UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2100
ANGELA VANBUREN,
Plaintiff - Appellant,
v.
STEPHEN A. GRUBB,
Defendant – Appellee,
and
VIRGINIA HIGHLANDS ORTHOPAEDIC SPINE CENTER, LLC,
Defendant.
No. 10-2161
ANGELA VANBUREN,
Plaintiff - Appellee,
v.
STEPHEN A. GRUBB,
Defendant – Appellant,
and
VIRGINIA HIGHLANDS ORTHOPAEDIC SPINE CENTER, LLC,
Defendant.
Appeals from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior
District Judge. (7:10-cv-00132-jct)
Argued: December 8, 2011 Decided: March 1, 2012
Before NIEMEYER, MOTZ, and FLOYD, Circuit Judges.
Unpublished Order of Certification to the Supreme Court of
Virginia. Judge Floyd directed entry of the order with the
concurrences of Judge Niemeyer and Judge Motz.
James J. O'Keeffe, IV, GENTRY, LOCKE, RAKES & MOORE, Roanoke,
Virginia, for Appellant/Cross-Appellee. Terry Neill Grimes,
GRIMES & WILLIAMS, P.C., Roanoke, Virginia, for Appellee/Cross-
Appellant.
2
ORDER
FLOYD, Circuit Judge:
I. Question Certified
The United States Court of Appeals for the Fourth Circuit,
exercising the privilege afforded it by the Supreme Court of
Virginia through its Rule 5:40 to certify questions of law to
the Supreme Court of Virginia when a question of Virginia law is
determinative in a pending action and there is no controlling
Virginia precedent on point, requests the Supreme Court of
Virginia to exercise its discretion to answer the following
question:
1. 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?
We acknowledge that the Supreme Court of Virginia may
restate this question. See Va. Sup. Ct. R. 5:40(d).
II. Nature of the Controversy and
Statement of Relevant Facts
A.
This appeal arises from the district court’s order granting
a motion to dismiss. In reviewing such an order, we accept as
3
true the factual allegations set forth in the complaint and draw
all reasonable inferences from them in the nonmovant’s favor.
See CGM, LLC v. BellSouth Telecomms., Inc., 664 F.3d 46, 51 (4th
Cir. 2011). These allegations provide as follows.
Virginia Highlands Orthopaedic Spine Center, LLC (Virginia
Highlands), a Virginia limited liability company, employed
Angela VanBuren as a registered nurse. Dr. Stephen A. Grubb was
the owner and medical director of Virginia Highlands. 1 VanBuren
served as his first-assist spine specialty nurse. As such, she
worked under and reported directly to Dr. Grubb, who, at all
relevant times, was her supervisor.
VanBuren commenced employment at Virginia Highlands on
December 1, 2003. No more than ten days passed before Dr.
Grubb, who was married to another woman, began sexually
harassing VanBuren. Broadly speaking, this sexual harassment
included unwelcome contact, fondling, and touching. Over
VanBuren’s protests, Dr. Grubb would hug her; rub her back,
waist, breasts, and other inappropriate areas; and attempt to
1
We note that VanBuren’s complaint does not specify whether
Virginia Highlands is a member-managed or manager-managed
limited liability company. Consequently, we do not know Dr.
Grubb’s exact role in the limited liability company—that is,
whether he was a manager in a manager-managed limited liability
company or a member in a member-managed limited liability
company. Instead, we know only that Virginia Highlands is a
limited liability company owned by Dr. Grubb and that he served
as its medical director and the supervisor to VanBuren.
4
kiss her. He also professed his love for her and even penned a
number of love poems for her.
On a number of occasions, after VanBuren and Dr. Grubb had
worked long hours, he waited for her outside of the women’s
locker room at Virginia Highlands. She lingered in the locker
room out of hope that he would lose interest and leave. But he
paced outside of the locker room until she emerged, at which
time he attempted to hug, fondle, and kiss her.
These actions did not escape the attention of VanBuren’s
coworkers. His pacing outside of the women’s locker room
aroused their suspicions. One coworker, concerned with Dr.
Grubb’s behavior, began walking VanBuren to her car to help her
avoid his advances.
In May 2006, VanBuren and other coworkers traveled with Dr.
Grubb to Radford, Virginia, to assist in setting up a new office
and stayed in a local hotel. One evening Dr. Grubb insisted
that he walk VanBuren back to her hotel room, despite her
protests. When they arrived at VanBuren’s room, he pushed his
way inside and proceeded to rub her waist, breasts, and hair,
and to profess his love for her. He tried to pull her into his
lap, at which time VanBuren, who was initially stiff with shock,
freed herself from him. She reminded him he was married,
informed him she would not have sex with him, and demanded he
leave. He did not comply until she began to raise her voice.
5
At all times, VanBuren made clear to Dr. Grubb that she did
not welcome his advances. Each time Dr. Grubb made a physical
advance, VanBuren pulled away from him, demanded that he cease,
and reminded him that he was married. Dr. Grubb’s response on
one occasion was that he “maybe . . . got a little carried away
and she may have to tell him to take a cold shower sometimes.”
VanBuren approached him several times and requested that he quit
his advances, informing him that his conduct was offensive and
unwelcome. She pointed out that other employees noticed his
behavior and were gossiping that they were having an affair.
Dr. Grubb’s response was that he did not care what other people
thought.
Dr. Grubb’s harassment continued even after VanBuren
married her husband in December 2007. Dr. Grubb sought to take
advantage of opportunities to console VanBuren about marital
problems. But the consoling simply involved encouraging
VanBuren to leave her husband and hugging, kissing, and groping
her. VanBuren continued to resist these efforts and to inform
him that his advances were unwelcome.
The situation culminated on March 19, 2008, when Dr. Grubb
demanded that VanBuren meet with him in his office behind closed
doors. The conversation began with Dr. Grubb expressing concern
over VanBuren’s marriage and suggesting that leaving her husband
6
would be in her best interest. Once again, he made advances,
attempting to hug and kiss her while telling her he loved her.
Six days later, Dr. Grubb called VanBuren back into his
office and asked if she planned to stay with her husband. When
she answered affirmatively, he fired her without explanation.
To entice her to remain mum about the harassment, he offered her
five weeks of severance pay.
B.
VanBuren instituted this action in federal court on March
25, 2010. She named two defendants in her complaint—Dr. Grubb
and Virginia Highlands. VanBuren asserted two causes of action
against Virginia Highlands—a Title VII claim and a state tort
law claim of wrongful discharge. Her only claim against Dr.
Grubb asserted wrongful discharge. VanBuren’s wrongful-
discharge claims against Virginia Highlands and Dr. Grubb
alleged that she was discharged in violation of established
public policy. Specifically, she asserted that she was
terminated because she refused to engage in criminal conduct—
namely, adultery, as proscribed in Va. Code Ann. § 18.2-365, and
open and gross lewdness and lasciviousness, as proscribed in Va.
Code Ann. § 18.2-345.
Virginia Highlands and Dr. Grubb moved to dismiss
VanBuren’s claims for failure to state a claim. The district
7
court, exercising federal-question jurisdiction over the Title
VII claim and supplemental jurisdiction over the wrongful-
discharge claims, granted the motion to dismiss in part and
denied it in part. It granted the motion as to the wrongful-
discharge claim against Dr. Grubb. In doing so, it held that
the Virginia Supreme Court, although not having addressed the
issue, likely would allow wrongful-discharge claims only against
employers, not supervisors or other co-employees. Consequently,
the district court dismissed Dr. Grubb as a defendant. It
declined, however, to dismiss the claims against Virginia
Highlands.
Pursuant to Federal Rule of Civil Procedure 54(b), VanBuren
subsequently moved for the district court to enter final
judgment as to Dr. Grubb, which would allow her to immediately
appeal its order dismissing him as a party. After conducting a
hearing on the matter, the district court granted the motion.
It determined that its order dismissing all claims against Dr.
Grubb was final as to him and that no just reason to delay the
entry of final judgment existed. This appeal followed. 2
2
Dr. Grubb challenges our appellate jurisdiction, asserting
that the district court erred in directing entry of final
judgment pursuant to Rule 54(b). We review the district court’s
certification of its order as constituting a final judgment for
abuse of discretion. MCI Constructors, LLC v. City of
Greensboro, 610 F.3d 849, 855 (4th Cir. 2010). We will not
belabor this point, for the district court plainly directed
(Continued)
8
III. Legal Discussion and Relevant Virginia Case Law
A. Common Law Tort Claim of Wrongful Discharge
in Violation of Public Policy
Virginia is an employment-at-will state. See Miller v.
SEVAMP, Inc., 362 S.E.2d 915, 916-17 (Va. 1987). As such, when
an employment contract in Virginia does not provide for the
duration of the employment relationship expressly or by fair
inference, either party ordinarily is free to terminate the
relationship for any reason or for no reason at all, provided
that it gives the other party reasonable notice. See id. at
917. That rule, however, “is not absolute.” Bowman v. State
Bank of Keysville, 331 S.E.2d 797, 801 (Va. 1985). There are
“recognized exceptions to the rule of terminability.” Id.
One of those recognized exceptions, which the Supreme Court
of Virginia recognized in Bowman, involves wrongful discharge in
violation of established public policy. Miller, 362 S.E.2d at
918. The plaintiffs in Bowman were two employees of a bank.
entry of final judgment pursuant to a valid exercise of its
discretion. This situation falls within the purview of Rule
54(b) in that it involves multiple parties. See Fed. R. Civ. P.
54(b). The district court properly followed the two-step
inquiry that we have outlined for determining whether to certify
a final judgment under Rule 54(b) when it determined that
(1) the judgment as to Dr. Grubb was final and (2) there was no
just reason for delay. See Braswell Shipyards, Inc. v. Beazer
E., Inc., 2 F.3d 1331, 1335 (4th Cir. 1993). Its determinations
were sound and abided by the appropriate legal standards. We
therefore are satisfied that we possess appellate jurisdiction.
9
331 S.E.2d at 798-99. Aside from their status as employees,
they also held common stock in the bank corporation. Id. at
799. They alleged that the bank’s president, who served on the
board of directors, warned them that they would be fired if they
did not vote their shares in favor of a hotly contested proposed
merger and the merger failed. Id. The plaintiffs accordingly
voted their shares in favor of the merger, which passed by a
narrow margin, but they later wrote a letter to the bank’s
president asserting that their votes were illegally obtained and
thus invalid. Id. Without their illegally obtained votes, they
noted, the merger would not have passed. Id. The bank’s board
of directors subsequently voted to abandon the merger. Id. It
also voted to discharge the plaintiffs. Id. The plaintiffs
brought suit against the bank, the vice president of the company
with which the bank would have merged, and certain individual
directors for, among other things, wrongful discharge. Id. at
800. The trial court sustained the defendants’ demurrers upon
the filing of motions for judgment. Id. at 798.
The Supreme Court of Virginia, although acknowledging that
Virginia is traditionally an employment-at-will state, id. at
800, held that “the plaintiffs . . . stated a cause of action in
tort against the Bank and the named directors for improper
discharge from employment,” id. at 801. One of the narrow
exceptions to the employment-at-will doctrine, it determined,
10
involves situations in which employees are “discharged in
violation of an established public policy.” Id. The court
decided that the plaintiff’s discharge fit within this
exception. Id. The established public policy derived from a
statute that guaranteed the right to one vote for each
outstanding share of stock, which, the court observed,
necessarily involved the right to exercise that vote “free of
duress and intimidation imposed on individual stockholders by
corporate management.” Id. The court announced, “Because the
right conferred by statute is in furtherance of established
public policy, 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. Accordingly, the
court allowed the plaintiffs’ cause of action against the bank
and the individual directors to proceed. Id.
Since deciding Bowman, the Supreme Court of Virginia “has
consistently characterized [this] exception[] [to the
employment-at-will doctrine] as ‘narrow.’” City of Virginia
Beach v. Harris, 523 S.E.2d 239, 245 (Va. 2000). It therefore
has recognized cognizable claims of wrongful discharge in
violation of public policy in only three circumstances. Rowan
v. Tractor Supply Co., 559 S.E.2d 709, 711 (Va. 2002). One of
those recognized circumstances—the one that is relevant to this
11
case—involves instances “where the discharge was based on the
employee’s refusal to engage in a criminal act.” Id. The
Supreme Court of Virginia recognized that an employee’s
discharge for such a reason could give rise to a viable
wrongful-discharge claim in Mitchem v. Counts, 523 S.E.2d 246
(Va. 2000).
In Mitchem, an employee alleged that her employer—an
insurance agent—sexually harassed her by massaging her
shoulders, patting her buttocks, trying to pull her into his lap
and kiss her, and otherwise touching her against her will. Id.
at 248. The employee maintained that her employer fired her
after she spurned his advances and refused to engage in a sexual
relationship with him. Id. She brought a wrongful-discharge
claim against him, alleging, among other things, that her
discharge violated the public policy underlying Virginia’s
criminal statutes proscribing fornication and lewd and
lascivious cohabitation. Id. at 248-49. Because the employee
would have violated these statutes if she had entered into the
sexual relationship with her employer as he sought, the Supreme
Court of Virginia determined that the employer violated
established public policy when he fired her for refusing to
engage in such a relationship. See id. at 252. As a result, it
held that she stated a cognizable wrongful-discharge claim. See
id.
12
After Mitchem, the Supreme Court of Virginia has generally
recognized that discharging an employee for refusing to engage
in criminal conduct can constitute the basis of a cognizable
wrongful-discharge claim because, even though “criminal statutes
do not contain explicit statements of public policy, the
protection of the general public from lawless acts is an
unquestioned policy underlying such statutes.” Rowan, 559
S.E.2d at 711. “[A]llowing the employment-at-will doctrine to
‘serve as a shield for employers who seek to force their
employees, under the threat of discharge, to engage in criminal
activity’ would violate this most compelling public policy.”
Id. (quoting Mitchem, 523 S.E.2d at 252).
VanBuren alleges that her discharge resulted from her
refusal to submit to Dr. Grubb’s persistent sexual advances. If
she had done so, she maintains, she would have violated
Virginia’s statutes criminalizing adultery and lewd and
lascivious cohabitation. See Va. Code Ann. §§ 18.2-345, -365.
Accordingly, she submits that she was fired for refusing to
engage in what would have been a criminal act and that her
discharge thus violated Virginia’s established public policy.
Accepting VanBuren’s allegations in her complaint as true and
drawing all reasonable inferences from them in her favor, we are
of the opinion she has adequately alleged that she was
wrongfully discharged in violation of established public policy.
13
Her allegations are similar in many respects to the allegations
in Mitchem, which the Supreme Court of Virginia determined to
state a cognizable wrongful-discharge claim. The district court
correctly determined as much when it denied the motion to
dismiss as to Virginia Highlands.
B. Proper Defendants in a Claim for Wrongful Discharge
in Violation of Public Policy
This appeal presents the issue of whether such a claim for
wrongful discharge in violation of established public policy is
cognizable against an individual, such as a supervisor, manager,
or other employee, who is not the employee’s actual employer,
but who nonetheless played a role in wrongfully terminating the
employee. The district court answered in the negative and
therefore dismissed the claim against Dr. Grubb on that basis
alone. We are not so sure, however.
The Supreme Court of Virginia has not squarely addressed
this issue. The closest it came was in Bowman, in which it
permitted the plaintiffs’ wrongful-discharge claims to proceed
against the individual bank directors, not just the bank. 331
S.E.2d at 801. That aspect of the case suggests that the
Supreme Court of Virginia does not believe wrongful-discharge
claims are cognizable against only employers. Yet we remain
reticent to rely too much on Bowman, for the court did not
14
engage in any analysis concerning who may be liable for wrongful
discharge in violation of established public policy. The issue
on appeal in Bowman was whether Virginia recognized any
exception to the employment-at-will doctrine for wrongful
discharges that violate established public policy. In answering
that question affirmatively, the Supreme Court of Virginia at
most assumed, without explanation, that the individual directors
could be liable. And, as a result, it provided no indication
that such liability would extend beyond individual directors to
individuals who serve in other capacities for an employer.
Moreover, we are hesitant to extrapolate too much from
Bowman given the profound implications that could result in our
determining that individuals who are not employers can be liable
for wrongful discharge in violation of established public
policy. Recognizing such claims against supervisors and other
individuals who are not employers would open a new class of
individuals to liability for their participation in wrongfully
terminating an employee. It could also have implications on the
use of the corporate structure in Virginia, as it would allow
individual employees to be held personally liable under certain
circumstances for termination decisions. Given these
implications, we think this issue is one best decided by the
Supreme Court of Virginia. See Rhodes v. E.I. du Pont de
Nemours & Co., 636 F.3d 88, 97-98 (4th Cir. 2011) (noting that
15
federal courts “should act conservatively when asked to predict
how a state court would proceed on a novel issue of state law”).
Furthermore, as far as we can tell, no general consensus
has arisen among Virginia’s trial courts. VanBuren has
submitted an order in which a Virginia trial court held that a
wrongful-discharge claim could be asserted against a managing
employee, not just the employer. 3 McClosky v. Warren Cnty. Dep’t
of Soc. Servs., Civil No. CL09000097-00, 2010 WL 7765600, at *1
(Va. Cir. Ct. July 15, 2010). This one decision, however, does
not provide sufficient guidance on which we can base a decision.
Finally, we observe that states are split on this issue.
See Jasper v. H. Nizam, Inc., 764 N.W.2d 751, 775 (Iowa 2009);
Physio GP, Inc. v. Naifeh, 306 S.W.3d 886, 888-89 (Tex. App.
2010); Physio GP, 306 S.W.3d at 891 & n.2 (Hudson, J.,
dissenting) (collecting cases). “Those states that impose
liability on an individual employee who participates in the tort
of wrongful discharge essentially view wrongful discharge as any
other tort within the existing rule that imposes individual
3
A magistrate judge in the Eastern District of Virginia has
reached a similar conclusion, holding that wrongful-discharge
claims may “proceed against those officers or agents of a
company who . . . played a key role in contributing to the
company’s tortious conduct allegedly inflicted on a wrongfully
discharged plaintiff.” McFarland v. Va. Ret. Servs. of
Chesterfield, L.L.C., 477 F. Supp. 2d 727, 739 (E.D. Va. 2007).
Given that this decision conflicts with the district court’s
ruling below, we lack a consensus even among our lower courts.
16
liability on employees for their own tortious conduct.” 4 Jasper,
764 N.W.2d at 775. One reason for this approach is that the
tort of wrongful discharge imposes liability based on the
wrongful reasons motivating the discharge, not the discharge
itself, meaning that individuals who are responsible for those
wrongful reasons, even if they are not the employer, should be
liable. See id. at 776. Another reason offered is that
individual liability “promotes deterrence and better decision
making because it allows the active wrongdoer to be held
directly responsible.” Physio GP, 306 S.W.3d at 888 (majority
opinion).
Courts that do not recognize wrongful-discharge claims
against individuals unless they are the actual employers
“conclude the tort can . . . be committed [only] by the person
or legal entity that employs the terminated employee.” Jasper,
764 N.W.2d at 775. Their reasoning is based on the fact that
the employment relationship exists between the employee and the
employer, meaning that only the employer possesses the power to
fire an employee. Physio GP, 306 S.W.3d at 888. Because
employees do not have the power to fire another employee except
on behalf of the employer, they cannot be liable in their
4
Virginia recognizes that “corporate officers [are] liable
for their tortious conduct.” PTS Corp. v. Buckman, 561 S.E.2d
718, 723 (Va. 2002).
17
personal capacity for wrongful discharge, even if they are
supervisors or owners. Id. at 888-89. Unlike states that allow
individual liability for wrongful discharge, states that do not
allow such liability contend that it is unnecessary for
deterrence purposes because “liable employers will likely take
their own measures to deter agents or employees from wrongfully
exercising termination authority.” Id. at 889. They have also
noted the difficulty in limiting the number of individuals who
could be liable for a wrongful-termination decision,
“particularly . . . in a corporate environment involving group
evaluation of employees and collective decisionmaking for
terminations.” Id.
We therefore find ourselves unable to predict with
confidence how the Supreme Court of Virginia would rule on this
question. As a result, we respectfully request that the Supreme
Court of Virginia answer our certified question.
IV. Certified Question Determines This Proceeding
The certified question is determinative of the pending
proceeding. If Virginia’s common law tort claim of wrongful
discharge in violation of public policy is cognizable against
individuals such as Dr. Grubb, then the district court erred,
and we will be compelled to reverse and remand. But if only
employers can be liable for wrongful discharge in violation of
18
public policy, then the district court was correct, and we will
affirm.
V. The Parties and Their Counsel
A.
The Plaintiff-Appellant/Cross-Appellee is Angela VanBuren.
Counsel for the Plaintiff-Appellant/Cross-Appellee is:
James J. O’Keeffe, IV, VSB number 48620
james_okeeffe@gentrylocke.com
Gentry, Locke, Rakes & Moore
10 Franklin Road, SE
P.O. Box 40013
Roanoke, VA 24022-0013
(540) 983-9459 (Telephone)
(540) 983-9400 (Facsimile)
B.
The Defendant-Appellee/Cross-Appellant is Stephen A. Grubb.
Counsel for the Defendant-Appellee/Cross-Appellant is:
Terry Neill Grimes, VSB number 24127
tgrimes@terryngrimes.com
Grimes & Williams, P.C.
320 Elm Avenue
Roanoke, VA 24016-4001
(540) 982-3711 (Telephone)
(540) 345-6572 (Facsimile)
19
C.
Another Defendant, who is not a party to this appeal, is
Virginia Highlands Orthopaedic Spine Center, LLC. Counsel for
this Defendant is:
Terry Neill Grimes, VSB number 24127
tgrimes@terryngrimes.com
Grimes & Williams, P.C.
320 Elm Avenue
Roanoke, VA 24016-4001
(540) 982-3711 (Telephone)
(540) 345-6572 (Facsimile)
VI. Conclusion
Pursuant to the privilege made available by Virginia
Supreme Court Rule 5:40, we respectfully:
1) Certify the question stated in Part I of this Order of
Certification to the Supreme Court of Virginia for
resolution;
2) Order the Clerk of this Court to forward to the
Supreme Court of Virginia, under the official seal of
this Court, a copy of this Order of Certification,
together with the original or copies of the record
before this Court to the extent requested by the
Supreme Court of Virginia; and
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3) Order that any request for all or part of the record
be fulfilled by the Clerk of this Court simply upon
notification from the Clerk of the Supreme Court of
Virginia.
QUESTION CERTIFIED
FOR THE COURT
/s/ Henry F. Floyd
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