Bradick v. Grumman Data Systems Corp.

Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell and
Koontz, JJ., and Whiting, Senior Justice

ANDREW BRADICK
OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.
v. Record No. 962531 JUNE 6, 1997

GRUMMAN DATA SYSTEMS CORPORATION
and NORTHROP GRUMMAN CORPORATION

UPON A QUESTION OF LAW CERTIFIED BY THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT

By order entered on January 15, 1997, this Court accepted

the certification, by the United States Court of Appeals for the

Fourth Circuit, of the following question of Virginia law:
Does the common law of Virginia provide a wrongful
discharge remedy to an employee of an employer covered
by the Rehabilitation Act of 1973, 29 U.S.C. § 701 et
seq., where the employee is discharged on account of
his disability or the employer's perception of his
disability?

Background

The question arises from a civil action brought by Andrew

Bradick against his former employer, Grumman Data Systems

Corporation (Grumman Data), in which Bradick alleges that the

employer wrongfully discharged him from employment on account of
1
disability in violation of the common law of Virginia.
The relevant facts are not in dispute and are contained

within the order of certification. Bradick was an employee-at-

will of Grumman Data in Virginia from October 15, 1990 until he

1
Bradick's suit was initially filed in the Circuit Court of
Fairfax County and subsequently removed by the defendants to the
United States District Court for the Eastern District of
Virginia. Northrop Grumman Corporation, an initial defendant,
was dismissed by stipulation of the parties. Following an
adverse decision in the district court, Bradick has appealed to
the United States Court of Appeals for the Fourth Circuit.
was discharged on May 26, 1994. Bradick's job performance was

satisfactory to his employer. However, while on vacation in

Mexico in 1993, Bradick contracted a severe case of

histoplasmosis. 2 Because the disease caused Bradick to have

recurrent attacks of extreme fatigue, Bradick's physician

recommended that he take a leave of absence from his employment

with Grumman Data on three occasions. Bradick's discharge

occurred following the third of these leaves.
Bradick asserts in his pleading that he was and is able to

adequately perform the duties of his former job. Therefore, he

asserts that his discharge was in violation of public policy

because it was based on his physical disability or Grumman Data's

perception that he suffers from a physical disability.

Beginning with Bowman v. State Bank of Keysville, 229 Va.

534, 331 S.E.2d 797 (1985), we have recognized a narrow public

policy exception to this Commonwealth's employment-at-will

doctrine, which ordinarily permits either the employer or the

employee to terminate the employment relationship without

incurring liability. We have explained that this exception

applies to discharges which violate public policy. See Lawrence

Chrysler Plymouth Corp. v. Brooks, 251 Va. 94, 98-99, 465 S.E.2d

806, 809 (1996). We also have explained that the cause of action

arises not from the statute or statutes which express the public

policy relied on by the employee, but from the narrow exception

within the common law recognized in Bowman. See Bailey v. Scott-

2
Histoplasmosis is a fungal infection of the lungs.
Gallaher, 253 Va. 121, 125, 480 S.E.2d 502, 504 (1997); Lockhart

v. Commonwealth Educ. Systems Corp., 247 Va. 98, 105, 439 S.E.2d

328, 331 (1994). Upon these principles, we have permitted former

at-will employees to maintain common law actions for wrongful

discharge under the narrow exception recognized in Bowman where

the conduct alleged would have violated Virginia's public policy

against race and gender discrimination as reflected in the

Virginia Human Rights Act (VHRA), Code § 2.1-715. See Bailey,
supra (gender); Lockhart, supra (race and gender).

We have never before considered whether the narrow exception

recognized in Bowman permits a cause of action for unlawful

discharge from at-will employment based upon a disability.

However, it is not disputed that both the VHRA and the Virginians

with Disabilities Act (VDA), Code §§ 51.5-1 to 51.5-52, contain

clear expressions of Virginia's public policy opposing

discrimination against disabled persons.

In the present case, unlike Lockhart and Bailey, in order to

determine the applicability of the exception recognized in
Bowman, we must determine whether the common law cause of action

has been abrogated by the General Assembly when it enacted the

VDA. The VDA creates a comprehensive administrative procedure to

combat discrimination on account of disability in employment,

education, commerce, and civic affairs. Code § 51.5-41, which

contains the Act's prohibitions against employment

discrimination, specifically provides in subsection (F) that

"[t]his section shall not apply to employers covered by the
federal Rehabilitation Act of 1973." 3 Code § 51.5-46 provides

for the relief available for violation of the substantive

provisions of the VDA, and subsection (C) specifically provides

that "[t]he relief available for violations of this chapter shall

be limited to the relief set forth in this section."

Grumman Data is subject to the federal Rehabilitation Act of

1973 and, thus, is exempt from the employment discrimination

provisions of the VDA. The issue presented in this case, then,

is whether the exclusivity provision of Code § 51.5-46(C)

abrogates any action employees like Bradick might have under

Virginia common law for wrongful discharge from at-will

employment based on disability. We hold that it does not.
While it is true that the VDA and the federal Rehabilitative

Act of 1973 have similar purposes, nothing in the VDA expressly

makes either the federal Act part of the VDA's statutory scheme

or the provisions of the one applicable to the other. The

exemption provision of Code § 51.5-41(F) applies "to employers

covered by the federal Rehabilitation Act of 1973." (Emphasis

added.) Nothing in this language expressly addresses or

otherwise implicates the claims an employee in this situation
might have under the federal or state Acts. Rather, this code

section expressly exempts certain employers from the application

of one section of the VDA. The VDA was enacted in derogation of

the common law and, therefore, it must be strictly applied and

3
The federal statute addresses, inter alia, employment
discrimination against persons with disabilities by employers
with federal contracts.
not "enlarged in [its] operation by construction beyond [its]

express terms." See C. & O. Railway v. Kinzer, 206 Va. 175, 181,

142 S.E.2d 514, 518; see also Baumgardner v. Southwestern

Virginia Mental Health Inst., 247 Va. 486, 489, 442 S.E.2d 400,

401 (1994).

The exclusivity provision of Code § 51.5-46(C) applies to

"violations of this chapter." Because employers, such as Grumman

Data in this case, who are covered by the federal Rehabilitative

Act of 1973 are not subject to the employment discrimination

provisions of the VDA, pursuant to Code § 51.5-41(F), actions by

such employers which constitute disability discrimination in

employment are not "violations of this chapter." Thus, it is

clear that Code § 51.5-46(C) limits only the relief for claims

that are brought under the substantive provisions of the VDA, and

has no application to a claim which might be brought against an

employer subject to the federal Rehabilitation Act of 1973.

Moreover, a statute which does not apply to acts of an employer,

and provides no remedy to an employee if those acts violate

public policy, cannot be said to be a statutory abrogation of an

employee's common law cause of action based on those acts.
For these reasons, we hold that, based on the public policy

expressed in the VDA and VHRA at the time of Grumman Data's

alleged act of discrimination, the common law of Virginia

provides a wrongful discharge remedy to an employee, such as

Bradick, of an employer covered by the federal Rehabilitation Act

of 1973 where the employee is discharged on account of his

disability or the employer's perception of his disability under
the narrow exception recognized in Bowman.

Certified question answered in the affirmative.
JUSTICE COMPTON, with whom CHIEF JUSTICE CARRICO and JUSTICE
STEPHENSON join, dissenting.

I would answer the certified question in the negative.

The statement of Virginia's public policy against disability

discrimination is contained in the Virginians With Disabilities

Act (VDA), Code §§ 51.5-1 through -52. The General Assembly has

stated explicitly that the VDA provides the exclusive state

remedy for employment discrimination based on disability: "The

relief available for violations of this chapter shall be limited

to the relief set forth in this section." Code § 51.5-46(C).

Violations "of this chapter" refers to disability discrimination

generally. Code § 51.5-41(A) ("No employer shall discriminate in

employment or promotion practices against an otherwise qualified

person with a disability solely because of such disability.").
The majority argues that the VDA does not apply because the

employer, a government contractor, was not covered by the VDA.

Clearly, the VDA does not apply to employers "covered by the

federal Rehabilitation Act of 1973." Code § 51.5-41(F). But

this does not save Bradick's claim.

The VDA's clear statement that it does not apply to

employers covered by the federal Act plainly indicates that the

General Assembly did not intend employees, who could proceed

against their employers under the federal Act, to have the option

of proceeding under the VDA, the exclusive state remedy.