Piel v. City of Federal Way ( 2013 )

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IN CLERKS OFFICE
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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
ROBERT PIEL & JACQUELINE PIEL,
husband and wife,
NO. 83882-8
Appellants,
v. ENBANC
THE CITY OF FEDERAL WAY, a
Municipality organized pursuant to the laws Filed - - - -7 2013 -
OUN 2
of the State of Washington, --
Respondent.
STEPHENS, J.-This case requires us to consider whether a tort claim for
wrongful termination in violation of public policy is viable based on provisions of
chapter 41.56 RCW involving the Public Employees Relations Commission
(PERC). The lower court dismissed Richard Piel's suit against the city of Federal
Way (City), concluding the existence of statutory remedies authorized under
chapter 41.56 RCW prevented him from establishing the "jeopardy prong" of the
I
I
common law claim. We take this opportunity to better explain our jeopardy
analysis and harmonize our recent decisions in Cudney v. ALSCO, Inc., 172 Wn.2d
Piel v. The City of Federal Way, 83882-8
524, 259 P.3d 244 (2011), and Korslund v. DynCorp Tri-Cities Services., Inc., 156
Wn.2d 168, 125 P.3d 119 (2005), with Smith v. Bates Technical College, 139
Wn.2d 793, 991 P.2d 1135 (2000). In Smith, we recognized that an employee
protected by a collective bargaining agreement may bring a common law claim for
wrongful termination based on the public policy provisions of chapter 41.56 RCW
notwithstanding the administrative remedies available through PERC. Nothing in
our later opinions in Korslund and Cudney altered this holding. We reverse the
lower court's order of dismissal and remand for further proceedings.
FACTS
At the time of incidents giving rise to this action, Richard Piel was a 25-year
veteran of law enforcement, with over 11 years in the Federal Way Police
Department (Department). Piel was promoted to lieutenant in 1998. Until the
incidents at issue here, Piel had consistently received high marks in performance
reviews.
In late 2002, the 12 lieutenants in the Department decided to create a union
and Piel was chosen by the other lieutenants to manage its formation. Although
the Department's administration was initially supportive of the union activity,
according to Piel the administration's attitude toward the efforts later soured.
Shortly thereafter, Piel began experiencing a marked increase in his duties and
responsibilities without commensurate support. By 2004, Piel began to feel his
unit was the target of unusual and obstreperous internal affairs investigations.
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Pie! v. The City of Federal Way, 83882-8
In January 2005, the lieutenant's guild was officially certified. That same
month, Piel received his yearly evaluation, albeit late. The evaluation rated Piel as
performing poorly in his job functions. Piellater learned the negative reports were
not generated by his commanding officer, but by the deputy chief of the
Department, which was outside the normal procedure for performance reviews.
Meanwhile, his requests for assignments were denied and his unit continued to be
the target of investigations from internal affairs.
In May 2005, Piel was injured on the job and had to take three months of
leave to recover from corrective knee surgery. During his medical leave and upon
his return, Piel was told he would be demoted and was relieved of some of his
responsibilities based on allegedly poor performance. Similar incidents continued
into 2006.
In March 2006, Piel advised an officer over the phone about the officer's
options after the officer stopped a fireman on suspicion of driving while under the
influence. The Department alleged that Piel' s advice and involvement in the
matter violated Department standards. On April 18, 2006, Piel was placed on
administrative leave pending an investigation. He was terminated in July 2006.
Piel successfully grieved his termination and was reinstated 14 months later. The
City was ordered to pay all back pay and benefits.
Upon returning to his job, Piel was discouraged by the reception from his
fellow officers. The City had not yet paid him his award of back pay and benefits.
He was nervous and had not been sleeping well. His first two days back at work
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Piel v. The City of Federal Way, 83882-8
were stressful and tense. During this time, a conversation took place in the
briefing room between Piel and other officers in which Piel allegedly expressed
violent feelings against members of the Department. The parties dispute the facts
about what actually happened in the briefing room.
An investigation followed. Ultimately, Piel was terminated for being
untruthful about what had happened in the briefing room. Piel and his wife
brought this suit for wrongful termination in violation of public policy, claiming,
among other things, that he was fired for engaging in protected union-organizing
activities.
The trial court dismissed the Piels' suit on summary judgment. The court
explained that
Korslund[,156 Wn.2d 168,] is the controlling authority. Based on
Korslund, the Court concludes that the remedies available to Piel through
PERC are adequate to protect the public policy grounded in RCW 41.56.
Since Piel cannot satisfy the "jeopardy" element, his wrongful discharge in
violation of public policy claims grounded in RCW 41.5 6 are dismissed.
Clerk's Papers at 771. The Piels sought direct review by this court based on the
apparent conflict between Smith and Korslund. Consideration was stayed pending
this court's final decision in Cudney, 172 Wn.2d 524. After Cudney was decided,
we retained this case for hearing and decision.
ISSUE
Are the remedies available to a public employee under chapter 41.56 RCW
adequate as a matter of law, such that the employee may not assert a tort claim for
wrongful discharge in violation of public policy? (Short Answer: No.)
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Piel v. The City of Federal Way, 83882-8
ANALYSIS
This court first recognized a common law cause of action for wrongful
discharge in violation of a clear mandate of public policy in the landmark case of
Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 685 P.2d 1081 (1984). In cases
following Thompson, we acknowledged that public policy tort claims generally
arise in four areas: "(1) where the discharge was a result of refusing to commit an
illegal act, (2) where the discharge resulted due to the employee performing a
public duty or obligation, (3) where the [discharge] resulted because the employee
exercised a legal right or privilege, and (4) where the discharge was premised on
employee 'whistleblowing' activity." Dicomes v. State, 113 Wn.2d 612, 618, 782
P.2d 1002 (1989) (citations omitted).
In Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 941, 913 P .2d 3 77
( 1996), the court adopted the analytical framework set forth in a leading treatise to
assess when an employee may recover for wrongful discharge in violation of
public policy. See HENRY H. PERRITT JR., WORKPLACE TORTS: RIGHTS AND
LIABILITIES § 3.1 (1991). This test examines (1) the existence of a "clear public
policy" ("clarity" element), (2) whether "discouraging the conduct in which [the
employee] engaged would jeopardize the public policy" ("jeopardy" element), (3)
whether the "public-policy-linked conduct caused the discharge" ("causation"
element), and (4) whether the employer is "able to offer an overriding justification
for the [discharge]" ("absence of justification" element). Gardner, 128 Wn.2d at
941. Here, only the jeopardy element is at issue.
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Piel v. The City of Federal Way, 83882-8
Prior to our adoption of Perritt's four-part test, our decisions tended to
"lump[] the clarity and jeopardy elements together .... " Id.; see also Dicomes,
113 Wn.2d at 617 ("[T]he employee has the burden to show that the discharge
contravened a clear mandate of public policy."). By parsing out these two related
but conceptually distinct concepts, this court in Gardner sought to achieve "a more
consistent analysis." Gardner, 128 Wn.2d at 941. And in doing so, we made clear
that "our adoption of this test does not change the existing common law in this
state." Id.Describing the jeopardy element, we explained it serves to "guarantee[] an
employer's personnel management decisions will not be challenged unless a public
policy is genuinely threatened." Id. at 941-42 (emphasis added). Also, we
articulated the requisite showing a plaintiff must make in order to establish
jeopardy:
To establish jeopardy, plaintiffs must show they engaged in particular
conduct, and the conduct directly relates to the public policy, or was
necessary for the effective enforcement of the public policy. This burden
requires a plaintiff to "argue that other means for promoting the policy ...
are inadequate." Perritt[, supra,] § 3.14, at 77. Additionally, the plaintiff
must show how the threat of dismissal will discourage others from
engaging in the desirable conduct.
I d. at 945 (alteration in original) (citation omitted).
We considered the viability of a wrongful termination claim based upon the
statutory remedies under chapter 41.56 RCW in Smith, 139 Wn.2d 793. Consistent
with our decision in Gardner, we recognized that the tort of wrongful termination
was not limited to at-will employment settings. I d. at 806-07. And we allowed the
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Piel v. The City of Federal Way, 83882-8
public employee's claim to go forward notwithstanding her failure to pursue
administrative remedies through PERC. Id. at 811. In the course of our analysis,
we examined key distinctions between available tort remedies and statutory
remedies and concluded that Smith should not be barred from bringing a tort claim
"simply because her administrative and contractual remedies may partially
compensate her wrongful discharge." Id. at 806.
Not surprisingly, the Piels rely on Smith in asserting a wrongful termination
claim against the City. The City counters that our recent decisions in Korslund and
Cudney are inconsistent with recognition of a public policy tort claim where
statutory remedies exist. Because Smith did not directly address the jeopardy
analysis, while Korslund and Cudney did, the City insists Smith is not on point.
We do not agree. It is hard to miss the similarity between the second question at
issue in Smith (Must the plaintiffs tort claim be dismissed for failure to pursue
statutory remedies through PERC?) and the question here (Must the plaintiffs tort
claim be dismissed because he can pursue statutory remedies through PERC?). See
Smith, 139 Wn.2d at 808-11.
The City emphasizes that the tort of wrongful discharge operates to protect
the public interest rather than the plaintiff's private interest. Br. ofResp't at 17. If
the suggestion is that Smith concerned only the private interest in personal
compensation, this theory is belied by clear language in the Smith opinion. In
recognizing Smith's right to pursue a wrongful discharge tort claim
notwithstanding for-cause provisions of a collective bargaining agreement and
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Pie! v. The City of Federal Way, 83882-8
available PERC remedies, the court focused on preservmg important public
policies. See Smith, 139 Wn.2d at 804 ("'What is vindicated through the cause of
action is not the terms or promises arising out of the particular employment
relationship involved, but rather the public interest in not permitting employers to
impose as a condition of employment a requirement that an employee act in a
manner contrary to fundamental public policy."' (quoting Foley v. Interactive Data
Corp., 47 Cal. 3d 654, 667 n.7, 254 Cal. Rptr. 211 (1988))); see also id. at 809
("As we have explained, the tort of wrongful discharge seeks to vindicate the
public interest in prohibiting employers from acting in a manner contrary to
fundamental public policy. Because the right to be free from wrongful termination
in violation of public policy is independent of any underlying contractual
agreement or civil service law, we conclude Smith should not be required to
exhaust her contractual or administrative remedies.").
The point of this discussion in Smith was to highlight the importance of
having a tort remedy apart from the PERC remedy in order to advance public
policy, not the plaintiffs personal compensation. Quoting favorably from
Retherford v. AT&T Communications of Mountain States, Inc., 844 P.2d 949 (Utah
1992), the court explained, "'When an employer's act violates both its own
contractual just-cause standard and a clear and substantial public policy, we see no
reason to dilute the force of the double sanction. In such an instance, the employer
is liable for two breaches, one in contract and one in tort. It therefore must bear the
consequences of both."' Smith, 139 Wn.2d at 806 (quoting Retherford 844 P.2d at
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Piel v. The City of Federal Way, 83882-8
960). These passages convincingly refute any characterization of Smith as
concerning only personal compensation, not public policy.
Nor is it possible to dismiss Smith as unconcerned with issues arising under
the jeopardy prong of the Perritt test. While it is true that the court in Smith did not
walk through the four-part Perritt test, it plainly considered the adequacy of PERC
remedies and held they were insufficient to foreclose a common law tort claim.
See 139 Wn.2d at 805 (identifying additional tort remedies and concluding that
"Bates' assumption that Smith's pending action before PERC will fully resolve her
wrongful discharge claim is wholly unsupported"); id. at 810 (emphasizing
unavailability of emotional distress and other tort damages under RCW 41.56.160).
The adequacy of available remedies is the heart of jeopardy analysis in cases
involving statutes that provide administrative schemes. In fact, the remedy
analysis in Smith echoes the jeopardy analysis in Korslund and Cudney by calling
out the available relief under the applicable statutes. See Korslund, 156 Wn.2d at
182 (noting "comprehensive remedies" under Energy Reorganization Act of 1974
(ERA) including back pay, compensatory damages, and attorney and expert
witness fees); Cudney, 172 Wn.2d at 533 (describing remedies under the
Washington Industrial Safety and Health Act of 1973 (WISHA), chapter 49.17
RCW, and observing "WISHA is actually more comprehensive than the ERA and
is more than adequate").
Even after Korslund, Justice Madsen, in her concurrence/dissent in Danny v.
Laidlaw Transit Services, Inc., 165 Wn.2d 200, 193 P.3d 128 (2008), recognized
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Pie! v. The City of Federal Way, 83882-8
that Smith involved the same adequacy analysis as Korslund. Significantly, she
drew a clear distinction between the results in the two cases:
In such instances, the legal component of the jeopardy analysis is
whether the remedies provided by the legislature adequately protect the
public policy. See, e.g., Korslund, 156 Wn.2d at 181 (concluding, as a
matter of law, comprehensive statutory remedies against retaliation for
reporting safety violations in nuclear industry adequately protects relevant
public policy interests); cf Smith, 139 Wn.2d at 805 (finding statutory
remedies for wrongful discharge for filing a grievance inadequate where no
recovery for emotional distress is available).
Danny, 165 Wn.2d at 232-33 (Madsen, J., concurring/dissenting). This direct
contrast of Korslund and Smith undercuts the City's view that the cases involved
different issues.
To accept the proposition that Smith failed to consider the adequacy of
PERC remedies, we would have to disregard its holding recognizing "the
fundamental distinction between a wrongful discharge action based in tort and an
action [through PERC] based upon an alleged violation of an employment contract
or a [collective bargaining agreement]." Smith, 139 Wn.2d at 809. Under Smith,
the PERC remedial scheme does not provide adequate redress for the employer's
public policy violation in retaliating against the employee for engaging in protected
activity. How then can the remedial scheme under PERC be deemed adequate as a
matter of law? If it were, then we would have to conclude that the plaintiffs claim
in Smith should have been dismissed on summary judgment.
Similarly, other cases which have recognized the need for a public policy
tort despite the existence of statutory remedies would be called into question. See,
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Pie! v. The City of Federal Way, 83882-8
e.g., Thompson, 102 Wn.2d 219 (allowing claim for reporting violation of federal
Foreign Corrupt Practices Act of 1977); Ellis v. City of Seattle, 142 Wn.2d 450, 13
P.3d 1065 (2000) (recognizing claim for retaliation for making safety complaints);
Roberts v. Dudley, 140 Wn.2d 58, 993 P.2d 901 (2000) (allowing tort claim under
RCW 49.12.200 and Washington's Law Against Discrimination (WLAD), chapter
49.60 RCW); Bennett v. Hardy, 113 Wn.2d 912, 784 P.2d 1258 (1990)
(recognizing claim under WLAD). An overbroad reading of Korslund and Cudney
would fail to account for this long line of precedent allowing wrongful discharge
tort claims to exist alongside sometimes comprehensive administrative remedies.
Importantly, neither case purported to overrule anything.
Declaring a wrongful termination tort claim dead on arrival in the face of
administrative remedies would likewise unsettle the body of law this court has
developed addressing collateral estoppel where wrongful discharge tort claims
coexist with administrative remedies. We have on several occasions discussed the
interplay between administrative proceedings such as under PERC and wrongful
termination tort actions. In Reninger v. Department of Corrections, 134 Wn.2d
437,951 P.2d 782 (1998), we held that an employee who loses in an administrative
proceeding (there, a personnel appeals board hearing) may be collaterally estopped
from asserting a wrongful discharge claim. In Smith, we noted that Reninger made
it "even more compelling" to hold that the public policy tort does not require first
pursuing PERC administrative remedies. 139 Wn.2d at 810. Recognizing the
collateral estoppel effect of a prior administrative proceeding, we observed:
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Piel v. The City of Federal Way, 83882-8
Thus, if employees are required to exhaust all available administrative
remedies in order to bring a civil suit for wrongful termination, the
administrative remedy could be the only available remedy. Such a rule
goes beyond the usual understanding of exhaustion as a prerequisite to
seeking judicial relief ... and ignores the fundamental distinction between
contract and tort actions."
I d. at 811 (citation omitted). And, in Christensen v. Grant County Hospital
District No. 1, 152 Wn.2d 299, 96 P.3d 957 (2004), we examined both Reninger
and Smith, and held that factual findings in a PERC administrative proceeding have
preclusive effect in a later tort action for wrongful discharge. We found it
especially important that the plaintiff "chose to litigate in the administrative
setting" before bringing a tort claim. I d. at 313; see also id. at 318 n.1 0 (noting
plaintiff had a choice). We never doubted the appropriateness of bringing a tort
claim instead of or in addition to a PERC action because both administrative and
tort claims were contemplated by the legislature. Id. at 316. Lower courts and
litigants would fairly ponder why we have been so careful to define the limits of
collateral estoppel in a wrongful discharge action that follows a PERC action if, at
the end of the day, no such action were possible.
In short, we refuse to disregard the body of law we have developed
addressing wrongful termination claims in the context of statutory schemes
providing for administrative remedies. In the particular context of PERC, Smith
and later cases recognize that the limited statutory remedies under chapter 41.56
RCW do not foreclose more complete tort remedies for wrongful discharge. Smith
cannot be dismissed as concerned with only personal compensation and not public
policy, nor can it be recast as having nothing to do with the jeopardy question.
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Pie! v. The City of Federal Way, 83882-8
Recognizing the continued vitality of Smith does not require retreat from our
recent cases. The asserted tension between Smith, Korslund, and Cudney eases
upon a closer examination of the administrative remedies at issue in each case.
Neither Korslund nor Cudney involved an administrative scheme that this court
had previously recognized is inadequate to vindicate an important public policy.
See Korslund, 156 Wn.2d at 181, 183 (involving federal ERA); Cudney, 172
Wn.2d at 526-27 (involving WISHA and Washington laws prohibiting driving
under the influence). In contrast, in Smith the court emphasized that the
administrative remedies allowed through PERC fall short of addressing the broader
public interests at issue in a wrongful discharge tort claim. See 139 Wn.2d at 805("But while the contractual remedies available to certain employees redress
violations of the underlying employment contract, these remedies do not protect an
employee who is fired not only 'for cause' but also in violation of public policy.");
id. at 809 (rejecting exhaustion requirement as counter to "fundamental distinction
between a wrongful discharge action based in tort and an action based upon an
alleged violation of an employment contract or a [collective bargaining
agreement]"). Smith unequivocally held that PERC is inadequate to vindicate the
public policy at issue when an employee is terminated in retaliation for asserting
collective bargaining rights. Nothing in Korslund or Cudney provides a basis to
second-guess this aspect of Smith.
Moreover, we should not reach to expand the jeopardy analysis of Korslund
or Cudney when the very statutory scheme that announces the public policy at
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Pie! v. The City of Federal Way, 83882-8
issue also cautions that its administrative remedies are intended to be additional to
other remedies. PERC contains such a provision, RCW 41.56.905, which states,
"The provisions of this chapter are intended to be additional to other remedies and
shall be liberally construed to accomplish their purpose." No similar language was
identified under the statutory schemes at issue in Korslund or Cudney. This
language is significant because it respects the legislative choice to allow a
wrongfully discharged employee to pursue additional remedies beyond those
provided by statute. It is the strongest possible evidence that the statutory
remedies are not adequate to vindicate a violation of public policy.
Each public policy tort claim must be evaluated in light of its particular
context. We must carefully consider the PERC administrative scheme before us
and acknowledge that we have previously held it is not adequate to vindicate
public policy when an employee is terminated for asserting collective bargaining
rights. Korslund and Cudney addressed different statutory schemes and do not
dictate the outcome here. Consistent with Smith, we hold that the statutory
remedies available to public employees through PERC are inadequate-and a
wrongful discharge tort claim is therefore necessary-to vindicate the important
public policy recognized in chapter 41.56 RCW. Accordingly, we reverse the
lower court's order granting summary judgment of dismissal and remand for
further proceedings consistent with this opinion.
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Piel v. The City of Federal Way, 83882-8
WE CONCUR:
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Piel v. City of Federal Way
No. 83882-8
MADSEN, C.J. (concurring in dissent)-! agree with the dissent, but write
separately to emphasize several key points. First, the majority concedes that the issue in
the present case is whether the jeopardy element is established. Common sense tells us
this means we should apply the Perritt jeopardy analysis, given that we adopted this
analysis in Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 913 P.2d 377 (1996).
However, the majority does not cite a single case in which this court ever addressed the
jeopardy element of the public policy tort claim with regard to remedies in chapter 41.56
RCW.
Instead, according to the majority Smith v. Bates Technical College, 139 Wn.2d
793, 799-800, 991 P.2d 1135 (2000), necessarily recognized that the jeopardy prong of
the analysis was met there and Smith is controlling precedent. The majority thus attempts
to bind this court to a theoretical holding purportedly implicit in Smith.
But Smith is not controlling. It never addressed the jeopardy prong of the Perritt
analysis. At most, it assumed the plaintiff would be able to satisfy the elements of the
cause of action. '"In cases where a legal theory is not discussed in the opinion, that case
is not controlling on a future case where the legal theory is properly raised."' State ex
rel. Gallwey v. Grimm, 146 Wn.2d 445, 459, 48 P.3d 274 (2002) (quoting
Berschauer/Phillips Constr. Co. v. Seattle Sch. Dist. No. I, 124 Wn.2d 816, 824, 881
No. 83882-8
Madsen, C.J. (concurring in dissent)
P.2d 986 (1994)). Questions lurking in the record that are not ruled on '"are not
considered to have been decided so as to constitute precedent."' I d. (quoting
Berschauer/Phillips, 124 Wn.2d at 824 and citing Webster v. Fall, 266 U.S. 507, 511, 45
S. Ct. 148, 69 L. Ed. 411 (1925)). As the court in ETCO, Inc. v. Department of Labor &
Industries, 66 Wn. App. 302,307, 831 P.2d 1133 (1992), aptly stated:
Where the literal words of a court opinion appear to control an issue, but
where the court did not in fact address or consider the issue, the ruling is
not dispositive and may be reexamined without violating stare decisis in the
same court or without violating an intermediate appellate court's duty to
accept the rulings of the Supreme Court. "An opinion is not authority for
what is not mentioned therein and what does not appear to have been
suggested to the court by which the opinion was rendered." Continental
Mutual Savings Bank v. Elliot, 166 Wash. 283, 300, 6 P.2d 638 (1932).
Accord Cazzanigi v. Gen. Elec. Credit Corp., 132 Wn.2d 433, 442-43, 938 P.2d 819( 1997) (despite a prior case appearing to rule that a certain statute did not apply
retroactively, the court concluded that the prior case did not address the issue or
arguments that were raised in the later case and declined to find the prior case
controlling).
The apparent assumption in Smith that the plaintiff would be able to satisfy all of
the elements of the tort claim cannot substitute for an actual analysis and holding on the
jeopardy element, specifically the adequacy of existing protections for the public policy.
The majority says, though, that in Smith the second issue addressed was whether
"the plaintiffs tort claim [had to] be dismissed for failure to pursue statutory remedies
through PERC [(Public Employees Relations Commission)]" and that this is similar to
the issue as in the present case. Majority at 7. But the issues at the pages cited by the
2
No. 83882-8
Madsen, C.J. (concurring in dissent)
majority were whether there was a clear mandate of public policy and whether the
plaintiff exhausted administrative remedies (or had to exhaust administrative remedies).
See Smith, 139 Wn.2d at 808-11.
The numerous statements the majority lifts out of context should not be considered
severed from the analysis in which they appear. For example, the majority says that "[t]o
accept the proposition that Smith failed to consider the adequacy of PERC remedies, we
would have to disregard its holding recognizing 'the fundamental distinction between a
wrongful discharge action based in tort and an action [through PERC] based upon an
alleged violation of an employment contract or a [collective bargaining agreement.]'"
Majority at 10 (alteration in original) (quoting Smith, 139 Wn.2d at 809).
But the context belies the majority's recitation of this supposed "holding." Here is
what actually appears in Smith:
Bates [(the employer)] argues that because Smith did not pursue her ULPs
[(unfair labor practice claims)] with PERC [(Public Employees Relations
Commission)], she did not exhaust her administrative remedies to the
extent required by law. Due to this failure Bates asserts the trial court
properly exercised its discretion to dismiss Smith's wrongful termination
claim. But Bates' argument ignores the fundamental distinction between a
wrongful discharge action based in tort and an action based upon an alleged
violation of an employment contract or a CBA [(collective bargaining
agreement)]. As we have explained, the tort of wrongful discharge seeks to
vindicate the public interest in prohibiting employers from acting in a
manner contrary to fundamental public policy. Because the right to be free
from wrongful termination in violation of public policy is independent of
any underlying contractual agreement or civil service law, we conclude
Smith should not be required to exhaust her contractual or administrative
remedies.
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No. 83882-8
Madsen, C.J. (concurring in dissent)
Smith, 139 Wn.2d at 808-09. As can be seen, the court was addressing the exhaustion of
remedies issue, and it is an extraordinary stretch to describe the sentence in the middle of
this paragraph as a "holding" compelling us to conclude that the court considered the
adequacy of remedies under the jeopardy prong of the Perritt public policy wrongful
discharge action.
The majority is so thin in terms of actual support for what it says that it relies on
things such as a comparison made between Korslund v. DynCorp Tri-Cities Services,
Inc., 156 Wn.2d 168, 182, 125 P.3d 119 (2005), and Smith appearing in the concurrence-
dissent in Danny v. Laidlaw Transit Services, Inc., 165 Wn.2d 200, 232-33 193 P.3d 128(2008) (Madsen, J., concurring-dissenting). Majority at 10. Whatever else might be said,
the focus of that concurrence-dissent was not remedies but instead the public policy, with
the writing justice's view being that there was no clear mandate of public policy shown in
the case. In any event, there was certainly no recognition that Smith contained an actual
jeopardy analysis.
The majority also cites a number of other cases in an effort to create the
impression the issue is resolved, but none of the cases addresses the jeopardy element
with regard to remedies under chapter 41.56 RCW and whether these remedies
adequately protect the claimed public policy. As examples, the majority refers to Smith's
discussion of Reninger v. State Department of Corrections, 134 Wn.2d 437, 951 P.2d 782(1998), and Christensen v. Grant County Hospital District No. 1, 152 Wn.2d 299, 96
P.3d 957 (2004). Majority at 11-12. These cases concern exhaustion of administrative
4
No. 83882-8
Madsen, C.J. (concurring in dissent)
remedies and collateral estoppel, respectively. As pointed out at the outset of this
opinion, cases that appear to make assumptions about legal conclusions in a case but do
not actually address them are not binding on the assumptions. Insofar as the majority
believes Reninger and Christensen are relevant on the jeopardy element, the belief is
misplaced.
The majority's reference to a "body of law ... addressing wrongful termination
claims in the context of statutory schemes providing for administrative remedies" must be
viewed skeptically because it is obvious that there is no body of law regarding whether
remedies under chapter 41.56 RCW are adequate to protect a clear mandate of public
policy. Majority at 12.
The bottom line is that there is simply no analysis of the jeopardy prong in Smith
and, more specifically, there is absolutely no analysis of whether existing laws provide an
adequate alternative means for promoting the public policy such that it is unnecessary to
recognize a private action wrongful discharge claim in order to protect the public policy.
See Korslund, 156 Wn.2d at 182 (discussing the required showing). More strikingly,
there is no analysis of the jeopardy prong in the majority.
The majority has lost sight of the nature of the tort. The tort for wrongful
discharge in violation of public policy was originally created by this court as a judicial
exception to the terminable at will doctrine. Thompson v. St. Regis Paper Co., 102
Wn.2d 219, 232, 685 P.2d 1081 (1984). It has from that time to the present been
characterized as a "narrow" public policy exception. Id.; see also, e.g., Cudney v.
5
No. 83882-8
Madsen, C.J. (concurring in dissent)
ALSCO, Inc., 172 Wn.2d 524, 529, 259 P.23d 244 (2011); Roe v. TeleTech Customer
Care Mgmt. (Colorado) LLC, 171 Wn.2d 736,755,257 P.3d 586 (2011); Fordv.
Trendwest Resorts, Inc., 146 Wn.2d 146, 154, 43 P.3d 1223 (2002); Sedlacek v. Hillis,
145 Wn.2d 379, 385, 36 P.3d 1014 (2001); Snyder v. Med. Serv. Corp. of E. Wash., 145
Wn.2d 233, 239, 35 P.3d 1158 (2001); Havens v. C&D Plastics, Inc., 124 Wn.2d 158,
177, 876 P.2d 435 (1994); Wilmot v. Kaiser Aluminum. & Chern. Corp., 118 Wn.2d 46,
53,821 P.2d 18 (1991); Grimwoodv. Univ. ofPugetSound, Inc., 110 Wn.2d 355,367,
753 P.2d 517 (1988); Farnam v. CRISTA Ministries, 116 Wn.2d 659, 807 P.2d 830(1991). Rather than a narrowly recognized tort claim, the majority bends over backwards
to cobble together disparate cases in an effort to convince the reader that there is a body
of law supporting the conclusion that Smith controls here.
But as the dissent correctly says, there is no holding on the jeopardy prong of the
Perrit analysis in Smith. It is not precedential on this point. It is not controlling. Smith
should not be followed as if it is controlling.
The purpose of the Perritt jeopardy analysis is to determine whether a clear
mandate of public policy would be unprotected in the absence of the private public policy
wrongful discharge claim. The plaintiff has to show that "discouraging the [employee's]
conduct" that led to the discharge "would jeopardize the public policy (the jeopardy
element)." Gardner, 128 Wn.2d at 941 (citing HENRY H. PERRITT JR., WORKPLACE
TORTS: RIGHTS AND LIABILITIES§ 3.7 (1991)). This means that the plaintiff here was
required to establish that he engaged in particular conduct that relates directly to the
6
No. 83882-8
Madsen, C.J. (concurring in dissent)
public policy or was necessary for effective enforcement of the public policy, Hubbard v.
Spokane County, 146 Wn.2d 699, 713, 50 P.3d 602 (2002); Gardner, 128 Wn.2d at 945,
and that discouraging the conduct he engaged in would jeopardize the public policy, see
Ellis v. City of Seattle, 142 Wn.2d 450, 460, 13 P.3d 1065 (2000). He had to show that
other means of promoting the public policy are inadequate. Hubbard, 146 Wn.2d at 713;
Gardner, 128 Wn.2d at 945.
The plaintiff failed to make the requisite showing. When there are adequate
means to protect the public policy regardless of whether an employer is exposed to the
wrongful discharge tort claim, then a tort action should not be recognized since the public
policy is not jeopardized by the employment action.
Finally, it is critical to bear in mind that the issue is not whether the employee will
be adequately compensated, fully compensated, or compensated to a greater extent, or for
more injuries than if the public policy tort is not recognized. Instead, the inquiry is solely
to decide whether the tort must be recognized to ensure that the public policy at issue is
adequately protected.
I concur in the dissent because it correctly concludes that the Piels are unable to
satisfy the jeopardy element of their tort claim and that Smith is not controlling on the
jeopardy prong of the claim. Contrary to the majority's incorrect conclusion, Korslund
and Cudney are the relevant precedent that must be followed if the court is to adhere to
the core purpose of the tort of wrongful discharge in violation of public policy. Instead
7
No. 83882-8
Madsen, C.J. (concurring in dissent)
of treating Smith as controlling on an issue it never addressed, the majority should apply
the jeopardy prong analysis from Korslund and Cudney.
8
No. 83882-8
Madsen, C.J. (concurring in dissent)
9
Pie! v. City of Federal Way, No. 83882-8
Dissent by J.M. Johnson, J.
No. 83882-8
J.M. JOHNSON, J. (dissenting)-The Federal Way Police
Department discharged Officer Robert Piel for telling fellow officers in a
meeting at the department offices that he had considered "murdering or
shooting Department members." Clerk's Papers (CP) at 279. As an
additional ground for termination, the department determined that Officer
Piel had been "dishonest" when he was questioned about these murder
comments. CP at 280-81.
Officer Piel and his wife sued the city of Federal Way for wrongful
termination in violation of public policy (WTVP), claiming Officer Piel was
actually fired for engaging in statutorily protected collective bargaining
activities. The trial court granted the city summary judgment, holding that
the Piels' tort claim was barred because the statutory remedies available
were adequate to protect the public policies expressed in chapter 41.56
1
Pie! v. City of Federal Way, No. 83882-8
RCW. Because the majority completely fails to conduct a jeopardy analysis,
instead choosing to read a holding into Smith v. Bates Technical College, I
dissent. 139 Wn.2d 793, 991 P.2d 1135 (2000). We should affirm the trial
court; the remedies provided and available under RCW 41.56.160
adequately protect public employee collective bargaining rights.
ANALYSIS
I. The Jeopardy Element
Under Washington common law, an employer may generally
discharge an employee with or without cause absent an agreement to the
contrary. Roberts v. Atl. Richfield Co., 88 Wn.2d 887, 891, 568 P.2d 764(1977). The tort of WTVP is a common law exception to the at-will
employment doctrine. Gardner v. Loomis Armored, Inc., 128 Wn.2d 931,
935-36, 913 P.2d 377 (1996). "The policy underlying the exception is that
the common law doctrine cannot be used to shield an employer's action
which otherwise frustrates a clear manifestation of public policy."
Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 231, 685 P.2d 1081(1984).
A WTVP claim reqmres the plaintiff to establish four elements:
(1) "the existence of a clear public policy (the clarity element)," (2) that
2
Pie! v. City of Federal Way, No. 83882-8
"discouraging the conduct in which [the plaintiff] engaged would jeopardize
the public policy (the jeopardy element)," (3) that the protected conduct
"caused the dismissal (the causation element)," and (4) that the employer-
defendant does not have a "justification for the dismissal (the absence of
justification element)." Gardner, 128 Wn.2d at 941. We have "always been
mindful that the . . . [WTVP] tort is narrow and should be 'applied
cautiously."' Danny v. Laidlaw Transit Servs., Inc., 165 Wn.2d 200, 208,
193 P.3d 128 (2008) (quoting Sedlacek v. Hillis, 145 Wn.2d 379, 390, 36
P.3d 1014 (2001)). In the present case, we were asked to examine only the
jeopardy element.
To establish jeopardy, a plaintiff must show that he or she "engaged in
particular conduct, and the conduct directly relates to the public policy, or
was necessary for the effective enforcement of the public policy." Gardner,
128 Wn.2d at 945 (emphasis omitted). We have stated this requires a
plaintiff to "show that other means of promoting the public policy are
inadequate and that the actions the plaintiff took were the 'only available
adequate means' to promote the public policy." Cudney v. ALSCO, Inc., 172
Wn.2d 524, 530, 259 P.3d 244 (2011) (citation and emphasis omitted)
(quoting Danny, 165 Wn.2d at 222). This is a question of law so long as our
3
Piel v. City of Federal Way, No. 83882-8
"inquiry is limited to examining existing laws to determine whether they
provide adequate alternative means of promoting the public policy."
Korslund v. DynCorp Tri-Cities Servs., Inc., 156 Wn.2d 168, 182, 125 P.3d
119 (2005).
II. The Smith Court Did Not Hold that The Remedies Available in RCW
41.56.160 Are Inadequate To Protect Public Employee Collective
Bargaining and Union Rights
In order to avoid having to conduct a jeopardy analysis, the majority
twists Smith into something it is not. In Smith, this court was asked to
answer three distinct questions and only those questions. First, "whether the
common law tort of . . . [WTVP] extends to employees who may be
terminated only for cause." Smith, 139 Wn.2d at 796. This court answered
this first question in the affirmative. I d. at 807. Second, "whether an
employee must first exhaust administrative or contractual remedies before
pursuing such an action." Id. at 796. This court answered this second
question in the negative. Id. at 811. Third, "whether a public employee
establishes a cause of action under 42 U.S.C. § 1983 [through the First
Amendment to the United States Constitution] when a public agency
discharges her in retaliation for filing an employment related grievance." Id.
at 796. This court answered this third question in the negative. Id. at 815-
4
Pie! v. City of Federal Way, No. 83882-8
16. Nowhere in Smith was this court asked if the Public Employees
Relations Commission (PERC) adequately protected the public policy found
in chapter 41.56 RCW.
Tellingly, the majority does not explain why the Smith court fails to
even mention "jeopardy," let alone state that it is conducting a jeopardy
analysis. Smith was decided some four years after this court adopted the
Perritt test, which was implemented to clarify this court's WTVP analysis by
breaking it up into four distinct elements. See Gardner, 128 Wn.2d at 941.
It is logical to assume that if the Smith court meant to address the jeopardy
element, it would have done so expressly.
In essence, the majority miscomprehends the procedural posture of
Smith. The trial court granted the college summary judgment on the grounds
that Smith had failed to exhaust her administrative remedies and because she
was not an at-will employee. 139 Wn.2d at 799. In remanding the case, the
court expected the trial court to walk through the four-step analysis,
including that of the jeopardy prong, for the first time. In other words, the
Smith court was never asked to resolve the jeopardy question; the court was
deciding whether the trial court should even get to the jeopardy question.
5
Pie! v. City of Federal Way, No. 83882-8
The majority's miscomprehension 1s further demonstrated by its
failure to acknowledge that the Smith court was not asked whether for-cause
public employees are entitled to bring a WTVP tort claim, but rather whether
for-cause employees in general can bring such a tort. Smith's broader effect
is illustrated by the fact that as a result of the decision, private sector for-
cause employees do not have to exhaust their administrative or contractual
remedies as a prerequisite to pursuing a WTVP claim. It is important to note
that the Smith court used terminology consistent with its awareness of the
broader implications of its decision. For example, the court used terms like
"contractual employees" instead of something like "unionized public
employees." See id. at 805.
Accordingly, the majority dwells too much on the language in Smith,
comparing and contrasting a tort claim with an action based on an
employment contract or collective bargaining agreement (CBA) m its
attempt to convince us that Smith answered the jeopardy question. Id. at
807-09. These statements provide the rationale for why the Smith court
extended the tort to for-cause employees in general but are insufficient as an
analysis of the adequacy of the remedies found in chapter 41.56 RCW. To
the extent the Smith court's statements appear to answer the jeopardy
6
Pie! v. City of Federal Way, No. 83882-8
question, they show a complete lack of understanding of the jeopardy prong
and amount to dicta.
For example, the Smith court commented that there is a "fundamental
distinction between a wrongful discharge action based in tort and an action
based upon an alleged violation of an employment contract or a CBA" and
that "additional and distinct remedies would be available ... in tort." Id. at
809, 805. This statement wrongly suggests that a WTVP claim should
always be available, regardless of the existence of alternative remedies,
because only a tort can provide tort remedies. Another example is the Smith
court's statement that WTVP claims should be available to for-cause
employees because such a cause of action "is independent of any . . .
statute." Id. at 811. Yes, there is no WTVP statute, but that does not mean
that existing statutory remedies are inadequate. The very essence of the
jeopardy analysis, which is conducted to determine whether a tort action is
even available, is an examination of the statutory remedies. If these
statements are an accurate reflection of our law, then Korslund and Cudney
were wrongly decided and a WTVP action should always be available.
Instead, these comments are overbroad and reflect the fact that the Smith
court was not engaging in a jeopardy analysis of PERC, but rather was
7
Pie! v. City of Federal Way, No. 83882-8
giving its rationale for extending the availability of WTVP claims to for-
cause employees in general. The Smith court's conclusory citation to the
lack of emotional distress damages available through PERC and to the fact
that PERC cannot administer WTVP claims does not provide a satisfactory
analysis of the adequacy of the PERC remedies. I d. at 805. In sum, after
Smith the question remains whether PERC adequately protects the public
policy (public employee collective bargaining and union rights) it embodies.
III. The Remedies Available in RCW 41.56.160 Adequately Protect
Public Employee Collective Bargaining Rights
Our recent decisions in Korslund and Cudney provide a solid
foundation for this court to decide that the PERC remedies are more than
adequate. In Korslund, three employees of DynCorp Tri-Cities Services
(DynCorp) brought suit alleging retaliation and harassment by DynCorp
management after the plaintiffs had reported safety violations and
mismanagement. Two of the employees claimed constructive termination in
violation of the public policy expressed in the federal Energy Reorganization
Act of 1974 (ERA), 42 U.S.C. § 5851(a)(1)(A). 156 Wn.2d at 181.. The
ERA prohibits an employer from discharging or discriminating against an
employee who reports a violation of the Atomic Energy Act of 1954, 42
8
Pie! v. City of Federal Way, No. 83882-8
U.S.C. § 2011. !d. The trial court granted summary judgment in favor of
DynCorp, which we affirmed.
We first noted that the jeopardy element of a WTVP claim requires
the plaintiff to prove two things: ( 1) "that discouraging the conduct he or she
engaged in would jeopardize the public policy" and (2) "that other means of
promoting the public policy are inadequate." !d. at 181-82 (citing Hubbard
v. Spokane County, 146 Wn.2d 699, 713, 50 P.3d 602 (2002)). The ERA
provides an administrative process for adjudicating whistleblower
complaints. !d. at 182. Remedies under the ERA may require the violator to
take affirmative action to abate the violations, reinstate the complainant with
back pay, or pay compensatory damages, attorney fees, and expert witness
fees. !d. (citing 42 U.S.C. § 5851(b)(2)(B)). We determined these remedies
were adequate as a matter of law to protect the public policy expressed in the
ERA. !d. at 183. Accordingly, we held that the Korslund plaintiffs' WTVP
claim was barred. !d.
9
Pie! v. City of Federal Way, No. 83882-8
The Piels claim the trial court held that Korslund overruled Smith sub
silentio. 1 The city argues that Smith and Korslund concern entirely different
issues. The city is correct.
The rule of law established in Korslund does not directly contradict
that set forth in Smith. The Korslund holding focuses on the adequacy of
alternative remedies in terms of protecting the public policy at issue. In
contrast, Smith held that a WTVP claim was available to both at-will and
for-cause employees and that a plaintiff need not exhaust administrative
remedies before pursuing a WTVP claim because such remedies may not
fully compensate the plaintiffs private interests. As I explained above, the
Smith court was not asked to address whether the administrative remedies
available adequately protected the public interest at stake in that case.
Indeed, Smith did not even mention the jeopardy element, which is at issue
here. Thus, the two cases may be harmonized.
Read together, Smith and Korslund provide that a plaintiff need not
exhaust administrative remedies for his or her personal compensation when
1
A holding from a prior case may be overruled sub silentio if it is directly contradicted
by a later holding. Lunsford v. Saber hagen Holdings, Inc., 166 Wn.2d 264, 280, 208
P.3d 1092 (2009).
10
Pie! v. City of Federal Way, No. 83882-8
pursumg a WTVP claim, but such a claim is unavailable if adequate
alternative means exist to protect the public interest. This is logical given
that the WTVP claim exists primarily to protect public interests, not private.
See Hubbard, 146 Wn.2d at 717 ("The other means of promoting the public
policy need not be available to a particular individual so long as the other
means are adequate to safeguard the public policy.").
This interpretation is supported by our recent decision in Cudney, 172
Wn.2d 524. 2 In Cudney, we addressed a similar issue. We noted our prior
decision in Wilmot v. Kaiser Aluminum & Chemical Corp., 118 Wn.2d 46,
821 P.2d 18 (1991) did not change our jeopardy analysis in Korslund.
Cudney, 172 Wn.2d at 535-36. In Wilmot, we held RCW 51.48.025 did not
provide a mandatory and exclusive remedy for an employee allegedly fired
for filing a workers' compensation claim. But, we said, this was an "entirely
separate issue[]" from whether the means of protecting a given public policy
are adequate apart from a WTVP claim. Cudney, 172 Wn.2d at 535 ("Even
if ... [the] statute is not mandatory and exclusive, as in Wilmot, ... [the
2
Our consideration of the Piels' case was stayed pending the resolution of Cudney.
11
Piel v. City ofFederal Way, No. 83882-8
Washington Industrial Safety and Health Act (WISHA, chapter 49.17
RCW)] is still adequate to protect public policy.").
Cudney alleged he was terminated in violation of public policy for
reporting that one of his managers drove a company vehicle while
intoxicated. Id. at 527. The case was removed to the United States District
Court for the Eastern District of Washington. The federal district court
certified to us the questions paraphrased here: (1) whether WISHA
adequately promoted the public policy of ensuring workplace safety and
protecting workers who report safety violations so as to preclude a
terminated employee's WTVP claim and (2) whether the State's driving
under the influence laws adequately promoted the public policy of protecting
the public from drunk drivers so as to preclude a terminated employee's
WTVP claim. ld.
We recognized that Korslund was "[t]he controlling case, governing
whether statutory remedies are adequate to promote a given public policy."
Cudney, 172 Wn.2d at 532. We therefore used the ERA as a guidepost, as it
had been found to be adequate in Korslund. ld. Both WISHA and the ERA
allow an administrative agency to perform investigations and allow plaintiffs
to bring claims if the administrative agency does not take action. ld.
12
Pie! v. City of Federal Way, No. 83882-8
Moreover, WISHA authorizes the superior court to order all appropriate
relief, not limited to back pay. Jd. at 531-32. Remedies available under the
ERA are more limited but were still found adequate in Korslund. Therefore,
we held the remedies available under WISHA to be "more than adequate."
Jd. at 533. This was so even though a claim under WISHA carries a 30-day
statute of limitations. I d. at 534 (citing WAC 296-360-030( 4)).
Furthermore, we considered it irrelevant that the lawsuit available under
WISHA was handled by an administrative agency and not the complainant.
This is because a WTVP claim exists to protect the public policy not private
concerns. I d. at 534 n.3 ("[T]he point of the jeopardy prong of the analysis
... 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.").
Using WISHA as a guidepost, the remedies available under chapter
41.56 RCW are adequate to protect the public policy embodied therein.
RCW 41.56.160(1) empowers and requires PERC, like the Department of
Labor and Industries under WISHA, to "prevent any unfair labor practice"
and to issue appropriate remedial orders to that end. If PERC determines an
unfair labor practice has occurred,
13
Pie! v. City of Federal Way, No. 83882-8
the commission shall issue and cause to be served upon the
person an order requiring the person to cease and desist from
such unfair labor practice, and to take such affirmative action as
will effectuate the purposes and policy of this chapter, such as
the payment of damages and reinstatement of employees.
RCW 41.56.160(2). Even legal expenses may be recovered. See, e.g.,
Wash. Fed 'n of State Emps. v. Ed. of Trs. of Cent. Wash. Univ., 93 Wn.2d
60, 69, 605 P.2d 1252 (1980) (holding that remedial action under former
RCW 41.56.160 (1975) may include an award of attorney fees). To enforce
such orders, like the Department of Labor and Industries under WISHA,
PERC may invoke the power ofthe superior courts. RCW 41.56.160(3).
RCW 41.56.160(1) requires the aggrieved employee to file a
complaint within six months of the unfair labor practice. That period,
however, is more than adequate for the same reason we articulated in
Cudney: "[E]mployees will almost always receive immediate notice oftheir
own termination" or other interference with their union rights. 172 Wn.2d at
534. Significantly, six months is appreciably longer than the 30 days we
considered sufficient in Cudney. ld. at 533-34.
Chapter 41.56 RCW specifies certain damages (damages for
emotional distress are unavailable). See Smith, 139 Wn.2d at 806. This fact,
however, is irrelevant as the remedies that are available are adequate to
14
Pie! v. City of Federal Way, No. 83882-8
protect the public policy. In Cudney, we emphasized that whether the
jeopardy element is met hinges on the adequacy of the alternative remedies
available to protect the public policy, not on whether the remedies fully
compensate the individual claimant. 172 Wn.2d at 534 n.3.
In sum, if PERC determines that a defendant engaged in an unfair
labor practice it must issue appropriate remedial orders, including those to
cease and desist, pay damages, reinstate a terminated employee, and pay
attorney fees. RCW 41.56.160. PERC is also authorized to take other
affirmative action as necessary to effectuate the purpose and policy of
chapter 41.56 RCW. RCW 41.56.160(2). Like with WISHA, chapter 41.56
RCW remedies are sufficiently adequate to protect public employees' ability
to exercise their collective bargaining rights.
The majority inakes much of RCW 41.56.905, in that it reflects the
legislature's intent that the remedies available through PERC not be
mandatory or exclusive. In Cudney, however, we held that the jeopardy
analysis is separate and distinct from the determination of whether statutory
remedies are mandatory or exclusive. !d. at 535. Consequently, RCW
41.56.905 does not require us to find the PERC remedies inadequate. As
Korslund and Cudney illustrate, this court determines the scope of this
15
Pie! v. City of Federal Way, No. 83882-8
common law tort remedy it created. There is no WTVP statute. Moreover,
there are many other remedies available to public employees who feel they
are being mistreated at work. For example, chapter 41.06 RCW (state civil
service law) includes protections for public employees. Certainly, if the
legislature decided to pass additional legislation that served to provide
supplementary protection for public employees' collective bargaining rights,
it would qualify as an "other remedy." The legislature wanted to leave itself
and the courts the room to create additional remedies. RCW 41.56.905 is
not a legislative declaration that chapter 41.56 RCW is inadequate.
Additionally, the majority's worry that holding the PERC remedies
adequate will destroy our precedent allowing WTVP claims to coexist with
administrative remedies is overblown. The majority is right when it says
that there are other statutory schemes that can coexist with WTVP claims.
Chapter 41.56 RCW, however, is not one of them because it adequately
protects the public policy in question. The majority forgets that a WTVP
claims is a judicial creation that we apply narrowly. See Danny, 165 Wn.2d
at 208. This court has clearly acknowledged that some statutory schemes
will adequately protect the public policy they embody and therefore will
16
Pie! v. City of Federal Way, No. 83882-8
foreclose a plaintiff's access to a claim ofWTVP. See Korslund, 156 Wn.2d
at 183; Cudney, 172 Wn.2d at 533.
The majority's concern that such a holding would unsettle our law
governing collateral estoppel is similarly exaggerated. If this court decided
that the PERC remedies are adequate, then it would still be the case that
pursuing administrative proceedings may collaterally estop a prospective
plaintiff from filing a tort claim. See Christensen v. Grant County Hasp.
Dist. No.1, 152 Wn.2d 299,321,96 P.3d 957 (2004). The majority cites the
Christensen court's assumption that a WTVP tort action is available to a
public employee who has not yet brought an administrative action through
PERC as evidence that we already decided that the PERC remedies are
inadequate. The central question in Christensen, however, was whether a
completed PERC administrative action collaterally estopped the plaintiff
from bringing a WTVP tort action, not whether the PERC remedies were
adequate to protect the public policy embodied in chapter 41.56 RCW. Id. at
302. In the interest of judicial restraint, this court properly tries to limit
itself to answering only the questions posed by the petitioners. The
adequacy question was not posed to the Christensen court as it was not
posed to the court in Smith.
17
Piel v. City of Federal Way, No. 83882-8
CONCLUSION
The Piels are unable to satisfy the jeopardy element of their WTVP
claim. Smith stands for the proposition that both at-will and for-cause
employees can bring WTVP claims and that such plaintiffs need not exhaust
administrative remedies before suing to obtain personal compensation. Our
recent decisions in Korslund and Cudney made clear that where alternative
remedies adequately protect the public policy in question, separate WTVP
claims are unavailable. WTVP claims exist to ensure the protection of
public policy, not to provide individual plaintiffs with additional claims and
compensation. The remedies available under chapter 41.56 RCW
adequately protect the public policy recognized in that chapter. There is no
genuine issue of material fact and the city was entitled to judgment as a
matter of law on that claim. Because we should affirm the trial court's order
granting summary judgment to the city, I dissent.
18
Pie! v. City of Federal Way, No. 83882-8
19