City of Virginia Beach v. Harris

Present: All the Justices

CITY OF VIRGINIA BEACH, ET AL.

v. Record No. 990535 OPINION BY JUSTICE CYNTHIA D. KINSER
January 14, 2000
BRENDHAN B. HARRIS

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Leonard B. Sachs, Judge Designate

Brendhan B. Harris was terminated from his employment

as a police officer with the City of Virginia Beach (the

City) Police Department. Harris subsequently filed this

common law cause of action for wrongful discharge against

the City and several members of the police department. The

circuit court struck the City’s evidence and held it liable

as a matter of law, and a jury returned a verdict against

the individual defendants and assessed damages against all

the defendants. We awarded the City and the individual

defendants this appeal.

On appeal, we will address two issues: (1) whether

Harris’ claim against the individual defendants is barred by

the doctrine of res judicata because of prior proceedings in

federal court, and (2) whether Code § 18.2-460 and former §

15.1-138 1 embody sufficient public policies to support

______________________
1
The General Assembly repealed Code § 15.1-138
effective December 1, 1997. Code § 15.2-1704, which became
effective on that date, includes the provisions of Code §
Harris’ cause of action for wrongful discharge based on the

public policy exception to the employment-at-will doctrine

articulated in Bowman v. State Bank of Keysville, 229 Va.

534, 331 S.E.2d 797 (1985). See Stonega Coal and Coke Co.

v. Louisville and Nashville R.R., 106 Va. 223, 55 S.E. 551

(1906) (stating that Virginia adheres to the employment-at-

will doctrine). Because we conclude that the principle of

res judicata bars relitigation of Harris’ claim against the

individual defendants, and because we do not find public

policies in Code § 18.2-460 and former § 15.1-138 sufficient

to support Harris’ wrongful discharge cause of action, we

will reverse the circuit court’s judgment in favor of

Harris.

In order to address these two issues, we must recite

not only the facts surrounding Harris’ discharge, but also

the course of proceedings in the action he pursued in

federal court before filing the present case.

FACTS AND FEDERAL COURT PROCEEDINGS

While on duty as a police officer on August 28, 1992,

Harris investigated a burglary complaint at an apartment

complex in the City. Upon arriving at the apartment

complex, Harris spoke with Terry Grey, an occupant of one of

_______________
15.1-138 that are pertinent to this appeal. We shall cite
former Code § 15.1-138 in this opinion.

2
the apartments. Grey told Harris that a man claiming to be

a maintenance worker used a key to enter her apartment while

she was undressed. Harris then contacted the apartment

manager to determine whether the alleged intruder was indeed

a maintenance worker. In the meantime, Grey’s sister,

Dierdre Gamble, and Anthony Ortiz, a police officer who was

assisting Harris, arrived at the apartment complex.

When the apartment manager returned with a work order

pertaining to the alleged intruder, who was a maintenance

worker, Grey snatched the work order from the apartment

manager’s hand and refused to return it when ordered to do

so by Harris. Harris then grabbed Grey’s wrist in an

attempt to retrieve the work order from her and to enable

him to handcuff her. At that point, Gamble attacked Harris

from the rear, and they exchanged punches until Harris

subdued her with pepper spray.

After placing Gamble in handcuffs, Harris transported

her to a hospital, which was standard procedure when a

police officer used pepper spray. 2 While en route to the

hospital, Harris reported the incident to his supervisor,

Lieutenant Gary Van Auken. Meanwhile, Ortiz also contacted

Van Auken and related a version of the events that was

______________________
2
Grey was not arrested since she “took off” after the
altercation between Harris and Gamble.

3
different from Harris’ version. Ortiz believed that Harris

had mishandled the situation, causing it to escalate.

Having received conflicting information about the incident,

Van Auken consulted his supervisor and an attorney for the

City, and decided that, pending the outcome of an

investigation of the incident, formal charges should not be

placed against Gamble nor should she be incarcerated.

After Gamble was treated at the hospital, Harris took

her before a magistrate for the purpose of formally placing

charges against her. However, during the course of several

telephone conversations between Van Auken and Harris, Van

Auken advised Harris of the decision regarding Gamble and

ordered Harris to not place charges against Gamble, and to

release her into the custody of the police department’s

internal affairs division. Harris complied with that order,

but later, after consulting with an attorney, he obtained

warrants against both Gamble and Grey. Harris asked another

police officer to serve the warrants on Gamble, but he kept

the ones for Grey in his possession.

When Van Auken discovered that Harris had sworn out the

warrants against Grey and Gamble, he instructed Harris to

give him the unserved Grey warrants. After complying with

Van Auken’s order, Harris observed Van Auken place the

4
warrants in his desk drawer. According to Harris, those

warrants were never served on Grey.

However, the warrants against Gamble were served. When

those charges came to trial, Van Auken presented the general

district court with a letter from police Captain M.E. Beane

to the City attorney, which requested that the charges

against Gamble be “nolle prossed” because Harris had been

ordered to not obtain the warrants until all the facts in

the case had been reviewed by the police department.

Following that court proceeding, Harris received a

letter from his precinct captain, E.E. Rorrer, ordering

Harris to take no further action with regard to the incident

in his capacity as a police officer, but advising Harris

that he was free to act in his capacity as a private

citizen. Rorrer also informed Harris that if he had doubts

with regard to what actions he could take, Harris should

contact Rorrer personally.

Harris then filed an administrative complaint against

Rorrer and Van Auken, alleging that they had obstructed

justice. Harris also complained that Ortiz had failed to

assist him during the incident at the apartment complex. An

investigation of the complaint by the internal affairs

division resulted in a finding that Harris’ charges were

unfounded.

5
 The internal affairs division also received complaints

from Grey and Gamble regarding Harris’ conduct at the

apartment complex. After an investigation of those

complaints, Grey’s allegations were determined to be

founded, while Gamble’s were not. Thereafter, a 24-hour

suspension of Harris was recommended due to his

insubordination and disobedience of an order. He appealed

the recommended suspension.

On July 30, 1993, while on duty and in uniform, Harris

appeared before a magistrate and obtained warrants for Van

Auken, charging him with two violations of Code § 18.2-460,

obstruction of justice, and a violation of Code § 18.2-469,

delay in executing lawful process. After learning about

Harris’ actions, Police Chief Charles R. Wall met with Major

Douglas G. McCloud; Captains Woodrow R. Baker, Beane, and

Rorrer; and Van Auken. They agreed that Harris should be

terminated for appearing in uniform before the magistrate

and swearing out the warrants against Van Auken. According

to the August 19, 1993 letter of termination from the chief

of police, this action by Harris constituted disobedience of

an order and abuse of his position. Harris appealed his

6
termination to the City’s personnel board, which upheld his

dismissal. 3

Harris subsequently filed a lawsuit in the United

States District Court for the Eastern District of Virginia

against the City, Van Auken, Beane, Baker, McCloud, Wall and

two other City officials, alleging that those defendants had

violated his First Amendment rights by terminating him, and

further asserting that he had been wrongfully discharged in

violation of Virginia law. Harris v. City of Virginia

Beach, Virginia, No. 2:93cv1151 (E.D. Va. first amended

complaint filed Dec. 7, 1993). A jury returned a verdict

for Harris on both counts of his lawsuit. Importantly, with

regard to his state law claim, the jury found both the City

and the individual defendants liable, awarded compensatory

and punitive damages against the City, but assessed only

punitive damages against the individual defendants. In

post-trial orders, the district court directed the City to

pay damages to Harris and to reinstate him to his former

position, but the court set aside the award of punitive

damages against the City and each of the individual

defendants.

______________________
3
Because of his termination, a hearing on Harris’
appeal of the recommended 24-hour suspension was not
conducted.

7
 The City, but not the individual defendants, appealed

the district court’s judgment to the United States Court of

Appeals for the Fourth Circuit. Harris cross-appealed,

assigning as error the district court’s judgment to set

aside the awards of punitive damages. 4 The court of appeals

reversed, holding that Harris had no First Amendment right

to seek the warrants against Van Auken since his “swearing

out of the complaint did not implicate a subject of public

concern.” Harris v. City of Virginia Beach, Nos. 94-2091

and 94-2122, slip. op. at 14 (4th Cir. Oct. 30, 1995). The

court then remanded Harris’ state law claim to the district

court to determine whether it should survive dismissal of

the federal constitutional claim. Id. at 16.

On remand, the district court entered the same judgment

that it had previously entered in favor of Harris on his

state law claim. The court did so without conducting a new

trial. Only the City appealed the district court’s second

judgment to the court of appeals, which again reversed and

remanded the case with instructions to the district court to

grant a new trial on the state law claim, or alternatively,

to decline to exercise supplemental jurisdiction and dismiss

the case without prejudice in light of the prior dismissal

______________________
4
Harris assigned other errors in his cross-appeal, but
those issues are not relevant to this proceeding.

8
of the federal claim. Harris v. City of Virginia Beach, No.

96-1743, slip op. at 8 (4th Cir. Mar. 31, 1997). The

district court dismissed the case without prejudice, and

Harris then filed this action in the circuit court against

the City, Van Auken, Beane, Baker, McCloud and Wall.

During pre-trial proceedings in the present case,

Harris non-suited his claim against Van Auken. The case

then proceeded to a trial by jury against the remaining

defendants. At the close of all the evidence, the circuit

court struck the City’s evidence and found it liable, as a

matter of law, for Harris’ discharge. The court reasoned

that it is mandatory that police officers arrest people who

violate the law, and that no one - including a police

supervisor – may lawfully order a police officer to refrain

from doing so. Thus, the circuit court held that the order

Harris disobeyed was an unlawful order, and that Harris’

subsequent termination for violating that order contravened

the public policies of the Commonwealth.

The court then submitted the case to the jury on the

remaining issues. Those issues were whether the individual

defendants were also liable for Harris’ termination in

violation of Virginia’s public policy, what amount of

damages should be awarded against the City, and what damages

should be assessed against the individual defendants if they

9
were found liable. The jury returned a verdict finding all

the individual defendants liable; awarding Harris

compensatory damages from the City and the individual

defendants, jointly and severally; and assessing punitive

damages against the individual defendants.

In a letter opinion denying the defendants’ post-trial

motion to set aside the jury’s verdict, the court again

concluded, as it had at trial, that Harris’ dismissal for

securing the warrants against Van Auken violated the public

policy of Virginia set forth in the Code sections specified

by the magistrate as the basis for issuing those warrants.

The court stated that

[i]t is contrary to the public policy of Virginia to
prohibit a police officer from doing his sworn duty as
mandated by the Code of Virginia where the officer was
justified in fact and in law in attempting to comply
with these statutes which deal with the safety of the
public.

The court also overruled the individual defendants’ renewed

plea of res judicata 5 and concluded that the jury’s verdict

was not excessive.

ANALYSIS

Although the City and the individual defendants raise

______________________
5
The court had previously denied a pre-trial motion for
summary judgment filed by all the individual defendants
except Van Auken. Relying on the doctrine of res judicata,
they had asserted in that motion that the federal court's

10
 several assignments of error, we conclude that two of them

are dispositive of this appeal: (1) that the circuit court

erred in finding that Harris’ claim against the individual

defendants is not barred by the doctrine of res judicata

because of the federal court proceedings, and (2) that the

court erred by finding that Code § 18.2-460 and former §

15.1-138 enunciate public policies that support Harris’

wrongful discharge claim. Accordingly, we will address only

those two assignments of error.

First, we conclude that the circuit court erred in

entering judgment against the individual defendants because

the principle of res judicata bars relitigation of Harris’

claim against them. We have previously discussed the

rationale for this judicially created doctrine, stating that

it

rests upon public policy considerations which favor
certainty in the establishment of legal relations,
demand an end to litigation, and seek to prevent the
harassment of parties. . . . The doctrine prevents
“relitigation of the same cause of action, or any part
thereof which could have been litigated, between the
same parties and their privies.”

Bill Greever Corp. v. Tazewell Nat’l Bank, 256 Va. 250, 254,

504 S.E.2d 854, 856 (1998) (quoting Bates v. Devers, 214 Va.

667, 670-71, 202 S.E.2d 917, 920-21 (1974)). Because “the

_______________
judgment with regard to them barred relitigation of Harris’
state law claim for wrongful discharge.

11
same parties” that were present in Harris’ federal lawsuit

are also present in this state court action, we conclude

that the liability of those individual defendants, which was

litigated in federal court, cannot now be relitigated in

this subsequent action. 6 See Faison v. Hudson, 243 Va. 413,

419, 417 S.E.2d 302, 304 (1992) (doctrine of res judicata

rests upon principle that one person cannot relitigate with

the same person a cause of action that was tried and finally

determined upon the merits).

Harris pled, as a separate Count II of his federal

complaint, a cause of action for wrongful discharge under

Virginia law. That count remained in the case throughout

the preparation stages in the federal litigation, and was

presented to the jury. The federal district court’s jury

verdict form clearly indicates that the jury found that each

individual defendant named in that case had unlawfully

discharged Harris, or caused his discharge, in violation of

Virginia’s public policy. Even though the district court

set aside the jury’s assessment of punitive damages, the

court did not set aside the jury’s finding of liability with

regard to the individual defendants. After the first appeal

in which the court of appeals dismissed Harris’ federal

______________________
6
Three other individuals, including Van Auken, were
also held liable in federal court but are not parties in the

12
constitutional claim and remanded the state law claim, the

district court specifically stated in its new order that the

judgment in favor of Harris on his state law claim for

wrongful discharge remained the same as the judgment

previously entered by the court. Since neither Harris nor

the individual defendants noted an appeal from that order,

the court of appeals did not have the individual defendants

before it in the second appeal and therefore lacked

jurisdiction over them. Federated Dep’t Stores, Inc. v.

Moitie, 452 U.S. 394, 399-400 (1981). Thus, the district

court’s order stands as a final judgment regarding the

liability of the individual defendants for Harris’ discharge

and, under the doctrine of res judicata, bars relitigation

of his claim against them in the present case.

Nevertheless, Harris contends that the federal district

court never entered a final order with regard to the

individual defendants because the court did not specifically

state in either of its judgment orders whether the

individual defendants were liable to Harris along with the

City, or whether they were responsible for payment of the

compensatory damages. Although a final order is an

essential element for the bar of res judicata to apply,

Norris v. Mitchell, 255 Va. 235, 239-40, 495 S.E.2d 809, 812

_______________
instant case.

13
(1998), we find no merit in Harris’ contention for two

reasons.

First, the district court stated in its initial

judgment order that the jury had tried the issues and

rendered its verdict. The court altered the jury’s verdict

only with regard to the award of punitive damages. In an

order entered after the first appeal to the court of

appeals, the district court stated that the judgment in

favor of Harris on his state law wrongful discharge claim

remained as previously entered by the district court. Thus,

the district court never modified the jury’s finding that

the individual defendants unlawfully discharged, or caused

the discharge of, Harris in violation of Virginia’s public

policy, but instead implicitly incorporated such finding in

its final orders.

Second, there are only two ways by which the court of

appeals could have acquired jurisdiction to review the

judgment of the federal district court. The federal courts

of appeal have jurisdiction of appeals from the final

decisions of the district courts pursuant to 28 U.S.C. §

1291. The federal appellate courts can also exercise

jurisdiction over interlocutory orders if there is an appeal

14
by permission pursuant to 28 U.S.C. § 1292(b). 7 See Fed. R.

App. P. 3(a)(4) and 5 (district court must enter order

granting permission for interlocutory appeal under 28 U.S.C.

§ 1292(b) or stating that necessary conditions for such

appeal are met). There is no evidence of an order by the

district court in accordance with § 1292(b) or Fed. R. App.

P. 5(a)(3), nor other evidence that an appeal of an

interlocutory order was permitted in Harris’ federal

lawsuit. Because of that fact, we conclude that the court

of appeals was necessarily reviewing a final judgment order

from the district court in both appeals. Otherwise, the

parties would have been required to utilize the procedure

specified in Fed. R. App. P. 5. Thus, the district court’s

order was final as to all the parties, and that portion of

it pertaining to the individual defendants was not affected

by the court of appeals’ decision in the second appeal

because, as we have already stated, the individual

defendants were not parties to that appeal. Federated Dep’t

Stores, 452 U.S. at 399-400.

______________________
7
28 U.S.C. § 1292(b) provides that a court of appeals,
in its discretion, may permit an appeal from an
interlocutory order if the district court states in writing
that “an order not otherwise appealable under this section,
. . . involves a controlling question of law as to which
there is substantial ground for difference of opinion and
that an immediate appeal from the order may materially
advance the ultimate termination of the litigation.”

15
 Since relitigation of Harris’ claims against the

individual defendants is barred by the doctrine of res

judicata, we are left only with the claim against the City.

Before addressing the merits of the circuit court’s judgment

holding the City liable as a matter of law, we first must

determine the basis for the court’s ruling that the City’s

discharge of Harris violated certain public policies.

During a discussion between the court and the attorneys

for the parties with regard to proposed jury instructions,

the court stated that the evidence presented did not

establish a “whistle blowing case.” Instead, the court

declared that the issue was whether it was a violation of

the public policy of Virginia to attempt to prohibit Harris

from obtaining the warrants against Van Auken and to fire

him for doing so. It is in the context of this discussion

that the court decided to strike the City’s evidence and

hold, as a matter of law, that the City’s termination of

Harris was unlawful because the discharge violated

Virginia’s public policy.

However, the circuit court later told the jury that the

City had violated several of Virginia’s public policies,

including the policy “that a Virginia public employer, such

as the City of Virginia Beach, shall not retaliate against a

public employee because the employee has complied with any

16
law of the United States or the Commonwealth of Virginia or

has reported any violation of such law to a governmental

authority.” Nevertheless, in the circuit court’s post-trial

letter opinion, which was incorporated in its final order,

the court clearly did not rely on any public policy

prohibiting retaliatory discharges in its decision to hold

the City liable as a matter of law. The following excerpts

from the court’s letter opinion underscore its rationale.

The Court held at trial and holds today that
[Harris’] dismissal for obtaining those warrants was
contrary to the public policy of Virginia as set forth
in the sections of the code which were specified by the
magistrate as the basis for the warrants and which are
a matter of record in this case.[ 8 ]

It is contrary to the public policy of Virginia to
prohibit a police officer from doing his sworn duty as
mandated by the Code of Virginia where the officer was
justified in fact and in law in attempting to comply
with these statutes which deal with the safety of the
public.

Thus, we conclude that when the court struck the City’s

evidence and found it liable for Harris’ discharge as a

matter of law, the court relied only on the public policies

underlying Code §§ 18.2-460 and -469, and former § 15.1-138.

Turning now to the merits of the circuit court’s

decision on this issue, we first observe that in our

______________________
8
The Code sections specified in the warrants against
Van Auken were §§ 18.2-460 (obstructing justice) and –469
(refusing or delaying the execution of process for a
criminal).

17
previous cases dealing with Bowman-type exceptions to the

employment-at-will doctrine, this Court has consistently

characterized such exceptions as “narrow.” Lawrence

Chrysler Plymouth Corp. v. Brooks, 251 Va. 94, 98, 465

S.E.2d 806, 809 (1996); Lockhart v. Commonwealth Educ. Sys.

Corp., 247 Va. 98, 104, 439 S.E.2d 328, 331 (1994); Bowman,

229 Va. at 540, 331 S.E.2d at 801. While all statutes of

the Commonwealth reflect public policy to some extent, since

otherwise they presumably would not have been enacted by our

General Assembly, termination of an employee in violation of

the policy underlying any one of them does not automatically

give rise to a common law cause of action for wrongful

discharge.

A review of our prior cases involving this area of the

law also reveals that this Court has found a public policy

sufficient to allow a common law wrongful discharge claim to

go forward as an exception to the employment-at-will

doctrine in only two instances. The first instance involves

laws containing explicit statements of public policy (e.g.

“It is the public policy of the Commonwealth of Virginia

[that] . . .”). Lockhart, 247 Va. at 105, 439 S.E.2d at

331. The second one involves laws that do not explicitly

state a public policy, but instead are designed to protect

the “property rights, personal freedoms, health, safety, or

18
welfare of the people in general.” Miller v. SEVAMP, Inc.,

234 Va. 462, 468, 362 S.E.2d 915, 918 (1987). Such laws

must be in furtherance of “an [underlying] established

public policy” that the discharge from employment violates.

Bowman, 229 Va. at 539, 331 S.E.2d at 801. “Each of the

illustrative cases . . . cited in Bowman[, where we first

recognized the public policy exception to the employment-at-

will doctrine,] involved violations of public policies of

that character.” 9 Miller, 234 Va. at 468, 362 S.E.2d at

918. Even if a specific statute falls within one of these

categories, an employee must also be a member of the class

of individuals that the specific public policy is intended

to benefit in order to state a claim for wrongful

termination in violation of public policy. Dray v. New

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

312, 313 (1999).

Applying these principles regarding the public policy

exception to the employment-at-will doctrine in the present

case, we conclude that the statutes relied upon by the

circuit court do not fit within either of the instances

______________________
9
In Mitchem v. Counts, 259 Va. ___, ___ S.E.2d ___
(2000), decided today, this Court holds that an at-will
employee asserted a valid common law cause of action for
wrongful termination of employment when she alleged that her
discharge violated the public policy underlying two criminal
statutes, Code §§ 18.2-344 and -345.

19
where we have found public policies that support a Bowman-

type cause of action. Code § 18.2-460 defines the elements

of, and sets forth the criminal penalties for, the crime of

obstruction of justice, and, accordingly, reflects the

General Assembly’s intent to prohibit interference with the

administration of justice. That section does not explicitly

state any public policy, but, like all criminal statutes, it

has as an underlying policy the protection of the public’s

safety and welfare. Miller, 234 Va. at 468, 362 S.E.2d at

918. However, Harris’ reliance on the statute is not in

accord with that policy. Instead, Harris is attempting to

use Code § 18.2-460 as a shield to protect himself, not the

public, from the consequences of his decision to charge Van

Auken with obstruction of justice despite his supervisor’s

order to take no further action in an official capacity with

regard to any aspect of the incident involving Grey and

Gamble. To utilize this criminal statute as Harris suggests

would allow wrongful discharge lawsuits to be pursued by

virtually any police officer who believes that personnel

decisions obstructed the officer’s enforcement of the law.

In light of our prior decisions addressing the public policy

exception to the employment-at-will doctrine, we find no

20
established public policy underlying Code § 18.2-460 that

would support Harris’ wrongful discharge cause of action. 10

A similar analysis applies to former Code § 15.1-138.

That statute provided, in pertinent part, that a police

officer “shall endeavor to prevent the commission . . . of

offenses against the law of the Commonwealth . . . ; shall

observe and enforce all such laws . . . ; [and] shall detect

and arrest offenders . . . .” By its terms, the statute did

not state any public policy but merely described the powers

and duties of a police force. Nor was the statute designed

to protect any public rights pertaining to “property . . . ,

personal freedoms, health, safety, or welfare.” Miller, 234

Va. at 468, 362 S.E.2d at 918. See also Childress v. City

of Richmond, 907 F.Supp. 934, 942 (E.D. Va. 1995), aff’d per

curiam, 134 F.3d 1205 (4th Cir.) (en banc), cert. denied, 524

U.S. 927 (1998) (holding that statute did not create any

public rights). As we said in Lawrence Chrysler, 251 Va. at

98, 465 S.E.2d at 809, the Bowman exception is not broad

enough to make actionable the discharge of an at-will

employee that violates only private rights or interests.

______________________
10
The circuit court generally referenced the statutes
cited in the warrants against Van Auken but did not actually
name them. However, its discussion of Virginia’s public
policy implicated both statutes. Our analysis and
conclusion that Code § 18.2-460 cannot be used as a source

21
 For these reasons, we will reverse the judgment of the

circuit court and enter final judgment here in favor of the

City and the individual defendants.

Reversed and final judgment.

_______________
of public policy to support Harris’ wrongful discharge cause
of action applies equally to Code § 18.2-469.

22