Doss v. Jamco, Inc.

Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Kinser, JJ., and Whiting, Senior Justice

LAURA L. DOSS
OPINION BY
v. Record No. 970703 CHIEF JUSTICE HARRY L. CARRICO
October 31, 1997
JAMCO, INC.

UPON A QUESTION OF LAW CERTIFIED BY THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA

By a "STIPULATED ORDER OF CERTIFICATION" entered April 9,

1997, the United States District Court for the Western District

of Virginia (Lynchburg Division) certified to this Court,

pursuant to our Rule 42, the following question of law:
Does Va. Code § 2.1-725(D) prohibit a common law cause
of action based upon the public policies reflected in
the Virginia Human Rights Act, Va. Code § 2.1-714 et
seq.?

By order dated April 28, 1997, we accepted the certified question

of law.

The question arose when, on December 23, 1996, Laura L. Doss

(Doss) filed in the District Court a two-count complaint alleging

that her former employer, Jamco, Inc. (Jamco), had unlawfully

terminated her employment "because of her sex and because she was

pregnant." In Count 1, which is not involved in this proceeding,

Doss sought to recover damages for Jamco's alleged violation of

Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et
seq.). In Count 2, which is implicated here, Doss sought to

recover damages for Jamco's alleged violation of "the statutorily

expressed public policy of the Commonwealth of Virginia as

embodied in the Virginia Human Rights Act (Va. Code § 2.1-714 et

seq.) and as expressed in Title VII of the Civil Rights Act of
1964 (42 U.S.C. § 2000e et seq.) and elsewhere."

The relevant facts are recited in the stipulated order of

certification, as follows:
[Doss] was hired by [Jamco] and agreed to begin work on
March 11, 1996. . . . [P]rior to reporting to work for
[Jamco] on March 11, 1996, [Doss] learned that she was
pregnant. Upon reporting for work, [Doss] told [Jamco's]
employees who were to be her supervisors about her
pregnancy. . . . [O]n March 12, 1996, [Jamco's] supervisors
informed [Doss] that her employment was being terminated
because her maternity leave would cause her to be out during
the Company's busy time which was unacceptable to [Jamco].

We note that Doss grounds her claim for unlawful discharge

upon the public policy of Virginia as embodied in the Virginia

Human Rights Act and "as expressed in Title VII of the Civil

Rights Act of 1964 (42 U.S.C. § 2000e et seq.) and elsewhere."

However, in answering the certified question, we are limited by

the terms of the certification order to "the public policies

reflected in the Virginia Human Rights Act." Therefore, we

express no opinion concerning the public policy of Virginia as it

might be articulated in sources other than the Virginia Human

Rights Act.

Ever since this Court decided Stonega Coal and Coke Co. v.
Louisville and Nashville R.R., 106 Va. 223, 55 S.E. 551 (1906),

Virginia has adhered to the rule that when an employment contract

provides for the rendition of services but its intended duration

cannot be determined from its provisions, "either party is

ordinarily at liberty to terminate it at will on giving

reasonable notice of his intention to do so." Id. at 226, 55

S.E. at 552. However, the rule is not absolute. Bowman v. State

Bank of Keysville, 229 Va. 534, 539, 331 S.E.2d 797, 801 (1985).
 In Bowman, which predated the adoption of the Virginia Human

Rights Act, we recognized a limited exception to the employment-

at-will rule. This exception allowed two bank employees who were

also stockholders of the bank corporation to maintain a common

law action in tort against their employer. The employees were

discharged after failing to heed a threat from the employer that

their employment would be terminated if they failed to vote their

stock according to the wishes of corporate management. Such

action by the employer, we said, violated the public policy

established by Va. Code § 13.1-32 (now Va. Code § 13.1-662),

which contemplated "that the right to vote [shares of stock]

shall be exercised free of duress and intimidation imposed on

individual stockholders by corporate management." Id. at 540,

331 S.E.2d at 801.

Bowman was followed by Miller v. SEVAMP, Inc., 234 Va. 462,

362 S.E.2d 915 (1987), where the events giving rise to the

litigation predated the adoption of the Virginia Human Rights

Act. There, the employee alleged that her termination was in

retaliation of her appearance as a witness at a co-employee's

grievance hearing. The trial court sustained a demurrer to the

employee's motion for judgment, and we affirmed. We noted the

exception recognized in Bowman that allows recovery for
"discharges which violate public policy, that is, the policy

underlying existing laws designed to protect the property rights,

personal freedoms, health, safety, or welfare of the people in

general." Id. at 468, 362 S.E.2d at 918. We held, however, that

the Bowman exception was not applicable because the "retaliatory
act [of discharging the employee] would impinge only upon private

rights established by the employer's internal regulations [and]

would have no impact upon any public policy established by

existing laws for the protection of the public generally." Id.,

362 S.E.2d at 919.

At its 1987 session, the General Assembly adopted the

Virginia Human Rights Act (the Act). 1987 Va. Acts ch. 581

(Chapter 43 of Title 2.1 of the Code of Virginia, §§ 2.1-714

through -725). In 1996, when Doss's termination occurred, Va.

Code § 2.1-715 provided that "[i]t is the policy of the

Commonwealth of Virginia . . . [t]o safeguard all individuals

within the Commonwealth from unlawful discrimination because of

race, color, religion, national origin, sex, age, marital status
1
or disability . . . in employment . . . ."
Following adoption of the Act, this Court considered the

case of Lockhart v. Commonwealth Educ. Sys. Corp., 247 Va. 98,

439 S.E.2d 328 (1994). 2 Lockhart involved the claims of two

female at-will employees who alleged they were wrongfully

discharged from employment, one because of her race and the other

because of her sex. The claims of both employees were dismissed

on demurrer, and this Court reversed. After citing Va. Code

§ 2.1-715 as declarative of the "Commonwealth's strong public
1
At its 1997 session, the General Assembly amended
Va. Code § 2.1-715 by adding "pregnancy, childbirth or
related medical conditions" to the list of unlawful
bases for discrimination in employment.
2
Wright v. Donnelly & Co., Record No. 930205, was
decided at the same time as Lockhart and by the same
opinion.
policy against employment discrimination based upon race or

gender," 247 Va. at 105, 439 S.E.2d at 331, the Court stated as

follows:
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. Accordingly, the Court held that the two employees had "pled

viable causes of action." Id. at 104, 439 S.E.2d at 331. 3

Lockhart was decided in 1994. At the 1995 session of the

General Assembly, a bill was introduced that would have had the

effect of overruling Lockhart. (S. 1025.) Two versions

submitted as amendments in the nature of substitutes expressly

stated their purpose was the "nullification" of Lockhart. (S.

1025, Committee Amendment in the Nature of a Substitute; S. 1025,

Floor Amendment in the Nature of a Substitute.) However, in its

enacted form, the legislation did not employ the "nullification"

language, but amended Va. Code § 2.1-725 in several respects.

As originally enacted, Va. Code § 2.1-725 provided as
3
Subsequent to Lockhart, this Court applied the
original version of the Virginia Human Rights Act in
deciding Bailey v. Scott-Gallaher, Inc., 253 Va. 121,
480 S.E.2d 502 (1997) (maintenance of common law action
in tort allowed for wrongful discharge based upon
gender), and Bradick v. Grumman Data Sys. Corp., 254 Va.
156, 486 S.E.2d 545 (1997) (maintenance of common law
action in tort allowed for wrongful discharge based upon
disability). We decided another wrongful discharge case
post-Lockhart, but disallowed a common law recovery
because the employee was unable to identify any Virginia
statute establishing a public policy that was violated
by the employer. Lawrence Chrysler Plymouth Corp. v.
Brooks, 251 Va. 94, 465 S.E.2d 806 (1996).
follows:
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.

The 1995 amendments deleted the second sentence of Va. Code

§ 2.1-275, made the first sentence subsection A, and changed its

language. The subsection reads as follows: "Nothing in this

chapter creates, nor shall it be construed to create, an

independent or private cause of action to enforce its provisions,

except as specifically provided in subsections B and C of this

section."
Subsections B and C are new. They create a statutory cause

of action against an employer of more than five but less than

fifteen persons. Subsection B provides that no such employer

shall discharge an employee "on the basis of race, color,

religion, national origin or sex, or of age if the employee is
4
forty years or older." Subsection C provides that "[t]he

employee may bring an action in a general district or circuit

court having jurisdiction over the employer who allegedly

discharged the employee in violation of this section." A court

4
The stipulated order of certification notes that,
because Jamco employs more than fifteen persons, it is
not subject to a claim under Va. Code § 2.1-725(B) and
(C).

At its 1997 session, the General Assembly added
"pregnancy, childbirth or related medical conditions" to
the prohibited bases for discharge listed in Va. Code
§ 2.1-725(B).
may award up to twelve months back pay, with interest, and the

award may be increased or decreased if either party engages in

tactics to delay resolution of the complaint. A court may also

award attorney's fees from the amount recovered, not to exceed

twenty-five percent of the back pay awarded, but the court shall

not award other damages, compensatory or punitive, nor shall it

order reinstatement of the employee.

Subsection D, upon which the certified question focuses, is

also new. It provides in pertinent part as follows:
Causes of action based upon the public policies reflected in
this chapter shall be exclusively limited to those actions,
procedures and remedies, if any, afforded by applicable
federal or state civil rights statutes or local ordinances.

Doss maintains, in effect, that nothing has changed. She

says that Lockhart remains the controlling law and that all the

General Assembly accomplished with its 1995 amendments to the Act

is the creation of a statutory cause of action against employers

of more than five but less than fifteen persons.

Doss points out that the cause of action recognized in
Bowman and Lockhart "is a tort action arising solely under common

law." She says that although the General Assembly may abrogate

or alter the common law, its intent to do so must be plainly

manifested, Peoples Sec. Life Ins. Co. v. Arrington, 243 Va. 89,

92, 412 S.E.2d 705, 707 (1992), and she insists that the 1995

amendments to the Act do not manifest an intent to alter the

common law as articulated in Lockhart.

Doss maintains that despite the language in the original

version of Va. Code § 2.1-725 disavowing the creation of an
independent or private cause of action, this Court had no trouble

finding in Lockhart that the Act did not prohibit a Bowman-type

action in tort for the unlawful termination of employment. And

Doss says that nothing in new subsection D supports such a

prohibition. Indeed, she opines, with the 1995 deletion of the

language in the second sentence of Va. Code § 2.1-725 abjuring

tort actions, "any alleged prohibition against Lockhart-type tort

claims [is made] even less clear."
Furthermore, Doss submits, if a statute is ambiguous, the

court may resort to legislative history and the enactment process

to ascertain legislative intent. Doss says that the language in

the Act is ambiguous and that we should examine the enactment

process involving the 1995 amendments to ascertain their meaning.

Doss says such an examination would reveal that while the

original 1995 bill and its subsequent substitute amendments all

contained clear declarations of intent to nullify Lockhart, these

declarations were not retained in the final enacted version of

the bill. Hence, the fair inference to be drawn, Doss concludes,

is that the General Assembly did not intend to nullify Lockhart.
The issue, then, is whether, in the enactment of the 1995

amendments, the General Assembly plainly manifested an intent to

abrogate or alter the common law with respect to causes of action

for unlawful termination of employment. Settled principles guide

our resolution of this issue.
When the legislature has spoken plainly it is not the
function of courts to change or amend its enactments
under the guise of construing them. The province of
construction lies wholly within the domain of
ambiguity, and that which is plain needs no
interpretation.
Winston v. City of Richmond, 196 Va. 403, 407-08, 83 S.E.2d 728,

731 (1954).

In the absence of ambiguity, a court may look only to the

words of the statute to determine its meaning, and when the

meaning is plain, resort to rules of construction, legislative

history, and extrinsic evidence is impermissible. Harrison &

Bates, Inc. v. Featherstone Assoc., 253 Va. 364, 368, 484 S.E.2d

883, 885 (1997); Va. Dept. of Labor v. Westmoreland Coal Co., 233

Va. 97, 99, 353 S.E.2d 758, 760 (1987); Brown v. Lukhard, 229 Va.
316, 321, 330 S.E.2d 84, 87 (1985).

We disagree with Doss that the Act as amended in 1995 is

ambiguous. What we said of the statute involved in Harrison &

Bates applies with equal force to the enactment involved here:
Nothing in the language of this statute is
inherently difficult to comprehend, of doubtful import,
or lacking in clarity and definiteness. Accordingly,
it is not necessary to look beyond the plain language
of the statute to ascertain its underlying legislative
intent.

253 Va. at 369, 484 S.E.2d at 886.

In our opinion, in amending the Act by adding subsection D

to Va. Code § 2.1-725 in 1995, the General Assembly plainly

manifested its intention to alter the common law rule with

respect to "[c]auses of action based upon the public policies

reflected in [the Act]." (Emphasis added.) And, just as

plainly, the General Assembly altered the common law rule by

providing that such causes of action "shall be exclusively
limited to those actions, procedures and remedies, if any,

afforded by applicable federal or state civil rights statutes or
local ordinances." (Emphasis added.)

This is what the Act as amended says, and this is the

meaning that must be given to the Act to carry out the clear

intent of the General Assembly. To say, as Doss would have us

say, that the 1995 amendments changed nothing would render

meaningless the General Assembly's use of the words "exclusively

limited" and reduce to an absurdity its creation of a statutory

cause of action against employers of more than five but less than

fifteen persons.
The rules of statutory interpretation argue against
reading any legislative enactment in a manner that will
make a portion of it useless, repetitious, or absurd.
On the contrary, it is well established that every act
of the legislature should be read so as to give
reasonable effect to every word . . . .

Jones v. Conwell, 227 Va. 176, 181, 314 S.E.2d 61, 64 (1984).

Finally, in her reply brief, Doss cites Va. Code § 2.1-717,

a part of the Act, which provides in part as follows:
The provisions of this chapter shall be construed
liberally for the accomplishment of the policies
herein. Nothing contained in this chapter shall be
deemed to repeal, supersede or expand upon any of the
provisions of any other state or federal law relating
to discrimination because of race, color, religion,
national origin, sex, age, marital status or
5
disability.[ ]

Doss argues that, in this Code section, the Act creates "its

own rule of statutory construction," and, under the rule, the Act

"cannot be used as the basis for repealing or superseding the

common-law expressed in Bowman and Lockhart." The Act, however,
5
A 1997 amendment to Va. Code § 2.1-717 added
"pregnancy, childbirth or related medical conditions" to
the list of unlawful bases for discrimination in
employment.
is not the basis for the General Assembly's authority to abrogate

or alter the common law. The basis for the General Assembly's

authority is found in Va. Code § 1-10, which provides as follows:
The common law of England, insofar as it is not
repugnant to the principles of the Bill of Rights and
Constitution of this Commonwealth, shall continue in
full force within the same, and be the rule of
decision, except as altered by the General Assembly.

(Emphasis added.) To adopt Doss's argument would lead to the

conclusion that, in enacting Va. Code § 2.1-717, the General

Assembly effectively repealed or superseded Va. Code § 1-10

insofar as its authority to alter the common law with respect to

a substantial class of cases is concerned, and that would be an

unreasonable conclusion to reach. So we reject Doss's argument.
Finding that, in enacting the 1995 amendments to Va. Code

§ 2.1-725, the General Assembly plainly manifested an intent to

abrogate the common law with respect to causes of action for

unlawful termination of employment based upon the public policies

reflected in the Act, we will answer the certified question in

the affirmative.
Certified question answered in the affirmative.