VanBuren v. Grubb

Present: All the Justices

ANGELA VANBUREN
OPINION BY
v. Record No. 120348 JUSTICE LEROY F. MILLETTE, JR.
November 1, 2012
STEPHEN A. GRUBB

UPON A QUESTION OF LAW CERTIFIED BY THE
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

On March 1, 2012, the United States Court of Appeals for

the Fourth Circuit entered an order of certification requesting

that we exercise our jurisdiction pursuant to Article VI,

Section 1 of the Constitution of Virginia and Rule 5:40, and

answer the following question:

Does Virginia law recognize a common law tort claim
of wrongful discharge in violation of established
public policy against an individual who was not the
plaintiff's actual employer, such as a supervisor or
manager, but who participated in the wrongful firing
of the plaintiff?

In an order dated April 19, 2012, we accepted the

certified question, and, for the reasons stated herein, we

now restate the question pursuant to our authority under

Rule 5:40(d) and answer in the affirmative.

BACKGROUND

A. Factual History

Because this case arises from the granting of a motion to

dismiss by the United States District Court for the Western

District of Virginia, we must take the factual allegations in

Angela VanBuren's complaint as true "for the purposes of
framing an answer that is responsive to the needs of the

[Fourth Circuit]." Wyatt v. McDermott, 283 Va. 685, 689, 725

S.E.2d 555, 556 (2012) (citing Zinermon v. Burch, 494 U.S. 113,

118 (1990)). Accordingly, the facts presented herein are those

alleged in VanBuren's complaint.

VanBuren was employed as a nurse by Virginia Highlands

Orthopedic Spine Center, LLC, from December 2003 to March 2008.

Soon after she joined Virginia Highlands, VanBuren was

subjected to sexual harassment by her supervisor, Virginia

Highland's owner Dr. Stephen Grubb. He would "hug her, rub her

back, waist, breast and other inappropriate areas, and attempt

to kiss her." Although VanBuren told Dr. Grubb that his sexual

advances were "offensive" and "unwelcome[]," he continued to

pursue her. In May 2006, while the two were travelling for

business, Dr. Grubb went to VanBuren's hotel room and "began

rubbing her back, waist, breast and hair while stating that he

loved her." VanBuren broke free of his embrace and told him

that "she was not going to have sex with him," that "he was a

married man," and that "he needed to leave."

Dr. Grubb's sexual harassment continued after VanBuren's

marriage in 2007. Dr. Grubb tried to "console" VanBuren

regarding her subsequent marital problems. His "consoling"

entailed "encouraging [her] to leave her husband and then

proceeding to hug, kiss, and grope her." VanBuren "continued

2
to insist that [Dr. Grubb's] advice and sexual advances were

unwelcomed and offensive."

In March 2008, Dr. Grubb again suggested during a closed-

door meeting that VanBuren leave her husband so that she "could

accept his love for what it was and what it could be." A few

days later, Dr. Grubb called VanBuren into his office and asked

whether she planned to stay with her husband. When she

responded in the affirmative, he fired her. He then offered

her roughly a month's severance pay to remain silent about the

sexual harassment. Dr. Grubb gave no other explanation for

terminating VanBuren's employment with Virginia Highlands.

B. Procedural History

In March 2010, VanBuren filed suit, asserting a claim for

gender discrimination against Virginia Highlands under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a)

and 2000e-3(a), and asserting a claim for wrongful discharge

against Dr. Grubb and Virginia Highlands. As to the latter

claim, she alleged that she had been discharged from Virginia

Highlands because she had refused to engage in criminal conduct

– specifically, adultery in violation of Code § 18.2-365 and

open and gross lewdness and lasciviousness in violation of Code

§ 18.2-345. Accordingly, she contended that her discharge

violated public policy. See Bowman v. State Bank of Keysville,

229 Va. 534, 331 S.E.2d 797 (1985).

3
 Both Dr. Grubb and Virginia Highlands moved to dismiss.

The district court granted the motion as to Dr. Grubb,

"conclud[ing] that, were the Virginia Supreme Court to directly

address this issue, it would find that wrongful discharge

claims by an employee are cognizable only against the employer

and not against supervisors or co-employees in their individual

capacity." VanBuren then moved the district court to enter

final judgment against Dr. Grubb so that she could appeal its

decision. The district court granted the motion, and VanBuren

appealed to the Fourth Circuit. After briefing and oral

argument, the Fourth Circuit determined that it could not

predict with confidence how this Court would rule as to whether

a wrongful discharge claim is cognizable against an individual

such as Dr. Grubb. The Fourth Circuit accordingly certified

the question to this Court, and we accepted.

A certified question must be "determinative of the

proceeding[s] in the certifying court." Rule 5:40(c). Upon

examination of the certified question, we conclude that the

question as posed encompasses a larger body of employees than

is essential to produce a determinative answer in these

proceedings. We therefore exercise our discretion under Rule

5:40(d) to restate the question as follows:

Does Virginia law recognize a common law tort claim
of wrongful discharge in violation of established
public policy against an individual who was not the

4
 plaintiff's actual employer but who was the actor in
violation of public policy and who participated in
the wrongful firing of the plaintiff, such as in the
capacity of a supervisor or manager?

DISCUSSION

A. The Public Policy Exception to Employment-at-Will
in the Commonwealth

Virginia "strongly adheres to the employment-at-will

doctrine," Lockhart v. Commonwealth Educ. Sys. Corp., 247 Va.

98, 102, 439 S.E.2d 328, 330 (1994), that "when the intended

duration of a contract for the rendition of services cannot be

determined by fair inference from the terms of the contract,

then either party is ordinarily at liberty to terminate the

contract at will, upon giving the other party reasonable

notice." Miller v. SEVAMP, Inc., 234 Va. 462, 465, 362 S.E.2d

915, 916-17 (1987).

This rule, however, is not absolute. In Bowman, 229 Va.

at 540, 331 S.E.2d at 801, we held that a corporate employer

could be held liable in tort for the discharge of two employees

who were also shareholders of the corporation. The corporation

had discharged the employees because they had refused to vote

their shares in accordance with the wishes of the corporation's

board of directors. Id. at 537-38, 331 S.E.2d at 799-800. We

observed that the corporation's coercion violated the public

policy underlying former Code § 13.1-32 (now Code § 13.1-662),

which grants each shareholder the right to cast one vote for

5
each share held. Id. at 540, 331 S.E.2d at 801. "Because the

right conferred by statute is in furtherance of established

public policy," we reasoned, "the employer may not lawfully use

the threat of discharge of an at-will employee as a device to

control the otherwise unfettered discretion of a shareholder to

vote freely his or her stock in the corporation." Id. Thus,

"applying a narrow exception to the employment-at-will rule,"

the Court held that "the [employees] ha[d] stated a cause of

action in tort against the [corporation] and the named

directors for improper discharge from employment." Id.

Since Bowman, the Court has considered several cases in

which a public policy exception was asserted. In each case,

the Court has emphasized that the exception is "narrow":

"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." Rowan

v. Tractor Supply Co., 263 Va. 209, 213, 559 S.E.2d 709, 711

(2002) (alteration in original) (internal quotation marks and

citation omitted).

VanBuren's claim falls under one such narrow exception

previously recognized by the Court: discharge based on the

employee's refusal to engage in a criminal act. Mitchem v.

Counts, 259 Va. 179, 190, 523 S.E.2d 246, 252 (2000) (holding

discharge based upon refusal to engage in fornication and lewd

6
and lascivious cohabitation to be against public policy).

VanBuren similarly alleges that her discharge resulted from her

refusal to engage in the criminal acts of adultery and lewd and

lascivious cohabitation. There is no question that VanBuren

has stated a cognizable wrongful discharge claim against her

employer, Virginia Highlands. We now address the issue of

whether she has done the same against Grubb, since the Court

has never squarely addressed whether a wrongful discharge claim

can be brought against an individual employee.

B. Personal Liability of Employees for Wrongful Discharge

Although we have not specifically addressed the personal

liability of employees for wrongful discharge, we have twice

allowed wrongful discharge claims to proceed against individual

defendants who both committed the acts in violation of public

policy and effected the termination. In Bowman, we held that

"the plaintiffs ha[d] stated a cause of action in tort against

the Bank and the named directors for improper discharge from

employment." 229 Va. at 540, 331 S.E.2d at 801 (emphasis

added). Nearly a decade later in Lockhart, we concluded that a

wrongful discharge claim based on gender discrimination could

go forward against both the plaintiff's former employer and her

former supervisor. 247 Va. at 106, 439 S.E.2d at 332. In one

of the two actions reviewed in Lockhart, the corporate employer

was a sole proprietorship, and the president of the company,

7
her supervisor, allegedly engaged in activities comparable to

the allegations in this case.

While many jurisdictions have likewise permitted such

actions without any explicit holding on the matter, several of

our sister states have directly addressed the issue of

individual liability for persons committing tortious acts in an

employment setting. See, e.g., Myers v. Alutiiq Int'l

Solutions, LLC, 811 F.Supp.2d 261, 269 (D.D.C. 2011) (holding

that the "D.C. Court of Appeals would allow claims against

individual supervisors for wrongful discharge" because

"individuals are liable for their own torts, even as agents

acting on behalf of their employers"); Higgins v. Assmann

Elecs., Inc., 173 P.3d 453, 458 (Ariz. Ct. App. 2007) (holding

that "[c]orporate officers are liable to those harmed by such

officer[s]" when their "acts constitut[e] the wrongful

termination" of an employee); Jasper v. H. Nizam, Inc., 764

N.W.2d 751, 776 (Iowa 2009) (holding that an individual

corporate officer can be held liable for wrongful discharge

because the tort "does not impose liability for the discharge

from employment, but the wrongful reasons motivating the

discharge"); Ballinger v. Delaware River Port Auth., 800 A.2d

97, 110 (N.J. 2002) (holding that "an individual who personally

participates in the tort of wrongful discharge may be held

individually liable" because "[a]n agent who does an act

8
otherwise a tort is not relieved from liability by the fact

that he acted at the command of the principal or on account of

the principal") (alteration in original) (internal quotation

marks and citation omitted); Kamensky v. Roemer Inc., 1 Pa. D.

& C. 4th 497, 499 (Pa. 1988) (holding that "an officer of the

corporation who takes part in the commission of the tort by the

corporation is personally liable therefor[]") (internal

quotation marks and citation omitted); Harless v. First Nat'l

Bank in Fairmont, 289 S.E.2d 692, 698, 699 (W. Va. 1982)

(holding that liability on the part of the employer "does not

mean that another employee who has been the principal

protagonist in obtaining the employee's discharge would not

also be liable," because "an agent or employee can be held

personally liable for his own torts against third parties").

But see Miklosy v. Regents of Univ. of California, 188 P.3d

629, 645 (Cal. 2008) (holding that the agency relationship

shields employees from tort liability for wrongful discharge).

We find Virginia's existing precedent permitting such

suits to be consistent with the Court's established case law

regarding agency relationships. It has long been settled in

Virginia that "employers and employees are deemed to be jointly

liable and jointly suable for the employee's wrongful act."

Thurston Metals & Supply Co. v. Taylor, 230 Va. 475, 483-84,

339 S.E.2d 538, 543 (1986); see also Miller v. Quarles, 242 Va.

9
343, 347, 410 S.E.2d 639, 642 (1991) ("Both principal and agent

are jointly liable to injured third parties for the agent's

negligent performance of his common law duty of reasonable care

under the circumstances.").

Grubb argues that, as only the employer has the ability to

effect a discharge, the liability must cease there. We are not

persuaded. In a wrongful discharge case, the tortious act is

not the discharge itself; rather, the discharge becomes

tortious by virtue of the wrongful reasons behind it. Jasper,

764 N.W.2d at 776. Where those tortious reasons arise from the

unlawful actions of the actor effecting the discharge, he or

she should share in liability. Here, VanBuren was fired

because she would not give in to Grubb's unlawful demands. As

Grubb was her supervisor and owner of the company, we conclude

that, if her allegations are proven, he too should be subject

to liability, just as he would be had he engaged in any other

tortious conduct.

Indeed, the recognition in Bowman of a tort of wrongful

discharge for public policy reasons leads to this result.

Limiting liability to the employer would follow a contract

construct. Wrongful discharge, however, is an action sounding

in tort. While there are components of a contractual

relationship, wrongful discharge remains a tort and tort

principles must apply.

10
 The purpose of the wrongful discharge tort — namely, the

deterrence of discharge in violation of public policy — is best

served if individual employees in a position of power are held

personally liable for their tortious conduct. Employer-only

liability would be insufficient to deter wrongful discharges,

as this case clearly demonstrates. In response to the suit,

Grubb left Virginia Highlands, the medical practice he himself

started, and joined another healthcare provider. If the Court

does not recognize individual liability in such cases, there

may be nothing to prevent other business owners from following

this model in an attempt to avoid liability.

We recognize the concern that supervisors will be hesitant

to rightfully discharge at-will employees for fear of suit. We

believe, however, that the extremely narrow nature of wrongful

discharge actions, as discussed in Part A, supra, and the

requirement that the defendant employees' personal actions be

shown to have violated the relevant public policy, provides

sufficient protection from the overuse of wrongful discharge

claims.

CONCLUSION

For the aforementioned reasons, we conclude that Virginia

recognizes a common law tort claim of wrongful discharge in

violation of established public policy against an individual

who was not the plaintiff's actual employer but who was the

11
actor in violation of public policy and who participated in the

wrongful firing of the plaintiff, such as a supervisor or

manager.

Certified question, as restated, answered in the affirmative.

CHIEF JUSTICE KINSER, with whom JUSTICE GOODWYN and JUSTICE
McCLANAHAN join, dissenting.

In this certified question case, the Court must resolve a

question of first impression: Can the common law tort action

for wrongful discharge in violation of public policy be brought

against an individual who is not the employer of the discharged

employee? I conclude the question must be answered in the

negative because, as the district court stated, "when the

employee-employer relationship has been wrongfully terminated,

liability to the wronged employee can only rest with the other

party in that relationship, the employer." VanBuren v.

Virginia Highlands Orthopaedic Spine Ctr., LLC, 728 F.Supp.2d

791, 794 (W.D. Va. 2010). Thus, I respectfully dissent.

As the majority recognizes, this Court has never addressed

the question now before us. Although both Bowman v. State Bank

of Keysville, 229 Va. 534, 331 S.E.2d 797 (1985), and Lockhart

v. Commonwealth Education Systems Corporation, 247 Va. 98, 439

S.E.2d 328 (1994), included allegations against individual

12
defendants who engaged in conduct in violation of public policy

but who were not the plaintiffs' employers, neither case

involved a challenge to whether the tort of wrongful discharge

could be maintained against those non-employer defendants.

Thus, the decisions in those cases have no precedential value

in addressing the precise issue presented now. Virginia has no

"existing precedent" allowing such actions.

To answer the restated certified question, I begin by

analyzing what constitutes a tort. 1 "A 'tort' is any civil

wrong or injury; a wrongful act (not involving a breach of

contract) for which an action will lie." Jewett v. Ware, 107

Va. 802, 806, 60 S.E. 131, 132 (1908) (internal quotation marks

omitted); accord Buchanan v. Doe, 246 Va. 67, 71-72, 431 S.E.2d

289, 291-92 (1993); Glisson v. Loxley, 235 Va. 62, 67, 366

S.E.2d 68, 71 (1988). The term "tort" is defined as "a breach

of a duty that the law imposes on persons who stand in a

particular relation to one another." Black's Law Dictionary

1626 (9th ed. 2009). It is well established that every tort

action consists of three elements: (1) the existence of a

legal duty; (2) a breach of that duty; and (3) damages as a

proximate result of the breach. Kellermann v. McDonough, 278

1
Whether Angela VanBuren stated a cognizable claim for
wrongful discharge in violation of an established public policy
against her employer is irrelevant to answering the restated
certified question.

13
Va. 478, 487, 684 S.E.2d 786, 790 (2009); Marshall v. Winston,

239 Va. 315, 318, 389 S.E.2d 902, 904 (1990); Trimyer v.

Norfolk Tallow Co., 192 Va. 776, 780, 66 S.E.2d 441, 443

(1951). The threshold question in any tort action is whether

the defendant owed a legal duty to the plaintiff. Burns v.

Johnson, 250 Va. 41, 44, 458 S.E.2d 448, 450 (1995).

The common law tort of wrongful discharge has been

understood from its inception as an exception to the common law

employment-at-will doctrine. Bowman, 229 Va. at 539-40, 331

S.E.2d at 800-01. That doctrine means that "when a contract

calls for the rendition of services, but the period of its

intended duration cannot be determined by a fair inference from

its provisions, either party is ordinarily at liberty to

terminate the contract at will upon giving reasonable notice of

intention to terminate." Id. at 535, 331 S.E.2d at 798 (citing

Stonega Coal & Coke Co. v. Louisville & Nashville R.R. Co., 106

Va. 223, 226, 55 S.E. 551, 552 (1906)). In Bowman, however, we

recognized an exception "to the strict application of the

doctrine in favor of at-will employees who claim to have been

discharged in violation of an established public policy." Id.

at 539, 331 S.E.2d at 801.

In discussing the decision in Bowman, we later explained

that the discharge there was tortious because "the employer had

misused its freedom to terminate the services of at-will

14
employees in order to subvert" the statutory policy granting

"each stockholder the unfettered right to cast one vote for

each share of corporate stock held." Miller v. SEVAMP, Inc.,

234 Va. 462, 467, 362 S.E.2d 915, 918 (1987) (emphasis added).

We further stated that "Bowman recognized an exception to the

employment-at-will doctrine limited to discharges which violate

public policy." Id. at 468, 362 S.E.2d at 918 (first emphasis

added).

Thus, an employer is free to terminate an at-will employee

but may not do so for reasons that violate public policy. The

particular relationship from which this duty arises is that of

employer and employee, and the legal duty imposed is to refrain

from discharging an at-will employee for reasons that

contravene public policy. Only an employer can breach that

duty because only an employer has the ability to hire and fire.

There is no liability for wrongful discharge without a

termination. An individual manager or supervisor who carries

out the wrongful discharge acts solely in a representative

capacity for the employer, not in a personal capacity, because

that individual stands outside the employer-employee

relationship. Such an individual, therefore, cannot be

individually liable for that discharge. Because the legal duty

at issue in a claim for wrongful discharge does not flow from

one employee to another employee, it is irrelevant if a manager

15
or supervisor also engaged in the conduct that violated public

policy.

I am not alone in my view that an individual employee

cannot be liable for the tort of wrongful discharge. Several

states have reached the same conclusion. For example, in

Buckner v. Atlantic Plant Maintenance Co., 694 N.E.2d 565, 569

(Ill. 1998), the Supreme Court of Illinois stated that,

"[l]ogically speaking, only 'the employer' has the power to

hire or fire an employee." Although an employee must carry out

that function for the employer, the court stated, "it is still

the authority of the employer which is being exercised." Id.

Rejecting the "application of general principles of agency

law," the court further explained:

The plaintiff asserts that . . . an agent whose
tortious conduct renders the principal liable is
also liable for his own tortious acts. This
general rule may not, however, be logically
applied to the tort of retaliatory discharge. As
explained above, the power to hire and fire
employees is ultimately possessed only by the
employer. Consequently, the tort of retaliatory
discharge may be committed only by the employer.

Id. at 570. See generally Rebarchek v. Farmers Coop. Elevator

& Mercantile Assoc., 35 P.3d 892, 903-04 (Kan. 2001) (quoting

extensively from Buckner and adopting its holding).

The Court of Appeals of Oregon took a similar approach in

Schram v. Albertson's Inc., 934 P.2d 483 (Or. Ct. App. 1997).

"[T]orts," the court stated, "are based on the violations of

16
duties owed by one party to another other than those created by

contract." Id. at 490.

[T]he tort of wrongful discharge arises when an
employer violates a duty imposed by an
established public policy. The employment
relationship is a necessary element of the tort
and establishes the duty of the employer on
behalf of the employee not to violate an
established public policy. That relationship
does not exist among fellow employees.

Id. at 490-91 (citations omitted).

While the court recognized that an employee can be liable

for his/her own torts, the court reasoned that in

"determin[ing] whether an employee has committed tortious

conduct in a personal capacity, the elements of the alleged

tort determine whether such a duty exists. . . . [T]he elements

of the particular tort determine who is subjected to

liability." Id. at 491.

In the case of the tort of wrongful discharge,
only an employer can discharge an employee.
When a supervisor acts to discharge an employee,
he or she is acting solely in his or her
representative capacity for the employer. There
is no duty owed by the supervisor in a personal
capacity to the employee.

Id.

Similarly, in Physio GP, Inc. v. Naifeh, 306 S.W.3d 886

(Tex. App. 2010), the Texas Court of Appeals rejected the

application of agency principles. The court recognized that

"[t]he employment relationship is the source of the duty in

17
wrongful discharge torts" and that relationship "exists only

between the employer and employee, not between two employees,

even when one of those employees is a supervisor or even the

owner." Id. at 888.

Only the employer has the power to hire and
fire, and supervisors merely exercise that power
on the employer's behalf. Corporate employees
cannot, in their personal capacity, wrongfully
discharge an employee because they have no
personal authority to fire an employee.

Id. at 888-89 (citations omitted).

Nevertheless, the majority answers the restated certified

question affirmatively in a situation when the employee who

engaged in the wrongful conduct was also the individual who

participated in the termination on behalf of the employer. In

doing so, the majority focuses on the wrongful conduct rather

than the wrongful discharge itself. Indeed, the majority

states that "[i]n a wrongful discharge case, the tortious act

is not the discharge itself."

In my view, this analysis overlooks the first element of

the tort, the legal duty. 2 That duty, as I have already

2
In Jasper v. H. Nizam, Inc., 764 N.W.2d 751 (Iowa 2009),
on which the majority relies, the court identified the
following as the elements of the tort of wrongful discharge:
(1) [E]xistence of a clearly defined public
policy that protects employee activity; (2) the
public policy would be jeopardized by the
discharge from employment; (3) the employee
engaged in the protected activity, and this
conduct was the reason for the employee’s

18
explained, is to refrain from discharging an at-will employee

for reasons that violate public policy. An individual

employee, no matter whether he/she is the owner, manager,

supervisor, or director of the corporate employer, cannot

breach that duty. We must not forget that this certified

question asks about the common law tort of wrongful discharge,

not some other tort such as assault and battery or intentional

infliction of emotional distress. The elements of the tort at

issue dictate who can be subjected to liability.

Our cases holding corporate officers individually liable

for their tortious conduct are not dispositive because they

presuppose that a corporate officer is capable of committing

the tort in question. As the district court stated, "that is

precisely the question with which the Court is concerned."

VanBuren, 728 F.Supp.2d at 795. For example, in Miller v.

Quarles, 242 Va. 343, 410 S.E.2d 639 (1991), this Court held

that a corporate principal and its agents were jointly liable

"for the agent's negligent performance of his common-law duty

of reasonable care" under the particular circumstances alleged.

Id. at 347, 410 S.E.2d at 642. There, the agent had a common

law duty, which he breached, and the corporate principal was

discharge; and (4) there was no overriding
business justification for the termination.
Id. at 761. Like the majority's analysis, these elements
mistakenly focus on the employee's "protected activity" rather
than the employer's act of discharging the employee. Id.

19
jointly liable under the theory of respondeat superior. Id. at

347-48, 410 S.E.2d at 642. Likewise, in PTS Corp. v. Buckman,

263 Va. 613, 561 S.E.2d 718 (2002), the statute at issue, Code

§ 8.01-40(A), imposed liability upon "the person, firm, or

corporation" using an individual's name without written consent

for advertising or trade purposes. Id. at 622, 561 S.E.2d at

723. For that reason, we held that the corporate officers,

acting as agents of the corporate defendant, could be held

liable for their conduct. Id.

These cases illustrate the basic principle that a

corporate officer is liable for his/her tortious conduct when

he/she, as an individual, has a legal duty to another

individual who stands in a particular relationship to the

corporate officer. As stated previously, when determining

whether an employee is liable in a personal capacity, the

elements of the particular tort at issue must be examined.

Those elements determine who is subjected to liability. See

Schram, 934 P.2d at 491. The majority fails to account for

both what a tort is as a general matter and what this

particular tort is by completely ignoring the employer-employee

relationship at issue, the duty that arises from that

relationship, and how such duty can be breached. In other

words, the majority does not address the specific elements of

the common law tort of wrongful discharge.

20
 I do not sanction the alleged behavior of the defendant,

Dr. Stephen A. Grubb, and I understand the consequences of the

fact that VanBuren's employer was a Virginia limited liability

company. Those factors, however, do not justify expanding what

has been until today a "narrow" exception to the employment-at-

will doctrine. See Lockhart, 247 Va. at 104, 439 S.E.2d at

331. The majority cites policy reasons for the expansion of

this narrow exception and states that "[e]mployer-only

liability would be insufficient to deter wrongful discharges."

Deterrence of wrongful discharges in violation of public policy

is a laudable goal but cannot change the fact that an

individual employee is incapable of committing the tort of

wrongful discharge. Moreover, such policy determinations are

for the General Assembly, not this Court.

For these reasons, I respectfully dissent and would answer

the restated certified question in the negative.

21