County of Giles v. Wines

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.

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 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.

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 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

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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

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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).

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 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

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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

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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

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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,

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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

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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,

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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.

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For all these reasons I dissent.

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