In the list of petitions granted for December 20, the Virginia Supreme Court agreed to hear the case of Mansoor v. County of Albemarle, which presents the very interesting question, as to whether the trial court "erred as a matter of law in ruling that no claim may be stated in Virginia for constructive discharge in violation of public policy." In other words, can the employer be liable for running off the employee, with an intent that violates the public policy of the Commonwealth, instead of firing him or her outright, with such illegal motivation?
The trial court was correct that there is no Virginia Supreme Court case law on point, in my opinion, while "[t]he circuit courts have pretty much been evenly split on the question of whether a constructive discharge claim can be used in a wrongful termination case in the Commonwealth of Virginia." Gochenour v. Beasley, 47 Va. Cir. 218, 221 (Rockingham County, 1998).
The Mansoor case could answer one of the several unanswered questions about the law of wrongful discharge in Virginia, despite two decades of litigation. One reason why there are so many unanswered questions is that the tort of wrongful discharge is entirely judge-made, and so we can only learn the answers bit by bit as the right cases percolate through the courts, which I think is a good reason why the Court should not have recognized the new cause of action in the first place. The legislature can and does create specific statutory wrongful discharge claims wherever it sees fit to do so. On the federal side, there has been 40 years of give and take between the courts and the Congress, as the law under various employment discrimination statutes has been shaped and reshaped. The many doctrines that have evolved under the federal law, including the McDonnell-Douglas proof scheme and recognition harassment and constructive discharge as forms of unlawful discrimination, are familiar to practitioners (while less familiar to most state court judges), but these concepts may have no particular relevance to development of the state law tort of wrongful discharge, in which the courts have a fundamentally different task, since they are not interpreting legislative intent.
Thus, the Supreme Court refused to apply McDonnell-Douglas: "Given the Commonwealth's strong commitment to the employment-at-will doctrine, and because we conclude that Virginia's procedural and evidentiary framework for establishing a prima facie case is entirely appropriate for trial of wrongful discharge cases, we reject plaintiff's invitation to adopt the McDonnell Douglas indirect, burden shifting idea. The McDonnell Douglas outline, refined in later cases, was adopted by the Supreme Court in the context of Title VII actions under the federal Civil Rights Act. There was no focus, as here, on the employment-at-will doctrine." Jordan v. Clay's Rest Home, Inc., 253 Va. 185, 192, 483 S.E.2d 203, 207 (1997).