The Supreme Court of Virginia found that an individual supervisor can be sued for wrongful discharge in VanBuren v. Grubb (click here for opinion). The Court held that Virginia law recognizes a common law tort claim of wrongful discharge in violation of public policy against an individual who committed the wrongful act(s) that violated public policy and who participated in the wrongful firing, but who was not the plaintiff’s actual employer.

In creating this new standard of liability, the Court decided that the tortious act is not solely the act of firing itself but includes the wrongful reasons behind it. The discharge becomes tortious due to the wrongful reasons behind it. Thus, it is appropriate to hold the supervisors who committed the wrongful acts liable. The court reasoned that holding the supervisors personally liable is the only way to punish those supervisors who leave their employment the minute their employer business is sued.

Angela VanBuren was a nurse at Virginia Highlands Orthopedic Spine Center, LLC. Her supervisor, Dr. Stephen Grubb, allegedly sexually harassed her for a period of three years, despite her telling Grubb that his advances were unwelcome. After VanBuren refused to leave her husband for Grubb, Grubb fired her, without providing any other reason for the termination. Grubb provided VanBuren with one month’s severance pay to keep quiet about the harassment.

VanBuren sued Grubb and Virginia Highlands for wrongful discharge. She also sued just Virginia Highlands for gender discrimination under Title VII. After the suit was filed, Grubb left the practice he started and joined another practice.

Virginia follows the employment-at-will doctrine. However, in Bowman v. State Bank of Keysville, it was held that termination of an employee in violation of the policy underlying a statute will, in narrow instances, give rise to a common law cause of action for wrongful discharge. 229 Va. 534 (1985). According to the Court, VanBuren’s claim fell under one such narrow exception previously recognized by the Court: discharge based on the employee’s refusal to engage in a criminal act, the criminal act here, according to VanBuren, being adultery (which is still illegal in Virginia).

VanBuren alleged that she was fired because she would not give in to Grubb’s unlawful demands. The Court held that because Grubb was an owner of the company as well as her supervisor, if what VanBuren alleged Grubb did was true, then Grubb should be held liable like he would if he had committed any other tort.

If the individual who committed the tort leaves his place of employment as soon as a lawsuit is filed, as Grubb did here, then “[e]mployer-only liability would be insufficient to deter wrongful discharges . . . . 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.” Op. at 11.

This case is important for Virginia employers because it means that owner-supervisors cannot always be shielded by a limited liability entity, such as a corporation.