Rose v. Anderson Hay & Grain Co. ( 2015 )

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/ IN CLERKI OPFICI ~
...... COURI',I'I'IaiOI . . .-nxl
I DATE SEP 1 7 20151
h?q~91 Ronald . nt
*upreme Court Ctertr
IN TII:F~ SUPREME COURT OF THE STATE OF WASHINGTON
CI--IAPJ__,ES ROSE, )
) No. 90975-0
Petitioner, )
)
V. ) EnBanc
)
ANDERSON HAY AND GRAIN )
COt\1PANY, )
)
Respondent. )
) Filed
SEP 1 7 20i5
·-~-·--~---~-------
JdHNSON, J.-This case involves the jeopardy element of the tort for
wrongful discharge against public policy and whether the administrative remedies
available under the Surface Transportation Assistance Act of 1982 (STAA), 1 49
U.S.C. § 31105, preclude Charles Rose from recovery under a common law tort
claim. This is one of three concomitant cases 2 before us concerning the "adequacy
of alternative remedies" component of the jeopardy element that some of our cases
seemingly embrace. For the reasons discussed in this opinion, we hold that the
1
Both the parties refer to 49 U.S.C. § 31105 as the "Commercial Motor Vehicle Safety
Act." This is not entirely accurate. Although the chapter is titled "Commercial Motor Vehicle
Safety,"§ 31105 ofthat chapter is part ofthe STAA.
See Be_cker v. Cmty. Heath ~ys., Inc., No. 90946-6 (Wash. Sept. 17, 2015), and Rickman
2
v. Premera Blue Cross, No. 91040-5 (Wash. Sept. 17, 2015).
Rose v. Anderson Hay & Grain Co., No. 90975-0
adequacy of alternative remedies component misapprehends the role of the
common law and the purpose of this tort and must be stricken from the jeopardy
analysis. We reembrace the formulation of the tort as initially articulated in
17'1ompson, Wilmot, and Gardner, 3 and reverse the Court of Appeals.
FACTS
The complaint alleges that Anderson Hay & Grain Company terminated
Rose from his position as a semi truck driver when he refused to falsify his drive-
time records and drive in excess of the federally mandated drive-time limits. Rose
had worked as a t~uck driver for over 30 years, the last 3 of which he worked as an
en1ployee for Anderson Hay. His position required him to drive loads of hay
weighing 50 tons or more from Ellensburg to ports located in Western Washington.
Rose operated under federal regulations that required him to drive no more than 60
hours per week. 49 C.P.R. § 395.3(b)(l).
In November 2009, Rose's supervisor allegedly directed Rose to transport a
load to Seattle, which would have put Rose over the 60-hour limit. Rose informed
his employer that the trip would put him over the allowable limit, but his
supervisor told him to falsify his drive:timerecords to reflect fewer hours so that
3
. Gardner v. Loomis Armored Inc . , 128 Wn.2d 931, 913 P .2d 377 (1996); Wilmot v.
Kaiser Alurn. & Chem. Corp., 118 Wn.2d 46, 821 P.2d 18 (1991); Thompson v. St. Regis Paper
Co., 102 Wn.2d 219,.685 P.2d 1081 (1984).
2
Rose v. Anderson Hay & Grain Co., No. 90975-0
he could ~omplete the trip. Concerned that he might fall asleep at the wheel, Rose
refused, and Anderson Hay fired him.
InMarch 2010, Rose sued under the STAA in federal court but his suit was
dismissed for lack of jurisdiction because he failed to first file with the secretary of
labor, as _required by the act.49 U.S.C. § 31105(b)(l). By the time the suit was
disinissecl, the 180-day filing period for administrative remedy had already lapsed.
Rose then filed a complaint in Kittitas County Superior Court, seeking remedy
under the common law tort for wrongful discharge against public policy. The trial
court dismissed his claim on summary judgment, holding that the existence of the
federal administrative remedy under the STAA prevented Rose from establishing
the jeopardy element of the tort. The Court of Appeals affirmed. Rose v. Anderson
Hay & Grain Co., 168 Wn. App. 474,276 P.3cl382 (2012). This court accepted
review of that decision, but remanded Rose's case to the Court of Appeals for
reconsideration in light of Piel v. City ofFederal Way, 177 Wn.2d 604, 306 P.3d
879 (2013). Rose v. Anderson Hay & Grain Co., 180 Wn.2d 1001, 327 P.3d 613(2014). Like the stat,ute at issue in Piel, the STAA contains a nonpreemption
clause, explicitly providing that "[n]othing in this section preempts or diminishes
any other safeguards against discrimination, demotion, discharge, suspension,
threats, harassment, reprimand, retaliation, or any other manner of discrimination
provided by Federal or State law." 49 U.S.C. § 311 05(±).
3
Rose v. Anderson Hay & Grain Co., No. 90975-0
On remand, the Court ()f Appeals distinguished Rose's case from Piel,
likening the facts to those presented in Korslund v. DynCorp Tri-Cities Services,
Inc., 156 Wn.2d 168, 125 P.3d 119 (2005), and once again affirmed the superior
court's decision. Rose v. Anderson !-lay & Grain Co., 183 Wn. App. 785, 335 P.3d
440 (2014), review granted, 182 Wn.2d 1009, 343 P.3d 759 (2015).
ANALYSIS
V.fe accepted review of three cases-Rose, Becker v. Community Heath
Systems, Inc., No. 90946-6 (Wash. Sept. 17, 2015), and Rickman v. Premera Blue
Cross, No. 91040-5 (Wash. Sept. 17, 2015)-to determine whether the existence of
other nonexclusive statutory remedies preclude plaintiffs from recovery under a
tort claim for wrongful discharge against public policy. We hold that they do not:
the existence of alternative statutory remedies, regardless of whether or not they
are adequate, does not prevent the plaintiff from bringing a wrongful discharge
•,
claim. Reviewing the origination of the tort and its underlying purpose, we find
that our wrongful discharge jurisprudence travels along two irreconcilable tracks,
each of which would dictate a different result in Rose's case. The discrepancy
requires us to clarify and embrace only one. We hold that the "adequacy of
alternative remedies'' analysis must be discarded, and we reembrace the analytical
framework established in Thompson, Wilmot, and Gardner.
4
Rose v. Anderson Hay & Grain Co., No. 90975-0
Evolution ofthe Tort
The wrongful discharge against public policy tort has undergone numerous
permutations since its recognition over 30 years ago. When it was first analyzed in
Thompson, we recognized it as an exception to the general principle that absent a
definite contract, employees are terminable at-will. The purpose of the tort
exception is to prevent employers from utilizing the employee at-will doctrine to
subvert public policy---we said, "[T]he common law doctrine cannot be used to
shield an employer's action which otherwise frustrates a clear manifestation of
public policy." Thompson, 102 Wn.2d at 231. We recognize it as a means of
encouraging both employers and employees to follow the law.
In Thompson, the employer allegedly terminated Thompson as divisional
controller in retaliation for Thompson attempting to comply with the Foreign
Corrupt Practices Act of 1977, 15 U.S.C. §§ 78dd-1 to 78dd-3, by implementing a
n~w accounting procedure. In evaluating Thompson's claim in review of dismissal
on summary judgment, we embraced a burden-shifting analysis in which the
analyti~al focus was whether the employee could establish that the discharge
clearly contravened public policy:
The employee has the burden of proving his dismissal violates a
·clear mandate of public policy. Thus, to state a cause of action, the
employee must plead and prove that a stated public policy, either
legisiatively or judicially recognized, may have been contravened .
. . . [O]nce the employee has demonstrated that his discharge may
5
Rose v. Anderson Hay & Grain Co., No. 90975-0
have been motivated by reasons that contravene a clear mandate of
pt1blic policy, the burden shifts to the employer to prove that the
dismissal was. for reasons other than those alleged by the
employee.
Thompsort, 102 Wn.2d at 232-33.
vVe j ()ined the growing number of jurisdictions in adopting this burden-
' . '
shifting fi·amework, which was designed to track the same burden-shifting
analytical fhnnework used for other employment discrimination claims. Particular
to this tort, however, we insisted that the public policy at issue be judicially or
legislatively recognized, emphasizing that the tort is a narrow exception to the at-
wilJ doctrine and must be limited only to instances involving very clear violations
of public policy. Thompson's requirement that the policy be judicially or
legislatively recognized protects employers from having to defend against
amorphous claims. of public policy violations and addresses the employers'
~egitimate concern that a broad common law tort would considerably abridge their
ability to exercise discretion in managing and terminating employees. This strict
clarity requirement
. '. ' ' .
ensures
.
that only clear violations of important, recognized
public policies could
. ..
.
expose .employers
.. . .
to. liability.
Follow~ng Thompson, the availability of the tort remained narrow and it was
recognized under only four different situations:
( 1) where employees are fired for refusing to commit an illegal act;
(2) where employees are fired for performing a public duty or
6
Rose v. Anderson Flay & Grain Co., No. 90975-0
obligation, such as serving jury duty; (3) where employees are fired
for exercising a legal right or privilege, such as filing workers'
· compensatiorrclaims; and (4) where employees are fired in retaliation
for reporting employer misconduct, i.e., whistleblowing.
Gardner, 128 Wn.2d at 936 (citing Dicomes v. State, 113 Wn.2d 612, 618, 782
P.2d 1002 (1989)). Under each scenario, the plaintiff is required to identify the
recognized public policy and demonstrate that the employer contravened that
policy by terminating the employee.
Not until our decision in WUmot did we factor into our analysis the existence
of other statutory remedies. In that case, several at-will employees were injured on
the job and were f()rced to continue working under threat of termination. The
Industrial Irisurance Act (IIA ), Title 51 RCW, prohibits such coercion and provides
an administrative remedy for employees who are terminated in retaliation for
taking leave for work-sustained injuries. When we examined the IIA as an
alternative remedy to the tort claim, we examined whether it was a mandatory and
ex:clusive remedy such that it precluded the plaintiff from recovery through a
wrongful discharge tort claim; We concluded that the statute contained permissive
rather than mandatory language, and we held that an aggrieved employee could
seek recourse under either claim. We held the availability of the alternative remedy
did not prech1de the claim from going forward.
7
Rose v. Anderson
.
Hay & Grain Co., No. 90975-0
' :
·In Gardner, we refined the tort's analytical framework somewhat but
expt:essly refrained from substantively changing the underlying tort requirements.
In that case,. an armored truck driver was terminated for leaving his truck to save a.
woman's life; ~nd we were presented with the question of whether the termination
violated a clear mandate of public policy. We explained that because the situation
did not involve the common retaliatory discharge scenario, it demanded a more
refined analysis than had been conducted in previous cases. Gardner, 128 Wn.2d at
940. Faced with this unique set of facts, we utilized a four-part framework to guide
our analysis. HENRY H. PERRITT, JR., WORKPLACE TORTS: RIGHTS AND LIABILITIES
§3 .7 (1991 ).
Under this Perritt framework, courts examine (1) the existence of a "clear
public policy" (clarity 128 Wn.2d at 941.
To establis~ jeopardy, plaintiffs must show they engaged in particular
conduct and the conduct directly relates to the public policy or was necessary for
the effective entorcement of the public policy. This burden requires the plaintiff to
"'argue that other means for promoting the policy ... are inadequate."' Gardner,
8
Rose v. Anderson Hay & Grain Co., No. 90975-0
128 \Vn.2d at 945 (alteration in original) (quoting PERRITT, supra,§ 3.14, at 77). In
other words, the plaintiff must argue that the actions he or she took were the only
adequate means to promote the public policy.
When we analyzed this jeopardy element in Gardner, we determined that it
was necessary for Gardner to leave his truck to save the woman's life because no
police or other persons were available to help the woman. The dissent responded
that Gardner could have summoned help by using his radio or sirens, reasoning
that those other alternatives would have 'been adequate and that Gardner's actions
were unnecessary to save her life. What is important about this case is this court's
treatment of the adequacy component. Clearly, at the time of Gardner, the focus of
the adequacy analysis ·was whether the employee had adequate alternatives at the
time the employee decided to violate the employer's policy; the analysis did not
involve a review of other after-the-fact remedies that might be available.
In adopting this. four-part Perritt analysis, we stated that we did not intend to
substantively change the wrongful discharge tort. The common law already
contained clarity and jeopardy elements, so we said the "adoption of this test does
not change the existing common law in this state." Gardner, 128 Wn.2d at 941.
Gardner was a highly unique case, and its facts justified a refined analysis. This
court's decisions prior to Gardner remain good law and are merely supplemented
by the additional guidance provided by the Perritt factors.
9
Rose v. Anderson Hay & Grain Co., No. 90975-0
In H~ubbard v. Spokane County, 146 Wn.2d 699; 50 P.3d 602 (2002), we
departed from the precedent we had established by suggesting an additional
requirement: the plaintiff must establish that no other statutory provision exists to
adequately protect the public policy. In Hubbard, an employee was fired from his
position with the county planning department when he raised concerns that his
supervisors were improperly bending regulations to serve their own interests. We
11 focused our jeopardy analysis on whether the statutory remedy under RCW
36.70.830--\vhich provided for a remedy to any person aggrieved by the land
zoning decision--~was "adequate" to protect the public policy at issue. If so, we
reasoned that public policy would not be jeopardized because the statutory remedy
already protectc;dthat interest. But we ultimately decided that the alternative
statutory remedy was inadequate because it provided third parties only a
roundabout way of challenging these administrative decisions. We determined that
availing the common law remedy to employees who report violations was a better
an.d more efficient way of ensuring compliance with the law, and we allowed the
clai_rv toproceed.
. '
.vve continued along this trajectory in J(orslund and Cudney, where in each
CE.tse, we f()cused on the availability of alternative administrative remedies
available for wrongfully discharged employees, mirrored them against the
remedies available under the common law, and assessed whether those alternative
10
Rose v. Anderson Hay & Grain Co., No. 90975-0
. .
reniedies provided adequate protections to protect the public policy threatened by
the employer's wrongful conduct. Cudney v. ALSCO, Inc., 172 Wn.2d 524, 259
P.3d 244 (2011); 1\orslund, 1S6 \Vn.2d 168. In both cases, we determined that the
comprehensiv'e nature of the remedial statutes was adequate to protect whistle
blow.ing employees.
In Korslund, a Hanford employee was terminated after reporting safety
violations, mismanagement, and fraud at the Hanford site. Federal law under the
Energy Reorganization Act of 1974 (ERA), 42 U.S.C. § 5851, established a
comprehensive and robust administrative process for adjudicating whistle blower
claim~. In that cas_e, we said that because the wrongful discharge tort is a narrow
~xception to the at-will doctrine, we were unwilling to extend it to the wrongfully
,. • ,.. 'I
terminated emplo),ree when there were other adequate remedial means to protect
the public policy.
We applied this standard again in Cudney, referring to it as the "strict
adequacy" requirement. The claim in Cudney involved an employee who was
terminated for reporting a managerial supervisor for driving the company car while
intpxicated. We affirmed the summary judgment dismissal of Cudney's claim
be()ause the Washington Industrial Safety and Health Act of 1973 (WISHA),
chapt~r 49.17 RCW, provided for all appropriate remedies for workers who report
safety violations. We went on to explain that state driving while under the
11
Rose v. Anderson Hay & Grain Co., No. 90975-0
influence laws also protected the public policy at issue and that the wrongful
discharge .tort was therefore not necessary to address the public policy concern.
Becausy the purpose ofthe tort is to protect public policy, not the individual
employ~.e's rights, we were a~so unconcerned that the remedies under WISHA
were not availableJo this particular plaintiff. It was sufficient that the
administrative remedies were generally available to wrongfully discharged
employees.
In Pie!, our,most recent case on this issue, we declined to extend Korslund
and Cudney to cases involving alternative remedial statutes that explicitly indicate
that its remedies are intended only to supplement other remedies. We said, "[W]e
should not reach to expand the jeopardy analysis of Korslund or Cudney when the
v.ery statutory scheme that announces the public policy at issue also cautions that
its administrative remedies are intended to be additional to other remedies." Pie!,
I , ' .
177 vVn.2d at 617. We held this language to be significant because it respects the
legislative choice to allow a wrongfully discharged employee to pursue additional
remedies beyond those provided by statute.
As a result of these cases, our jeopardy element analysis has wavered into a
stopgap analysis, subsumed by the requirement that the plaintiff establish that no
other adequate statutory remedy exists to promote the policy. This approach
requires a court to search existing remedial statutes line by line to determine
12
Rose v. Anderson Hay & Grain Co., No. 90975-0
whether they confer adequate remedies to the employee or somehow adequately
protect the public. policy at issue. While we never expressly overruled any of our
cases, our cases since Gardner have reflected a significant departure from our
initial explanation of the wrongful discharge tort.
This departure has generated considerable confusion, as evidence by this
case: when applied to Rose, our cases dictate opposing results. Under the line of
cases decided prior to Jlubbard, Rose's claim would survive summary judgment.
We would have reviewed the STAA only for mandatory and exclusive language, in
which case the STAA's nonpreemption clause would satisfy Wilmot's
nonexclusivity requirement. But under Hubbard, Korslund, and Cudney, the "strict
adequacy" requirement would have foreclosed Rose's tort claim because the
STAA provides similarly robust and comprehensive remedies. The STAA also
contains a nonpreemption clause nearly identical to the one at issue in Korslund.
See 42 U.S.C. § 585l(h). 4 So under those cases, Rose would lose. However, Piel
would dictate st~ll a different result: since nonpreemption clauses constitute the
best possible evidence that the statutory remedies are inadequate, alternative
remedial statutes with nonpreemption clauses do not preclude tort claims. The
4
"This section may not be construed to expand, diminish, or otherwise affect any right
otherwise available to an employee under Federal or State law to redress the employee's
discharge or other discriminatory action taken by the employer against the employee."
13
Rose v. Anderson Hay & Grain Co., No. 90975-0
STAA contains such a clause, and under Piel, we would permit Rose's claim to
proceed out of respect for Congress' choice to avail multiple sources of remedies
for StAA violations.
And yet, despite these opposing results, none of these cases have been
overruled or expressly abrogated. Rose's case has exposed serious inconsistencies
in our case law, and as-review ofour cases has made clear, our jurisprudence
,, travels along two divergent tracks. It is our obligation to resolve the conflict
between our cases.
Rejection of the "Adequac,v ofAlternative Remedies" Analysis
.In deciding whether to abandon the "strict adequacy" requirement, we apply
our stare decisis doctrine: we will not abandon precedent unless it is determined to
be incorrect and harmful. In re Rights of Waters of Stranger Creek, 77 Wn.2d 649,
653, 466 P.2d508 (1970). But stare decisis does not compel us to follow a past
decision when its rationale no longer withstands careful analysis. When the
generalization underpinning a decision is unfounded, we should not continue in
' '
blind adherence to its faulty assumption. Arizona v. Gant, 556 U.S. 332, 351, 129
S. Ct. 1710, 173 L. Ed. 2d 485 (2009). We adopted the adequacy requirement as a
means of maintaining the narrowness ofthe tort exception to the at-will doctrine.
And while we agree here that the tort exception must remain narrow, we will not
narrow it in a manner that harmfully deprives aggrieved employees of a rightful
14
Rose v. Anderson Hay & Grain Co., No. 90975-0
Claim, particularly when. it fails to serve any legitimate employer interest. For the
reasons below, :We conclude that the additional "adequacy of alternative statutory
remedies" component of the jeopardy prong is incorrect and harmful. We disavow
the requirement that a plaintiff establish inadequacy of alternative remedies and
overrule our cases to the extent they hold otherwise.
First, our "strict adequacy" requirement is premised on the faulty assumption
·~ that it further protects the breadth of our at-will doctrine. For example, Anderson
Hay argues that the tort is a narrow exception, and should be construed narrowly,
because the at-will doctrine reflects the policy that employers must retain
discretion in making employment decisions and the threat of frivolous suits unduly
burdens their ability to manage employees. They argue that this "strict adequacy"
requirement necessarily limits the availability of the tort, thereby protecting
employers'
. .
discretionary
.
authority to terminate employees with or without cause.
This argument is unavailing for multiple reasons. To begin with, the "strict
adequacyn requirement does not actually promote employer discretion with respect
to at-will employees. Regardless of whether the tort for wrongful discharge would
be
.
available to
'
Rose,. the STAA prohibited Anderson from terminating Rose for
'
refusing to break the la'Y. The concurrent availability of this tort does not broaden
or narrow Anderson's legal discretion to terminate Rose as an at-will employee.
. I '
Ad~itionally, by asking us to overlay our exclusivity analysis with an adequacy
15
Rose v. Anderson Hc~y & Grain Co., No. 90975·-0
. .
analysis, Andet:son Hay essentially asks us to embrace a stronger at-will doctrine
policy protective of its illegal activities. We disagree that Anderson Hay should be
allowed to contravene public policy merely because an alternative nonexclusive
administrative remedy existed. The purpose of a broad at-will doctrine is to protect
the ei:nployer's legitimate need to exercise discretion. Legitimate employer
discretion does not include an employer's illegitimate desire to violate the law in
·~ disciplinary decisions without repercussion. If a plaintiff can surmount the difficult
burden of establishing that his or her termination contravenes a clear, important
mandate of public policy, then the additional strict adequacy requirement only
''narrows" the tort by offering a loophole to avoid liability. No legitimate purpose
exi~ts for protecting an employer's ability to violate public policy.
Second, the an~lysis ()f alternative adequate remedies misapprehends the
role of the common .law. The common law is free standing, and absent clear
legislative intent to modify the common law, its remedies are generally not
foreclosed merely because other avenues for relief exist. Washington courts have
recognized that the wrongful termination tort is independent of any underlying
contractual agreement or statute and have previously held that an employee need
not exhaust his or her contractual or administrative remedies. Smith v. Bates Tech.
Call., 139 Wn.2d 793, 809, 991 P.2d 1135 (2000) (teacher not required to exhaust
collective bargaining agreement remedies before bringing wrongful discharge in
16
Rose v. Anderson Hay & Grain Co., No. 90975-0
violation of public policy claim); Allstot v. Edwards, 116 Wn. App. 424, 433, 65
. .
P.3d 696 (2003) (police officer not required to pursue administrative remedy for
constructive discharge claim); Young v. Ferrellgas, LP, 106 Wn. App. 524, 531, 21
P.3d 334 (2001) (e1nployee not required to submit wrongful discharge and
overtime violations to arbitration first). The common law may be abrogated by
constitutional requirmnents or legislative action, but we do not view the wrongful
• >1 • discharge tmi as self-subordinating. Common law remedies should be preempted
by statutory law only where the legislature either implicitly or explicitly expresses
an intent to do so. It is incorrect to overlay the exclusivity analysis with an
additional adequacy analysis.
Third, the jeopardy element, as we described it in Gardner, does not require
an an~lysis into the adequacy of alternative remedies. In Gardner, we analyzed
''adequacy of alternatives" by looking at the alternatives available to the employee
at the time he or she decided to violate the employer's direction; we did not
address alternative remedial statutes. Moreover, the adequacy of alternatives
requirement. is inconsistent with the remainder ofthe jeopardy element. We. said
. '
'
~
the plaintiff establishes jeopardy by demonstrating that his or her conduct was
either directly related to the public policy or necessary for effective enforcement.
The disjunctive language creates two options for establishing jeopardy, and the
plaintiff satisfies the jeopardy element by either means. In the first type of case,
17
Rose v. Anderson Hczy & Grain Co., No. 90975~0
where there is a direct relationship between the employee's conduct and the public
policy, the employer's discharge ofthe employee for engaging in that conduct
inherently implicates the public policy. In the second type of case, where there is
no direct relationship, then the plaintiff must establish that his or her actions were
necessary for effective enforcement of the policy-in other words, the plaintiff
must establish that there was no adequate alternative means of promoting the
policy. If we require the plaintiff to argue inadequacy of alternative means in every
case, we obviate the plaintiffs ability to establish jeopardy by establishing either
disjunctive. Such a requirement renders the first disjunctive superf1uous .
. Finally, the adequacy component undermines the very purpose of the tort.
When we adopted this tort exception to the at-will doctrine, we sought to
encourage ~mployees to follow the law by protecting them from retaliatory
termination. The additional adequacy requirement strips employees of that
protective guarantee. With the vast number of remedial statutes that exist to
address public policies, employees are left to guess whether the law will protect
their actions or whether their claim will slip through the cracks formed by this
nebulous adequac)' standard. In the aggregate, this doubt and uncertainty will erode
employees' trust that the law will protect their lawful actions.
Though we reject this adequacy requirement, courts still must consider
whether a statutory remedy is intended to be exclusive. A review of exclusivity is a
' ','_1· .
18
Rose v. Anderson Hay & Grain Co., No. 90975-0
m?re consistent,. clearer, and legislatively deferential standard. It is more consistent
with our analysis of all other wrongful discharge torts, all of which embrace the
same exclusivity analysis and better reflects the role of the common law in
supplementing statutory principles. Smith, 139 Wn.2d 793; Allstot, 116 Wn. App.
424; Young, 106 Wn. App. 524. Our courts are familiar with analyzing statutes for
preemptory and mandatory language, and our well-established jurisprudence would
guide the application of this tort toward more consistent, predictable results. And
finally, the exclusivity requirement respects the legislature's choice to either
pr~clud~ or supplement the common law remedies as it deems necessary. Congress
and the legislature know how to create exclusive remedies, and as the popularly
responsive branch of government, they are in the best position to determine when
such remedies should be restricted in favor of employers.
Our continued adherence to this adequacy requirement is both unwarranted
and harmful. By requiring a comparison of the relative efficiency between the tort
and the 11Ll;nlerous statutes that may exist that address the same policy, this
adequacy analysis has created confusing and inconsistent precedent. Our court has
struggled with its application, and the time has come to reject the requirement
outright. The adequacy component narrows the tort in an illogical, inconsistent
fashion and does nothing to serve the legitimate interests of the employer. By
19
Rose v. Anderson Ilc~;y & Grain Co., No. 90975-0
discarding this additional adequacy requirement, we hope to bring clarity and
consistency to the adjudication of these claims.
For these reasons, we abrogate our precedent only to the extent that it has
required an adequacy, rather than an exclusivity, analysis of alternative remedies.
\Ne reaffirm the approach we established in Thompson and Gardner as the
appropriate analytical framework for the tort. Wilmot applies the proper exclusivity
i analysis when alternative remedial statutes address the same public policy.
Because our cases since Thompson, Gardner, and Wilmot have embraced the same
core principles) and in large part remain good law, we abrogate them only to the
extent they require an analysis of the adequacy of alternative remedies.
Application to This Case
We review the trial court's summary judgment order de novo. Summary
judgment is proper if there is no genuine issue of material fact and the moving
., '
party is entitled to judgment as a matter of law. CR 56(c); Hubbard, 146 Wn.2d at
707. Vle consider all the facts in the light most favorable to Rose, the nonmoving
party in this case. Viewing the facts in that light, we accept Rose's allegation that
A,.nderson Hay terminated Rose for refusing to drive in excess of the federally
mandated maximum. We determine now whether that termination contravenes a
clear mandate of public policy.
20
Rose v. Anderson Hay & Grain Co., No. 90975-0
As we have said before, there are four scenarios that are easily resolved
under the Thompson framework and will potentially expose the employer to
' . .
liability: ( 1) when employees are fired for refusing to commit an illegal act, (2)
when employees are fired for performing a public duty or obligation, such as
serving jury duty, (3) when employees are fired for exercising a legal right or
privilege, such as tiling workers' compensation claims, and (4) when employees
:~are fired in retaliation for reporting employer misconduct, i.e., whistle-blowing.
Gardner, 128 Wn.2d at 936.
The first scenario applies squarely to the case before us: Anderson Hay
allegedly terminated Rose because he refused to falsify his drive log and drive in
excess of the federally mandated limit. Rose has met his burden in establishing his
termination for refhsing to break the law contravenes a legislatively recognized
public policy~ The burden now shifts to Anderson to establish that Rose's dismissal
was for other reasons. We note that in other instances, when the facts do not fit
neatly into one of the four above-described categories, a more refined analysis may
be necessary. In those circumstances, the courts should look to the four-part Perritt
framew49 U.S.C. § 31105, is adequate to effect the public policy and therefore
1
We accepted review of two other cases-Becker v. Community Health Systems, Inc., No.
90946-6 (Wash. Sept. 17, 2015) and Rickman v. Premera Blue Cross, No. 91040-5 (Wash. Sept.
17, 20 15)-that involve the same issue.
1
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)
Rose cannot satisfy the jeopardy element and his claim for wrongful discharge
should be dismissed.
A. The adequacy of the alternatives analysis is not incorrect and harmful
As the majority notes, the wrongful discharge in violation of public policy tort
has undergone changes to its analytical framework since its recognition 30 years
ago. See majority at 4-8. While the analytical framework for the tort may have
changed, the purpose of the tort has remained the same since the tort's recognition.
"[T]he tort of wrongful discharge is not designed to protect an employee's
purely private interest in his or her continued employment; rather, the tort operates
to vindicate the public interest in prohibiting employers from acting in a manner
contrary to fundamental public policy." Smith v. Bates Tech. Call., 139 Wn.2d 793,
801, 991 P.2d 1135 (2000). The tort was intended to be a narrow public policy
exception to the employment at will doctrine. Thompson v. St. Regis Paper Co., 102
Wn.2d 219, 232, 685 P.2d 1081 (1984). To ensure the tort remains a narrow
exception, a plaintiff should be precluded from bringing a claim for wrongful
discharge in violation of public policy when an adequate alternative remedy exists.
1. The development of the tort of wrongful discharge
Originally, a claim for wrongful discharge in violation of public policy
required the court to perform a burden shifting analysis. !d. The plaintiff had the
2
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)
burden to prove that his or her dismissal violated a clear mandate of public policy.
I d. If the employee met this burden, then the employer would have to demonstrate
that the discharge was for other reasons.Jd. at 232-33.
In Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 941, 913 P.2d 377( 1996), this court adopted a four-part test for the wrongful discharge tort. After
Gardner, to bring a claim for wrongful discharge in violation of public policy:
( 1) The plaintiffl] must prove the existence of a clear public
policy (the clarity element).
(2) The plaintiff[] must prove that discouraging the conduct in
which [he or she] engaged would jeopardize the public policy (the
jeopardy element).
(3) The plaintiff[] must prove that the public-policy-linked
conduct caused the dismissal (the causation element).
(4) The defendant must not be able to offer an overriding
justification for the dismissal (the absence ofjustification element).
I d. (citations omitted). Each element must be met, and these elements are the same
regardless of what conduct prompts the claim. In adopting the four-part test,
Gardner did not intend to change the common law for the wrongful discharge tort.
I d.
At issue here is the jeopardy element. Specifically, Rose's employer,
Anderson Hay and Grain Company, asserts that Rose's claim should be dismissed
because a federal administrative remedy under the STAA prevents Rose from
establishing the jeopardy element.
3
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)
2. The jeopardy element
"The jeopardy element guarantees an employer's personnel management
decisions will not be challenged unless a public policy is genuinely threatened." !d.
at 941-42. To establish jeopardy, the plaintiff must show that he "engaged in
particular conduct, and the conduct directly relates to the public policy, or was
necessary for the effective enforcement of the public policy." !d. at 945 (emphasis
omitted). The plaintiff also must show how the threat of discharge will discourage
others from engaging in desirable conduct. !d. Finally, the plaintiff must demonstrate
that other means of promoting the public policy are inadequate. !d.
The jeopardy element is more difficult to establish where the statute that
declares the alleged public policy provides an administrative remedy. HENRY H.
PERRITT, JR., WORKPLACE TORTS: RIGHTS AND LIABILITIES § 3.15, at 78 (1991).
When the statute that declares the public policy also creates a remedy, the focus of
the jeopardy analysis has centered on the adequacy of that remedy. 2 See Korslund v.
DynCorp Tri-Cities Servs., Inc., 156 Wn.2d 168, 182-83, 125 P.3d 119 (2005);
Cudney v. ALSCO, Inc., 172 Wn.2d 524, 531-33, 259 P.3d 244 (2011); Hubbard v.
Spokane County, 146 Wn.2d 699, 717, 50 P.3d 602 (2002).
2
The question of whether an adequate alternative remedy exists presents a question of law
where the inquiry is limited to examining existing laws to determine if they provide an adequate
alternative means of promoting the public policy. Korslundv. DynCorp Tri-Cities Servs., Inc., 156
Wn.2d 168, 182, 125 P.3d 119 (2005).
4
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)
"[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 1s inadequately promoted through other means and thereby
maintaining only a narrow exception to the underlying doctrine of at-will
employment." Cudney, 172 Wn.2d at 530. When examining an alternative statute
for adequacy, the question is not whether the legislature intended to preclude a tort
claim, but whether other means of protecting the public policy are adequate such that
recognition of the tort claim is not necessary to protect the public policy. Korslund,
156 Wn.2d at 183. Our cases have recognized that the alternative remedy does not
need to be available to the particular plaintiff seeking to use the tort, so long as it
provides an adequate means to protect the public policy. I d.; Cudney, 172 Wn.2d at
538.
In Korslund this court held that as a matter of law the plaintiffs could not
satisfy the jeopardy element because the Energy Reorganization Act of 1974 (ERA),
42 U.S.C. § 5851, provided an adequate alternative means of promoting the public
policy. Korslund, 156 Wn.2d at 181. The plaintiffs in Korslund claimed that they
were wrongfully discharged for reporting safety violations, mismanagement, and
fraud on the part of their employer, DynCorp, at the Hanford nuclear site. Id. at 172-
73. The plaintiffs claimed that to effectuate the policy of protecting the health and
5
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)
safety of the public in the operation of the nuclear industry, the ERA prohibits
retaliation against employees that observe and report potential misconduct. !d. at
182. The ERA provided an administrative process for adjudicating whistle-blower
complaints and required a violator to reinstate the employee to his or her former
position with the same compensation, terms and conditions of employment, back
pay, and compensatory damages. Id. The Korslund court found that the remedies
provided in the ERA were comprehensive "to protect the specific public policy
identified by the plaintiffs." Id. at 182.
Similarly, in Cudney this court found that an employee could not satisfy the
jeopardy element of the wrongful discharge tort because the Washington Industrial
Safety and Health Act of 1973 (WISHA), chapter 49.17 RCW, provided an adequate
alternative remedy. Cudney, 172 Wn.2d at 526, 538. Cudney alleged that he was
terminated for reporting that a manager drove a company vehicle while intoxicated.
!d. at 526. Cudney intended to promote the policies of workplace safety, protecting
employees against retaliation for reporting safety violations, and protecting the
public from the dangers of drinking and driving. Id. at 530. The Cudney court
compared the protections and remedies provided by WISHA to those provided by
the ERA examined in Korslund and found that WISHA was more comprehensive
than the ERA. Id. at 533. Under WISHA the superior court has the power to grant
6
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)
all appropriate relief to the aggrieved employee. Id. at 533. In contrast, the ERA
limited the relief to certain specific categories. Id. The court found that WISHA was
more than adequate to protect the identified public policies and therefore held that
Cudney could not satisfy the jeopardy element. 3 Id. at 533, 536.
Piel v. City of Federal Way, 177 Wn.2d 604, 614-15, 306 P.3d 879 (2013),
was this court's most recent case to address the jeopardy element and the adequate
alternative remedies analysis. The Piel court recognized that there are some cases
where a wrongful discharge tort must exist alongside a statutory scheme in order to
fully vindicate the public policy. I d. The Piel court addressed whether the remedies
through the Public Employment Relations Commission (PERC) under chapter 41.56
RCW were adequate as a matter oflaw to preclude a plaintiff from asserting a claim
for wrongful discharge in violation of policy. I d. at 609. The Piel court found that
an employee could satisfy the jeopardy element because PERC did not provide an
adequate alternative remedy. Id. at 617-18.
Piel did not overrule Korslund and Cudney, and although Piel reaches a
different outcome than Korslund and Cudney, its reasoning is consistent. Like
3
The Cudney court also addressed Washington's driving under the influence laws (DUI)
and found that the DUI laws adequately protected the public from the perils of drunk driving. 172
Wn.2d at 536-37. The court held that Cudney could not show that reporting drunk driving to
another manager was the '"only available adequate means"' to promote the public policy of
protecting the public from drunk driving. !d. at 536 (quoting Danny v. Laidlaw Transit Servs.,
Inc., 165 Wn.2d 200,222, 193 P.3d 128 (2008)).
7
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)
Korslund and Cudney, in Piel this court focused its analysis on whether the
alternative statutory remedy was adequate to promote or vindicate the public policy
at issue. Id. at 615, 617.
The statutory remedies through PERC differed from the remedies in Korslund
and Cudney. Id. at 616-17. The Piel court noted that unlike the statutory remedies at
issue in Korslund and Cudney, PERC remedies were previously recognized by this
court as inadequate to vindicate an important public policy. Id. at 616. The court in
Piel relied on a prior case where this court found that to advance public policy, the
wrongful discharge tort remedy should exist apart from the PERC remedy. !d. at 612
(citing Smith, 139 Wn.2d at 805). In Smith, this court held that PERC's remedial
scheme did not provide adequate redress for an employee when an employer violated
public policy by retaliating against an employee for engaging in a protected activity.
139 Wn.2d at 805-06 (noting that PERC remedies did not allow for an award of
damages for emotional distress and, therefore, only partially compensated the
employee for her damages).
RCW 41.56.905 states that PERC's remedies were intended to be additional
to other remedies. According to the Piel court, this statutory language is significant
because it notes the legislative choice to allow wrongfully discharged employees to
pursue other remedies in addition to those provided by the statute. Id. The court
8
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)
found that language in a statute announcing that the statutory scheme is intended to
be additional to other remedies is the strongest possible evidence that the statutory
remedies are not adequate to vindicate the public policy. Id.
Following Korslund, Cudney, and Piel, to determine whether the plaintiff can
satisfy the jeopardy element requires the examination of the alternative statutory
scheme to determine if it provides a remedy that is adequate in comparison to the
remedy available under a common law tort action. Part of this examination includes
an analysis of the statutory language to determine whether the legislature indicated
that the statute would be insufficient to adequately promote the public policy at issue.
The majority asserts that the adequacy of the alternative remedy analysis as it
operates after Pie! is inconsistent with the jeopardy element as it was described in
Gardner. Majority at 17. The majority states that Gardner set forth a disjunctive test
that allowed the plaintiff to establish the jeopardy element by demonstrating that his
or her conduct was either directly related to the public policy or necessary for
effective enforcement. !d. According to the majority, where the plaintiff showed that
his or her action directly related to the public policy, he or she does not need to show
that there are no adequate alternative remedies. Majority at 18. The majority is
correct that in Gardner this court set forth a disjunctive test, but that was only a piece
of the plaintiffs burden. The Gardner court also stated that to establish the jeopardy
9
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)
element, the plaintiff must show that other means of promoting the policy are
inadequate. 128 Wn.2d at 945. Therefore, it has never been sufficient for the plaintiff
to demonstrate that his or her conduct directly relates to the public policy.
Since its recognition, the jeopardy element has required the plaintiff to
demonstrate that alternative means are not adequate to promote the public policy.
See id. This makes sense because when an alternative adequate statutory remedy
exists, employees have the same incentive to perform the desired behavior. Whether
an available statutory remedy is adequate to vindicate the public policy at issue
should remain a part of the analysis for the wrongful discharge tort.
3. The majority's analytical framework does not advance the purpose of
the tort
According to the majority, the adequacy of the alternatives analysis
misapprehends the role of the common law and the purpose of the tort. Majority at
2. The majority proposes a new framework for the tort that would eliminate the
adequacy of the alternatives analysis. Under the majority's new framework, a trial
court examining whether a plaintiff has a claim for the tort of wrongful discharge in
violation of public policy must begin by determining whether the facts of the case
fit one of the four common factual scenarios. Majority at 21. These include where
an employee is fired for: (1) refusing to commit an illegal act, (2) performing a legal
duty or obligation, (3) exercising a legal right or privilege, and (4) reporting
10
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)
employer misconduct. Majority at 6-7 (citing Gardner, 128 Wn.2d at 93 6). If the
facts of the case fit one of the four common factual scenarios, then the court must
determine if the employee met his or her burden of proving that his or her dismissal
violates a clear mandate of public policy. Majority at 21. If the employee can meet
this burden, then the burden shifts to the employee to demonstrate that dismissal was
for other reasons. !d. Alternatively, if the facts do not fall within one of the four
recognized factual scenarios, then the court should use the four-part test set forth in
Gardner. Id. Further, according to the majority's analytical framework, if a statutory
alternative is relevant, it will preclude a claim for wrongful discharge in violation of
public policy only if the statute provides an exclusive remedy. Majority at 22. The
exclusivity of a statutory remedy can be express or implied. According to the
majority, a nonpreemption clause in a federal statute demonstrates that the statute is
not exclusive and should not preclude a tort claim for wrongful discharge in violation
of public policy. !d.
The majority's new framework does not advance the purpose of the tort and
confuses the application of the tort claim further. The purpose of the tort is to protect
the interests of the public and to promote public policy. Smith, 139 Wn.2d at 801.
When examining the jeopardy element where there is a statutory alternative, the
question for the court should not be whether the applicable statutory alternative
11
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)
precludes the tort but whether the statute adequately promotes the public policy such
that the tort claim is not necessary. See Korslund, 156 Wn.2d at 183. Rejecting the
adequacy analysis and focusing on the exclusivity of an alternative statute does not
promote public policy. Instead, it may give a plaintiff the opportunity to recover
under the tort claim and under the statutory remedy. In addition, the new framework
broadens the scope of the tort beyond what was intended in Thompson.
B. Rose cannot satisfy the jeopardy element
After rejecting the majority's framework, I would apply our precedent to the
facts at issue here and hold that Rose fails to establish the jeopardy element. Rose
alleges that he was fired for refusing to drive over the hour limitation set forth in 49
C.P.R.§ 395.3(b)(1) and for refusing to misrepresent the hours he drove.
The STAA established a system under which employees may pursue remedies
for discharge in violation of its provisions. The STAA prohibits an employer from
discharging an employee if the employee refuses to operate a vehicle because the
operation violates a regulation or standard related to commercial vehicle safety. 49
U.S.C. § 311 05(a)(l)(B)(i). An employee alleging a violation of the statute can file
a complaint with the secretary of labor no later than 180 days after the alleged
violation occurred. 49 U.S.C. § 311 05(b ). If after receiving the complaint the
secretary reasonably believes that a violation occurred, the secretary will include
12
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)
with the findings a preliminary order for relief. 49 U.S.C. § 311 05(b )(2)(A). The
complainant and the person alleged to have committed the violation may file
objections to the preliminary order or the findings and request a hearing. 49 U.S.C.
§ 311 05(b )(2)(B). If a hearing is not requested within 30 days, then the preliminary
order is final and not subject to judicial review. Id. If the secretary finds that a
violation did occur, he or she shall order the violator to affirmatively abate the
violation; reinstate the complainant to his or her former position with the same pay
and privileges of employment, and pay compensatory damages, including back pay
and any special damages sustained by the complainant. 49 U.S.C. §
311 05(b )(3 )(A)(i)-(iii). Compensatory damages include damages for emotional
distress. See Carter v. Tropicana Prods. Sales, Inc., No. 07-10921-RWZ, 2008 WL
190791, at *3 (D. Mass. Jan. 4, 2008) (court order). Relief may also include punitive
damages. 49 U.S.C. § 311 05(b )(3)(C).
The Court of Appeals found that the remedies provided by the STAA were
adequate and that Rose could not satisfy the jeopardy element. Rose v. Anderson
Hay & Grain Co., 183 Wn. App. 785, 793, 335 P.3d 440 (2014), review granted,
182 Wn.2d 1009 (2015). I would agree with the Court of Appeals. The remedies
provided under the STAA are comprehensive. The remedies available under the
STAA are similar to those available under the ERA examined in Korslund. These
13
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)
included back pay, reinstatement, and compensatory damages. Korslund, 156 Wn.2d
at 182. Although Rose cannot receive a remedy pursuant to the STAA because he
failed to timely file his complaint with the Department of Labor, the alternative
statutory remedies do not need to be available to the particular employee so long as
the remedies are adequate to promote the public policy. Hubbard, 146 Wn.2d at 717.
Courts in other jurisdictions have found that the STAA's remedies are
adequate. The Oregon Supreme Court recognizes the tort of wrongful discharge and,
like Washington, has found that where statutes provide an adequate remedy, the tort
is not available. Rice v. Comtek Mfg. of Or., Inc., 766 F. Supp. 1539, 1546 (D. Or.
1990). A federal district court applying Oregon law found that the STAA provides
an adequate alternative statutory remedy, precluding plaintiffs from asserting a tort
claim for wrongful discharge in violation of public policy. Dooijes v. K&B Transp.,
Inc., No. CV04-608-MO, 2005 WL 1838962, at *1 (D. Or. Aug 2, 2005) (court
order).
Next, I would find that the statute does not contain language indicating that
its remedy is insufficient. Unlike PERC, the statutory scheme in Pie!, the STAA
does not contain language indicating that the legislature intended the statute to be an
additional remedy. Instead, the STAA contains a nonpreemption clause. 49 U.S.C.
14
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)
§ 31105(£). 4 The ERA-the statute examined in Kors/und-contained similar
nonpreemption language as in the STAA. 42 U.S.C. § 5851(h) ("This section may
not be construed to expand, diminish, or otherwise affect any right otherwise
available to an employee under Federal or State law."). The Korslund court found
that this language did not indicate that the statutory remedy was inadequate. 156
Wn.2d at 183; see also Pie!, 177 Wn.2d at 617. The STAA provides an adequate
alternative remedy, and Rose cannot satisfy the jeopardy element.
By finding that the wrongful discharge tort is not available here, it does not
give Anderson the discretion to commit acts that violate the STAA. The tort action
is not available because the STAA provides sufficient remedies for an employee who
is wrongfully discharged for refusing to commit an illegal act. Dismissing Rose's
suit would not discourage future employees from taking similar action to Rose
because employees that take similar action to Rose are afforded adequate remedies
and protections under the STAA.
I would continue to examine the adequacy of alternative remedies as part of
the jeopardy element for the wrongful discharge tort. Because the adequate
alternative remedies analysis is not incorrect and harmful, we should not overrule
4
"Nothing in this section preempts or diminishes any other safeguards against
discrimination, demotion, discharge, suspension, threats, harassment, reprimand, retaliation, or
any other manner of discrimination provided by Federal or State law." 49 U.S.C. § 311 05(:f).
15
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)
our precedent. The jeopardy element is critical to the analytical framework of the
wrongful discharge tort because it ensures that the tort is available only when a
public policy is genuinely threatened. Here, the STAA provides an adequate
alternative remedy. I would affirm the Court of Appeals.
16
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)
17