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Robinson v. Army

Supreme Court of Virginia

October 27, 2016



         PRESENT: All the Justices



         Frances L. Robinson ("Robinson") appeals from the Circuit Court of Prince William County's final order granting summary judgment in favor of the Salvation Army and Joel DeMoss (collectively, "the Salvation Army") and dismissing Robinson's claim of common law wrongful termination for refusing to commit fornication (Code § 18.2-344). On appeal, Robinson asks this Court to reverse the decision of the trial court, find that Code § 18.2-344 provides a valid basis for stating a wrongful termination claim, and remand the case for further proceedings.

         I. BACKGROUND

         Robinson was an at-will employee of the Salvation Army for three years, until she was fired in June 2012. Robinson thereafter filed a wrongful termination suit alleging that she was terminated for refusing requests from DeMoss, her store manager, to engage in fornication. Robinson alleged DeMoss "regularly made inappropriate comments when he was alone with [her]." Robinson also alleged DeMoss inappropriately inquired about her romantic life; suggested he wanted to sleep at her home; asked whether she was a "freak" or wanted to "freak" with him; commented on her cleavage; made hand gestures indicating he wanted to slap Robinson on the buttocks; and told employees that Robinson was "prime rib, " had let him "nibble on her ear, " and made comments to Robinson about another female employee's attendance at a party commenting that "the only open thing[s]" at a party "were [the employee's] legs." Robinson played secret recordings of her conversations with DeMoss to Evelyn Sears, the Human Resources officer. Shortly thereafter, Robinson was terminated without explanation.

         In its motion for summary judgment, the Salvation Army asserted Robinson could not prove she was fired for refusing to commit a violation of Code § 18.2-344 because the Court ruled that statute was unconstitutional in Martin v. Ziherl, 269 Va. 35, 42-43, 607 S.E.2d 367, 370-71 (2005). In response, Robinson argued that there remained a factual dispute as to whether DeMoss conditioned her employment on having sex with him and, therefore, impliedly offered her a continuing paycheck in exchange for sex. She contended that the fornication statute remained viable as a basis for her common law wrongful termination claim, despite the holding in Martin.

         The trial court granted the motion for summary judgment and dismissed Robinson's amended complaint with prejudice, holding:

Termination of employment for refusing to engage in sexual activity in violation of [Code § 18.2-344] was at one time grounds for a Bowman[1] claim. However, the statute has since been held unconstitutional by the Supreme Court of the United States and by the Supreme Court of Virginia. Lawrence v. Texas, 539 U.S. 558 (2003); Martin v. Ziherl, 269 Va. 35, 607 S.E.2d 367 (2005). Martin explicitly struck down [Code] § 18.2-344, and implied that sexual activity can be outlawed only if it "involve[s] minors, non-consensual activity, prostitution, or public activity." 269 Va. at 42, 607 S.E.2d at 371 (citing Lawrence, 539 U.S. at 564).
[Robinson's] theory here is similar: while unconstitutional, the statute is still on the books, and accordingly, still represents the public policy of Virginia. However, I view the question differently: is it the public policy of Virginia to enforce an unconstitutional statute, by classifying -- as a tort -- the refusal to engage in conduct barred by an unenforceable statute, in light of the Supreme Court of Virginia holdings that parties have a right to engage in that same conduct? I do not find that it is. As a result, the claim based on the alleged request to violate [Code] § 18.2-344 is dismissed for this reason.

(Some citations omitted). This appeal followed.

         II. ANALYSIS

         Despite our holding in Martin, Robinson asks the Court to find that Code § 18.2-344 provides the basis for a valid public policy ground to support her Bowman claim for wrongful termination. We disagree.

         The Court has recognized an exception to the employment-at-will doctrine for a violation of public policy. Bowman v. State Bank of Keysville, 229 Va. 534, 331 S.E.2d 797 (1985). "[I]n our previous cases dealing with Bowman-type exceptions to the employment-at-will doctrine, this Court has consistently characterized such exceptions as 'narrow.'" City of Virginia Beach v. Harris, 259 Va. 220, 232, 523 S.E.2d 239, 245 (2000) (quoting Lawrence Chrysler Plymouth Corp. v. Brooks, 251 Va. 94, 98, 465 S.E.2d 806, 809 (1996)). One such exception specifically recognized in Bowman ...

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