PRESENT: All the Justices

FRANCES L. ROBINSON
                                                               OPINION BY
v. Record No. 160039                                     JUSTICE CLEO E. POWELL
                                                              October 27, 2016
SALVATION ARMY, ET AL.


               FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                              Craig D. Johnston, Judge

       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

       1
         Bowman v. State Bank of Keysville, 229 Va. 534, 331 S.E.2d 797 (1985) (recognizing a
cause of action for termination of employment in violation of public policy).


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               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 is that an at-will employee who is discharged based on a refusal to

engage in a criminal act may have a valid cause of action for wrongful discharge.

       Robinson seeks to base her cause of action on a public policy argument underlying Code

§ 18.2-344. Code § 18.2-344 provides that, “[a]ny person, not being married, who voluntarily

shall have sexual intercourse with any other person, shall be guilty of fornication, punishable as a

Class 4 misdemeanor.” In Mitchem v. Counts, 259 Va. 179, 190-91, 523 S.E.2d 246, 252-53

(2000), we recognized the exact same cause of action on which Robinson rests her claim.

However, in 2005, we addressed the issue again in Martin, where we applied the Supreme

Court’s rationale in Lawrence v. Texas, 539 U.S. 558, 577-78 (2003) (holding that a state statute

criminalizing sodomy as applied to homosexuals was unconstitutional), and held that Code


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§ 18.2-344 violated the Due Process Clause of the Fourteenth Amendment as it applies to

private, consensual conduct. We further clarified our ruling, noting that

               [i]t is important to note that this case does not involve minors, non-
               consensual activity, prostitution, or public activity. The Lawrence
               court indicated that state regulation of that type of activity might
               support a different result. Our holding, like that of the Supreme
               Court in Lawrence, addresses only private, consensual conduct
               between adults and the respective statutes’ impact on such conduct.
               Our holding does not affect the Commonwealth’s police power
               regarding regulation of public fornication, prostitution, or other
               such crimes.

Martin, 269 Va. at 42-43, 607 S.E.2d at 371.

       Robinson argues that Martin did not find that Code § 18.2-344 was unconstitutional as to

non-consensual conduct between two adults in the workplace and, therefore, demands regarding

such conduct constitutes a violation of public policy under Bowman. “Clearly, the declaration

that the holding did not affect the Commonwealth’s police power regarding other crimes is the

essence of an as-applied analysis of constitutionality of the statute. After Martin, Code

§ 18.2-344 still has efficacy as noted; consequently, it was not facially invalidated by our

opinion.” McDonald v. Commonwealth, 274 Va. 249, 258, 645 S.E.2d 918, 923 (2007).

       While Code § 18.2-344 remains in the Code, it only remains valid in the limited

application as outlined in Martin and its remaining scope does not provide support for a Bowman

exception for a violation of public policy wrongful termination claim based on private

consensual sexual activity between adults. In order for Robinson’s claim to succeed, the Court

would have to determine from the record before us that Robinson was encouraged to engage in

“public fornication, prostitution, or other such crimes” by DeMoss. 2 Id. The record, however,

does not suggest in any way that the alleged conduct included a request for any kind of public

       2
         Robinson’s assignments of error relating to wrongful termination for prostitution were
not granted an appeal.



                                                 4
sexual activity whatsoever. While there are multiple allegations that DeMoss made

inappropriate comments and gestures to Robinson while her supervisor, nothing in the record

shows that he asked her to participate in any kind of public sexual activity that would constitute a

criminal act of public fornication. 3

        Robinson’s reliance on VanBuren v. Grubb, 284 Va. 584, 733 S.E.2d 919 (2012) is

misplaced. VanBuren does not support her contention that Code § 18.2-344 remains a basis for

wrongful termination claims under circumstances where a supervisor coerces an employee’s

consent. Instead, VanBuren answered a narrow certified question from the United States Court

of Appeals for the Fourth Circuit:

                Does Virginia law recognize a common law tort claim of wrongful
                discharge in violation of established public policy against an
                individual who was not the plaintiff’s actual employer, such as a
                supervisor or manager, but who participated in the wrongful firing
                of the plaintiff?

VanBuren, 284 Va. at 587, 733 S.E.2d at 920. Moreover, that question was posed and answered

in the context of an allegation of adultery, under Code § 18.2-365, and lewd and lascivious

cohabitation, under Code § 18.2-435, not Code § 18.2-344. VanBuren references Mitchem

(decided five years prior to Martin) in passing as an example of a circumstance where a valid

criminal law could provide a basis for a cause of action based on public policy because

VanBuren’s discharge was

                based on the employee’s refusal to engage in a criminal act.
                Mitchem v. Counts, 259 Va. 179, 190, 523 S.E.2d 246, 252 (2000)
                (holding discharge based upon refusal to engage in fornication and
                lewd and lascivious cohabitation to be against public policy).

        3
         The most concrete allegations Robinson has, i.e., when DeMoss asked Robinson
whether she was a “freak” or wanted to “freak” with him and made hand gestures indicating he
wanted to slap Robinson on the buttocks, only remotely reference activities that could potentially
lead to public fornication. These mere statements alone do not rise to the level of public
fornication. See Martin, 269 Va. at 42-43, 607 S.E.2d at 371.



                                                 5
               VanBuren similarly alleges that her discharge resulted from her
               refusal to engage in the criminal acts of adultery and lewd and
               lascivious cohabitation. There is no question that VanBuren has
               stated a cognizable wrongful discharge claim against her employer,
               Virginia Highlands.

Id. at 590, 733 S.E.2d at 922. VanBuren is inapposite because the claim there was based on a

valid criminal act, whereas here Robinson bases her claim on an act that has been

decriminalized. To the extent that there is any confusion, VanBuren’s reference to Mitchem was

not intended to overrule Martin as to the continued validity of Code § 18.2-344.

                                        III. CONCLUSION

       Following the rationale of Lawrence and Martin, Code § 18.2-344 does not support a

public policy Bowman claim for wrongful termination in this case. Because we have ruled that

Code § 18.2-344 is unconstitutional as applied to private consensual sexual activity between

adults, demands regarding such activity can no longer provide the basis for a valid allegation of

wrongful termination whether the employee accedes to the demands or is terminated for refusing

the demands. Robinson has not alleged any facts to show that she was asked to engage in any

public sexual activity. Accordingly, we find that the trial court did not err in granting the

Salvation Army’s motion for summary judgment and dismissing Robinson’s complaint with

prejudice. For the foregoing reasons, we will affirm the judgment of the trial court.

                                                                                           Affirmed.




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