Angela Vanburen v. Stephen Grubb , 514 F. App'x 364 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2100
ANGELA VANBUREN,
Plaintiff - Appellant,
v.
STEPHEN A. GRUBB,
Defendant – Appellee,
and
VIRGINIA HIGHLANDS ORTHOPAEDIC SPINE CENTER, LLC,
Defendant.
No. 10-2161
ANGELA VANBUREN,
Plaintiff - Appellee,
v.
STEPHEN A. GRUBB,
Defendant – Appellant,
and
VIRGINIA HIGHLANDS ORTHOPAEDIC SPINE CENTER, LLC,
Defendant.
Appeals from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior
District Judge. (7:10-cv-00132-jct)
Argued: December 8, 2011 Decided: March 21, 2013
Before NIEMEYER, MOTZ, and FLOYD, Circuit Judges.
Reversed and remanded by unpublished per curiam opinion.
James J. O'Keeffe, IV, GENTRY, LOCKE, RAKES & MOORE, Roanoke,
Virginia, for Appellant/Cross-Appellee. Terry Neill Grimes,
GRIMES & WILLIAMS, P.C., Roanoke, Virginia, for Appellee/Cross-
Appellant.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
The background of this case is discussed in VanBuren v.
Grubb, 471 F. App’x 228 (4th Cir. 2012). There, we certified to
the Supreme Court of Virginia, pursuant to Rule 5:40 of the
Rules of that court, the following question:
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?
Id. at 229.
Concluding that the “question as posed encompasse[d] a
larger body of employees than [was] essential to produce a
determinative answer in these proceedings,” the Virginia Supreme
Court restated our question as follows:
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 but who was the actor in
violation of public policy and who participated in the
wrongful firing of the plaintiff, such as in the
capacity of a supervisor or manager?
VanBuren v. Grubb, 733 S.E.2d 919, 921 (Va. 2012); see also
Virginia Supreme Court Rule 5:40(d) (“This Court may in its
discretion restate any question of law certified . . . .”). On
November 1, 2012, the court answered the question affirmatively.
VanBuren, 733 S.E.2d at 924. Accordingly, we conclude that the
district court erred in dismissing VanBuren’s claim against Dr.
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Grubb based on its determination that “were the Virginia Supreme
Court to directly address this issue, it would find that
wrongful discharge claims by an employee are cognizable only
against the employer and not against supervisors or co-employees
in their individual capacity.” VanBuren v. Va. Highlands
Orthopaedic Spine Ctr., LLC, 728 F. Supp. 2d 791, 794 (W.D. Va.
2010).
We therefore reverse the district court’s judgment
dismissing VanBuren’s claim against Dr. Grubb and remand for
further proceedings.
REVERSED AND REMANDED
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