Supervisor Personally Liable for Wrongful Termination

Supervisors beware­­­­--the Virginia Supreme Court has clearly said that you can be held personally liable for wrongful termination. Last November, the Court recognized a common law tort claim of wrongful discharge in violation of public policy against an individual who was not the employer. 

In VanBuren v. Grubb, the plaintiff was employed for over five years as a nurse by a medical practice. During that time, the plaintiff was allegedly subjected to repeated sexual harassment by her supervisor, who was also the owner of the medical practice. The plaintiff alleged that her supervisor regularly hugged her; rubbed her back, waist, and other inappropriate areas; and attempted to kiss her. When the plaintiff refused to leave her husband, her supervisor fired her and offered her one month severance in exchange for her agreement to remain silent. Instead of accepting the offer, the plaintiff sued the medical practice and her supervisor for wrongful termination. The plaintiff asserted that she was terminated because she refused to engage in the criminal conduct of adultery, lewdness, and lasciviousness in violation of Virginia public policy.

Virginia strongly adheres to the employment at will doctrine. Unless an employment contract exists to the contrary, either the employer or the employee is ordinarily at liberty to terminate the employment relationship at will upon reasonable notice. The Virginia Supreme Court has recognized a narrow exception to this rule. In Bowman v. State Bank of Keysville, the Court held that a corporate employer and named directors could be held liable for discharging shareholder employees, because the employees refused to vote their shares in accordance with the wishes of the corporation’s board. The Bowman Court reasoned that the corporation’s coercion and subsequent termination violated public policy, specifically a Virginia statute allowing shareholders to freely vote their shares. Since Bowman, the Virginia Supreme Court has considered several cases in which an employer’s violation of a Virginia statute has formed the basis for a wrongful termination. 

In Grubb, the trial court dismissed the wrongful termination claim against the individual supervisor, the plaintiff appealed, and the Fourth Circuit certified the question of individual liability to the Virginia Supreme Court. The Virginia Supreme Court held that the plaintiff could also sue the supervisor personally for wrongful discharge. The Court reasoned that when a supervisor unlawfully terminates an employee on behalf of the employer, the supervisor shares in the liability because he/she is a party to the wrongful act. The Court noted that penalizing the individual in a position of power best serves the public policy underlying a claim for wrongful discharge. With this decision, Virginia joined other jurisdictions, including Maryland, Washington, D.C., and West Virginia, in recognizing a cause of action for wrongful discharge against the supervisor who wrongfully terminates an employee.

This decision expands the potential liability of supervisors where a public policy violation is found. To avoid liability management employees should heed the advice given to employers in similar circumstances: maintain and enforce an anti-harassment policy, properly investigate allegations of harassment, support disciplinary action with clear documentation, and even-handedly apply employment policies and employee discipline.  

For additional information, please contact Mary Elizabeth Davis or Elliot P. Fitzgerald at (804) 697-2000.

Spotts Fain publications are provided as an educational service and are not meant to be and should not be construed as legal advice. Readers with particular needs on specific issues should retain the services of competent counsel.