Atkins v. Industrial Telecommunications Ass'n

WAGNER, Chief Judge,

concurring in part, and dissenting in part:

In my view, applying Virginia law, appellant set forth sufficient facts to withstand a motion to dismiss under Super.Ct.Civ.R. 12(b)(6) with respect to count II of the complaint alleging a discharge in violation of established public policy. For this reason, I respectfully dissent from that part of Part III of the opinion which addresses the issue. Appellant alleged in the complaint, inter alia, that he was discharged from his employment in retaliation for the proper exercise of his voting responsibility as a corporate director of a wholly-owned subsidiary of his corporate employer. Applying a narrow exception to the employment-at-will doctrine, Virginia has recognized a cause of action in tort by an employee subjected to retaliatory discharge under analogous facts. See Bowman v. State Bank of Keysville, 229 Va. 534 , 331 S.E.2d 797, 801 (1985); see also Haigh v. Matsushita Elec. Corp. of America, 676 F.Supp. 1332, 1351-52 (E.D.Va.1987).

In Bowman , the retaliatory discharge claim was based upon allegations that the employer had discharged the employees in retaliation for exercising their protected, statutory right to vote their shares. 1 The court pointed out that “[t]his statutory provision contemplates that the right to vote shall be exercised free of duress and intimidation imposed on individual stockholders by corporate management.” Bowman, supra, 331 S.E.2d at 801 . Accordingly, the court held that “[b]ecause the right conferred by statute is in furtherance of established public policy, the employer may not lawfully use the threat of discharge of an at-will employee as a device to control the otherwise unfettered *896 discretion of a shareholder to vote freely his or her stock in the corporation.” Id.

Although Bowman involved the statutory rights of shareholders, appellant argues persuasively that a corporate director’s unfettered exercise of obligations pursuant to statute are subject to the same public policy considerations and protections recognized in Bowman . Moreover, corporate directors must act in a fiduciary capacity with respect to the corporation and its shareholders. See Glass v. Glass, 228 Va. 39 , 321 S.E.2d 69, 74 (1984); see also Wisconsin Ave. Assoc. v. 2720 Wis. Ave. Coop. Ass’n, etc., 441 A.2d 956, 962 (D.C.1982). It is at least equally compelling that in discharging their statutory responsibilities as fiduciaries, as a matter of public policy, the corporate director must be free from the type of intimidation and duress found actionable in Bowman . Therefore, in my opinion, appellant’s allegations fall within the ambit of the Bowman exception to the at-will doctrine. See Bowman, supra, 331 S.E.2d at 801 . Accordingly, contrary to the majority, I conclude that Virginia would recognize the cause of action alleged in appellant’s complaint for retaliatory termination of employment in violation of public policy.

The trial court determined that the rule established in Boumtan is limited to circumstances where the employee is intimidated in exercising voting rights prior to voting. I glean no such requirement from Bowman . The gravamen of the action appears to be the employer’s improper use of its right to terminate the employee “in order to subvert a right guaranteed to stockholders by statute.” See Miller v. SEVAMP, Inc., 234 Va. 462 , 362 S.E.2d 915, 918 (1987); see also Bowman, supra, 331 S.E.2d at 801 . An interpretation restricting the rule to circumstances involving prior restraint would undercut the public policy sought to be furthered by recognition of the tort action. An actual discharge, such as that alleged in this case, offends public policy no less than a threat of discharge. Further, appellant alleged in the complaint that the president of his corporate employer made known prior to the meeting that he was against the vote in favor of the person for whom appellant cast his vote. Construing the complaint most favorable to appellant, accepting the allegations as true and resolving ambiguities in his favor, in my view, appellant stated a claim under Bowman , and it was error to dismiss it under Rule 12(b)(6). See Aronoff v. Lenkin Co., 618 A.2d 669, 685 (D.C.1992). 2

I concur in the result reached in Part II of the opinion related to the defamation claim insofar as it is premised on a Rule 12(b)(6) analysis. It appears to me that the trial court based its ruling on that ground alone. In considering a memorandum and letter, the trial court considered no material outside of the complaint because both documents were attached to the complaint and incorporated therein by reference. See Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994); Solis-Ramirez v. United States Dep’t of Justice, 758 F.2d 1426 , 1430 (11th Cir.1985) (report attached to complaint considered part of pleadings for all purposes including a Rule 12(b)(6) motion).

. The employees in Bowman voted their stock in favor of merger as directed by management "out of fear of losing their jobs.” Bowman, supra, 331 S.E.2d at 799 . Thereafter, the employees Wrote a letter to the bank president stating that their votes were obtained illegally, and therefore, null and void. According to plaintiff’s allegations, the merger was abandoned because "the defendants’ feared that the illegal activities involved in obtaining the proxies of ... plaintiffs would be discovered." Id. Management fired the employees six days later.

. In any event, courts should also be reluctant to dismiss a complaint where a novel theory of liability is asserted. Morgan v. American Fam. Life Assur. Co. of Columbus, 559 F.Supp. 477, 483 (W.D.Virginia 1983) (citing 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, at 603 (1969)); Dart Drug Corp. v. Corning Glass Works, 480 F.Supp. 1091 , 1098-99 n. 10 (D.Md.1979)). Such claims are better tested in the context of a motion for summary judgment. Id.