Mitchem v. Counts

Present: All the Justices

VICKI LYNN MITCHEM

v. Record No. 990399 OPINION BY JUSTICE BARBARA MILANO KEENAN
January 14, 2000
DURWOOD L. COUNTS

FROM THE CIRCUIT COURT OF ALLEGHANY COUNTY
Duncan M. Byrd, Jr., Judge

In this appeal, we consider two issues: 1) whether Code

§ 2.1-725(D) of the Virginia Human Rights Act (VHRA), Code

§§ 2.1-714 through –725, bars a common law action for wrongful

termination of employment based on a violation of public policy

not reflected in the VHRA, when the conduct alleged also

violates a public policy reflected in the VHRA; and 2) whether a

violation of the public policies embodied in two criminal

statutes may support such a common law action.

Vicki Lynn Mitchem filed a motion for judgment against her

former employer Durwood L. Counts, 1 alleging that he had

wrongfully discharged her from her position as an insurance

marketing representative after she refused to engage in a sexual

relationship with him. Mitchem asserted that Counts repeatedly

tried to persuade her to have a "sexual affair" with him and

1
Counts was an insurance agent who, at all times pertinent
to this action, employed no more than five persons.
promised in return that she would receive money and "a lot of

nice things."

In her motion for judgment, Mitchem also asserted that, on

many occasions, Counts "massaged her shoulders, patted her

buttocks, touched her leg, rubbed her knee, and hugged her

against her will." Mitchem further alleged that on another

occasion, Counts "pulled [Mitchem] onto his lap, wrapped both

arms around her, and tried to kiss her on the lips." Finally,

Mitchem alleged that because she "steadfastly refused to enter

into a sexual relationship with Counts," he retaliated in

several ways and ultimately fired her in May 1998.

Relying on these allegations, Mitchem asserted in Count I

of her motion for judgment that her discharge violated the

Commonwealth's public policy "that all persons . . . are

entitled to pursue and maintain employment free of

discrimination based upon gender." She also claimed, among

other things, that the Commonwealth's public policy is violated

when a female employee "must either consent to the commission of

a crime against her person, or engage in a conspiracy to commit

a crime, or both, to maintain her employment." Mitchem cited

several sources of public policy in support of her claim,

including the VHRA and Code §§ 18.2-57, -344, and -345. 2

2
In Count II of her motion for judgment, Mitchem asserted a
claim of assault and battery against Counts, which the trial

2
 Counts filed a demurrer to Count I, which the trial court

sustained. The court concluded, in essence, that the 1995

amendments to the VHRA eliminated the VHRA as a source of public

policy to support a common law cause of action for wrongful

termination. The trial court also held that Code §§ 18.2-57, -

344, and –345 do not articulate public policies that will

support a common law action for wrongful termination. 3 The court

entered an order dismissing Count I of Mitchem's action with

prejudice, and Mitchem appeals from this judgment.

Although Mitchem based her wrongful termination action in

part on public policies found in the VHRA and sources of law

other than criminal statutes, she withdrew this part of her

claim during her oral argument before this Court. She argued

that the criminal statutes identified in her motion for judgment

embody a public policy against the commission of the stated acts

of a sexual nature and, thus, that an employer is subject to a

court dismissed without prejudice on Mitchem's request for a
nonsuit.
3
The trial court also held that Mitchem could not base a
claim for wrongful discharge on Title VII of the 1964 Civil
Rights Act, the Constitution of the United States, the
Declaration of Independence, or the Constitution of Virginia.
In addition, the trial court concluded that because Counts'
business had fewer than five employees, Mitchem could not seek
recovery under the limited statutory remedies provided by Code
§ 2.1-725(B) and (C) for workers whose employers have more than
five but fewer than 15 employees. Mitchem does not contest
these rulings in this appeal.

3
common law wrongful termination claim if he discharges an at-

will employee because she refuses to commit those criminal acts.

Mitchem contends on appeal that she was not discharged from

her employment because of her gender, but because she rejected

her employer's demands that she perform sexual acts in violation

of Code § 18.2-344, which prohibits fornication, and Code

§ 18.2-345, which prohibits lewd and lascivious cohabitation.

She also asserts that she was discharged because she would not

"consent to commission of a battery upon her person," in

violation of Code § 18.2-57. 4

In response, Counts (the employer) argues that Code § 2.1-

725(D) abrogates Mitchem's common law cause of action because

the allegations of wrongful termination, if proved, would

violate the public policies reflected in the VHRA. In support

of this argument, the employer notes that the facts in this case

are very similar to those alleged by a plaintiff in Lockhart v.

Commonwealth Educ. Sys. Corp., 247 Va. 98, 439 S.E.2d 328

4
All these crimes are classified as misdemeanors. On brief,
Mitchem also cited Code § 18.2-346, which prohibits acts of
prostitution, and § 18.2–67.4, which prohibits sexual battery.
However, since Mitchem did not cite these statutes in her motion
for judgment, we will not consider these additional statutes in
reviewing the trial court's action sustaining the demurrer to
Count I. See Breeding v. Hensley, 258 Va. 207, 212, 519 S.E.2d
369, 371 (1999).

4
(1994), 5 in which we held that an employer's conduct and

termination of that plaintiff violated the public policy against

gender discrimination stated in the VHRA. The employer also

asserts that our decision in Conner v. National Pest Control

Ass'n., 257 Va. 286, 513 S.E.2d 398 (1999), requires dismissal

of Mitchem's action based on our application in that case of the

preclusive language of Code § 2.1-725(D). Finally, the employer

contends that criminal statutes will not support Mitchem's

common law action because they do not "announce public policies

in their texts" and to use the statutes in this manner would

eviscerate the employment-at-will doctrine.

Although Mitchem has withdrawn her reliance on the VHRA as

a source of public policy to support her wrongful termination

action, we nevertheless begin our analysis with the VHRA because

its limiting provision in Code § 2.1-725(D) is the controlling

statute in this appeal. That provision, included in the 1995

amendments to the VHRA, states in relevant part:

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. Code § 2.1-725(D).

5
This Court's opinion in Lockhart addressed two separate
cases. Nancy L. Wright was the plaintiff in one of the cases.
She alleged employment discrimination based on gender, while the
other plaintiff, Lawanda Lockhart, alleged employment
discrimination based on race.

5
 Citing Doss v. Jamco, 254 Va. 362, 492 S.E.2d 441 (1997),

the trial court held that the 1995 amendments to the VHRA bar

Mitchem from asserting a common law action for wrongful

termination based on any of the sources of public policy set

forth in her motion for judgment. In Doss, we held that "in

amending the [VHRA] by adding subsection D to 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 VHRA].'" Id.

at 371, 492 S.E.2d at 446.

Following Doss, we next addressed the scope of Code § 2.1-

725(D) in Conner. There, the plaintiff alleged that she had

asserted a valid cause of action for wrongful termination

because, in addition to the public policy against gender

discrimination in the VHRA, her employer's conduct violated the

same public policy embodied in sources other than the VHRA. 257

Va. at 288, 513 S.E.2d at 399. We disagreed, holding that "the

General Assembly, in enacting the 1995 amendments to the VHRA,

eliminated a common law cause of action for wrongful termination

based on any public policy which is reflected in the VHRA,

regardless of whether the policy is articulated elsewhere." Id.

at 290, 513 S.E.2d at 400.

Our holdings in Conner and Doss, however, do not address

the issues before us. In those cases, unlike the present case,

6
the plaintiffs did not identify any public policy different from

those reflected in the VHRA as the basis for their common law

claims. Thus, in those cases, we did not address the central

issue in the present appeal, whether Code § 2.1-725(D) bars a

common law action for wrongful termination based on public

policies not reflected in the VHRA, when the conduct alleged in

the motion for judgment also violates a public policy reflected

in the VHRA.

This issue of first impression is raised by Mitchem's

allegations in her motion for judgment that the employer's

conduct violated the Commonwealth's public policies against

fornication and lewd and lascivious behavior embodied in Code

§§ 18.2-344 and –345. Code § 18.2-344 provides that an

unmarried person who voluntarily has sexual intercourse with any

other person is guilty of fornication. Code § 18.2–345, in

relevant part, prohibits persons not married to each other from

lewdly and lasciviously associating and cohabiting together.

In considering whether Code § 2.1-725(D) defeats Mitchem's

reliance on these public policies as a basis for her wrongful

termination action, we first observe that the preclusive

language of Code § 2.1-725(D) was enacted by the legislature in

derogation of the common law. Statutes in derogation of the

common law must be strictly construed and not enlarged by

construction beyond their express terms. Chesapeake & O. Ry.

7
Co. v. Kinzer, 206 Va. 175, 181, 142 S.E.2d 514, 518 (1965); see

Williams v. Matthews, 248 Va. 277, 282-83, 448 S.E.2d 625, 628

(1994); Wackwitz v. Roy, 244 Va. 60, 65, 418 S.E.2d 861, 864

(1992). A statutory change in the common law is limited to that

which is expressly stated in the statute or necessarily implied

by its language because there is a presumption that no change

was intended. Boyd v. Commonwealth, 236 Va. 346, 349, 374

S.E.2d 301, 302 (1988); Strother v. Lynchburg Trust & Savings

Bank, 155 Va. 826, 833, 156 S.E. 426, 428 (1931). Thus, "[w]hen

an enactment does not encompass the entire subject covered by

the common law, it abrogates the common-law rule only to the

extent that its terms are directly and irreconcilably opposed to

the rule." Boyd, 236 Va. at 349, 374 S.E.2d at 302; Newport

News v. Commonwealth, 165 Va. 635, 650, 183 S.E. 514, 520

(1936).

We must construe Code § 2.1-725(D) narrowly under these

principles because the VHRA does not encompass the entire

subject of common law causes of action for wrongful termination

of employment. The relevant language of Code § 2.1-725(D)

provides that "[c]auses 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."

(Emphasis added.) This provision, by its plain terms, abrogates

8
only common law causes of action for wrongful termination that

are based on the public policies reflected in the VHRA. Thus,

we conclude that Code § 2.1-725(D) does not prohibit a common

law cause of action for wrongful termination based on the public

policies against fornication and lewd and lascivious behavior,

because those policies are not reflected in the VHRA.

We find no merit in the employer's contention that since

his alleged conduct also violated the public policy in the VHRA

against gender discrimination, he cannot be subject to a

wrongful termination action for firing an employee who refused

to commit the crimes at issue. First, as shown above, the plain

language of Code § 2.1-725(D) does not contain such a

prohibition.

Second, the same conduct or occurrence can support more

than one theory of recovery. Balzer and Assoc. v. The Lakes on

360, 250 Va. 527, 531, 463 S.E.2d 453, 456 (1995); see Code

§ 8.01-272; Rule 1:4(k); Fox v. Deese, 234 Va. 412, 422-23, 362

S.E.2d 699, 705 (1987). Moreover, when a plaintiff has alleged

facts supporting more than one theory of recovery, the pleading

of one theory is not rendered insufficient by the insufficiency

of the other theory. Balzer, 250 Va. at 531, 463 S.E.2d at 456.

Thus, the legal insufficiency of Mitchem's allegations of

wrongful termination based on the public policies set forth in

9
the VHRA does not invalidate her claim founded on the public

policies embodied in Code §§ 18.2-344 and –345.

Third, the employer's argument is untenable because, when

extended to its logical conclusion, the argument would permit an

employer to discharge any employee who refuses to commit a crime

at the employer's direction, as long as the employer's conduct

also violates a public policy reflected in the VHRA. The public

policy stated in the VHRA "safeguard[s] all individuals within

the Commonwealth from unlawful discrimination because of race,

color, [and] religion." Code § 2.1-715 (emphasis added). Thus,

under the employer's view, an African-American employee could

not pursue a common law action for wrongful termination if she

were discharged for refusing to burn a cross on the property of

another African-American with the intent to intimidate that

person. The African-American employee would be a member of the

class of persons protected by the VHRA public policy because she

would have been fired based on "unlawful discrimination because

of race." Id.; see City of Virginia Beach v. Harris, 259 Va.

___, ___, ___ S.E.2d ___, ___ (2000), decided today; Dray v. New

Market Poultry Prod., Inc., 258 Va. 187, 191, 518 S.E.2d 312,

313 (1999).

The burning of a cross is a felony under Code § 18.2-423.

Under the employer's theory, the language of Code § 2.1-725(D)

would shield the employer from a common law action for wrongful

10
termination for violation of the public policy underlying Code

§ 18.2-423, because the conduct also would violate the public

policy against racial discrimination expressed in the VHRA.

Similarly, under the employer's view, a Jewish employee

could not maintain a common law action for wrongful termination

if he were discharged for refusing to paint a swastika on a

synagogue with the intent to intimidate worshipers. This

employee would be a member of the class of persons protected by

the public policy stated in the VHRA because he would have been

fired based on "unlawful discrimination because of . . .

religion." Code § 2.1-715; see Harris, 259 Va. at ___, ___

S.E.2d at ___; Dray, 258 Va. at 191, 518 S.E.2d at 313.

The placement of a swastika on a synagogue is a felony

under Code § 18.2-423.1. Under the employer's theory, the

language of Code § 2.1-725(D) would shield the employer from a

common law wrongful termination action for violation of the

public policy underlying Code § 18.2-423.1, because the

employer's conduct also would violate the VHRA public policy

against religious discrimination.

Accordingly, we reject the employer's argument because it

would require us effectively to amend Code § 2.1-725(D) by

adding a provision prohibiting causes of action based on public

policies not reflected in the VHRA. Such a holding would usurp

the function of the General Assembly, violate the proper

11
construction of a statute in derogation of common law, and allow

repugnant consequences that were never intended by the General

Assembly when it enacted Code § 2.1-725(D).

The employer argues, however, that the public policies

embodied in Code §§ 18.2-344 and –345 cannot support a common

law action for wrongful termination because those statutes do

not expressly state such public policies. We find no merit in

this contention. Laws that do not expressly state a public

policy, but were enacted to protect the property rights,

personal freedoms, health, safety, or welfare of the general

public, may support a wrongful discharge claim if they further

an underlying, established public policy that is violated by the

discharge from employment. Harris, 259 Va. at ___, ___ S.E.2d

at ___; see Miller v. SEVAMP, Inc., 234 Va. 462, 468, 362 S.E.2d

915, 918 (1987); Bowman v. State Bank of Keysville, 229 Va. 534,

540, 331 S.E.2d 797, 801 (1985). Further, as indicated above,

to rely on such a statute in support of a common law action for

wrongful termination, an employee must be a member of the class

of persons that the specific public policy was designed to

protect. Harris, 259 Va. at ___, ___ S.E.2d at ___; Dray, 258

Va. at 191, 518 S.E.2d at 313.

For example, in Bowman, we recognized a common law cause of

action for wrongful termination based on the public policy

underlying former Code § 13.1-32. That statute conferred on

12
stockholders the right to one vote for each outstanding share of

stock held. Although former Code § 13.1-32 did not expressly

state a public policy, we held that the statute provided a basis

for a common law action for wrongful termination brought by two

employee stockholders of a bank. We concluded that the statute

embodied the public policy that a stockholder's right to vote

shall be exercised free of duress and intimidation by corporate

management. 229 Va. at 540, 331 S.E.2d at 801.

In the present case, the absence of an express statement of

public policy in Code §§ 18.2-344 and –345 does not preclude

their use as a basis for a common law action for wrongful

termination. These criminal statutes were enacted for the

protection of the general public, and Mitchem is a member of

that class of persons whom these statutes were designed to

protect. See Harris, 259 Va. at ___, ___ S.E.2d at ___; Miller,

234 Va. at 468, 362 S.E.2d at 918; Dray, 258 Va. at 191, 518

S.E.2d at 313. Further, the public policies inherent in Code

§§ 18.2-344 and –345 are equally, if not more, compelling than

the public policy in Bowman that provided the basis for our

recognition of a narrow exception to the employment-at-will

rule.

We do not share the employer's concern that recognition of

a common law cause of action for violation of these public

policies should be rejected as an incursion into the employment-

13
at-will doctrine. We have narrowly construed the public policy

exception to that doctrine, and we have applied that exception

in few instances. Certainly, the General Assembly did not

intend that the employment-at-will doctrine or the provisions of

Code § 2.1-725(D) serve as a shield for employers who seek to

force their employees, under the threat of discharge, to engage

in criminal activity. Thus, we conclude that since Mitchem's

common law action based on the public policies embodied in Code

§§ 18.2-344 and –345 is not abrogated by Code § 2.1-725(D), her

action based on those policies falls within the scope of the

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

recognized in Bowman.

We disagree with the employer's assertion that our holding

in Lockhart requires a different result. There, we approved a

wrongful termination action involving conduct very similar to

that alleged by Mitchem based on the public policy against

gender discrimination in the VHRA. 247 Va. at 101-02, 439

S.E.2d at 329-30. However, the fact that this type of conduct

will no longer support a theory of recovery based on the VHRA,

or other sources of law reflecting this same public policy, does

not affect Mitchem's alternate theory of recovery based on the

different public policies embodied in Code §§ 18.2-344 and –345.

Unlike the VHRA provision against gender discrimination relied

on in Lockhart, Mitchem's theory of recovery based on Code

14
§§ 18.2-344 and –345 does not rely on any public policy

reflected in the VHRA and, thus, is not precluded by Code § 2.1-

725(D). Also, although the conduct Mitchem alleges would be an

"unlawful discriminatory practice" within the meaning of Code

§ 2.1-716, 6 this conduct may still form the factual basis of a

common law cause of action for wrongful termination when that

action is not based on a public policy reflected in the VHRA.

See Code § 2.1-725(D).

Finally, we conclude that the trial court did not err in

dismissing the part of Count I in which Mitchem alleged that the

employer wrongfully discharged her in violation of the public

policy embodied in Code § 18.2-57, which establishes the crime

of simple assault as a Class 1 misdemeanor. The trial court

properly dismissed this claim because Mitchem did not allege

that her employer discharged her for refusing to commit this

crime. Instead, she alleged that she was fired for refusing to

"consent to commission of a battery upon her person." However,

had she consented to having the employer touch her, there would

have been no crime of battery. Gnadt v. Commonwealth, 27 Va.

6
Code § 2.1-716 provides: "Conduct which violates any
Virginia or federal statute or regulation governing
discrimination on the basis of race, color, religion, national
origin, sex, pregnancy, childbirth or related medical
conditions, age, marital status or disability shall be an
'unlawful discriminatory practice' for the purposes of this
chapter."

15
App. 148, 151, 497 S.E.2d 887, 888 (1998); see Banovitch v.

Commonwealth, 196 Va. 210, 219, 83 S.E.2d 369, 375 (1954).

Thus, the public policy embodied in Code § 18.2-57 does not

support a wrongful termination action based on this allegation.

When the trial court has reached the correct result for the

wrong reason, we will assign the correct reason and affirm that

result. Hartzell Fan, Inc. v. Waco, Inc., 256 Va. 294, 303, 505

S.E.2d 196, 202 (1998); Ridgwell v. Brasco Bay Corp., 254 Va.

458, 462, 493 S.E.2d 123, 125 (1997); Harrison & Bates, Inc. v.

Featherstone Assoc. Ltd. Partnership, 253 Va. 364, 369, 484

S.E.2d 883, 886 (1997).

For these reasons, we will affirm the trial court's

judgment dismissing the part of Mitchem's action for wrongful

termination that is based on the public policy embodied in Code

§ 18.2-57. 7 We will reverse the trial court's judgment

dismissing the part of Mitchem's action for wrongful termination

that is based on the public policy embodied in Code §§ 18.2-344

and –345, and remand this remaining part of her action for

trial. 8

7
Since Mitchem has withdrawn from her motion for judgment
any reliance on public policies not based on criminal statutes,
we do not consider the trial court's rulings with regard to
those other sources of law.
8
We distinguish our present holding from City of Virginia
Beach v. Harris, 259 Va. ___, ___ S.E.2d ____ (2000), decided

16
 Affirmed in part,
reversed in part,
and remanded.

JUSTICE KINSER, with whom CHIEF JUSTICE CARRICO and JUSTICE
COMPTON join, dissenting in part and concurring in part.

I dissent in part from the majority’s decision because I

conclude that the employee in this case has not stated a viable

cause of action. Thus, I would affirm the circuit court’s

judgment sustaining the employer’s demurrer.

The majority states the issue in this case as “whether Code

§ 2.1-725(D) bars a common law action for wrongful termination

based on public policies not reflected in the VHRA, when the

conduct alleged in the motion for judgment also violates a

public policy reflected in the VHRA.” By accepting Vicki Lynn

Mitchem’s purported distinction between being fired because of

“sex” discrimination and being fired because she refused to

today. In that case, a police officer was discharged from his
employment for obtaining criminal warrants charging a superior
officer with obstruction of justice and a related offense,
because the superior officer had directed the police officer not
to serve certain warrants on a criminal suspect. We held, among
other things, that the officer did not state a valid cause of
action for wrongful termination in reliance on the public policy
expressed in Code § 18.2-460, which prohibits the obstruction of
a law enforcement officer in the performance of his duties. We
concluded that the police officer was attempting to use the
statute as a shield to protect himself against the consequences
of his decision to charge his superior officer with crimes.
Unlike Mitchem in the case before us, the officer in Harris was
not a member of the public for whose benefit the statute was
enacted and, thus, could not state a claim for wrongful

17
engage in sexual conduct that would have allegedly violated

certain criminal laws, the majority concludes that Code § 2.1-

725(D) does not bar Mitchem’s claim. To understand why I do not

accept this distinction, it is important to first explain why

the conduct in which Durwood L. Counts allegedly engaged

constitutes “sex” discrimination in violation of a public policy

reflected in the Virginia Human Rights Act (VHRA).

Mitchem’s allegations that Counts fired her because she

rebuffed his alleged sexual advances and refused to engage in a

sexual relationship with him are remarkably similar to the facts

alleged by plaintiff Wright in Lockhart v. Commonwealth Educ.

Sys. Corp., 247 Va. 98, 439 S.E.2d 328 (1994). In that case,

Wright alleged that her employer “approached her from behind,

kissed her cheek” and “‘physically seized her, grabb[ed] her and

hugg[ed] her without her consent.’” Id. at 101-02, 439 S.E.2d

at 329. She also alleged that her employer repeatedly made

abusive, inappropriate, and harassing remarks to her, and

ultimately told her to “get out” after she advised her employer

that she did not intend to be subjected to that kind of

treatment at work. Id. at 102, 439 S.E.2d at 330.

Even though she was an at-will employee, plaintiff Wright

alleged that her termination was unlawful, and therefore

discharge based on the public policy embodied in that statute.
See also, Dray, 258 Va. at 191, 518 S.E.2d at 313.

18
actionable, because it violated the public policy of Virginia as

enunciated in the VHRA. The trial court disagreed and sustained

the employer’s demurrer, but this Court reversed that judgment.

Id. at 106, 439 S.E.2d at 332. We concluded that Wright had

pled a viable cause of action based upon “sex” discrimination.

Id. at 104, 439 S.E.2d at 331. While not “retreat[ing] from our

strong adherence to the employment-at-will doctrine[,]” the

Court held

that the narrow exception to that doctrine, which we
recognized in Bowman, includes instances where, as here,
[an] employee[] [is] terminated because of discrimination
based upon gender . . . . The discharge[] of . . . Ms.
Wright [is] allegedly tortious not because [she has] a
vested right to continued employment, but because [her]
employer[] misused the freedom to terminate the services of
[an] at-will employee[] on the basis of . . . gender.

Id. at 106, 439 S.E.2d at 332.

In reaching its decision in Lockhart, the Court concluded

that the nature of the alleged discriminatory conduct of

Wright’s employer fell within the scope of the public policy

enunciated in the VHRA, “[t]o safeguard all individuals . . .

from unlawful discrimination [in employment] because of . . .

sex” Code § 2.1-715. In order to hold that Wright had pled a

cause of action for wrongful discharge based on the public

policy enunciated in the VHRA, we necessarily had to find that

the alleged actions of her employer fell within the scope of the

19
phrase “discrimination because of . . . sex” in Code § 2.1-715. 9

Otherwise, Wright could not have utilized the VHRA as the source

of public policy upon which to base her common law action for

wrongful termination. Since the decision in Lockhart, we have

continued to categorize the type of discrimination alleged by

Wright as “gender discrimination.” See Lawrence Chrysler

Plymouth Corp. v. Brooks, 251 Va. 94, 98, 465 S.E.2d 806, 809

(1996); Bailey v. Scott-Gallaher, Inc., 253 Va. 121, 126, 480

S.E.2d 502, 505 (1997).

Accordingly, even though Mitchem disavows any reliance on

the VHRA, the sexual harassment that she allegedly endured prior

to discharge, as well as Counts’ termination of her employment

because she refused to have a sexual relationship with him, if

proven true, would violate a public policy reflected in the

VHRA. The distinction that Mitchem attempts to make and which

the majority accepts, that she was fired, not because of “sex,”

but because she refused to engage in conduct that would have

violated certain criminal statutes, merely places a different

label on “sex” discrimination and thus exalts form over

substance. The re-labeling of her claim does nothing to alter

9
None of the other types of discrimination included in Code
§ 2.1-715 was implicated by the facts plaintiff Wright alleged.

20
the facts alleged by Mitchem or the law governing those

allegations. Thus, I do not accept that proffered distinction. 10

Nevertheless, Mitchem insists that Counts discharged her

because she refused to commit the crimes of fornication, and

lewd and lascivious cohabitation, and would not consent to the

commission of a battery upon her person. 11 Thus, according to

Mitchem, her termination violated the public policies contained

in the criminal statutes making these acts unlawful, and the

public policy that an employer cannot fire an employee for

refusing to commit a crime. I need not, as the majority does,

decide whether those criminal statutes sufficiently enunciate

public policies to support a Bowman-type cause of action by an

at-will employee for unlawful termination because, even if they

do, I conclude that Mitchem nonetheless is barred from

maintaining her action against Counts. 12

10
Likewise, I do not believe that Mitchem stated alternative
theories of recovery just because she alleged that her
termination violated several public policies.
11
I concur in the result the majority reaches with respect to
Mitchem’s reliance on Code § 18.2-57 proscribing assault and
battery, but reach that conclusion for the reasons stated in
this dissent.
12
The majority’s statement that the public policies behind the
prohibitions against fornication, a class 4 misdemeanor
punishable by a maximum $250 fine, and lewd and lascivious
cohabitation, a class 3 misdemeanor punishable by a maximum $500
fine, are “equally, if not more compelling than the public
policy in Bowman,” which supported a stockholder’s right to vote
free of duress and intimidation by corporate management, does

21
 After this Court’s decision in Lockhart, the General

Assembly amended the VHRA. One of the changes was the addition

of subsection D to Code § 2.1-725, which prohibits a common law

cause of action based upon the public policies reflected in the

VHRA. Doss v. Jamco, Inc., 254 Va. 362, 372, 492 S.E.2d 441,

447 (1997).

In Conner v. National Pest Control, Ass’n, 257 Va. 286, 513

S.E.2d 398 (1999), we expanded upon the impact of subsection D,

stating that “the General Assembly, in enacting the 1995

amendments to the VHRA, eliminated a common law cause of action

for wrongful termination based on any public policy which is

reflected in the VHRA, regardless of whether the policy is

articulated elsewhere.” Id. at 290, 513 S.E.2d at 400. Thus,

after Conner, an at-will employee in Virginia cannot maintain a

cause of action based on the public policy exception to the at-

will employment doctrine if the public policy is one that is

“reflected” in the VHRA, even when the employee does not rely on

or cite the VHRA because the policy is found in other statutes.

Even if the majority is correct in concluding that

Virginia’s public policy protects an at-will employee from being

terminated as a result of refusing to violate the Commonwealth’s

criminal laws, the facts alleged in this case, if proven, would

not support the majority’s conclusion that these criminal
statutes have a sufficient public policy underlying them to

22
contravene not only that public policy, but also the public

policy of safeguarding individuals from sex discrimination in

employment, as reflected in the VHRA. Thus, I believe that

Mitchem cannot maintain this cause of action. See Conner, 257

Va. at 290, 513 S.E.2d at 400.

I recognize that the present case is slightly different

from Conner to the extent that, in support of her claim that she

was discharged in contravention of a public policy, Mitchem

cites a policy not contained in the VHRA, specifically her right

to refuse to commit a crime. Conner, on the other hand,

asserted that her discharge from employment violated the public

policy against discrimination based on gender, which is a policy

reflected in the VHRA, but she cited statutes other than the

VHRA as the source of that public policy. Id. at 288, 513

S.E.2d at 399. I believe that this is another distinction

without a difference, and that this Court’s decision in Conner

is controlling because, as I have already noted, Counts’ alleged

conduct, if proven, would violate the public policies reflected

in the VHRA. Thus, I conclude that Mitchem’s “[c]ause[] of

action [is one] based upon the public policies reflected in [the

VHRA],” Code § 2.1-725(D), despite her attempt to place a

different label on it.

support a Bowman-type cause of action.

23
 By permitting her cause of action to proceed, the majority

creates an avenue through which virtually all employees

asserting allegations similar to Mitchem’s can bypass the

General Assembly’s clear intent, as expressed in Code § 2.1-

725(D), to “abrogate the common law with respect to causes of

action for unlawful termination of employment based upon the

public policies reflected in the [VHRA].” Doss, 254 Va. at 372,

492 S.E.2d at 447. The General Assembly’s purpose in enacting

subsection D was to bar claims such as the one brought by Wright

in Lockhart, yet the majority today ignores that clear intent by

allowing allegations similar to those alleged by Wright to go

forward despite the language of Code § 2.1-725(D).

Contrary to the majority’s argument that Counts’ position

would bar a common law wrongful termination action by an

employee discharged for refusing to engage in intimidatory

conduct such as burning a cross on the lawn of an African-

American, or painting a swastika on a synagogue, those causes of

action would not be barred by Code § 2.1-725(D). In the

examples utilized by the majority, the discharges would not be

in violation of the policies reflected in the VHRA because the

employer’s act of discrimination based on race or religion would

not be directed toward the employee, but instead would be

directed toward a third party. The public policies reflected in

the VHRA are intended to prohibit discrimination in, inter alia,

24
employment, on the basis of the employee’s “race, color,

religion, national origin, sex, pregnancy, childbirth or related

medical conditions, age, marital status, or disability.” Code

§ 2.1-715. Those public policies protect an employee, not a

third party, from being the subject or object of a

discriminatory act. In the majority’s hypotheticals, the

employee would not be the object of the discrimination but would

be the person who refuses to engage in the discriminatory

conduct. In other words, Code § 2.1-725(D) abrogates causes of

action based on policies reflected in the VHRA, but before those

policies are implicated, the person against whom discriminatory

conduct is directed must be a member of the class of persons

protected by those policies. Dray v. New Market Poultry Prod.,

Inc., 258 Va. 187, 191, 518 S.E.2d 312, 313 (1999). See also

Brown v. McLean, 159 F.3d 898, 902 (4th Cir. 1998), cert. denied

sub nom. Brown v. Mayor and City Council of Baltimore, ___ U.S.

___, 119 S.Ct. 1577 (1999) (under Title VII, proof that

plaintiff is a member of a protected group is required to

establish a prima facie case); Childress v. City of Richmond,

134 F.3d 1205, 1209 (4th Cir.) (Luttig, J., concurring), cert.

denied, 524 U.S. 927 (1998) (“in order to qualify as a ‘person

aggrieved’ . . . [under Title VII], a plaintiff must be a member

of the class of direct victims of conduct prohibited . . . and

allege that he, not someone else, has been ‘discriminated

25
against.’”) (Emphasis added); Drake v. Minnesota Mining & Manuf.

Co., 134 F.3d 878, 884 (7th Cir. 1998) (in a Title VII

associational discrimination case, “the key inquiries should be

whether the employee has been discriminated against and whether

that discrimination was ‘because of’ the employee’s race.”)

(Emphasis added); Code § 2.1-725(B) (the plaintiff’s age, not

that of any other person, makes age discrimination contrary to

the Commonwealth’s public policy). 13 Thus, under my view,

employees terminated because they rightly refused to participate

in such illegal and improper actions would not be barred by Code

§ 2.1-725(D) from pursuing common law wrongful termination

claims.

CONCLUSION

My dissent may be viewed by some as sanctioning “sex”

discrimination in the workplace. In order to dispel any such

misconception, I reiterate the thoughts expressed in the

concurring opinion in Conner:

Gender discrimination should not be countenanced in
any manner and victims of such discrimination should be
accorded a tort remedy that fully and fairly compensates

13
“Associational discrimination cases,” where, for example, a
Caucasian claims he or she was discriminated against due to his
or her relationship with an African-American, are permitted,
Drake, 134 F.3d at 884; Fiedler v. Marumsco Christian School,
631 F.2d 1144, 1149-50 (4th Cir. 1980), but the hypotheticals
presented by the majority do not fulfill the criteria for such
an action.

26
 them for injuries caused by an employer’s repugnant
conduct.

. . . .

However, the General Assembly of this Commonwealth has
chosen to impose limitations on the right of a[n employee]
to recover damages against an employer who discriminates
. . . because of [the employee’s] gender. . . . And, this
Court, which does not, and constitutionally cannot, act as
a super-legislative body, is required to apply these
restrictions as expressed by the General Assembly.

Conner, 257 Va. at 290-91, 513 S.E.2d at 400 (Hassell, J.,

concurring).

Unlike the majority, I continue to believe that the proper

role of this Court is to interpret the law as enacted by the

General Assembly, and not to function as a “super-legislative

body.”

For these reasons, I respectfully dissent in part and

concur in part.

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