PRESENT: All the Justices
DONALD P. SHAW
v. Record No. 971921 OPINION BY JUSTICE BARBARA MILANO KEENAN
April 17, 1998
TITAN CORPORATION, ET AL.
UPON QUESTIONS OF LAW CERTIFIED BY THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Under the provisions of Rule 5:42, the United States Court
of Appeals for the Fourth Circuit certified to this Court two
questions of Virginia law. The first question concerns the
adequacy of jury instructions given on the issue of causation in
a common law action for wrongful termination of employment. The
second question involves the availability of punitive damages in
such an action. The facts as stated in the certification order
are set forth below.
Donald P. Shaw, a Caucasian male, was employed by Titan
Corporation (Titan), a “government contracting” firm, from 1987
until March 1994, when Titan terminated Shaw’s employment. Shaw
was 62 years old at the time of his discharge.
Early in 1994, Titan concluded that it would have to reduce
its workforce to remain profitable. To accomplish this
“reduction-in-force” (RIF), Titan created a committee (the
Committee) that established criteria to evaluate Titan’s
employees for the purpose of identifying which employees should
be discharged.
During its evaluation process, the Committee considered
Titan’s status under prior “conciliation agreements” with the
Office of Federal Contract Compliance and Programs (OFCCP),
which had determined that Titan had a significant “under-
representation” of women and minority employees. Some Committee
members expressed concern that a disproportionate number of
women and minority employees were being “targeted” for discharge
in the pending workforce reduction. Albert E. Knauf, Jr.,
president of Titan’s eastern division, asked a Committee member
“if the mix changed, what the impact of that change would be.
For example, if we had another white male in the mix, what would
be the numbers or our representation?” Later, a company
memorandum analyzed the impact of “identify[ing] a ‘sacrificial
lamb’” Caucasian male, and concluded that “our representation
[of women and minority employees] is so low that we still have a
disparity. . . . [W]e are ‘damned if we do and damned if we
don’t.’”
In March 1994, Richard Leadbetter, Shaw’s supervisor,
informed Shaw that his employment would be terminated the next
day. When Shaw asked why he was being discharged, Leadbetter
responded that the RIF process had failed to perform properly.
John Eddlemon, an officer of Titan, terminated Shaw’s employment
the following day and offered Shaw “a world class corporate
apology for the way that [the termination] was handled in your
2
case.” Eddlemon also told Shaw that “the company is really
vulnerable. . . . [W]e are letting go 10 to 1 women and
minorities and we have to have an ace to throw on the pile.”
Another Titan employee was told that Titan chose Shaw as the
“ace on the pile” because of Shaw’s age.
In April 1995, Shaw filed a motion for judgment against
Titan and Eddlemon (Titan) in the Circuit Court of Fairfax
County alleging that Titan wrongfully terminated Shaw’s
employment. Shaw alleged that he was terminated from his
employment because of his race, gender, and age in violation of
the public policy embodied in the Virginia Human Rights Act,
Code §§ 2.10-714 through –725. Titan removed the case to the
United States District Court for the Eastern District of
Virginia based on diversity of citizenship, and the case was
tried before a jury. At trial, Titan maintained that Shaw’s
employment was terminated lawfully based on the RIF.
In the course of the proceeding, Titan requested that the
jury be given the following instructions:
DEFENDANT’S REQUESTED INSTRUCTION NO. 17
If you find that Titan discriminated against
plaintiff because of his age, sex, and/or race, you
must nonetheless return a verdict for Titan on
plaintiff’s wrongful discharge claim unless you find
that such discrimination was the only reason Titan
selected plaintiff for discharge. In other words, if
you find that Titan terminated plaintiff only because
of his age, his sex, or his race, you must return a
verdict for the plaintiff. However, if you find that
3
Titan’s reasons for discharging plaintiff included a
legitimate, nondiscriminatory reason, you must return
a verdict for Titan.
DEFENDANT’S REQUESTED INSTRUCTION NO. 18
If you find that Titan discriminated against
plaintiff because of his age, sex, and/or race, you
must nonetheless return a verdict for Titan on
plaintiff’s wrongful discharge claim unless you find
that such discrimination was the determining factor in
Titan’s selection of plaintiff for discharge. In
other words, if you find that Titan would not have
terminated plaintiff but for his age, his sex, or his
race, you must return a verdict for the plaintiff.
However, if you find that Titan’s reasons for
discharging plaintiff included a legitimate,
nondiscriminatory reason, you must return a verdict
for Titan.
The district court refused the above instructions and
charged the jury as follows:
Titan claims that Mr. Shaw was fired because it
determined that there wasn’t sufficient work for which Mr.
Shaw was the appropriate employee and that Mr. Shaw was,
for that reason, included in the reduction in force. It is
not illegal to include an employee in a reduction in force
for that reason.
Merely firing an employee or including an employee in
a reduction in force for non-discriminatory reasons is not
against the public policy of Virginia
. . . .
The question before you is what motivated the
termination of Mr. Shaw’s employment or his inclusion in
the reduction in force.
If you find by a preponderance of the evidence that
Titan intentionally terminated Mr. Shaw’s employment or
included him in the reduction in force because of his race,
because of his gender, because of his age, or because [of]
any combination of those factors, then you shall return
your verdict in favor of Mr. Shaw
4
. . . .
If, on the other hand, you do not find by a preponderance
of the evidence that Titan intentionally terminated Mr.
Shaw’s employment because of his race, because of his
gender, because of his age, or because of a combination of
those factors, then you shall return your verdict in favor
of Titan.
The jury returned a verdict in favor of Shaw, awarding $65,000
in compensatory damages and $400,000 in punitive damages. 1
After the verdict, Titan filed a “motion for judgment as a
matter of law” and a motion for a new trial, under Rules 50(b)
and 59 of the Federal Rules of Civil Procedure. Titan argued
that because it had produced evidence that Shaw’s employment was
terminated as a result of the RIF, the district court erred in
refusing to instruct the jury in accordance with Defendant’s
Requested Instruction Nos. 17 and 18. Titan also asserted that
the public policy of Virginia does not permit the award of
punitive damages in actions for wrongful termination of
employment. The district court denied these post-trial motions
and Titan appealed the judgment to the United States Court of
Appeals for the Fourth Circuit.
Following Titan’s appeal, the certifying court presented
the following questions to this Court:
1
The district court later reduced the punitive damages
award to $350,000 to comply with Virginia’s statutory limit on
recovery of punitive damages. See Code § 8.01-38.1.
5
1. Whether, under the common law of Virginia, the
district court erred in refusing to give the jury an
explicit but-for causation, sole-cause, or mixed-
motive instruction, and instead instructing the jury
that it could find for Shaw on his claim of wrongful
termination in violation of public policy if Shaw
proved by a preponderance of the evidence, “that Titan
terminated him because of his race, his gender, his
age, or because of a combination of those factors.”
2. Whether, under the common law of Virginia, punitive
damages may be recovered for wrongful termination in
violation of public policy, where the public policy
violated is embodied in the Virginia Human Rights Act which
expressly prohibits the award of punitive damages.
Titan argues before this Court that since Shaw’s action
sounded in tort, the district court was required to give the
jury an explicit instruction under either a “but-for” causation
standard or a “sole” causation standard. Titan also asserts
that the district court erred in permitting Shaw to recover
punitive damages because the Virginia Human Rights Act presently
prohibits awards of punitive damages in actions brought under
its provisions, and no other Virginia statute specifically
authorizes the recovery of such damages in wrongful termination
actions. We disagree with Titan’s arguments.
The first certified question effectively asks whether, as a
matter of law, the district court was required to give the jury
explicit instructions addressing a “sole” causation standard, a
“but-for” causation standard, or a “mixed motive” causation
standard. We conclude that the district court did not err in
failing to give such instructions.
6
As stated above, the district court told the jury it was
required to find in favor of Shaw if he proved by a
preponderance of the evidence that Titan intentionally
terminated his employment because of his race, gender, age, or a
combination of these factors. However, the court also
instructed the jury that if Titan fired Shaw for non-
discriminatory reasons, even if Titan used a flawed process or
made a wrong decision, the jury was required to return a verdict
in favor of Titan. These instructions, considered in the
context of all the instructions in the record before us, fully
and fairly stated the common law of Virginia in effect on the
date Shaw’s cause of action accrued.
In Bowman v. State Bank of Keysville, 229 Va. 534, 539-40,
331 S.E.2d 797, 800-01 (1985), we recognized a common law cause
of action in tort for wrongful termination of employment under
an exception to the common-law doctrine of employment-at-will.
This exception applies to terminations from employment which
violate the public policy of this Commonwealth. Bradick v.
Grumman Data Sys. Corp., 254 Va. 156, 159, 486 S.E.2d 545, 546
(1997); see Bailey v. Scott-Gallaher, Inc., 253 Va. 121, 125,
480 S.E.2d 502, 504 (1997); Lawrence Chrysler Plymouth Corp. v.
Brooks, 251 Va. 94, 98-99, 465 S.E.2d 806, 809 (1996); Miller v.
SEVAMP, Inc., 234 Va. 462, 468, 362 S.E.2d 915, 918 (1987).
7
We have held that this exception to the employment-at-will
doctrine is applicable, among other instances, when an employee
is terminated from employment “because of discrimination based
upon gender or race.” Lockhart v. Commonwealth Educ. Systems
Corp., 247 Va. 98, 106, 439 S.E.2d 328, 332 (1994)(emphasis
supplied); see Bailey, 253 Va. at 126-27, 480 S.E.2d at 505;
Lawrence, 251 Va. at 98, 465 S.E.2d at 809. Using equivalent
language, we also have held that based on the exception
recognized in Bowman, the common law of Virginia provides an
employee a remedy for wrongful termination from employment when
“the employee is discharged on account of his disability or the
employer’s perception of his disability.” Bradick, 254 Va. at
160-61, 486 S.E.2d at 547 (emphasis supplied).
These holdings require a plaintiff who asserts a cause of
action for wrongful termination under Bowman to prove that the
discharge occurred because of factors that violate Virginia’s
public policy. A plaintiff is not required to prove that the
employer’s improper motive was the sole cause of the wrongful
termination.
In asserting a contrary position, Titan mistakenly relies
on Bailey v. Scott-Gallaher, Inc., 253 Va. 121, 480 S.E.2d 502
and Jordan v. Clay’s Rest Home, Inc., 253 Va. 185, 483 S.E.2d
203 (1997). In Bailey, our inquiry was limited to determining
whether an employee stated a cause of action for wrongful
8
termination based on allegations of gender discrimination. We
stated that the employee’s allegations, if true, “would support
a reasonable inference by the finder of fact that [the employer]
terminated [the employee] solely because of her status as a
working mother.” 253 Va. at 126-27, 480 S.E.2d at 505.
Since the issue before us in Bailey was whether the trial
court properly sustained the defendant’s demurrer, our
conclusion addressed only the content of the employee’s
pleadings and did not establish a requirement that an employee
prove that a discriminatory motive was the sole cause of the
termination. We also stated in Bailey that the employee’s
allegations, if proved, “could support a jury finding that [the
employee] was discriminated against because of her gender.” 253
Va. at 126, 480 S.E.2d at 505 (emphasis supplied). This
language reiterates the standard of causation set forth in
Lockhart. See 247 Va. at 106, 439 S.E.2d at 332.
Our decision in Jordan also fails to support Titan’s
position. There, in deciding whether a plaintiff presented
prima facie evidence to establish that she was fired “solely”
because she intended to file a workers’ compensation claim, our
determination was governed by the language of Code § 65.2-308.
253 Va. at 193, 483 S.E.2d at 207. This statute specifically
forbids an employer from discharging an employee “solely because
9
the employee intends to file or has filed” a workers’
compensation claim. Code § 65.2-308(A).
The language in Jordan cited by Titan is inapplicable here
because that discussion pertains to the statutory cause of
action under Code § 65.2-308, not to a common law claim of
wrongful termination. Thus, we conclude that the district court
did not err in refusing to give the jury an explicit “sole-
cause” instruction.
Titan also contends that the district court erred in
refusing to instruct the jury under the “but-for” analysis set
forth in Wells v. Whitaker, 207 Va. 616, 151 S.E.2d 422 (1966).
We stated in Wells that, “[g]enerally a person is not liable to
another [in tort] unless but for his . . . act the harm would
not have occurred.” 207 Va. at 622, 151 S.E.2d at 428.
We first observe that Titan failed to offer a jury
instruction that properly stated a proximate causation standard
under the “but for” language of Wells. Titan’s requested
Instruction No. 18 improperly required the jury to return a
verdict for Titan if the jury found that “Titan’s reasons for
discharging [Shaw] included a legitimate, non-discriminatory
reason.” This directive was an incorrect statement of Virginia
law, because that language would have required Shaw to prove
that he was fired solely because of a discriminatory reason.
10
We also conclude that the district court’s instructions in
the present case incorporated Virginia’s common law standard of
proximate causation by requiring Shaw to prove that he was
discharged because of his race, gender, age, or any combination
of these factors, rather than because of any non-discriminatory
reasons. Thus, we conclude that the common law of Virginia did
not require the district court to give the jury an explicit
instruction setting forth the “but for” language of Wells.
We also note that the common law of Virginia has not
presently adopted the “mixed motive” causation standard
applicable to claims for wrongful termination of employment
brought under the Civil Rights Act of 1964 §§ 701 et seq., 42
U.S.C. §§ 2000e et seq. (1994). Further, Titan did not argue
that Shaw’s discharge was based on a “mixed motive.” Therefore,
we conclude that the district court did not err in failing to
give the jury an explicit instruction on this principle. 2 For
these reasons, we answer the first certified question in the
negative.
We next consider the question whether the common law of
Virginia permitted Shaw to recover punitive damages from Titan
for the wrongful termination of his employment. Initially, we
2
In light of the conclusion we reach here, we need not
consider whether Virginia would adopt the “mixed motive”
causation standard applicable to Title VII claims.
11
note that Shaw was terminated from his employment and filed this
action against Titan before the 1995 amendments to the Virginia
Human Rights Act became effective. Thus, when Shaw’s cause of
action against Titan arose, the Virginia Human Rights Act did
not contain any language limiting a plaintiff’s right to recover
punitive damages in an action for wrongful termination of
employment. 3
Titan argues, nevertheless, that Shaw was not entitled to
recover punitive damages because neither the Virginia Human
Rights Act nor any other Virginia statute specifically
authorized the recovery of such damages at the time Shaw was
discharged and filed this action. We find no merit in this
argument because the cause of action for wrongful termination of
employment asserted by Shaw derives solely from the common law.
Bowman, 229 Va. at 539-40, 331 S.E.2d at 800-01; see Bradick,
254 Va. at 159, 486 S.E.2d at 546; Bailey, 253 Va. at 125, 480
S.E.2d at 504; Lockhart, 247 Va. at 105, 439 S.E.2d at 331.
As we stated in Bowman, the common law cause of action for
wrongful termination of employment sounds in tort. 229 Va. at
540, 331 S.E.2d at 801; see Bailey, 253 Va. at 125, 480 S.E.2d
at 504; Lockhart, 247 Va. at 105, 439 S.E.2d at 331-32. Titan
3
Since the 1995 and 1997 amendments to the Virginia Human
Rights Act became effective after this cause of action arose, we
express no opinion on whether a plaintiff may recover punitive
12
conceded in the district court that this cause of action is an
intentional tort. When a plaintiff pleads and proves an
intentional tort under the common law of Virginia, the trier of
fact may award punitive damages. Foreign Mission Bd. v. Wade,
242 Va. 234, 241, 409 S.E.2d 144, 148 (1991); see Kamlar Corp.
v. Haley, 224 Va. 699, 706-07, 299 S.E.2d 514, 518 (1983).
Thus, we conclude that, under Virginia law, Shaw was entitled to
recover punitive damages in the present action, and we answer
the second certified question in the affirmative.
First Certified Question Answered in the Negative.
Second Certified Question Answered in the Affirmative.
damages in any action for wrongful termination of employment
asserted after the effective date of these amendments.
13