In Swain v. Adventa Hospice, Inc., Chief Judge Samuel Wilson of the W.D. Va. granted the defendant employer's motion to dismiss the plaintiff's wrongful discharge claim. The plaintiff claimed that she was discharged because after she corrected the medication for a patient, saving the patient's life, the employer was embarrassed and fired her.
Judge Wilson explained that there are only three scenarios in which wrongful discharge claims are allowed in Virginia: (1) when an employer violated a policy enabling the exercise of an employee’s statutorily created right; (2) when the public policy violated by the employer was explicitly expressed in the statute and the employee was clearly a
member of that class of persons directly entitled to the protection enunciated by the public policy; and, (3) when the discharge was based on the employee’s refusal to engage in a criminal act.
Judge Wilson made three points about the plaintiff's claim: (1) "without a refusal to perform a unlawful act element, very little would focus the factual inquiry, and the employment at-will doctrine would lose considerable vitality, (2) "where the unlawful act alleged is a failure to conform to a standard of care or reach an appropriate professional judgment, there is no bright line to guide and limit the employer – a hallmark of the public policy exception," and (3) "when the challenged decision falls within the professional’s or expert’s domain, not only do bright lines informing the employer’s decision disappear, but employment litigation also digresses."