Robinson v. Salvation Army, 791 S.E.2d 577

Background

Frances L. Robinson was an at-will employee of the Salvation Army for three years and was terminated in June 2012 after reporting sexual remarks/advances by her store manager, Joel DeMoss.
Robinson alleges DeMoss made repeated sexually suggestive comments, gestures, and inquiries, and that she played secret recordings of some conversations to HR before being fired without explanation.
Robinson sued for wrongful termination under the Bowman public-policy exception, alleging she was discharged for refusing to commit fornication in violation of Va. Code § 18.2-344.
The Salvation Army moved for summary judgment, arguing Robinson’s claim fails because § 18.2-344 was held unconstitutional as applied to private, consensual adult sexual activity in Martin v. Ziherl.
The trial court granted summary judgment, reasoning that enforcing an unconstitutional statute cannot supply public-policy protection for a Bowman claim and that the record contained no request for public sexual activity.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Va. Code § 18.2-344 can supply public-policy basis for a Bowman wrongful termination claim where employee refused supervisor’s sexual advances	Robinson: § 18.2-344 remains on the books and supports a Bowman claim because she was asked to have sex in exchange for continued employment	Salvation Army: Martin rendered § 18.2-344 unconstitutional for private consensual activity, so it cannot underpin a public-policy wrongful termination claim	Court: No — Martin and Lawrence decriminalize private consensual acts, so § 18.2-344 cannot support a Bowman claim here; summary judgment affirmed
Whether alleged coercion by a supervisor (quid pro quo) revives § 18.2-344 as a public-policy basis	Robinson: Supervisor’s coercion (continuing paycheck for sex) creates a factual dispute and supports the claim	Salvation Army: Even coercion of private consensual sex does not resurrect an unconstitutional statute as public policy	Court: Coercion here did not involve public/prostitutional conduct; record lacks request for public sexual activity, so claim fails
Applicability of VanBuren v. Grubb to revive criminal-statute-based Bowman claims	Robinson: Relies on VanBuren as precedent that Bowman claims can proceed against supervisors	Salvation Army: VanBuren addressed different statutes (adultery/lewd cohabitation) and a different question; it does not overrule Martin	Court: VanBuren is inapposite; it did not undermine Martin’s holding regarding § 18.2-344
Whether an as-applied limitation of § 18.2-344 leaves any residual criminal scope sufficient for a Bowman claim	Robinson: § 18.2-344 wasn’t facially invalidated and retains limited efficacy	Salvation Army: The statute’s remaining scope (public/prostitutional/minors/nonconsensual) does not cover Robinson’s allegations	Court: § 18.2-344 only survives in narrow, nonprivate contexts; Robinson’s allegations do not fall within those, so claim cannot proceed

Key Cases Cited

Martin v. Ziherl, 269 Va. 35 (Virginia 2005) (held Va. Code § 18.2-344 unconstitutional as applied to private, consensual adult sexual activity)
Lawrence v. Texas, 539 U.S. 558 (U.S. 2003) (invalidated criminalization of private consensual sexual conduct between adults)
Bowman v. State Bank of Keysville, 229 Va. 534 (Virginia 1985) (recognized public-policy exception to at-will employment wrongful discharge)
Mitchem v. Counts, 259 Va. 179 (Virginia 2000) (recognized wrongful discharge claim for refusal to engage in criminal sexual acts prior to Martin)
VanBuren v. Grubb, 284 Va. 584 (Virginia 2012) (answered whether a non-employer supervisor can be liable under Bowman; involved different criminal statutes)
City of Virginia Beach v. Harris, 259 Va. 220 (Virginia 2000) (characterized Bowman exceptions as narrow)
McDonald v. Commonwealth, 274 Va. 249 (Virginia 2007) (explained Martin did not facially invalidate § 18.2-344 and described its as-applied limits)