Bailey v. Scott-Gallaher, Inc.

Present: All the Justices

LISA BAILEY
OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.
v. Record No. 960530 JANUARY 10, 1997

SCOTT-GALLAHER, INC.

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Clifford R. Weckstein, Judge

In this appeal, we consider whether a former employee who

alleged that she was terminated from her at-will employment

because of her gender pled a cause of action against her former

employer for wrongful discharge.
The trial court decided this case on demurrer. Accordingly,

we recite as true the material facts alleged in the motion for

judgment and the fair factual inferences deducible therefrom.

Palumbo v. Bennett, 242 Va. 248, 249, 409 S.E.2d 152, 152 (1991).

On June 20, 1995, Lisa Bailey filed her motion for judgment

against Scott-Gallaher, Inc., a Virginia corporation. 1 That

pleading contains the following allegations of fact. Bailey was

employed by Scott-Gallaher in September, 1990. In 1994, she

became pregnant. As a result of premature onset of labor,

Bailey's physician ordered her to cease work on July 21, 1994.

She was released by her physician to return to work on October 3,

1994. Bailey promptly contacted Ronald E. Scott, Scott-

Gallaher's president, to inquire "when she should return to

1
Bailey asserted two claims in her motion for judgment. The
first claim, predicated upon Title VII of the federal Civil
Rights Act, 42 U.S.C. §§ 2000e et seq., was voluntarily nonsuited
after it was determined that Scott-Gallaher did not employ a
sufficient number of employees to bring it within the operation
of Title VII.
work." Scott told Bailey that she had been terminated "because

she was no longer dependable since she had delivered a child;

that [her] place was at home with her child; that babies get sick

sometimes and [she] would have to miss work to care for her

child; and that [Scott-Gallaher] needed someone more dependable."

Bailey's motion for judgment alleges, citing Lockhart v.

Commonwealth Education Systems Corp., 247 Va. 98, 439 S.E.2d 328

(1994), that Scott-Gallaher "is subject to the common law of

Virginia prohibiting employment discrimination based upon sex."

The pleading further alleges, citing the Virginia Human Rights

Act, Code § 2.1-715, that it is the public policy of the

Commonwealth to safeguard individuals from gender-based

discrimination. Finally, under the facts and law set forth

above, the pleading alleges that Scott-Gallaher had, in violation

of the public policy of the Commonwealth of Virginia, "(a)

discriminated against Bailey with respect to the terms,

conditions or privileges of her employment because of her sex;

and (b) fired Bailey on account of her sex."
Scott-Gallaher filed a demurrer, asserting, inter alia, that
Bailey's common law claim was not actionable because she was an

employee-at-will and, therefore, terminable without need for

cause. The trial court sustained the demurrer, holding that

Bailey had not stated a cognizable claim for wrongful discharge

under Virginia's public policy exception to the employment-at-

will doctrine. We awarded Bailey an appeal.

Virginia strongly adheres to the common law employment-at-

will doctrine. As recently as last year, we stated:
 "Virginia adheres to the common-law rule that when
the intended duration of a contract for the rendition
of services cannot be determined by fair inference from
the terms of the contract, then either party is
ordinarily at liberty to terminate the contract at
will, upon giving the other party reasonable notice.

An employee is ordinarily at liberty to leave his
employment for any reason or 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."

Lawrence Chrysler Plymouth Corp. v. Brooks, 251 Va. 94, 97, 465

S.E.2d 806, 808 (1996)(quoting Miller v. SEAVAMP, Inc., 234 Va.
462, 465, 362 S.E.2d 915, 916-17 (1987)(citations omitted)).

We have also held, however, that the common law employment-

at-will doctrine is not absolute, and we have recognized certain

narrow public policy exceptions to this doctrine. For example,

in Bowman v. State Bank of Keysville, 229 Va. 534, 540, 331

S.E.2d 797, 801 (1985), citing former Code § 13.1-32 (now Code

§ 13.1-662), which guarantees every shareholder the right to vote

his or her stock "free of duress and intimidation," we recognized

a narrow public policy exception to the employment-at-will

doctrine where employee/shareholders were terminated after they

complained that they had been coerced into voting for a merger.

We reasoned that
[b]ecause the right conferred by [Code § 13.1-32] 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.

Subsequently, in Lockhart, supra, we permitted two former
employees who alleged that they had been terminated because of

their race or gender to prosecute causes of action against their

respective former employers. In Lockhart, we stated:
In Bowman, we recognized the plaintiffs' rights to
bring actions for wrongful discharge based upon
violations of Virginia's public policy that a
stockholder should be permitted to exercise the right
to vote stock free of duress and intimidation from
corporate management. Here, however, we are concerned
with rights of even greater importance, the personal
freedom to pursue employment free of discrimination
based upon race or gender. Indeed, there are few, if
any, greater restrictions on personal freedoms that an
employee can suffer than to be terminated because of
discrimination based upon race or gender.

Id. at 104, 439 S.E.2d at 331. We explained in Lockhart that the

plaintiffs were able to pursue their common-law causes of action

because their claims were within the scope of the narrow public

policy exception that we applied in Bowman:
We recognize that the Virginia Human Rights Act
does not create any new causes of action. Code
§ 2.1-725. Here, we do not rely upon the Virginia
Human Rights Act to create new causes of action.
Rather, we rely solely on the narrow exception that we
recognized in 1985 in Bowman, decided two years before
the enactment of the Virginia Human Rights Act.

Id. at 105, 439 S.E.2d at 331.

In Lockhart the former employers' alleged discriminatory

acts, if proven, would have violated Virginia's strong public

policy against race and gender discrimination as reflected in

Code § 2.1-715, which is a part of the Virginia Human Rights Act.

That it is the strongly held public policy of this Commonwealth

to protect employees against employment discrimination based upon

race or gender is beyond debate or challenge. Thus, in Lockhart

we stated:
Without question, it is the public policy of this
 Commonwealth that all individuals within this
Commonwealth are entitled to pursue employment free of
discrimination based on race or gender. Indeed, racial
or gender discrimination practiced in the work place is
not only an invidious violation of the rights of the
individual, but such discrimination also affects the
property rights, personal freedoms, and welfare of the
people in general.

Id.

Our decision last year in Lawrence Chrysler Plymouth Corp.,

supra, is consistent with the narrow public policy exception to

the employment-at-will doctrine we have previously recognized.

There, the plaintiff's claim was that he was terminated when he

refused to follow the employer's directions to repair a car by

utilizing an allegedly unsafe method of repair. The plaintiff,

who had recovered a favorable jury verdict confirmed by the trial

court, contended on appeal that even though he was an employee-

at-will, his employer wrongfully discharged him in violation of

Virginia's public policy and that "the public policy of Virginia

need not be found in any express statutory command." 251 Va. at

96, 465 S.E.2d at 808. Distinguishing Lawrence Chrysler Plymouth
Corp. from Bowman and Lockhart, we unanimously stated:
In Bowman and Lockhart, the plaintiffs, who were
permitted to pursue causes of action against their
former employers, identified specific Virginia statutes
in which the General Assembly had established public
policies that the former employers had contravened.
Unlike the plaintiffs in Bowman and Lockhart, Brooks
does not have a cause of action for wrongful discharge
because he is unable to identify any Virginia statute
establishing a public policy that Lawrence Chrysler
violated.

Lawrence Chrysler Plymouth Corp., 251 Va. at 98-99, 465 S.E.2d at

809.

Guided by these settled principles, we turn now to consider
Bailey's claim. Bailey argues that she pled a viable cause of

action for gender discrimination and that the trial court erred

by sustaining the demurrer. The Attorney General of Virginia,

who filed a brief amicus curiae pursuant to Rule 5:30(a)(1), also

argues that Bailey pled a cause of action for gender

discrimination. Scott-Gallaher asserts that the trial court

properly sustained the demurrer because Bailey failed to identify

a statute which identifies a public policy that Scott-Gallaher

had violated. We disagree with Scott-Gallaher.
We are of opinion that Bailey pled a viable cause of action

which clearly falls within the scope of the narrow public policy

exception to the employment-at-will doctrine that we recognized

in Bowman and Lockhart. Specifically, we will apply Lockhart

here because we perceive of no reason why we should overrule or

retreat from our holdings in Bowman and Lockhart, and we decline

Scott-Gallaher's invitation that we do so.

Bailey pled factual allegations similar to those pled by

plaintiff Wright in Lockhart which, if proven true, could support
a jury finding that she was discriminated against because of her

gender. Bailey's factual allegations, if proven true, would

support a reasonable inference by the finder of fact that Scott-

Gallaher terminated Bailey solely because of her status as a

woman who is also a working mother. Certainly, this basis for

termination is a classic example of gender discrimination which

is repugnant to Virginia's strong public policy. Additionally,

we noted in Lockhart that while the cause of action for wrongful

termination based on gender discrimination arose independently
from the Virginia Human Rights Act, the public policy

articulation in that Act satisfies our requirement in Lawrence

Chrysler Plymouth Corp. for identifying a statutory embodiment of

the public policy of the Commonwealth.

In view of our holding, we need not consider the litigants'

remaining arguments. Accordingly, we will reverse the judgment

of the trial court and remand this case for a trial on the

merits.
Reversed and remanded.
JUSTICE COMPTON, with whom CHIEF JUSTICE CARRICO and JUSTICE
STEPHENSON join, dissenting.

The basis of the plaintiff's so-called "common law" claim is

that she has been the victim of discrimination in the workplace

because of pregnancy and childbirth. The plaintiff contends, and

the majority agrees, "that pregnancy discrimination is a form of

sex discrimination." But "pregnancy" discrimination is not

expressly prohibited by the Virginia Human Rights Act, Code

§§ 2.1-714 through -725 (the Act), or any other Virginia law.

Sound public policy may indeed justify legislation to prohibit

the sort of conduct about which the plaintiff complains in this

case. However, that public policy should be declared by the

General Assembly, not four judges.

The plaintiff said in the trial court that the issue here,

"simply put," is "whether a female employee's giving birth is

grounds for termination of employment in Virginia." She

suggested to the trial court "that disparate treatment of female

employees because they have the capacity to give birth or have in
fact given birth is a quintessential expression of gender

discrimination." That contention makes interesting rhetoric, but

it disregards the settled law that any narrow exception to

Virginia's employment-at-will doctrine must be based on a

specific Virginia statute in which the General Assembly has

established a public policy that the employer has contravened.

See Lawrence Chrysler Plymouth Corp. v. Brooks, 251 Va. 94, 98,

465 S.E.2d 806, 809 (1996); Miller v. SEVAMP, Inc., 234 Va. 462,

467-68, 362 S.E.2d 915, 918-19 (1987); Bowman v. State Bank of
Keysville, 229 Va. 534, 540, 331 S.E.2d 797, 801 (1985). And, as

I have said, there is no Virginia statute expressly prohibiting

defendant's conduct.

As pertinent, the Act declares the Commonwealth's policy to

safeguard in employment all individuals "from unlawful

discrimination because of race, color, religion, national origin,

sex, age, marital status or disability." Code § 2.1-715(1).

Courts may construe or interpret statutory language that is

"difficult to comprehend, is of doubtful import, or lacks

clearness and definiteness. . . . But when statutory language is

clear and unambiguous, the plain meaning and intent of the

enactment will be given to it; we take the words as written to

determine their meaning." Lee-Warren v. School Bd. of Cumberland

County, 241 Va. 442, 445, 403 S.E.2d 691, 692 (1991). Neither

pregnancy nor childbirth is mentioned in § 2.1-715(1), and judges

should not add that language to this unambiguous statute. Stated

differently, when the legislature makes it unlawful for an

employer to discriminate because of "sex," courts should not
"readily infer" that the term encompasses pregnancy or

childbirth. General Elec. Co. v. Gilbert, 429 U.S. 125, 145

(1976).

Moreover, at the time the plaintiff filed her motion for

judgment, the Act provided: "Nothing in this chapter creates,

nor shall it be construed to create, an independent or private

cause of action to enforce its provisions. Nor shall the

policies or provisions of this chapter be construed to allow tort

actions to be instituted instead of or in addition to the current

statutory actions for unlawful discrimination." Code § 2.1-725

(Repl. Vol. 1987). Thus, even if discrimination because of

pregnancy or childbirth is, by implication, the same as

discrimination because of gender, the General Assembly clearly

has stated that the public policies set forth in the Act may not

be used as the basis for private tort actions, such as the

present case.
Finally, the majority places great reliance on Lockhart v.
Commonwealth Educ. Systems Corp., 247 Va. 98, 439 S.E.2d 328

(1994), and labors to harmonize it with Lawrence Chrysler

Plymouth Corp. and Bowman. The continued viability of Lockhart

is doubtful.

In 1995, the General Assembly acted promptly to nullify the

scope of Lockhart; the legislature extensively amended Code

§ 2.1-725 (Repl. Vol. 1995). Acts 1995, ch. 838. These

amendments confirm, contrary to the majority's holding today,

that the Act does not establish a Bowman-type public policy
exception to Virginia's employment-at-will doctrine.
 Consequently, I would affirm the judgment of the trial

court.