VanBuren v. Grubb

Present: All the Justices
ANGELA VANBUREN
OPINION BY
v. Record No. 120348 JUSTICE LEROY F. MILLETTE, JR.
November 1, 2012
STEPHEN A. GRUBB
UPON A QUESTION OF LAW CERTIFIED BY THE
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
On March 1, 2012, the United States Court of Appeals for
the Fourth Circuit entered an order of certification requesting
that we exercise our jurisdiction pursuant to Article VI,
Section 1 of the Constitution of Virginia and Rule 5:40, and
answer the following question:
Does Virginia law recognize a common law tort claim
of wrongful discharge in violation of established
public policy against an individual who was not the
plaintiff's actual employer, such as a supervisor or
manager, but who participated in the wrongful firing
of the plaintiff?
In an order dated April 19, 2012, we accepted the
certified question, and, for the reasons stated herein, we
now restate the question pursuant to our authority under
Rule 5:40(d) and answer in the affirmative.
BACKGROUND
A. Factual History
Because this case arises from the granting of a motion to
dismiss by the United States District Court for the Western
District of Virginia, we must take the factual allegations in
Angela VanBuren's complaint as true "for the purposes of
framing an answer that is responsive to the needs of the
[Fourth Circuit]." Wyatt v. McDermott, 283 Va. 685, 689, 725
S.E.2d 555, 556 (2012) (citing Zinermon v. Burch, 494 U.S. 113,
118 (1990)). Accordingly, the facts presented herein are those
alleged in VanBuren's complaint.
VanBuren was employed as a nurse by Virginia Highlands
Orthopedic Spine Center, LLC, from December 2003 to March 2008.
Soon after she joined Virginia Highlands, VanBuren was
subjected to sexual harassment by her supervisor, Virginia
Highland's owner Dr. Stephen Grubb. He would "hug her, rub her
back, waist, breast and other inappropriate areas, and attempt
to kiss her." Although VanBuren told Dr. Grubb that his sexual
advances were "offensive" and "unwelcome[]," he continued to
pursue her. In May 2006, while the two were travelling for
business, Dr. Grubb went to VanBuren's hotel room and "began
rubbing her back, waist, breast and hair while stating that he
loved her." VanBuren broke free of his embrace and told him
that "she was not going to have sex with him," that "he was a
married man," and that "he needed to leave."
Dr. Grubb's sexual harassment continued after VanBuren's
marriage in 2007. Dr. Grubb tried to "console" VanBuren
regarding her subsequent marital problems. His "consoling"
entailed "encouraging [her] to leave her husband and then
proceeding to hug, kiss, and grope her." VanBuren "continued
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to insist that [Dr. Grubb's] advice and sexual advances were
unwelcomed and offensive."
In March 2008, Dr. Grubb again suggested during a closed-
door meeting that VanBuren leave her husband so that she "could
accept his love for what it was and what it could be." A few
days later, Dr. Grubb called VanBuren into his office and asked
whether she planned to stay with her husband. When she
responded in the affirmative, he fired her. He then offered
her roughly a month's severance pay to remain silent about the
sexual harassment. Dr. Grubb gave no other explanation for
terminating VanBuren's employment with Virginia Highlands.
B. Procedural History
In March 2010, VanBuren filed suit, asserting a claim for
gender discrimination against Virginia Highlands under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a)
and 2000e-3(a), and asserting a claim for wrongful discharge
against Dr. Grubb and Virginia Highlands. As to the latter
claim, she alleged that she had been discharged from Virginia
Highlands because she had refused to engage in criminal conduct
– specifically, adultery in violation of Code § 18.2-365 and
open and gross lewdness and lasciviousness in violation of Code
§ 18.2-345. Accordingly, she contended that her discharge
violated public policy. See Bowman v. State Bank of Keysville,
229 Va. 534, 331 S.E.2d 797 (1985).
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Both Dr. Grubb and Virginia Highlands moved to dismiss.
The district court granted the motion as to Dr. Grubb,
"conclud[ing] that, were the Virginia Supreme Court to directly
address this issue, it would find that wrongful discharge
claims by an employee are cognizable only against the employer
and not against supervisors or co-employees in their individual
capacity." VanBuren then moved the district court to enter
final judgment against Dr. Grubb so that she could appeal its
decision. The district court granted the motion, and VanBuren
appealed to the Fourth Circuit. After briefing and oral
argument, the Fourth Circuit determined that it could not
predict with confidence how this Court would rule as to whether
a wrongful discharge claim is cognizable against an individual
such as Dr. Grubb. The Fourth Circuit accordingly certified
the question to this Court, and we accepted.
A certified question must be "determinative of the
proceeding[s] in the certifying court." Rule 5:40(c). Upon
examination of the certified question, we conclude that the
question as posed encompasses a larger body of employees than
is essential to produce a determinative answer in these
proceedings. We therefore exercise our discretion under Rule
5:40(d) to restate the question as follows:
Does Virginia law recognize a common law tort claim
of wrongful discharge in violation of established
public policy against an individual who was not the
4
plaintiff's actual employer but who was the actor in
violation of public policy and who participated in
the wrongful firing of the plaintiff, such as in the
capacity of a supervisor or manager?
DISCUSSION
A. The Public Policy Exception to Employment-at-Will
in the Commonwealth
Virginia "strongly adheres to the employment-at-will
doctrine," Lockhart v. Commonwealth Educ. Sys. Corp., 247 Va.
98, 102, 439 S.E.2d 328, 330 (1994), that "when the intended
duration of a contract for the rendition of services cannot be
determined by fair inference from the terms of the contract,
then either party is ordinarily at liberty to terminate the
contract at will, upon giving the other party reasonable
notice." Miller v. SEVAMP, Inc., 234 Va. 462, 465, 362 S.E.2d
915, 916-17 (1987).
This rule, however, is not absolute. In Bowman, 229 Va.
at 540, 331 S.E.2d at 801, we held that a corporate employer
could be held liable in tort for the discharge of two employees
who were also shareholders of the corporation. The corporation
had discharged the employees because they had refused to vote
their shares in accordance with the wishes of the corporation's
board of directors. Id. at 537-38, 331 S.E.2d at 799-800. We
observed that the corporation's coercion violated the public
policy underlying former Code § 13.1-32 (now Code § 13.1-662),
which grants each shareholder the right to cast one vote for
5
each share held. Id. at 540, 331 S.E.2d at 801. "Because the
right conferred by statute is in furtherance of established
public policy," we reasoned, "the employer may not lawfully use
the threat of discharge of an at-will employee as a device to
control the otherwise unfettered discretion of a shareholder to
vote freely his or her stock in the corporation." Id. Thus,
"applying a narrow exception to the employment-at-will rule,"
the Court held that "the [employees] ha[d] stated a cause of
action in tort against the [corporation] and the named
directors for improper discharge from employment." Id.
Since Bowman, the Court has considered several cases in
which a public policy exception was asserted. In each case,
the Court has emphasized that the exception is "narrow":
"termination of an employee in violation of the policy
underlying any one [statute] does not automatically give rise
to a common law cause of action for wrongful discharge." Rowan
v. Tractor Supply Co., 263 Va. 209, 213, 559 S.E.2d 709, 711
(2002) (alteration in original) (internal quotation marks and
citation omitted).
VanBuren's claim falls under one such narrow exception
previously recognized by the Court: discharge based on the
employee's refusal to engage in a criminal act. Mitchem v.
Counts, 259 Va. 179, 190, 523 S.E.2d 246, 252 (2000) (holding
discharge based upon refusal to engage in fornication and lewd
6
and lascivious cohabitation to be against public policy).
VanBuren similarly alleges that her discharge resulted from her
refusal to engage in the criminal acts of adultery and lewd and
lascivious cohabitation. There is no question that VanBuren
has stated a cognizable wrongful discharge claim against her
employer, Virginia Highlands. We now address the issue of
whether she has done the same against Grubb, since the Court
has never squarely addressed whether a wrongful discharge claim
can be brought against an individual employee.
B. Personal Liability of Employees for Wrongful Discharge
Although we have not specifically addressed the personal
liability of employees for wrongful discharge, we have twice
allowed wrongful discharge claims to proceed against individual
defendants who both committed the acts in violation of public
policy and effected the termination. In Bowman, we held that
"the plaintiffs ha[d] stated a cause of action in tort against
the Bank and the named directors for improper discharge from
employment." 229 Va. at 540, 331 S.E.2d at 801 (emphasis
added). Nearly a decade later in Lockhart, we concluded that a
wrongful discharge claim based on gender discrimination could
go forward against both the plaintiff's former employer and her
former supervisor. 247 Va. at 106, 439 S.E.2d at 332. In one
of the two actions reviewed in Lockhart, the corporate employer
was a sole proprietorship, and the president of the company,
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her supervisor, allegedly engaged in activities comparable to
the allegations in this case.
While many jurisdictions have likewise permitted such
actions without any explicit holding on the matter, several of
our sister states have directly addressed the issue of
individual liability for persons committing tortious acts in an
employment setting. See, e.g., Myers v. Alutiiq Int'l
Solutions, LLC, 811 F. Supp. 2d 261, 269 (D.D.C. 2011) (holding
that the "D.C. Court of Appeals would allow claims against
individual supervisors for wrongful discharge" because
"individuals are liable for their own torts, even as agents
acting on behalf of their employers"); Higgins v. Assmann
Elecs., Inc., 173 P.3d 453, 458 (Ariz. Ct. App. 2007) (holding
that "[c]orporate officers are liable to those harmed by such
officer[s]" when their "acts constitut[e] the wrongful
termination" of an employee); Jasper v. H. Nizam, Inc., 764
N.W.2d 751, 776 (Iowa 2009) (holding that an individual
corporate officer can be held liable for wrongful discharge
because the tort "does not impose liability for the discharge
from employment, but the wrongful reasons motivating the
discharge"); Ballinger v. Delaware River Port Auth., 800 A.2d
97, 110 (N.J. 2002) (holding that "an individual who personally
participates in the tort of wrongful discharge may be held
individually liable" because "[a]n agent who does an act
8
otherwise a tort is not relieved from liability by the fact
that he acted at the command of the principal or on account of
the principal") (alteration in original) (internal quotation
marks and citation omitted); Kamensky v. Roemer Inc., 1 Pa. D.
& C. 4th 497, 499 (Pa. 1988) (holding that "an officer of the
corporation who takes part in the commission of the tort by the
corporation is personally liable therefor[]") (internal
quotation marks and citation omitted); Harless v. First Nat'l
Bank in Fairmont, 289 S.E.2d 692, 698, 699 (W. Va. 1982)
(holding that liability on the part of the employer "does not
mean that another employee who has been the principal
protagonist in obtaining the employee's discharge would not
also be liable," because "an agent or employee can be held
personally liable for his own torts against third parties").
But see Miklosy v. Regents of Univ. of California, 188 P.3d
629, 645 (Cal. 2008) (holding that the agency relationship
shields employees from tort liability for wrongful discharge).
We find Virginia's existing precedent permitting such
suits to be consistent with the Court's established case law
regarding agency relationships. It has long been settled in
Virginia that "employers and employees are deemed to be jointly
liable and jointly suable for the employee's wrongful act."
Thurston Metals & Supply Co. v. Taylor, 230 Va. 475, 483-84,
339 S.E.2d 538, 543 (1986); see also Miller v. Quarles, 242 Va.
9
343, 347, 410 S.E.2d 639, 642 (1991) ("Both principal and agent
are jointly liable to injured third parties for the agent's
negligent performance of his common law duty of reasonable care
under the circumstances.").
Grubb argues that, as only the employer has the ability to
effect a discharge, the liability must cease there. We are not
persuaded. In a wrongful discharge case, the tortious act is
not the discharge itself; rather, the discharge becomes
tortious by virtue of the wrongful reasons behind it. Jasper,
764 N.W.2d at 776. Where those tortious reasons arise from the
unlawful actions of the actor effecting the discharge, he or
she should share in liability. Here, VanBuren was fired
because she would not give in to Grubb's unlawful demands. As
Grubb was her supervisor and owner of the company, we conclude
that, if her allegations are proven, he too should be subject
to liability, just as he would be had he engaged in any other
tortious conduct.
Indeed, the recognition in Bowman of a tort of wrongful
discharge for public policy reasons leads to this result.
Limiting liability to the employer would follow a contract
construct. Wrongful discharge, however, is an action sounding
in tort. While there are components of a contractual
relationship, wrongful discharge remains a tort and tort
principles must apply.
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The purpose of the wrongful discharge tort — namely, the
deterrence of discharge in violation of public policy — is best
served if individual employees in a position of power are held
personally liable for their tortious conduct. Employer-only
liability would be insufficient to deter wrongful discharges,
as this case clearly demonstrates. In response to the suit,
Grubb left Virginia Highlands, the medical practice he himself
started, and joined another healthcare provider. If the Court
does not recognize individual liability in such cases, there
may be nothing to prevent other business owners from following
this model in an attempt to avoid liability.
We recognize the concern that supervisors will be hesitant
to rightfully discharge at-will employees for fear of suit. We
believe, however, that the extremely narrow nature of wrongful
discharge actions, as discussed in Part A, supra, and the
requirement that the defendant employees' personal actions be
shown to have violated the relevant public policy, provides
sufficient protection from the overuse of wrongful discharge
claims.
CONCLUSION
For the aforementioned reasons, we conclude that Virginia
recognizes a common law tort claim of wrongful discharge in
violation of established public policy against an individual
who was not the plaintiff's actual employer but who was the
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actor in violation of public policy and who participated in the
wrongful firing of the plaintiff, such as a supervisor or
manager.
Certified question, as restated, answered in the affirmative.
CHIEF JUSTICE KINSER, with whom JUSTICE GOODWYN and JUSTICE
McCLANAHAN join, dissenting.
In this certified question case, the Court must resolve a
question of first impression: Can the common law tort action
for wrongful discharge in violation of public policy be brought
against an individual who is not the employer of the discharged
employee? I conclude the question must be answered in the
negative because, as the district court stated, "when the
employee-employer relationship has been wrongfully terminated,
liability to the wronged employee can only rest with the other
party in that relationship, the employer." VanBuren v.
Virginia Highlands Orthopaedic Spine Ctr., LLC, 728 F. Supp. 2d
791, 794 (W.D. Va. 2010). Thus, I respectfully dissent.
As the majority recognizes, this Court has never addressed
the question now before us. Although both Bowman v. State Bank
of Keysville, 229 Va. 534, 331 S.E.2d 797 (1985), and Lockhart
v. Commonwealth Education Systems Corporation, 247 Va. 98, 439
S.E.2d 328 (1994), included allegations against individual
12
defendants who engaged in conduct in violation of public policy
but who were not the plaintiffs' employers, neither case
involved a challenge to whether the tort of wrongful discharge
could be maintained against those non-employer defendants.
Thus, the decisions in those cases have no precedential value
in addressing the precise issue presented now. Virginia has no
"existing precedent" allowing such actions.
To answer the restated certified question, I begin by
analyzing what constitutes a tort. 1 "A 'tort' is any civil
wrong or injury; a wrongful act (not involving a breach of
contract) for which an action will lie." Jewett v. Ware, 107
Va. 802, 806, 60 S.E. 131, 132 (1908) (internal quotation marks
omitted); accord Buchanan v. Doe, 246 Va. 67, 71-72, 431 S.E.2d
289, 291-92 (1993); Glisson v. Loxley, 235 Va. 62, 67, 366
S.E.2d 68, 71 (1988). The term "tort" is defined as "a breach
of a duty that the law imposes on persons who stand in a
particular relation to one another." Black's Law Dictionary
1626 (9th ed. 2009). It is well established that every tort
action consists of three elements: (1) the existence of a
legal duty; (2) a breach of that duty; and (3) damages as a
proximate result of the breach. Kellermann v. McDonough, 278
1
Whether Angela VanBuren stated a cognizable claim for
wrongful discharge in violation of an established public policy
against her employer is irrelevant to answering the restated
certified question.
13
Va. 478, 487, 684 S.E.2d 786, 790 (2009); Marshall v. Winston,
239 Va. 315, 318, 389 S.E.2d 902, 904 (1990); Trimyer v.
Norfolk Tallow Co., 192 Va. 776, 780, 66 S.E.2d 441, 443
(1951). The threshold question in any tort action is whether
the defendant owed a legal duty to the plaintiff. Burns v.
Johnson, 250 Va. 41, 44, 458 S.E.2d 448, 450 (1995).
The common law tort of wrongful discharge has been
understood from its inception as an exception to the common law
employment-at-will doctrine. Bowman, 229 Va. at 539-40, 331
S.E.2d at 800-01. That doctrine means that "when a contract
calls for the rendition of services, but the period of its
intended duration cannot be determined by a fair inference from
its provisions, either party is ordinarily at liberty to
terminate the contract at will upon giving reasonable notice of
intention to terminate." Id. at 535, 331 S.E.2d at 798 (citing
Stonega Coal & Coke Co. v. Louisville & Nashville R.R. Co., 106
Va. 223, 226, 55 S.E. 551, 552 (1906)). In Bowman, however, we
recognized an exception "to the strict application of the
doctrine in favor of at-will employees who claim to have been
discharged in violation of an established public policy." Id.
at 539, 331 S.E.2d at 801.
In discussing the decision in Bowman, we later explained
that the discharge there was tortious because "the employer had
misused its freedom to terminate the services of at-will
14
employees in order to subvert" the statutory policy granting
"each stockholder the unfettered right to cast one vote for
each share of corporate stock held." Miller v. SEVAMP, Inc.,
234 Va. 462, 467, 362 S.E.2d 915, 918 (1987) (emphasis added).
We further stated that "Bowman recognized an exception to the
employment-at-will doctrine limited to discharges which violate
public policy." Id. at 468, 362 S.E.2d at 918 (first emphasis
added).
Thus, an employer is free to terminate an at-will employee
but may not do so for reasons that violate public policy. The
particular relationship from which this duty arises is that of
employer and employee, and the legal duty imposed is to refrain
from discharging an at-will employee for reasons that
contravene public policy. Only an employer can breach that
duty because only an employer has the ability to hire and fire.
There is no liability for wrongful discharge without a
termination. An individual manager or supervisor who carries
out the wrongful discharge acts solely in a representative
capacity for the employer, not in a personal capacity, because
that individual stands outside the employer-employee
relationship. Such an individual, therefore, cannot be
individually liable for that discharge. Because the legal duty
at issue in a claim for wrongful discharge does not flow from
one employee to another employee, it is irrelevant if a manager
15
or supervisor also engaged in the conduct that violated public
policy.
I am not alone in my view that an individual employee
cannot be liable for the tort of wrongful discharge. Several
states have reached the same conclusion. For example, in
Buckner v. Atlantic Plant Maintenance Co., 694 N.E.2d 565, 569
(Ill. 1998), the Supreme Court of Illinois stated that,
"[l]ogically speaking, only 'the employer' has the power to
hire or fire an employee." Although an employee must carry out
that function for the employer, the court stated, "it is still
the authority of the employer which is being exercised." Id.
Rejecting the "application of general principles of agency
law," the court further explained:
The plaintiff asserts that . . . an agent whose
tortious conduct renders the principal liable is
also liable for his own tortious acts. This
general rule may not, however, be logically
applied to the tort of retaliatory discharge. As
explained above, the power to hire and fire
employees is ultimately possessed only by the
employer. Consequently, the tort of retaliatory
discharge may be committed only by the employer.
Id. at 570. See generally Rebarchek v. Farmers Coop. Elevator
& Mercantile Assoc., 35 P.3d 892, 903-04 (Kan. 2001) (quoting
extensively from Buckner and adopting its holding).
The Court of Appeals of Oregon took a similar approach in
Schram v. Albertson's Inc., 934 P.2d 483 (Or. Ct. App. 1997).
"[T]orts," the court stated, "are based on the violations of
16
duties owed by one party to another other than those created by
contract." Id. at 490.
[T]he tort of wrongful discharge arises when an
employer violates a duty imposed by an
established public policy. The employment
relationship is a necessary element of the tort
and establishes the duty of the employer on
behalf of the employee not to violate an
established public policy. That relationship
does not exist among fellow employees.
Id. at 490-91 (citations omitted).
While the court recognized that an employee can be liable
for his/her own torts, the court reasoned that in
"determin[ing] whether an employee has committed tortious
conduct in a personal capacity, the elements of the alleged
tort determine whether such a duty exists. . . . [T]he elements
of the particular tort determine who is subjected to
liability." Id. at 491.
In the case of the tort of wrongful discharge,
only an employer can discharge an employee.
When a supervisor acts to discharge an employee,
he or she is acting solely in his or her
representative capacity for the employer. There
is no duty owed by the supervisor in a personal
capacity to the employee.
Id.
Similarly, in Physio GP, Inc. v. Naifeh, 306 S.W.3d 886
(Tex. App. 2010), the Texas Court of Appeals rejected the
application of agency principles. The court recognized that
"[t]he employment relationship is the source of the duty in
17
wrongful discharge torts" and that relationship "exists only
between the employer and employee, not between two employees,
even when one of those employees is a supervisor or even the
owner." Id. at 888.
Only the employer has the power to hire and
fire, and supervisors merely exercise that power
on the employer's behalf. Corporate employees
cannot, in their personal capacity, wrongfully
discharge an employee because they have no
personal authority to fire an employee.
Id. at 888-89 (citations omitted).
Nevertheless, the majority answers the restated certified
question affirmatively in a situation when the employee who
engaged in the wrongful conduct was also the individual who
participated in the termination on behalf of the employer. In
doing so, the majority focuses on the wrongful conduct rather
than the wrongful discharge itself. Indeed, the majority
states that "[i]n a wrongful discharge case, the tortious act
is not the discharge itself."
In my view, this analysis overlooks the first element of
the tort, the legal duty. 2 That duty, as I have already
2
In Jasper v. H. Nizam, Inc., 764 N.W.2d 751 (Iowa 2009),
on which the majority relies, the court identified the
following as the elements of the tort of wrongful discharge:
(1) [E]xistence of a clearly defined public
policy that protects employee activity; (2) the
public policy would be jeopardized by the
discharge from employment; (3) the employee
engaged in the protected activity, and this
conduct was the reason for the employee’s
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explained, is to refrain from discharging an at-will employee
for reasons that violate public policy. An individual
employee, no matter whether he/she is the owner, manager,
supervisor, or director of the corporate employer, cannot
breach that duty. We must not forget that this certified
question asks about the common law tort of wrongful discharge,
not some other tort such as assault and battery or intentional
infliction of emotional distress. The elements of the tort at
issue dictate who can be subjected to liability.
Our cases holding corporate officers individually liable
for their tortious conduct are not dispositive because they
presuppose that a corporate officer is capable of committing
the tort in question. As the district court stated, "that is
precisely the question with which the Court is concerned."
VanBuren, 728 F. Supp. 2d at 795. For example, in Miller v.
Quarles, 242 Va. 343, 410 S.E.2d 639 (1991), this Court held
that a corporate principal and its agents were jointly liable
"for the agent's negligent performance of his common-law duty
of reasonable care" under the particular circumstances alleged.
Id. at 347, 410 S.E.2d at 642. There, the agent had a common
law duty, which he breached, and the corporate principal was
discharge; and (4) there was no overriding
business justification for the termination.
Id. at 761. Like the majority's analysis, these elements
mistakenly focus on the employee's "protected activity" rather
than the employer's act of discharging the employee. Id.
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jointly liable under the theory of respondeat superior. Id. at
347-48, 410 S.E.2d at 642. Likewise, in PTS Corp. v. Buckman,
263 Va. 613, 561 S.E.2d 718 (2002), the statute at issue, Code
§ 8.01-40(A), imposed liability upon "the person, firm, or
corporation" using an individual's name without written consent
for advertising or trade purposes. Id. at 622, 561 S.E.2d at
723. For that reason, we held that the corporate officers,
acting as agents of the corporate defendant, could be held
liable for their conduct. Id.
These cases illustrate the basic principle that a
corporate officer is liable for his/her tortious conduct when
he/she, as an individual, has a legal duty to another
individual who stands in a particular relationship to the
corporate officer. As stated previously, when determining
whether an employee is liable in a personal capacity, the
elements of the particular tort at issue must be examined.
Those elements determine who is subjected to liability. See
Schram, 934 P.2d at 491. The majority fails to account for
both what a tort is as a general matter and what this
particular tort is by completely ignoring the employer-employee
relationship at issue, the duty that arises from that
relationship, and how such duty can be breached. In other
words, the majority does not address the specific elements of
the common law tort of wrongful discharge.
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I do not sanction the alleged behavior of the defendant,
Dr. Stephen A. Grubb, and I understand the consequences of the
fact that VanBuren's employer was a Virginia limited liability
company. Those factors, however, do not justify expanding what
has been until today a "narrow" exception to the employment-at-
will doctrine. See Lockhart, 247 Va. at 104, 439 S.E.2d at
331. The majority cites policy reasons for the expansion of
this narrow exception and states that "[e]mployer-only
liability would be insufficient to deter wrongful discharges."
Deterrence of wrongful discharges in violation of public policy
is a laudable goal but cannot change the fact that an
individual employee is incapable of committing the tort of
wrongful discharge. Moreover, such policy determinations are
for the General Assembly, not this Court.
For these reasons, I respectfully dissent and would answer
the restated certified question in the negative.
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