Robinson v. Salvation Army
791 S.E.2d 577, 292 Va. 666, 41 I.E.R. Cas. (BNA) 1307 (2016)
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Rule of Law:
A statute that has been declared unconstitutional as applied to private, consensual conduct between adults can no longer serve as the public policy basis for a common law wrongful termination claim when an employee is discharged for refusing to engage in that conduct.
Facts:
- Frances L. Robinson was an at-will employee of the Salvation Army for three years.
- Robinson's store manager, Joel DeMoss, allegedly made regular inappropriate comments to her when they were alone, including inquiring about her romantic life and suggesting he wanted to sleep at her home.
- DeMoss also allegedly asked Robinson if she wanted to "freak" with him, commented on her cleavage, and made hand gestures indicating a desire to slap her buttocks.
- Robinson secretly recorded conversations with DeMoss and played them for Evelyn Sears, the Human Resources officer.
- Shortly after reporting the conduct to Human Resources, the Salvation Army terminated Robinson's employment in June 2012 without providing an explanation.
Procedural Posture:
- Frances L. Robinson filed a wrongful termination suit against the Salvation Army and Joel DeMoss in the Circuit Court of Prince William County (trial court).
- The Salvation Army filed a motion for summary judgment, arguing that the fornication statute underpinning Robinson's claim was unconstitutional.
- The trial court granted the motion for summary judgment and dismissed Robinson's complaint with prejudice.
- Robinson, as appellant, appealed the trial court's judgment to the Supreme Court of Virginia.
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Issue:
Does a statute criminalizing fornication, which has been held unconstitutional as applied to private, consensual conduct between adults, still provide a valid public policy basis for a wrongful termination claim when an employee is fired for refusing to engage in such conduct?
Opinions:
Majority - Justice Cleo E. Powell
No. A statute criminalizing fornication that has been found unconstitutional as applied to private, consensual activity between adults cannot form the public policy basis for a wrongful termination claim. Virginia recognizes a narrow public policy exception to the employment-at-will doctrine for employees fired for refusing to commit a criminal act (a 'Bowman' claim). While the court previously recognized such a claim based on the fornication statute, Code § 18.2-344, in Mitchem v. Counts, that was before the court's decision in Martin v. Ziherl. In Martin, applying the U.S. Supreme Court's reasoning from Lawrence v. Texas, the court held that Code § 18.2-344 is unconstitutional as it infringes on the due process right to privacy for private, consensual sexual conduct between adults. Because the act Robinson was allegedly pressured to perform is no longer a crime under a constitutionally valid application of the statute, refusing to perform it cannot support a wrongful termination claim. The statute remains valid only for conduct involving minors, non-consensual activity, prostitution, or public fornication, none of which were alleged by Robinson.
Analysis:
This decision clarifies the direct impact of a statute's partial invalidation on common law tort claims. By holding that an unconstitutional statute cannot supply the public policy for a wrongful termination claim, the court reinforces that the Bowman exception is narrow and must be tethered to currently valid and enforceable laws. The ruling prevents litigants from relying on the 'ghost' of a statute that, while still on the books, has been constitutionally neutered as applied to their specific circumstances. This holding solidifies that the public policy exception is not based on moral disapprobation but on an employee's refusal to violate a positive command of law that the state can legitimately enforce.
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