which the trial court sustained in a May 1998
"Opinion and Order." The employee appeals.

Because a demurrer, which tests the legal
sufficiency of the motion for judgment, admits the correctness of
all material facts that are properly pleaded, we shall recite the
facts set forth in the motion for judgment as if they are true.

The employee worked for the employer from
August 1994 until she was "fired" on September 11,
1996. For about three months prior to her termination, the
employee was a "quality control inspector" on the
employer’s production lines to assure that no adulterated poultry
products were distributed.

Two months prior to her termination, the
employee "experienced difficulty" in getting other
employees to follow proper sanitary rules. "When management
ignored and failed to correct the noted deficiencies," the
employee, "in conformance to her training and assigned
duties . . . , informed the plant’s on-site governmental
inspectors." The inspectors "confirmed the unsanitary
conditions," according to the allegations, and
"forced" the employer to correct the deficiencies.
Subsequently, the employee was told by her supervisor "that
she would be fired if she ever again brought plant sanitary
deficiencies to the attention of the . . . governmental

In the week prior to the employee’s
termination, she and other quality control inspectors condemned
as adulterated some poultry products based on improper work
performed on the plant’s "wash line." On the day of the
employee’s termination, a government inspector required the
employer to "reprocess a large quantity of poultry product
due to contamination by metal-laced ice."

The employer’s management believed that the
employee had informed the government inspector of this
adulterated product. She was discharged for violating the
"edict" that she not inform the inspectors of
unsanitary conditions and adulterated poultry products. When the
employee asked the reason for her discharge, the employer’s
personnel supervisor informed her that "’it was not working

In her motion for judgment, the employee says
she "states a common law claim for wrongful termination of
employment in violation of the public policy of the Commonwealth
of Virginia." Elaborating, the employee asserts the public
policy relied upon is articulated by the Commonwealth in the
"Virginia Meat and Poultry Products Inspection Act,"
Code ?? 3.1-884.17 through -884.36 (the Act).

She alleges the employer terminated her in
contravention of the public policy she finds set forth in the Act
that is applicable to her. As a result, she asserts, she has
incurred damages for which she seeks recovery.

In sustaining the demurrer, the trial court
held that the motion for judgment did not set forth a legally
cognizable claim for wrongful discharge. The court ruled that the
plaintiff had failed "to extrapolate" from the broad
declaration found in the Act, of an intent to serve "the
public good" generally, a specific public policy intended to
benefit the class of individuals to which the plaintiff belonged.
Thus, the court decided, the employee’s claim did not qualify as
an exception to the employment-at-will doctrine. The trial court
was correct.

Virginia adheres to the common-law doctrine of
employment-at-will. When a contract calls for the rendition of
services, but the period of the contract’s intended duration
cannot be determined from its provisions, either party ordinarily
is at liberty to terminate the contract at will upon giving
reasonable notice of intention to terminate. Doss v. Jamco,
, 254 Va. 362, 366, 492 S.E.2d 441, 443 (1997); Stonega
Coal and Coke Co. v. Louisville and Nashville R.R. Co.
, 106
Va. 223, 226, 55 S.E. 551, 552 (1906). But, "the rule is not
absolute." Bowman v. State Bank of Keysville, 229 Va.
534, 539, 331 S.E.2d 797, 801 (1985).

In Bowman, we recognized that a number
of state courts had applied exceptions to the rule of
terminability. By way of illustration, we referred to several
decisions from other jurisdictions, e.g., Sheets v.
Teddy’s Frosted Foods, Inc.
, 427 A.2d 385 (Conn. 1980), that
had granted such exceptions, but we did not adopt the rationale
or exceptions articulated in those cases. Bowman, 229 Va.
at 539-40, 331 S.E.2d at 801.

In Bowman, we applied "a narrow
exception to the employment-at-will rule." Id. at
540, 331 S.E.2d at 801. We held that two bank employees, who were
also stockholders of the bank corporation, had stated a cause of
action in tort against the bank and bank directors when the
employees were discharged after failing to heed a threat to vote
their stock according to the wishes of their employer. We said
that the public policy set forth in former Code ? 13.1-32 (now
? 13.1-662) conferred upon the plaintiffs as stockholders the
right to vote their shares "free of duress and intimidation
imposed on individual stockholders by corporate management."
Id., 331 S.E.2d at 801.

In the present case, the plaintiff seeks to
mount a generalized, common-law "whistleblower"
retaliatory discharge claim. Such a claim has not been recognized
as an exception to Virginia’s employment-at-will doctrine, and we
refuse to recognize it today. See Lawrence Chrysler
Plymouth Corp. v. Brooks
, 251 Va. 94, 465 S.E.2d 806 (1996)
(motor vehicle repairman unsuccessfully sued employer alleging
discharge for his refusal to use method of repair that he
believed unsafe); Miller v. SEVAMP, Inc., 234 Va. 462, 362
S.E.2d 915 (1987) (retaliatory discharge claim rejected when
employee alleged she was fired for appearing as witness at
co-employee’s grievance hearing).

The Act upon which this plaintiff relies does
not confer any rights or duties upon her or any other similarly
situated employee of the defendant. Instead, the Act’s objective
is "to provide for meat and poultry products inspection
programs that will impose and enforce requirements with respect
to intrastate operations and commerce." Code ? 3.1-884.19.

The plaintiff identifies two of the Act’s
provisions that she says articulate a public policy allowing her
to evade the employment-at-will doctrine. She relies upon Code ?
3.1-884.22, which forbids intrastate distribution of uninspected,
adulterated, or misbranded meat and poultry products. She also
relies upon Code ? 3.1-884.25(2), which establishes criminal
penalties for any person who "resists, . . . impedes,
. . . or interferes" with state meat inspectors.
These provisions do not secure any rights to this plaintiff, nor
do any other provisions of the Act. Rather, the Act establishes a
regulatory mechanism directed only to government inspectors and
industry management.

In essence, the plaintiff claims she has been
wrongfully terminated because she had a right to disregard
management’s requirements that she report to her company
superiors, and not directly to government inspectors, when she
believed she was acting to assure the safety of the employer’s
products. However, the Act affords plaintiff no express statutory
right in this regard that is in specific furtherance of the
state’s public policy regarding inspections of meat and poultry

Consequently, we hold that the trial court did
not err in sustaining the employer’s demurrer. Thus, the judgment
below will be Affirmed.