Present: All the Justices
COUNTY OF GILES, ET AL.
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 001371 June 8, 2001
D. CHAD WINES
FROM THE CIRCUIT COURT OF GILES COUNTY
Duane E. Mink, Judge
The primary issue we consider in this appeal is whether a
plaintiff presented sufficient evidence to support a jury's
finding that he had an employment contract terminable only for
just cause.
We will state the facts and all reasonable inferences
fairly deducible therefrom in the light most favorable to
D. Chad Wines, the plaintiff and recipient of a jury verdict
that was confirmed by the circuit court. Atkinson v. Scheer,
256 Va. 448, 450, 508 S.E.2d 68, 69 (1998). Wines was
employed by the County of Giles as manager of the Castle Rock
Recreation Area from 1994 through 1996. During his tenure
with the County, Wines performed his duties well, and he
received a significant increase in compensation.
In January 1996, four new persons were sworn in as
members of the Board of Supervisors of Giles County. On
January 2, 1996, Wines received a telephone call from Roger C.
Mullins, the interim County administrator. Mullins informed
Wines that he needed to attend a meeting of the newly elected
Board that day. During the meeting, Larry J. Williams, a
supervisor, made a motion to discharge Wines from his position
as manager of the Castle Rock Recreation Area, effective
immediately. The Board unanimously voted to terminate Wines'
employment.
Wines had no prior indication that he would be
discharged. The Board did not give Wines notice of its intent
to terminate his employment, nor did the Board inform him of
the basis of the termination. The next day, as Wines was
"cleaning out" his office, Mullins explained to Wines that the
Board had discharged him because of personality conflicts and
that Wines was "a casualty of poor judgments and . . .
personality conflicts within the County and supervisors."
Wines retained an attorney who advised the Board by
letter dated January 18, 1996 that the Board's termination of
Wines' employment violated his constitutionally protected
rights and his employment contract with the County as set
forth in the County's Personnel Policy. In response to that
letter, the Board convened a special meeting, and Wines was
immediately reinstated and simultaneously discharged effective
January 26, 1996. The Board did not provide Wines an
opportunity to be heard regarding the Board's decision to
terminate his employment. The Board also refused to provide
Wines with any post-termination procedures.
2
Subsequently, Wines filed an "amended motion for
declaratory judgment and motion for judgment" against the
County, the Board, and the supervisors in their individual
capacities. Wines alleged, among other things, that the
County and the Board (hereinafter the County) breached its
employment contract with him because he could only be
discharged for cause and that the County violated 42 U.S.C.
§ 1983 because the County deprived him of a property right to
continued employment subject to termination only for cause.
During the trial, at the conclusion of the plaintiff's
evidence and at the conclusion of all the evidence, the County
made motions to strike the plaintiff's evidence on the basis
that Wines was an employee terminable at-will and, therefore,
the County was not required to discharge him solely for cause.
The County also argued that the individual supervisors were
entitled to qualified immunity. The circuit court granted the
motion to strike the evidence against the individual
supervisors, and that ruling is not challenged in this appeal.
The circuit court, however, held that the Giles County
Personnel Policy created an employment contract which only
permitted the County to discharge Wines for cause, and the
court entered an order confirming the jury's verdict of
$88,035.45 in favor of Wines and awarded Wines attorney's fees
as permitted by 42 U.S.C. § 1983. The County appeals.
3
The Giles County Personnel Policy, which was enacted by
its Board of Supervisors, states in pertinent part:
"8-5 Discharges
"An employee may be discharged for
inefficiency, insubordination, misconduct, or other
just cause. Discharge may be made by the Department
Head with approval of the County Administrator in
the case of employees below department head level.
The County Administrator with the approval of the
Board of Supervisors may discharge other employees.
A written statement of the reasons for such action
shall be furnished the employee and a copy shall be
made part of the personnel file of the individual."
The County argues that Wines was an employee terminable at-
will because its Personnel Policy did not create an employment
contract terminable solely for cause. Responding, Wines
argues that he presented sufficient evidence to permit the
jury to find that his employment contract with the County was
terminable only for just cause and that when the County
discharged him, it lacked cause to do so. We disagree with
Wines.
We have stated that "Virginia strongly adheres to the
common law employment-at-will doctrine." Bailey v. Scott-
Gallaher, Inc., 253 Va. 121, 123, 480 S.E.2d 502, 503 (1997);
Lawrence Chrysler Plymouth Corp. v. Brooks, 251 Va. 94, 96,
465 S.E.2d 806, 808 (1996). In Virginia, an employment
relationship is presumed to be at-will, which means that the
employment term extends for an indefinite period and may be
4
terminated by the employer or employee for any reason upon
reasonable notice. Dray v. New Market Poultry Products, 258
Va. 187, 190, 518 S.E.2d 312, 313 (1999); Doss v. Jamco, Inc.,
254 Va. 362, 366, 492 S.E.2d 441, 443 (1997); Progress
Printing Co. v. Nichols, 244 Va. 337, 340, 421 S.E.2d 428, 429
(1992); Norfolk Southern Railway Co. v. Harris, 190 Va. 966,
976, 59 S.E.2d 110, 114 (1950); Hoffman Company v. Pelouze,
158 Va. 586, 594, 164 S.E. 397, 399 (1932); Stonega Coal &
Coke Co. v. Louisville and Nashville R.R. Co., 106 Va. 223,
226, 55 S.E. 551, 552 (1906). * In Miller v. SEVAMP, Inc., 234
Va. 462, 465, 362 S.E.2d 915, 917 (1987), we explained that:
"An employee is ordinarily at liberty to leave
his employment for any reason or for no reason, upon
giving reasonable notice, without incurring
liability to his employer. Notions of fundamental
fairness underlie the concept of mutuality which
extends a corresponding freedom to the employer.
See Town of Vinton v. City of Roanoke, 195 Va. 881,
80 S.E.2d 608 (1954)."
The presumption that an at-will employment relationship
exists may be rebutted, however, if sufficient evidence is
produced to show that the employment is for a definite, rather
than an indefinite, term. Progress Printing Co., 244 Va. at
340, 421 S.E.2d at 429. In Norfolk Southern Railway Co., we
held that a contractual agreement which stated that an
*
Even though we have recognized exceptions to this rule,
those exceptions are not pertinent to the resolution of this
5
employee "will not be disciplined or dismissed from
[employment] without a just cause" created a definite term for
the duration of the employment and that the employer could
only dismiss the employee for cause. 190 Va. at 969, 976, 59
S.E.2d at 111, 114.
Applying the principles enunciated in our well-
established precedent to the facts of this case, we hold that
Wines failed to present evidence that he had an employment
contract terminable solely for cause sufficient to rebut the
employment at-will presumption. Section 8-5 of the County's
Personnel Policy does not change the nature of Wines'
employment at-will contract with the County. The language
upon which Wines relies states that an "employee may be
discharged for inefficiency, insubordination, misconduct, or
other just cause." This sentence does not state that an
employee shall only be discharged for inefficiency,
insubordination, misconduct, or other just cause; nor does it
state that an employee will not be discharged without just
cause. We hold that the personnel policy at issue in this
case is not sufficient to rebut the strong presumption in
favor of the at-will employment relationship in this
Commonwealth.
appeal. See Bowman v. State Bank of Keysville, 229 Va. 534,
539, 331 S.E.2d 797, 801 (1985).
6
We note that Wines also relies upon § 8-7 of the County's
Personnel Policy which enumerates "Causes for Suspension,
Demotion, or Dismissal." However, this section is devoid of
any language which changes the nature of the at-will
employment relationship between the County and its employees.
There is simply no language in this section that limits the
County's power to discharge an employee without cause.
We also note that Wines states that this Court has
"expressly held that '[w]here the evidence concerning the
terms of a contract of employment is in conflict, the question
whether the employment is at will or for a definite term
becomes one of fact for resolution by a jury.' Miller v.
SEVAMP, Inc., 234 Va. 462, 465-66, 362 S.E.2d 915, 917
(1987)." Wines' reliance upon Miller is misplaced because in
the present case, whatever conflict may appear in the
evidence, the record is insufficient as a matter of law to
prove that the County abrogated its employment at-will
relationship with Wines.
In Progress Printing Co., which is dispositive of this
appeal, we considered whether an employee was terminable at-
will or whether he had an employment contract which prohibited
termination without just cause. The employer's personnel
director provided the employee with a copy of the company's
Employees' Handbook which stated that the company would not
7
discharge or suspend an employee "without just cause and shall
give at least one warning notice . . . in writing" except
under certain circumstances. Progress Printing Co., 244 Va.
at 339, 421 S.E.2d at 429. Subsequently, the employee signed
a form which stated that the employment relationship between
Progress Printing and the employee was "at will and may be
terminated by either party at any time." Id.
Rejecting the employee's contention that he had an
employment relationship that was terminable only for cause, we
held that assuming, without deciding, that the Employees'
Handbook containing the termination for cause provision
satisfied the statute of frauds, the acknowledgement form that
the employee had executed superseded and replaced the
provision in the handbook with the agreement that the
employment relationship was terminable at-will. We stated:
"We conclude that the termination for cause
language of the Handbook and the employment at will
relationship agreed to in the subsequent
acknowledgement form are in direct conflict and
cannot be reconciled in any reasonable way. If the
documents are considered a single contract, as the
trial court considered them, this conflict, along
with the conflicting testimony of the parties as to
the nature of the employment relationship, fails to
provide sufficient evidence to rebut the presumption
of employment at will."
Id. at 342, 421 S.E.2d at 431. In Progress Printing, even
though there was a direct conflict between the Employees'
Handbook and the acknowledgement form, we held that the
8
employee failed to provide sufficient evidence to rebut the
presumption of the employment at-will relationship.
Wines observes that the County's interim administrator,
Mullins, testified that it was his original belief that Wines
could only be discharged for just cause. Larry Williams, a
member of the Board of Supervisors, testified that the Board
"reinstated" Wines after it had initially discharged him, and
then immediately discharged him again, effective January 26,
1996, based upon the advice of the Board's attorneys. Wines
states that the "County's actions in 'reinstating' [him], and
then firing him based on trumped up allegations of misconduct,
are consistent only with the County's own interpretation that
its Personnel Policy established a just cause employment
relationship." Continuing, Wines states that "[t]he County
. . . argues that [he] and necessarily all other County
employees . . . were at will employees. This argument is
inconsistent with the provisions of the Personnel Policy, the
testimony of County officials, the County's own actions and
the jury's specific fact findings."
Wines' contentions are without merit. Essentially, Wines
suggests that the County is estopped by its conduct from
asserting that Wines was an employee at-will. However, we
have repeatedly held that in Virginia estoppel cannot be
asserted against a county acting in the discharge of its
9
governmental functions. See Notestein v. Board of Sup. of
Appomattox County, 240 Va. 146, 152, 393 S.E.2d 205, 208
(1990); Board of Supervisors v. Booher, 232 Va. 478, 481, 352
S.E.2d 319, 321 (1987). And, the County's interim
administrator's mistaken belief that Wines could only be
discharged for cause is not sufficient to change Wines' at-
will employment relationship with the County.
The County argues that Wines has no substantive property
right in continued employment because he was an at-will
employee of Giles County. Responding, Wines asserts that he
"had a legitimate expectation of continued employment based on
the just cause employment relationship established by the
Giles County Personnel Policy." We disagree with Wines.
The United States Supreme Court held in Board of Regents
v. Roth, 408 U.S. 564, 576-77 (1972), that a public employee
may be entitled to certain procedural due process from a
governmental employer if the employee has a protected property
interest. Such property interests are not created by the
federal constitution, but, rather "they are created and their
dimensions are defined by existing rules or understandings
that stem from an independent source such as state law — rules
or understandings that secure certain benefits and that
support claims of entitlement to those benefits." Id. at 577.
Wines has conceded that he "relies on the just cause
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provisions in §§ 8-5 and 8-7 . . . to establish his
constitutionally protected property interest in his
employment." However, as we have already stated, Wines failed
to establish that he was an employee terminable solely for
cause. Therefore, he has no property right which is protected
by the federal constitution and, hence, his claims under 42
U.S.C. § 1983 are not legally cognizable.
In articulating our holdings in this case, we do not
endorse the manner in which the County treated Wines during
its process of discharging him. However, we cannot change the
Commonwealth's strong presumption in favor of the at-will
employment relationship merely because we may be sympathetic
to Wines' circumstances.
In view of our holdings, we need not consider the
litigants' remaining arguments. Accordingly, we will reverse
the judgment of the circuit court, and we will enter final
judgment in favor of the County.
Reversed and final judgment.
JUSTICE LACY, with whom JUSTICE KINSER and JUSTICE LEMONS
join, dissenting.
In this case, the trial court took under advisement the
County's motion to strike the employee's evidence and
submitted to the jury the issue of whether an at-will
employment relationship existed between the employee and the
11
County. Following a jury verdict in favor of the employee,
the trial court denied the County's motion to strike and
entered judgment on the jury verdict. The County appeals,
assigning error to the trial court's refusal to grant its
motion to strike the employee's evidence.
In a case such as this, where the trial court has
declined to strike the plaintiff's evidence or to set aside a
jury verdict, the standard of appellate review in Virginia
requires this Court to consider whether the evidence
presented, taken in the light most favorable to the plaintiff,
was sufficient to support the jury verdict in favor of the
plaintiff. ∗ We have instructed trial judges that in ruling on
a motion to strike the plaintiff's evidence, the trial court
is to accept as true all the evidence favorable to the
plaintiff as well as any reasonable inferences a jury might
draw therefrom that would sustain the plaintiff's cause of
action. The trial court is not to judge the weight and
credibility of the evidence and may not reject any inference
from the evidence favorable to the plaintiff unless it would
∗
The standard of appellate review for a motion to set
aside a jury verdict in favor of the plaintiff and a motion to
strike the plaintiff's evidence is the same: whether the
evidence taken in the light most favorable to the plaintiff is
sufficient to support a jury verdict in favor of the
plaintiff. See, e.g., Lumbermen's Underwriting Alliance v.
Dave's Cabinet, Inc., 258 Va. 377, 380-81, 520 S.E.2d 362,
12
defy logic and common sense. Austin v. Shoney's, Inc., 254
Va. 134, 138, 486 S.E.2d 285, 287 (1997). Where, as here, the
prevailing party comes before us with a jury verdict that has
been approved by the trial court, he holds the most favorable
position known to the law. Lumbermen's Underwriting Alliance
v. Dave's Cabinet, Inc., 258 Va. 377, 380, 520 S.E.2d 362, 365
(1999); Smith v. Litten, 256 Va. 573, 578, 507 S.E.2d 77, 80
(1998). As we reiterated in Stanley v. Webber, 260 Va. 90,
95, 531 S.E.2d 311, 314 (2000), the trial court's judgment is
presumed to be correct, and we will not set it aside unless
the judgment is plainly wrong or without evidence to support
it. Code § 8.01-680. Because the majority neither adverts to
nor applies these standards in this case, I dissent.
Section 8-5 of the personnel manual states that an
employee "may be discharged for inefficiency, insubordination,
misconduct, or other just cause." Viewing this statement in
the light most favorable to the plaintiff, the word "may" must
be construed to mean, not that the employer is at liberty to
discharge for causes other than "just cause," but as allowing
the employer to impose a penalty of less than discharge for
any of those infractions although such infractions constitute
grounds for termination. Section 8-5 also requires the
364-65 (1999); Claycomb v. Didawick, 256 Va. 332, 335, 505
S.E.2d 202, 204 (1998).
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employer to provide the employee with the reasons for
termination, a condition that is inconsistent with employment
at-will, which requires no reason for termination. Finally,
§ 8-7, "Causes for Suspension, Demotion, or Dismissal," lists
sixteen other specific acts which support a decision to
terminate employment. Giving the provisions of the manual a
reasonable construction and one favorable to the plaintiff
compels the conclusion that the manual allows termination for
no grounds other than those identified in §§ 8-5 and 8-7.
The majority, however, rejected this construction of the
personnel manual, concluding that the manual did not remove
the nature of the relationship from the province of employment
at-will because it did not contain an affirmative statement
either that "an employee shall only be discharged for" the
listed offenses or other just cause or that the employee "will
not be discharged without just cause."
Read in the light most favorable to the employee, the
personnel manual alone was sufficient to support the jury
verdict. Nevertheless, the personnel manual was not the only
evidence produced by the employee to support his contention
that he could be terminated only for cause. The County
Administrator, who is the chief personnel officer of the
County, testified that when the employee was first terminated,
the Administrator interpreted the personnel policy as allowing
14
termination only for cause. Similarly, a member of the
County's Board of Supervisors testified that he understood
that the employee could be fired "only if he did something
wrong as listed in § 8-7" of the personnel manual and that the
procedures in the manual had to be followed. The record also
showed that the County, after initially terminating the
employee without prior notice or providing any reason for
termination, reinstated the employee and then terminated him
again, citing five grounds for the termination and informing
the employee that he "may also avail himself of the Grievance
Procedure adopted as a part of the Giles County personnel
policy."
Consideration of this evidence is appropriate because
evidence of the parties' conduct and intent, including a
party's interpretation of the contract, is "entitled to great
weight" in determining the construction of an ambiguous
contract. Dart Drug Corp. v. Nicholakos, 221 Va. 989, 995,
277 S.E.2d 155, 158 (1981). However, the majority ignores
this evidence entirely because, according to the majority,
such evidence "essentially" raises an estoppel argument and
estoppel cannot be asserted against the County.
The basis upon which the majority excludes this evidence
is one created by the majority and not presented by either
party or considered by the trial court. The employee did not
15
raise an estoppel argument either directly or indirectly. The
employee never claimed the actions of the County and the
testimony of its officials precluded it from asserting that
the employment was at-will. Furthermore, the employer did not
contend that the employee was improperly using this evidence
to assert estoppel and in fact did not object to the evidence.
According to the employer, reliance on such testimony "proves
nothing" because the "the parties' . . . interpretation does
not matter in the case of an unambiguous document."
In my opinion, proper application of the appellate review
principles recited above to the evidence in this case results
in the conclusion that the evidence was sufficient to support
the jury verdict.
The majority not only ignores the standards of appellate
review discussed above but also rejects the long-standing
proposition that where "the evidence concerning the terms of a
contract of employment is in conflict, the question whether the
employment is at will or for a definite term becomes one of
fact for resolution by a jury." Miller v. SEVAMP, Inc., 234
Va. 462, 465-66, 362 S.E.2d 915, 917 (1987). Relying on
Progress Printing Co. v. Nichols, 244 Va. 337, 421 S.E.2d 428,
(1992), as "dispositive of this appeal," the majority opines
that submission to the jury in this case was not required,
because, regardless of any conflict in the evidence, "the
16
record is insufficient as a matter of law to prove that the
County abrogated its employment at-will relationship with
Wines."
While selected portions of the language used in the
Progress Printing opinion may appear to stand for the
proposition advanced by the majority, the case in its proper
context does not. In Progress Printing, as the majority
opinion recites, the evidence included an employee handbook
providing for just cause termination with prior notice and a
subsequently executed acknowledgement form stating that the
employment relationship was at will. The employee sued the
employer, asserting his termination without prior notice
breached the employment contract. The trial court, sitting
without a jury, held that the acknowledgement form regarding an
employment at-will status incorporated the employee handbook
and that, as incorporated, the employment at-will status only
applied to the 30-day probationary employment period and not to
other types of employment. Under this construction, the trial
court concluded that the employee could be dismissed only for
cause and was entitled to prior notice under the employee
manual. Id. at 339-40, 421 S.E.2d at 429.
The posture of the case on appeal, therefore, presented
the initial question of whether the trial court properly held
that the acknowledgement form incorporated the personnel
17
handbook. We concluded that the trial court erred in this
regard and held that the acknowledgement form did not
incorporate the provisions of the employee handbook but
"specifically superseded and replaced" the for cause
termination provision "with the agreement that the employment
relationship was at will." Id. at 341, 421 S.E.2d at 430.
While the Court was required to determine the nature of
the employment, Progress Printing was not a case in which the
judgment reviewed on appeal was grounded on the premise that
the evidence had rebutted the presumption of at-will
employment. The crucial evidence in that case — the
acknowledgment form — went beyond a presumption of at-will
employment; it overtly established the at-will employment
relationship. The issue regarding the nature of the
employment depended upon the construction of the
acknowledgement form. Thus the majority misapplies Progress
Printing by asserting that the case supports the proposition
that conflicting evidence on the issue of the nature of the
employment need not be submitted to the fact finder for
resolution. Nothing in Progress Printing suggested that the
evidence was not to be submitted to the fact finder for
resolution. Nothing in the fact pattern, evidence presented,
or controlling legal issue of Progress Printing makes that
case "dispositive" of this one. As we have repeatedly said,
18
these cases must be considered on a case by case basis in
light of the evidence presented.
A final, but equally important, basis for my dissent is
my disagreement with the new standard which the majority has
established. As stated above, the majority rejected all
evidence except the employee manual itself and vacated the
jury verdict in favor of the employee because the employee
could not point to a statement in the personnel manual that
the employee "shall only" be terminated for cause or that the
employee "will not be discharged without just cause." For the
first time in our jurisprudence of employment relationships,
the lack of these words precludes submission of the issue to
the jury and requires entry of a judgment in favor of the
employer, regardless of the evidence introduced. Under the
majority analysis, if the employment agreement were silent on
the issue and other evidence supported termination only for
cause, the issue would be taken away from the jury and decided
as a matter of law. This result has never before been the law
in Virginia and dramatically upsets the distinction between
matters decided by the jury and those decided by the trial
court. The majority has imposed this new "rule," which
eviscerates the historic role of the jury in employment
termination cases, without acknowledging what has been done or
explaining the basis for or perimeters of the rule imposed.
19
For all these reasons I dissent.
20