Present: All the Justices
LINDA ROWAN
v. Record No. 011732 OPINION BY JUSTICE ELIZABETH B. LACY
March 1, 2002
TRACTOR SUPPLY COMPANY
UPON A QUESTION OF LAW CERTIFIED BY THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
Pursuant to the provisions of Rule 5:42, the United
States District Court for the Western District of Virginia
entered a certification order requesting that we exercise our
certification jurisdiction and answer the following question:
Does a complaint state a Bowman claim under § 18.2-
460 when the plaintiff, an at-will employee, alleges
that her employer terminated her employment because
she refused to yield to employer's demand that she
discontinue pursuing criminal charges of assault and
battery against a fellow employee?
The district court concluded that the issue presented by this
question was a matter of first impression under Virginia law
and that resolution of the issue was dispositive of the matter
before the district court. We accepted the certification by
order entered September 6, 2001. For the reasons stated
below, we will answer the certified question in the negative.
I. FACTS AND PROCEEDINGS
The facts as stated in the certification order are as
follows. 1 Linda Rowan (Rowan) was employed as an
1
Because the matter was considered by the district court
on a Motion for Judgment on the Pleadings under Federal Rule
administrative cashier for Tractor Supply Company (TSC) from
May 10, 1999 to February 16, 2000. During the course of her
employment, Rowan discovered information that led her to
believe that her manager, Jerry Michael Snider, and other
employees, were embezzling money and property from TSC. When
Rowan expressed her concerns to Snider about this activity,
"he reacted violently by twisting her arm and pushing her
forcefully against the desk."
The next day, September 8, 1999, Rowan reported this
incident to Rodney Carter, Snider's supervisor and area
manager. Carter did not express concern for Rowan, and
"appeared more interested in keeping news of the incident from
spreading." Rowan met with another employee of TSC who told
her to "keep her mouth shut" and that Rowan would "'suffer the
consequences'" if she engaged in further action regarding the
matter.
Rowan filed a civil action against Snider in the General
District Court of Montgomery County. Rowan was awarded $1,500
in damages plus interest and costs by order entered January
19, 2000. No appeal was taken from this judgment.
Rowan reported the attack to the police on September 11,
1999 and charges were filed against Snider.
12(c), the district court accepted as true the factual
allegations in the plaintiff's pleadings and presented the
2
Following the conclusion of the civil suit, Mike Jones,
the new manager of TSC's Christiansburg store, told Rowan that
TSC wanted her to drop the charges against Snider and that TSC
would not "black-ball" her any further if she did. Jones also
indicated that Carter wanted the charges dropped and that he
was a dangerous and powerful person who could "hurt her."
Despite these admonitions, Rowan did not drop her charges
against Snider. TSC terminated Rowan's employment on February
16, 2000.
Rowan served as the primary witness against Snider at his
criminal trial, where he was convicted of criminal assault and
battery on March 7, 2000.
On May 12, 2000, Rowan filed this action in the Circuit
Court of the City of Roanoke against TSC claiming that she was
wrongfully terminated in violation of Virginia public policy. 2
TSC removed the case to federal court pursuant to 28 U.S.C.
§ 1441. After discovery, TSC filed a Motion for Judgment on
the Pleadings, pursuant to Fed. R. Civ. P. 12(c). In
response, Rowan filed a Motion to Certify a Question of Law.
In a memorandum opinion dated June 6, 2001, the district
court concluded that Rowan's pleadings did not state a
facts in that light.
2
Rowan filed a two-count Complaint, alleging wrongful
termination in violation of public policy and retaliatory
3
wrongful termination claim based on either Code § 18.2-456.1
(employer may not take action against employee for missing
work because of court appearance pursuant to subpoena or
summons), or Code § 19.2-11.01(A)(3) (employer should minimize
crime-victim-employee's loss of benefits or pay resulting from
court proceedings) because she was terminated before her
appearance in the criminal trial and thus not penalized for
complying with a court obligation. The district court also
held that Rowan did not state a cause of action based on Code
§§ 19.2-267 and –456 (offense to disobey witness summons in
criminal case) because she did not allege that TSC attempted
to coerce her to disobey a lawful subpoena.
The district court, however, could not determine whether,
based on current Virginia law, Rowan would be entitled to
maintain a cause of action for wrongful termination based on
the public policy embodied in Code § 18.2-460, the obstruction
of justice statute. Accordingly, the district court denied
TSC's Motion for Judgment on the Pleadings and granted Rowan's
Motion to Certify. 3
II. DISCUSSION
firing for bringing a workers' compensation claim. A Consent
Decree was issued March 9, 2001 dismissing the second claim.
3
The district court also granted Rowan's motion to file
an amended complaint; however, we restrict our consideration
to the facts and issue presented in the certification order
and thus the amended complaint is not before us.
4
The phrase "Bowman claim" stems from this Court's
decision in Bowman v. State Bank of Keysville, 229 Va. 534,
331 S.E.2d 797 (1985), in which we first recognized an
exception to the doctrine of employment-at-will based on an
employer's violation of public policy in the discharge of an
employee. In Bowman, several employees were discharged
because they refused to vote shares of stock in the manner
directed by the employer. Former Code § 13.1-32 (currently
codified in Code § 13.1-662) gave shareholders the right to
vote their shares. To fully realize the public policy
underlying the shareholders' statutory right, shareholders had
to be allowed to vote such shares free from duress or
intimidation. Thus, we concluded that the employer's actions
in discharging the employees violated the public policy that
shareholders are entitled to vote their shares free of duress
or intimidation reflected in the right conferred on the
shareholder/employee by the statute. Id. at 540, 331 S.E.2d
at 801.
Since Bowman, we have considered a number of cases in
which this public policy exception to the employment-at-will
doctrine has been asserted. While virtually every statute
expresses a public policy of some sort, we continue to
consider this exception to be a "narrow" exception and to hold
that "termination of an employee in violation of the policy
5
underlying any one [statute] does not automatically give rise
to a common law cause of action for wrongful discharge." City
of Virginia Beach v. Harris, 259 Va. 220, 232, 523 S.E.2d 239,
245 (2000). In only three circumstances have we concluded
that the claims were sufficient to constitute a common law
action for wrongful discharge under the public policy
exception.
We have just discussed the first instance in which we
recognized a common law action for wrongful discharge: an
employer violated a policy enabling the exercise of an
employee's statutorily created right. Bowman v. State Bank of
Keysville. We have also allowed such an action to proceed
when the public policy violated by the employer was explicitly
expressed in the statute and the employee was clearly a member
of that class of persons directly entitled to the protection
enunciated by the public policy. Bailey v. Scott-Gallaher,
Inc., 253 Va. 121, 480 S.E.2d 502 (1997), and Lockhart v.
Commonwealth Education Systems Corporation, 247 Va. 98, 439
S.E.2d 328 (1994), involved discharges based on the public
policy expressly stated in former Code § 2.1-715. 4 (Currently
codified in Code § 2.2-3900). That statute provided in
relevant part that it is "the policy of the Commonwealth" to
6
"safeguard all individuals within this Commonwealth" against
unlawful discrimination in employment based on gender. The
employees in these cases alleged they were discharged based on
their gender.
Finally, we have recognized a cause of action for
wrongful discharge where the discharge was based on the
employee's refusal to engage in a criminal act. Although
criminal statutes do not contain explicit statements of public
policy, the protection of the general public from lawless acts
is an unquestioned policy underlying such statutes. We
recognized that allowing the employment-at-will doctrine to
"serve as a shield for employers who seek to force their
employees, under the threat of discharge, to engage in
criminal activity" would violate this most compelling public
policy. Mitchem v. Counts, 259 Va. 179, 190, 523 S.E.2d 246,
252 (2000).
In this case, the common law action is not based on a
public policy expressly set out in the statute as it was in
Lockhart. Nor does Rowan claim that she is entitled to
maintain her common law action because she was terminated for
refusal to engage in a criminal act as did the employee in
Mitchem. Rowan asserts that Code § 18.2-460 is " 'consistent
4
In 1995, the General Assembly amended Code § 2.2-2639
which limited the remedies available to an employee alleging
7
with the policy of the Commonwealth to protect the public from
criminals by shielding those who participate in the
prosecution and trial of suspected wrongdoers.' " As a person
involved in a criminal prosecution, Rowan argues that, to
effectuate the public policy she posits, the statute must
provide her with a right to such protection and the violation
of such right by her employer is a violation of public policy
sufficient to support her common law cause of action. We
disagree with Rowan.
The premise of Rowan's position is that by virtue of Code
§ 18.2-460, she is vested with a right to be free from
intimidation with regard to her pressing criminal charges and
participating in the legal processes connected to those
charges. However, unlike the shareholders' right to vote
shares granted by the statute in Bowman, Code § 18.2-460 does
not grant a person involved in a criminal prosecution any
specific right. Also, in Bowman the public policy violated
existed to protect the exercise of the statutory right, but
here there is no statutory right and, therefore, there exists
no corresponding public policy necessary to protect the right.
Further, Rowan's description of the public policy that
does underlie Code § 18.2-460 is inconsistent with our prior
case law. We have previously described the public policy
unlawful discharge in violation of this policy.
8
underlying the obstruction of justice statute as reflecting
"the General Assembly's intent to prohibit interference with
the administration of justice" and as protecting "the public's
safety and welfare." Harris, 259 Va. at 233, 523 S.E.2d at
246. The goal of this policy is not to protect individuals
from intimidation, but to protect the public from a flawed
legal system due to impaired prosecution of criminals. Thus,
TSC's actions in discharging Rowan did not violate a right
granted to her but rather violated a criminal statute enacted
to ensure that the administration of justice is not subverted.
In summary, Code § 18.2-460 did not create any statutory
right or a corresponding public policy of the type that would
support an exception to the employment-at-will doctrine and
thus allow a common law action for wrongful termination. 5
Accordingly, the certified question is answered in the
negative.
Certified question answered in the negative.
5
The certified question was limited to consideration of
Code § 18.2-460 and thus we do not address Rowan's arguments
that other statutes support the public policy at issue and
recognize certain rights of crime victims and persons involved
in criminal prosecution.
9