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Washington Claims for Wrongful Discharge against Public Policy Limited by Effective Statutory Remedies

Washington Claims for Wrongful Discharge against Public Policy Limited by Effective Statutory Remedies
  • October 7, 2011

The Washington Supreme Court has reaffirmed that employee tort claims alleging wrongful discharge in violation of public policy may be brought only in limited circumstances, where the public policy at issue is not adequately promoted through alternative mechanisms, such as statutory remedies or criminal sanctions. Cudney v. ALSCO, Inc., 2011 Wash. LEXIS 665 (Wash. Sept. 1, 2011).

Background

While he was employed by ALSCO, Inc., Matthew Cudney made numerous complaints about alcohol use by his branch’s general manager. One day, Cudney observed the general manager weaving back and forth, smelling of alcohol, and slurring his speech, among other things. He thought the general manager was intoxicated.  After seeing the general manager then drive away in a company vehicle, Cudney reported his observations to the assistant general manager and the human resources manager. Less than two months later, Cudney was discharged.

He sued his former employer in state court, asserting a claim for wrongful discharge in violation of public policy on the theory that the Washington Industrial Safety and Health Act (WISHA) and the Washington laws against driving under the influence of alcohol (DUI laws) prohibited his discharge.

Public Policy

Washington’s public policy discharge tort requires the plaintiff to show four elements — only two are implicated in this case.  First, Cudney must show the existence of a clear public policy (the clarity element).  Second, and crucial here, Cudney must show that discouraging the conduct in which he engaged would jeopardize this public policy (the jeopardy element).

In Court

After removing the case to federal court, ALSCO moved for partial summary judgment of dismissal based on the plaintiff’s asserted failure to satisfy the jeopardy element. The U.S. District Court for the Eastern District of Washington concluded that the Washington Supreme Court had not clearly decided whether WISHA or the DUI laws adequately promoted their underlying public policies so as to preclude Cudney’s wrongful discharge claim. The federal district court therefore certified these two questions to the Washington Supreme Court. For purposes of this certification, ALSCO and Cudney agreed that WISHA and its regulations establish a clear public policy of ensuring worker safety and of protecting workers who report safety violations from retaliation. They also agreed that the DUI laws embody a clear public policy of protecting the public from drunk drivers.

Washington Supreme Court

The Washington Supreme Court accepted review of these certified questions, finding they presented pure questions of law because the relevant inquiry was limited to examining existing laws to decide whether they provided adequate means of promoting the public policies at issue.

A five-member majority of the state Supreme Court determined that WISHA and the DUI laws offered remedies that adequately protected the public policy mandates they embodied. The majority emphasized, “[T]his court has repeatedly applied [a] strict adequacy standard, holding that a tort of wrongful discharge in violation of public policy should be precluded unless the public policy is inadequately promoted through other means and thereby maintaining only a narrow exception to the underlying doctrine of at-will employment.”

WISHA Public Policy Protections

In reviewing the adequacy of WISHA to protect the public policy of ensuring worker safety and preventing retaliation against workers who report safety violations, the Washington Supreme Court noted that WISHA provides “extensive protections” for employees who believe they were discharged for reporting workplace safety concerns. The statute expressly prohibits retaliation, including discharge, for filing a WISHA complaint or exercising any right under WISHA. It also establishes a procedure that employees may use to file an administrative complaint with the Washington Department of Labor & Industries (L&I) within 30 days if they believe they have suffered a retaliatory discharge. L&I’s director is required to investigate such claims and must bring suit against the violator if the investigation supports the employee’s claim. If L&I does not sue, the employee may bring his or her own suit within 30 days of the director’s determination, and the trial court must order all appropriate relief if the employee shows cause — including reinstatement with back pay.

The Washington Supreme Court concluded that the “robust statutory remedies available in WISHA” were not inadequate to protect the underlying public policies of protecting worker safety and preventing retaliation for safety complaints. “[T]he point of the jeopardy prong…is to consider whether the statutory protections are adequate to protect the public policy, not whether the claimant could recover more through a tort claim,” the Court stated (emphasis in original).

In reaching this conclusion, the Court rejected Cudney’s argument that the 30-day deadline for filing an L&I complaint rendered WISHA inadequate to protect its public policy. The Court reasoned that employees will almost always receive immediate notice of their terminations, and they also will know that they recently raised a safety concern, so they should be able to file an L&I complaint within 30 days. During the L&I investigation, the employee will have “significant additional time” to prepare a case if L&I decides not to pursue the matter. Further, under WISHA regulations, the employee’s 30-day deadline for filing an L&I complaint might be subject to equitable tolling if there were “strongly extenuating circumstances” (e.g., the employer concealing or misleading the employee about the grounds for the discharge). Here, however, Cudney gave no reason why he could not have filed a claim within 30 days.

DUI Laws' Public Policy Protections

In evaluating the adequacy of the DUI laws to safeguard their public policy of protecting the public against drunk drivers, the Washington Supreme Court cited a series of state laws that criminalize driving under the influence of alcohol. The criminal penalties available include mandatory jail time, a $5,000 fine, suspension or revocation of the offender’s driver’s license, and limiting driving privileges through an ignition interlock device. The Court observed, “Social penalties can also adhere, such as the loss of status in the community and possible suspension or termination at work.”

It again applied a strict adequacy standard, quoting Washington case law requiring Cudney to prove “that telling his manager about [the general manager’s] drunk driving is the ‘only available adequate means’ to promote the public policy of protecting the public from drunk driving.” (Emphasis in original.) The Court reasoned that this would not be true unless the criminal laws and their enforcement mechanisms and penalties all were inadequate public policy protections. Given Cudney’s admission that he did not call 911 and inform the police of the general manager’s drunk driving or otherwise involve the “huge legal and police machinery around our state designed to address this very problem,” the Court found it “very hard to believe that the ‘only available adequate means’ to protect the public from drunk driving was for Cudney to tell his manager about [the] drunk driving.” However, the Court noted that a different result might have been reached if Cudney had reported the drunk driving to law enforcement and been terminated for doing so.

Dissent

Four dissenting judges criticized the majority for allegedly “depart[ing] from long-standing precedent in Washington” and “transform[ing] the jeopardy prong of the public policy tort analysis from its proper role as a tool to evaluate the close relationship between a tort claim and the furtherance of public policy into an automatic rule of exclusion.” Nonetheless, shortly after Cudney, in a unanimous ruling authored by one of the Cudney dissenters, the Washington Supreme Court applied Cudney to affirm the dismissal of another public policy wrongful discharge claim that was based on the employee having made an L&I complaint under WISHA. Anderson v. Akzo Nobel Coatings, Inc., 2011 Wash. LEXIS 669 (Wash. Sept. 8, 2011).

* * *

Cudney is good news for Washington employers because it reaffirms the narrowness of the public policy exception to the state’s general rule of employment at will. Washington courts must “proceed cautiously” when considering whether an employee’s claims satisfy the jeopardy element of this tort — just as the Court has required for the clarity element. (See, for example, our article, Washington’s Medical Marijuana Law Does Not Support a Wrongful Termination Claim.)  Employers, therefore, may have good arguments for winning these cases through early dismissal motions instead of engaging in protracted litigation.

Jackson Lewis attorneys are available to answer inquiries regarding this and other workplace developments.

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