FRANCES L. ROBINSON
SALVATION ARMY, ET AL.
THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY Craig D. Johnston,
All the Justices
E. POWELL, JUSTICE.
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.
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.
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.
trial court granted the motion for summary judgment and
dismissed Robinson's amended complaint with prejudice,
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 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.
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.
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 ...