Ingleson v. Burlington Medical Supplies, Inc. et al

Filing 20

OPINION AND ORDER granting in part and denying in part 8 Motion to Dismiss for Failure to State a Claim. The Court DENIES Defendant's Motion to Dismiss Plaintiff's claims for retaliation based on sex discrimination in violation of Title VII and wrongful discharge in violation of public policy on the basis of aiding and abetting adultery. The Court GRANTS Defendants' Motion to Dismiss Plaintiff's claim for negligent retention. Therefore, Plaintiff's claim regarding negligent retention will be DISMISSED WITHOUT PREJUDICE. Signed by District Judge Mark S. Davis and filed on 10/22/15. (tbro)

FILED
UNITED

STATES

EASTERN

DISTRICT

DISTRICT

OF

COURT

VIRGINIA

Newport News Division

CLERK, US. UIS1MIC1 COURT
VICTORIA

G.

I

INGLESON,

I

K.VA

Plaintiff,
Civil

v.

BURLINGTON MEDICAL

Action No.

4:15cv31

SUPPLIES,

INC.

and

DENNIS

F.

SWARTZ,

Defendants.

OPINION AND

This
Medical
Motion

matter

Supplies,
to

Plaintiff
No.

seek

to

under

the

("BMS")

ECF

Victoria

4,

before

Inc.

Dismiss,

"Defendants")

ECF

is

Court
and

dismiss

Ingleson's

Defendants

and

Swartz's

Swartz

following

("Plaintiff")

(collectively

three

Amended

of

Complaint,

(1)

VII;

(2)

negligent

sex

retention;

violation of public policy.

parties,

discrimination

and

(3)

Procedure

counts

failure to state a claim upon which relief can be granted:
on

Civil

("Swartz")

for

based

of

Burlington

12(b) (6),

retaliation

Rule

the

on

Dennis

BMS

No.

Federal

ORDER

in

violation

wrongful

of

Title

discharge

Having considered the briefs of

the motion is now ripe for decision.

in
the

I.

Plaintiff

FACTUAL AND

alleges

PROCEDURAL BACKGROUND

that

she

began

working

fabric cutter in its factory in April 2011,
the

office

to

work

September 2011.
2012,

as

an Order

for

BMS

as

a

and she was moved to

Entry Specialist

Am. Compl. H 10, ECF No. 4.

in or

around

Beginning in April

Plaintiff began experiencing unwanted sexual advances and

harassment

HH 11,

from

12.

Swartz,

the

Plaintiff

Owner

received

and

Chairman

frequent

of

BMS.

unwanted

Id.

sexually

suggestive comments and behavior from Swartz between April 2012

and

her

termination

Plaintiff
behavior

states
and

supervisor,

on

June

that

that

she

she

14,

2013.

repeatedly

reported

Troy Cutchin,

to

the

Jernigan did nothing

Amended
to

make

harassment did not stop.
Plaintiff

written up

complained

Swartz's

Complaint,
Swartz's

Cutchin

for improper use

of

to

behavior

14,

Swartz's
to

Mr.

Cutchin

harassment

and

Ms.

stop and

the

Instead, shortly after

in November

2012,

she

company equipment because

Id.

Plaintiff

talking

factory

again

worker

on

written

the

up

factory

insisted on the write up."

in

her

and his replacement,

Swartz was adamant about her being written up."
was

26.

Id. KH 13, 15, 16, 21.

Id. HH 17, 22.

to Mr.

HH 12,

objected

in November 2012,

Roxanne Jernigan, in February 2013.
According

Id.

May

floor

2013

because

Id. HH 23-24.

for

"Mr.

was

"Mr.

UU 18-19.

Swartz

to

a

had

Plaintiff was finally

terminated by Ms.
had

told

her

Jernigan on June 14,

to

fire

2013,

[Plaintiff],"

reason other than he did not want

and

because "Mr.

"Mr.

[Plaintiff]

Swartz

Swartz

gave

working at

no

BMS."

Id. H 26.
Plaintiff filed her initial Complaint against BMS,

and

Elaine

filed

Swartz

her

on April

Amended

Elaine Swartz)

Complaint

alleges

based

sex

retaliation

VII;

(3)

four

against

based

on

sex

BMS

(1)

in

retention;

and

and

4.

violation

and

See Am.

work

filed

a

Title

violation

wrongful

Compl.

negligent retention,
2015.

ECF No.

Dismiss

of

Title

Plaintiff's

Id.

1) 36.

retaliation,

claims on June

17,

8.

complaint

must

P. 8(a) (2) .

complaint

in

Plaintiff

STANDARD

contain

"a

OF

REVIEW

short

and plain

statement

the claim showing that the pleader is entitled to relief."

R. Civ.

(2)

discharge

actions,

and wrongful discharge

II.

A

to

VII;

Due to Defendants'

discriminatory

Motion

(omitting

environment

experienced various physical and emotional symptoms.
Defendants

Plaintiff

Swartz

of

in

(4)

1.

Plaintiff's Amended

hostile

discrimination

violation of public policy.
conduct

ECF No.

ECF No.

claims:

discrimination

negligent

alleged

2015.

on May 11, 2015.

Complaint
on

16,

Swartz,

fails

"to

of

Fed.

A motion to dismiss may be granted when a
state

a

claim

upon

which

relief

can

be

granted."

Fed. R. Civ.

P. 12(b)(6).

A complaint fails to state

a claim if it does not allege "enough facts to state a claim to

relief

that

Twombly,
be

is

plausible

550 U.S.

detailed,

on

544,
must

it

570

include

to

662,

678

a

right

550

U.S.

raise

Twombly,

assertions"

suffice.

A

(2009).
to
at

devoid

Id.

at 557;

motion

to

above
A

complaint'

and

plaintiff.'"

Cty.,

the

complaint

"further

Ashcroft,

true all of

than

'draw all

factual

556 U.S.

tests

the

Volunteer

Fire

inferences,

Iqbal,

that

level."

tenders

"naked

will

not

a

complaint

Inc.,

not bound by
"need

unreasonable

not

Dep't

637 F.3d 435,

the

v.

the

Montgomery

440

(4th Cir.

alleged is presumed,

"legal

accept

conclusions,

in favor of

(quoting E.I, du Pont de

courts

and

speculative

inferences

district

facts"

v.

the-

at 678.

Although the truth of the facts

the

Ashcroft

enhancement"

2011)).

from

v.

and a district court "'must

reasonable

Kolon Indus.,

are

unadorned,

sufficiency of

684 F.3d 462, 467 (4th Cir. 2012)
v.

Corp.

the factual allegations contained in the

Kensington

Nemours & Co.

an

accusation."

without resolving factual disputes,
accept as

Atl.

Though a complaint need not

"more

relief

dismiss

Bell

"Factual allegations must be enough

555.

of

face."

(2007).

defendant-unlawfully-harmed-me

556 U.S.

its

as

conclusions
true

or arguments."

drawn

unwarranted

E.

Shore

Mkts.,

Inc.

v. Assocs.

Ltd.

P'ship,

213 F.3d 175,

180

(4th Cir.

2000).

III.

A.

Plaintiff
employment at
sexual

alleges

BMS

advances

DISCUSSION

Retaliation

that

she

was

terminated

from

in retaliation for her rejection of

and

complaints

about

directly and to her supervisors.
pled multiple reasons

Swartz's

her

Swartz's

behavior

to

him

BMS argues that Plaintiff has

for her termination,

and,

because one of

the reasons alleged does not constitute protected activity,

she

cannot claim that her complaints were the "but-for" cause of the

alleged retaliation.

The

elements

of

a prima

facie

claim

"(1) engagement in a protected activity;

for

(2)

retaliation are:

adverse employment

action; and (3) a causal link between the protected activity and

the employment action."

Coleman v.

F.3d

187,

2010)

F.3d

463,

190

(4th

469

(4th

Fontainebleau

Corp. ,

banc).

VII's

actions

"Title

that

Cir.
Cir.

786

Md.

(citing

2004));

F.3d

Court

also

281

against'

an

360

Shalala,

Boyer-Liberto

(4th

antiretaliation provision

'discriminate

626

v.

Mackey

see

264,

of Appeals,

Cir.

2015)

forbids

employee

v.

(en

employer

(or

job

applicant) because [s]he has 'opposed' a practice that Title VII
forbids

or

has

'made

a

charge,

testified,

assisted,

or

participated
hearing.'"

in'

a

Title

VII

'investigation,

Burlington N. & Santa Fe Ry.

53, 59 (2006)

proceeding,

Co. v. White,

(quoting 42 U.S.C. § 2000e-3).

or

548 U.S.

Thus, "[e]mployees

engage in protected oppositional activity when,

inter alia, they

'complain to their superiors about suspected violations of Title
VII.'"

Boyer-Liberto,

Reg'l Med.

The

Ctrs.

Inc.,

United

786

F.3d at 281

333 F.3d 536,

States

Supreme

(quoting Bryant v. Aiken

543-44

Court

(4th Cir.

recently

2003)).

addressed

the

evidentiary standard necessary to establish causation in a Title
VII

retaliation

claim

Medical Center v.

in

Nassar,

University

133

Court noted that "[t]he text,

demonstrate
§ 2000e-3(a)

was

a

that

but-for

employer,"

making

of

than

the

the

Southwestern

(2013) .

2 517

a

establish that his

cause

rather

Ct.

Texas

The Supreme

structure and history of Title VII

a plaintiff

must

S.

of

or her protected activity

alleged

more

retaliation claim under

adverse

lenient

applied to Title VII discrimination claims.

action

causation

by

the

standard

Id. at 2534

Thus,

a plaintiff must plead sufficient facts to plausibly state that
her

protected

activity

was

the

but-for

cause

of

the

adverse

employment action of which she complains.

A plaintiff is not required to plead facts that constitute

a prima facie case in order to survive a motion to dismiss.
Miller v.

Carolinas Healthcare Sys.,

561 F. App'x 239,

241

See
(4th

Cir.

2014)

(citing Swierkiewicz

510-15 (2002)).
that

must

met

at

Swierkiewicz,

534

U.S.

"facts

relief."
2009)

332,

346-47

of

Civil

trial,
at

not

510.

sufficient

Harman v.

Cir.

to

Unisys

(4th Cir.

Procedure

statements,
sufficient."

8(d) (2),

Fed.

Instead,

in

the

R.

a

Civ.

356

Supp.

2d

requirement

plaintiff

1

490,

F.

506,

App'x

a

P.

if

when

to

638,

640

(4th

458

F.3d

Federal

Rule

under

alternative

makes
any

8(d)(2).

her

Corp.,

Res.

party

See

need only

entitling

party may allege

sufficient

alternative

retaliation claim.1
F.

U.S.

requirement.

claim

Furthermore,

"If
is

a

applied in the retaliation context.
plead

534

a plaintiff

Alternative

2006)).

pleading

pleading

Corp.,

statements.
the

a

state

(citing Jordan v.

hypothetical

Sorema N.A.,

The prima facie case is an evidentiary standard

be

allege

v.

Therefore,
alleging

alternative

one

This

or

of

rule

them
has

is

been

a plaintiff may
causation

in

a

See Fagan v. U.S. Carpet Installation, 770
496-97

to prove

"but

(E.D.N.Y.
for"

2011)

(noting

causation does

from pleading in the alternative,

not

that

the

foreclose

instead,

"all

a

that

Defendants incorrectly rely on the Dismissal Order in Laughton v.

Hampton Roads Shipping Assoc, No. 2:14cr427, ECF No. 32, for the
proposition that Plaintiff may not plead more than one reason for her
termination in her retaliation claim.
In Laughton, the plaintiff's
claim was dismissed because he failed to plead that he engaged in any
protected activity, not that he improperly alleged multiple reasons
for

retaliation.

The

Dismissal

Order

does

not

address

the

presented in this case, and as such, Laughton is inapplicable.

issue

is

required

complaint

at

this

contain

conclusion that

stage

of

sufficient

'but

for

the

proceedings

facts

[their]

to

age

is

[the]

'the

plausible

make

that

the

Plaintiff [s]

still be employed.'" See also Delaney v. Bank of Am.

F.3d 163, 169

(2d Cir.

2014)

(quoting Fagan,

would

Corp.,

770 F. Supp.

766

2d at

496) .

Plaintiff

has

adequately

alleged

that

BMS

retaliated

against her for opposing Swartz's inappropriate behavior.
minimum,
she

Plaintiff

objected

Defendants

has

to

argue

alleged that

Swartz's

that

inappropriate

Plaintiff's

are not protected activity,

she was

direct

At a

terminated because
sexual

objections

advances.

to

Swartz

and that such an alternative reason

for her termination undermines her obligation to allege but-for

causation.

However,

the Court need not resolve the legal issue

of whether Plaintiff's direct objections to Swartz are protected

activity

because

alternative

it

means

complaints made

determines
of

to her

demonstrate causation.
sufficient

that

sufficient facts

that

oppositional

direct

has

protected

supervisors)

that

alleged

activity

Amended

an

(the

may plausibly

At this stage of the proceedings,

Plaintiff's

to

Plaintiff

Complaint

it is

contains

state a claim "plausible on its face"

that

but for her opposition to Swartz's behavior she would still be

employed.

See

Nassar,

133

S.

Ct.

at

2532-33

(noting

that

retaliation claims

"require proof that the unlawful retaliation

would not have occurred in the absence of the alleged wrongful
action

or

actions

motion to dismiss

of

the

employer").

Plaintiff's

Therefore,

Defendants'

claim for retaliation based on sex

discrimination in violation of Title VII

is DENIED.

B. Negligent Retention

Plaintiff

alleges,

in a pendant

state

law claim,

that BMS

knew or should have known that Swartz was dangerous and likely

to

harm

female

employees,

but

despite

this

knowledge,

BMS

retained Swartz in his position and failed to protect the female
employees

of

position,

Plaintiff

symptoms.

BMS.

As

a

result

of

retaining

experienced various

Swartz

emotional

in

his

and physical

BMS argues that Plaintiff cannot make out a claim for

negligent retention,

because she

failed to plead that Swartz's

retention caused her serious and significant physical injury.
The Commonwealth of Virginia has recognized the independent
tort of negligent retention.

See Se. Apartments Mgmt.,

Jackman,

257

Va.

256,

260

(1999);

Philip

Emerson,

235

Va.

380,

401

(1988) .

The

retention

is

"similar

negligent hiring,

337,

337

(Va.

Cir.

though

Inv'rs Title

Ct. 2005)

distinct"
Ins.

Co.

v.

(Henry County,

Morris,

tort
from

of
the

Larson,

Va.),

68

Inc.
Inc.

v.
v.

negligent
tort
Va.

of
Cir.

and "is based

on the principle that an employer ... is subject to liability

for harm resulting from the employer's negligence in retaining a
dangerous

employee who

the

employer knew or

was dangerous and likely to harm" others.
Inc. , 257

Va.

386 F.3d 623,

at

260-61;

629-30

see

also

(4th Cir.

Se. Apartments Mgmt.,

Inc.

No.

2014)

an

I:14cv314,

Servs. , Inc.,

(relying on the test from

2014

WL

Zaklit v. Glob.

3109804,

at

*13

Linguist Sols.,

(E.D.

Va.

July

8,

("The test is whether the employer has negligently placed

'unfit

person

in

an

employment

situation

unreasonable risk of harm to others.'"
Mart Stores E.,
Va.

Def.

to vacate a grant of summary judgment

in a negligent retention case);
LLC,

known

Se. Apartments Mgmt.,

Blair v.

2004)

should have

Nov.

1,

LP,

No.

3:10cv669,

involving

(quoting Morgan v.

2010 WL 4394096,

at

*3

an
Wal-

(E.D.

2010))).

To make out a claim for negligent retention,

Plaintiff must

plead that she suffered an adequate level of "harm" as a result
of

Swartz's

actions.

definitively stated that
out

a

claim

for

The

Virginia

physical

negligent

Supreme

Court

has

not

injury is necessary to make

retention,

but

other

courts

have

construed Virginia law to require Plaintiff to allege that she
suffered serious and significant physical
claim for negligent retention.

479 F. App'x 550,
Supreme

Court

See Elrod v. Busch Entm't Corp.,

551 (4th Cir.

"generally

injury to maintain a

2012)

recognizes
10

(noting that the Virginia
that

a

plaintiff

may

not

recover

for

negligence

emotional

without

injury

proof

resulting

of

from

contemporaneous

the

defendant's

physical

injury,"

and therefore affirming the district court's denial of amendment

as

futile

allege

a

such

contemporaneous

12cv560,
is

because

physical

2013 WL 4040444,

2014

retention

injury);

*3

of

negligent

3109804,

WL

at

element

necessary

Zaklit,

negligent

at

*14

inadequate

make

Griffith

v.

Wal-Mart

5465501,

at

*11

Victory

negligent

hiring

assaulted,

distress

were

retention) ;

Baptist

case

sexually

Va.

where

to

Title

for

24,

see

also

allegations

of

a

was

child

that
make

(relying
Va.

Co.,

2012

on

WL

repeatedly

J.

v.

(1988),

206

allegations
out

retention);

6:12cvll,

2012)
236

Ins.

No.

"physical injury

that

No.

Church,

to

not

Coleman,

negligent

L.P.,

Aug.

explain

insufficient
Inv'rs

E.,

did

and pain and suffering were

claim

Stores

(W.D.

Tabernacle

a

v.

retention");

(finding

emotional distress,

out

Ali

(finding that

mental anguish,

to

amendment

a

raped

and

of

emotional
negligent

a

claim

for

68

Va.

Cir.

at

33 7

(sustaining a demurrer on a negligent retention claim because a

plaintiff

must

Courtney v.

Ct.

1998)

negligent

allege

Ross

and

Stores,

(Fairfax

prove

Inc.,

County,

physical

45

Va.)

retention claim where

11

Va.

injury).

Cir.

(denying

no physical

429,

a

431

But

see,

(Va.

Cir.

demurrer

injury

on

a

took place

but

employer was

aware that employee engaged in discriminatory

conduct before employee verbally abused the plaintiff).

Additionally,

Virginia law regarding what

is necessary to place a defendant on notice
"dangerous

employee

. . . likely

duty for the employer not to
is

instructive

to

harm,"

retain said

in determining the

type

conduct

that it employs
and

thus

creates

a
a

"dangerous employee,"

level of

injury necessary in

order to make out a claim for negligent retention.

employee's bad acts,

of

unrelated to the harm at

Notice of an

issue,

or minor

alerts to an employee's unrelated bad character or ill temper,
are

not

sufficient

to

place

employee's dangerousness.

a

See

defendant

on

notice

Se. Apartments Mgmt.,

of

the

Inc.,

257

Va. at 260 (noting that "suspicion" of alcohol or drug problems,

employee's possible attraction to single women, and reports that

employee was "obnoxious" were not sufficient to put defendant on

notice that employee was likely to sexually assault tenants);
Victory Tabernacle Baptist Church,

the

Victory

employee

Tabernacle

knew,

or

recently

been

convicted

had

assault and was

Cir.

at

236 Va.

337

on probation) ;

(explaining

should

at

207

have
of

known,

the

that

aggravated

Inv'rs Title

that

(noting that

Virginia

Ins.

Co.,

Supreme

the

sexual
68 Va.

Court's

language of "dangerous employee . . . likely to harm" indicates
that

"physical

injury

is

a

necessary
12

element

of

negligent

retention").

If it is the duty of an employer not to retain an

employee who
threat

of

poses

an

serious

unreasonable risk of

and

significant

harm involving the

physical

injury,

logic

dictates that any injury alleged to have occurred as a result of

violating such duty must be of
i.e.

the same character as

the employer had a duty not to

knew

or

should

have

known

the duty—

retain an employee that it

posed

a

threat

of

serious

and

significant physical injury and I suffered such an injury from
such employee.

language
[Se.

Ali,

'dangerous

2013 WL 4040444,

at *3

employee . . . likely

Apartments Mgmt.,

Inc.]

(" [T] he use of the

to

harm'

others

in

convinces this Court that physical

injury is a necessary element of negligent retention.").
Therefore,
other

based

courts,

and

upon
the

the

weight

Virginia

of

the

Supreme

authority

Court's

regarding an employer's duty not to retain a known
employee,"

see Se. Apartments

this Court finds

Mgmt.,

Inc.,

257

Va.

Court

because

dismisses

her

language

"dangerous
at 260-61,

that a plaintiff alleging negligent retention

must allege serious and significant physical harm.
this

Plaintiff's

allegations

of

claim

Accordingly,

for negligent

"various

retention

[post-harassment]

physical . . . symptoms including . . . headaches,

[and]

sufficiently serious and significant physical

are

not

to

maintain

from

her

negligent

retention
13

claim.

nausea"
injuries

Therefore,

Defendants'

motion

to

dismiss

Plaintiff's

claim

for

negligent

retention is GRANTED.

C. Wrongful Discharge

Plaintiff alleges,

in a pendant state law claim,

that her

termination violated the established public policies of Virginia
because she
demands

to

was

terminated for opposing and resisting Swartz's

commit

criminal

and abetting adultery.

acts,

namely

Defendants

fornication and aiding

argue

that

fornication and

aiding and abetting adultery are insufficient statutory bases to

support

Plaintiff's

statutes

prohibiting

logical extension,
Texas,

539

Swartz's

claim

U.S.

intercourse;"

and

wrongful

fornication,

were

558

behavior

of

and

(2)

included

a

Plaintiff

demand

Plaintiff

has

because:

arguably

to

not

has

adultery

by

v.

not

engage

pled

pled
in

that,

Plaintiff had consented to Swartz's sexual advances,

engaging

in

sexual

intercourse

with

Swartz

(1)

in Lawrence

found unconstitutional

(2003);

(3)

discharge

would

that

"sexual

even

if

the act of

have

been

"voluntary."

The

Commonwealth

employment-at-will
Sys.

Corp. , 247

doctrine

is

not

of

Virginia

doctrine,"

Va.

98,

absolute.

102

"strongly

Lockhart
(1994),

Virginia

v.
but

has

adheres

to

Commonwealth
application
recognized

a

the

Educ.

of

this

"narrow

exception" to the employment-at-will doctrine when discharge is
14

based

on

an

employee's

refusal

to

engage

VanBuren v. Grubb, 471 F. App'x 228, 233
Rowan

v.

Tractor

Supply

Co.,

263

Va.

in

a

criminal

(4th Cir. 2012)
209,

213

act.2

(citing

(2002)).

The

wrongful discharge exception was created because the "[Virginia]
General

Assembly

did

not

intend

that

the

employment-at-will

doctrine . . . serve as a shield for employers who seek to force

their

employees,

under

criminal activity."
To

establish

public

a

policy,

terminated;

(2)

the

threat

of

Mitchem v. Counts,

claim

for

Plaintiff

wrongful

must

discharge,
259 Va.

discharge

establish

to

engage

179, 190
in

that:

(2000).

violation

(1)

in

she

of

was

that her termination violated a public policy of

Virginia; and (3) there is a causal link between her termination
and the named public policy.

See VanBuren,

Plaintiff

statutes

cites

two

criminal

that

471 F. App'x at 233.
she

alleges

support

her claim for wrongful discharge in violation of public policy:
Va.

Code

§ 18.2-344,

prohibiting

fornication,

and

Va.

Code

§ 18.2-365, prohibiting adultery.

2
The Virginia Supreme Court recognized several circumstances that
fall within the "wrongful discharge" exception to the employment-atwill doctrine in Rowan v. Tractor Supply Co.,

263 Va.

209 (2002).

The

present facts give rise to only one of those instances, so the Court
will not address the other circumstances.

15

a. Virginia Public Policy: Fornication

Virginia's

statute

criminalizing

fornication

cannot

serve

as a foundation for Plaintiff's claim of wrongful discharge in
violation

of

Virginia

public

Supreme

policy.

Court

It

found

stated a claim for wrongful
engage

in fornication,

Mitchem,

259 Va.

affirmed

dismissal

basis

of

Inc. ,

711

F.3d

189.

of

401,

that

35

(2005),

See

Clause

of

Plaintiff

the

v.

Cir.

in

plaintiff

2000,

the

sufficiently

based on her refusal
Code

§ 18.2-344.

the

wrongful

2013) .

of

See

on

the

Ingalls

The

Va.

Indus.,

Fourth

Circuit

Code

§ 18.2-344,

was abrogated by Martin v. Ziherl,

found

that

Fourteenth

Va.

Code

Texas,

to

Fourth Circuit

discharge

Huntington

application

in Lawrence v.

cannot make

that,

in 2013,

for

Balas

(4th

Mitchem's

statute at issue

a

discharge

claim

409

which

that

However,

a

prohibiting fornication,
Va.

true

a crime under Va.

fornication.

determined

at

is

§ 18.2-344,

26 9

like

the

violated the Due Process

Amendment.

See

id.

out a claim for wrongful

Therefore,

discharge based

upon her alleged refusal to engage in fornication with Swartz.
b. Virginia Public Policy: Aiding and Abetting Adultery

Plaintiff,

wrongful
adultery.

however,

discharge
See

Fed.

based
R.

may

make

upon
Civ.

P.

her

an

alternative

refusal

8(d)(2).

to
"Laws

aid

claim

and

that

do

for

abet
not

expressly state a public policy, but were enacted to protect the
16

property rights,

personal freedoms,

health,

safety,

or welfare

of the general public, may support a wrongful discharge claim if
they further an

underlying,

established public

violated by the discharge from employment."
189

(internal

citations

recognized,

in

2012,

prohibiting

adultery

omitted).3

that

established public policy.
(citing

Mitchem,

259

Circuit

upheld

denial

discharge

claim

based

at

of

on

The

just

a

189) .

motion

public

259 Va. at
Circuit

criminal

statute

an

underlying,

471 F. App'x at 233-34

In

VanBuren,

to

policy

is

Fourth

such

See VanBuren,

Va.

Mitchem,

Virginia's

provides

policy that

dismiss

because

the

a

the

Fourth

wrongful

plaintiff

would have violated Virginia's prohibition against adultery if

she had submitted to her employer's persistent sexual advances.4
See id.

3
While rare, a claim for wrongful discharge for refusal to aid and
abet unlawful conduct may provide the foundation for a wrongful
discharge claim.
See Levito v. Hussman Food Serv. Co. Victory
Refrigeration Div., No. 89-5967, 1990 WL 1426, at *3 (E.D. Pa. Jan. 8,
1990) (allowing wrongful discharge claim for refusal to aid and abet a
kick-back

90CA0666,

scheme);

1992 WL

Cronk

161811,

v.

Intermountain

at *5

(Colo. App.

Rural

Apr.

Elec.

2, 1992)

Ass'n,

No.

(reviewing

jury verdict denying wrongful discharge claim for refusal to aid or
abet criminal violations and concealment of those violations).

4
issue

The constitutionality of
in VanBuren v.

Virginia's

adultery statute was not at

Grubb and the Fourth Circuit did not address

it.

The Virginia Supreme Court, in its 2005 opinion of Martin v. Ziherl,
did not address whether the Supreme Court's logic in Lawrence v. Texas
(2003),
extends
to
Virginia's
statute
criminalizing
adultery.
Instead, the Virginia Supreme Court carefully noted that Lawrence
addressed "certain private sexual conduct between two consenting
17

Similarly,
activity.
the

Virginia prohibits aiding and abetting criminal

See Va. Code § 18.2-18

second degree

are punished);

(noting

that,

failure

to

(describing how principals in

and accessories before

Adkins

v.

unless

Commonwealth,

otherwise

the

175

stated

fact

Va.

by

bigamy);
2010)

a felony

607

(1940)

legislature,

codify liability for a criminal accomplice does

an unmarried person who marries another,

already

590,

the

mean that an accomplice cannot be found liable,

is

to

married,

Wade

(noting

v.

may

be

convicted

Commonwealth,

that

while

and finding that

knowing that the latter

of

aiding

56 Va. App.

Virginia

not

does

689,
not

and
696

have

abetting
(Ct.

a

App.

statute

expressly criminalizing aiding and abetting misdemeanors, "it is
clear that the General Assembly did not intend to abrogate the
common law rule that,

principals");
527

(1954)

in misdemeanor cases,

see also Spradlin v.

("In misdemeanor cases

all participants are

Commonwealth,

there

are

195 Va.

no accessories

523,
but

adults," but it did "not involve minors, non-consensual activity,
prostitution, or public activity" and the Virginia Supreme Court's
holding did "not affect the Commonwealth's police power regarding
regulation of public fornication, prostitution or other such crimes."
Martin, 269 Va. at 42-43.
The Virginia Supreme Court consciously
avoided extending the logic of Lawrence to other similar statutes
criminalizing sexual conduct, and this Court will not step into its
shoes to do so today.
Instead, the Court understands the Virginia
Supreme Court's Martin opinion to make a clear distinction between the
private, consensual sexual activity at issue in Lawrence and the
Commonwealth's other statutes criminalizing
including the prohibition against adultery.

18

certain

sexual

conduct,

all

participants

in

the

crime

statute makes an act criminal,

are

principals . . . ,

if

a

it imposes on all persons who are

present purposely giving aid and comfort to the actual wrongdoer

criminal responsibility equal to that of the wrongdoer"

(citing

Foster v.

City of

Commonwealth,

Winchester,
policy

153

Va.

against

179 Va.

904,

908

adultery

100

(1942);

(1929)).

reasonably

abetting adultery as well.
is

96,

Therefore,

violated when an employee

is

Thus,

Hodge v.

Virginia's public

encompasses

aiding

and

Virginia's public policy

discharged

for

refusal

to

aid

and abet adultery.

Defendants'

arguments

that

Plaintiff

has

not

sufficiently

alleged that Swartz sought to engage her in aiding and abetting

adultery are unavailing.

"[a]ny person,
intercourse

Virginia Code

§ 18.2-365 states that

being married, who voluntarily shall have sexual

with

any

guilty of adultery,

person

not

his

or

her

spouse

shall

punishable as a Class 4 misdemeanor."

aid and abet a criminal act,

a person "must be

be

To

guilty of some

overt act, or he must share the criminal intent of the principal

or party who commits the crime."
Triplett

v.

Commonwealth,

Charles v. Commonwealth,

Plaintiff
statements,

alleges

in

141

Foster, 179 Va. at 100 (citing
Va.

63 Va.

her

577,

App.

Amended

586

289,

301

(1925));

(Ct.

Complaint,

see

also

App.

2014) .

among

other

that "Mr. Swartz said he could satisfy her and said
19

she

should

Swartz

let

came

him

behind

show her
her,

how,"

slipped

Am.

both

Comp.

hands

H 12,

around

and
her

"Mr.

waist,

pressed into her, and said '[y]ou are in the perfect position,'"

id. H 14.

Taking Plaintiff's allegations as true, and accepting

all reasonable inferences from those allegations,
Volunteer

Fire

Dep't,

sufficiently pled
intercourse,
she

would

married.
was

and

have

Therefore,

that

aided

for

had
and

at

sought

she

467,

to

engaged

abetted

Plaintiff

engage
in

adultery

her

sexual

in

has

sexual

intercourse,

because

Swartz

was

Plaintiff has sufficiently pled that she

her

Defendants'

F.3d

Swartz

that,

Furthermore,

terminated

684

see Kensington

refusal

motion

to

to

aid

dismiss

and

abet

Plaintiff's

adultery.
claim

for

wrongful discharge in violation of public policy on the basis of
aiding and abetting adultery is DENIED.
IV.

For the reasons

GRANTS
Court

for

IN

PART

DENIES

stated above,

Defendants'

Defendant's

retaliation

CONCLUSION

based

Motion

on

Title VII and wrongful

Motion

sex

the

to

to

Court DENIES

Dismiss,
Dismiss

GRANTS

Defendants'

negligent retention.

Motion

ECF No.

to Dismiss

8.
20

8.

in

The
claims

violation

of

in violation of public policy

on the basis of aiding and abetting adultery.
Court

No.

Plaintiff's

discrimination

discharge

ECF

IN PART and

ECF No.

Plaintiff's

Therefore,

8.

The

claim

for

Plaintiff's claim

regarding

negligent

retention

will

be

DISMISSED

WITHOUT

PREJUDICE.

It

is

so

ORDERED.

/sfflfSt
Mark

S.

Davis

United States District Judge
Norfolk,

Virginia

October cQc\ , 2015

21