Gregg Becker v. Community Health Systems, Inc., d/b/a ( 2014 )

FILED
AUGUST 14,2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
GREGG BECKER, ) No. 31234-8-111
)
Respondent, )
)
V. )
)
COMMUNITY HEALTH SYSTEMS, INC. ) PUBLISHED OPINION
d/b/a COMMUNITY HEALTH SYSTEMS )
PROFESSIONAL SERVICES )
CORPORATION d/b/a COMMUNITY )
HEALTH SYSTEMS PSC, INC., d/b/a )
ROCKWOOD CLINIC P.S.; and )
ROCKWOOD CLINIC, P.S., )
)
Petitioners. )
BROWN, A.C.J. - Rockwood Clinic PS (Rockwood) and its parent company,
Community Health Systems Inc. (CHS), successfully petitioned for discretionary review
of a decision denying their CR 12(b)(6) motion to dismiss Gregg Becker's claim for
wrongful discharge in violation of public policy. Rockwood and CHS contend Mr.
Becker cannot establish the jeopardy element because a myriad of statutes and
regulations adequately promote the public policy of honesty in corporate financial
reporting, rendering a private common law tort remedy superfluous. We disagree with
Rockwood and CHS, and affirm.
No. 31234-8-111
Becker v. Cmty. Health Sys. Inc.
FACTS
In February 2011, Rockwood recruited Mr. Becker to be its chief financial officer
(CFO), a job he performed admirably. CHS had acquired Rockwood with a business
strategy to improve profitability. Upon doing so, CHS represented to investors and
creditors it expected Rockwood to sustain a $4 million operating loss in 2012. However,
in October 2011, Mr. Becker correctly projected Rockwood's earnings before interest,
taxes, depreciation, and amortizatjon (EBITDA) as showing a $12 million operating loss,
in 2012. This projection was significantly important to investors and creditors as a
measure of Rockwood's and, by relation, CHS's financial health. Additi0nally, CHS had
to report this projection to the U.S. Securities and Exchange Commission (SEC). As
CFO, Mr. Becker had to ensure this projection was not false or misleading.
Rockwood and CHS demanded Mr. Becker recalculate his EBITDA projection to
show a target $4 million operating loss in 2012. Mr. Becker refused to submit the $4
million figure because he reasonably believed it would require overstating income and
understating expenses, fraudulently misleading investors and creditors in violation of
criminal laws. Rockwood and CHS rated his job performance as '"unacceptable,'''
placed him on a probationary '''performance improvement plan,''' and gave him an
ultimatum to either submit the $4 million figure or lose his job. Clerk's Papers (CP) at
735-36. Then, he told Rockwood's chief executive officer (CEO) and CHS's internal
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auditor he thought Rockwood and CHS were using the false $4 million figure to !
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fraudulently mislead investors and creditors. Mr. Becker hypothesized that, upon i
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acquiring Rockwood, CHS procured investments and credits using the false $4 million
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figure. He reported his concerns to Rockwood and CHS but did not report the
misconduct to law enforcement agencies. Soon, Mr. Becker saw signs that Rockwood
and CHS were preparing to use his subordinate to submit the false $4 million figure
under the auspices of his department. Mr. Becker detailed these matters in writing to
Rockwood and CHS, advising them he would have no choice but to resign unless they
responded appropriately to abate the misconduct. They sent him a one-line e-mail I
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accepting his resignation the next day.
In February 2012, Mr. Becker sued in superior court for wrongful discharge in
violation of public policy. He additionally filed a whistleblower retaliation complaint with
the U.S. Occupational Safety and Health Administrative (OSHA). Apparently, his OSHA
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complaint remains unresolved. Rockwood and CHS removed his civil suit to federal
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district court. But after Mr. Becker amended his complaint to remove references to
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federal law, the federal district court remanded his case.
Back in superior court, Rockwood and CHS moved onsuccessfully to dismiss Mr.
Becker's amended complaint under CR 12(b)(6) for failure to state a cognizable claim
for relief. The trial court certified the ruling for interlocutory review regarding whether
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Mr. Becker can establish the jeopardy element in his claim for wrongful discharge in
violation of public policy. This court granted discretionary review regarding whether
other available means for promoting the public policy of honesty in corporate financial
reporting are adequate.
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ANALYSIS
The issue is whether the trial court erred under CR 12(b)(6) in declining to
dismiss Mr. Becker's claim for wrongful discharge in violation of public policy.
Rockwood and CHS contend Mr. Becker cannot establish the jeopardy element
because a myriad of statutes and regulations adequately promote the public policy of
honesty in corporate financial reporting, rendering a private common law tort remedy
superfluous. Our review is de novo. See Kors/und v. DynCorp Tri-Cities Servs., Inc.,
156 Wash. 2d 168, 182, 125 P.3d 119 (2005); Hoffer v. State, 110 Wash. 2d 415, 421,755
P.2d 781 (1988),
A complaint must contain "a short and plain statement of the claim showing that
the pleader is entitled to relief," CR 8(a)(1). Otherwise, a trial court may dismiss the
complaint on motion for "failure to state a claim upon which relief can be granted." CR
12(b)(6). Dismissal is proper if, accepting all factual allegations as true, "it appears
beyond doubt that the plaintiff can prove no set of facts, consistent with the complaint,
which would entitle the plaintiff to relief." Corrigal v. Ball & Dodd Funeral Home, Inc., 89
Wash. 2d 959, 961, 577 P.2d 580 (1978); see Barnum v. State, 72 Wash. 2d 928, 929-30,
435 P.2d 678 (1967). Thus, dismissal is proper where the plaintiff has an '''insuperable
bar to relief" appearing on. the face of the complaint. Hoffer, 110 Wash. 2d at 421 (quoting
5 CHARLES WRIGHT & ARTHUR MILLER, FEDERAL PRACTICE § 1357, at 604 (1969»; accord
Cutlerv. Phillips Petroleum Co., 124 Wn.2d 749,755,881 P.2d 216 (1994). We will
consider hypothetical situations, including facts argued for the first time on appeal, that
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the complaint could conceivably allege to justify relief for the plaintiff. Halvorson v. f
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Dahl, 89 Wash. 2d 673, 674-75,574 P.2d 1190 (1978); Bravo v. Dolsen Cos., 125 Wash. 2d
745,750, 888 P.2d 147 (1995).
Washington provides a private common law tort remedy when an employer
discharges an at-will employee "for a reason that contravenes a clear mandate of public
policy."1 Thompson v. St. Regis Paper Co., 102 Wash. 2d 219, 233, 685 P.2d 1081
(1984). This claim usually arises where the employer discharges the employee for (1)
"refusing to commit an illegal act"; (2) "performing a public duty or obligation"; (3)
"exercis[ing] a legal right or privilege"; or (4) engaging in '''whistleblowing' activity."
Dicomes v. State, 113 Wash. 2d 612, 618, 782 P.2d 1002 (1989). But the elements are
the same regardless of what conduct prompts this claim.
To prevail on a claim of wrongful discharge in violation of public policy, a plaintiff
must establish (1) "the existence of a clear public policy (the clarity element),,; (2) "that
discouraging the conduct in which [the plaintiff] ·engaged would jeopardize the public
policy (the jeopardy element),,; (3) "that the public-policy-linked conduct caused the
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dismissal (the causation element); and (4) U[t]he defendant [is not] able to offer an
overriding justification for the dismissal (the absence ofjustification element)." Gardner I
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v. Loomis Armored, Inc., 128 Wash. 2d 931, 941, 913 P.2d 377 (1996) (adopting these
elements from HENRY H. PERRITT, JR., WORKPLACE TORTS: RIGHTS AND LIABILITIES §§ 3.7,
.14, .19, .21 (1991) [hereinafter PERRITT, WORKPLACE TORTS]). The parties dispute
whether Mr. Becker's amended complaint establishes the jeopardy element.
1This claim is available regardless of whether the employer discharges the.
employee expressly or constructively. Korslund, 156 Wash. 2d at 177 (citing Snyderv.
Med. Servo Corp. of E. Wash., 145 Wn.2d 233,238,35 P.3d 1158 (2001».
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To establish the jeopardy element, the plaintiff must show 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." Id. at 945 (citing PERRITT,
WORKPLACE TORTS, supra, § 3.14, at 75-76). Thus, the plaintiff must argue '''other
means for promoting the policy ... are inadequate.'" Id. (omission in original) (quoting
PERRITT, WORKPLACE TORTS, supra, § 3.14, at 77). In other words, the plaintiff must
argue the actions he or she took were the "only available adequate means" to promote
the public policy. Danny v. Laidlaw Transit Servs., Inc., 165 Wash. 2d 200, 222, 193 P.3d
128 (2008).
Our Supreme Court first recognized the claim of wrongful discharge in violation of
public policy in Thompson, 102 Wash. 2d at 232. There, a divisional controller sued his
corporate employer, alleging the employer discharged him, as a warning to other
controllers, for instituting accurate accounting procedures complying with the Foreign I
Corrupt Practices Act of 1977 (FCPA), 15 U.S.C. §§ 78m, 78dd-1 to -2, 78ff. Id. at 223,
234. The Thompson court held the divisional controller could recover under a private I
common law tort remedy if he could prove his allegations. Id. at 234. The court I
reasoned the employer's action would contravene the public policy prohibiting bribery of
foreign officials and requiring transparency in accounting by discouraging other
controllers from complying with the FCPA. Id. at 234.
Our Supreme Court first articulated and applied the jeopardy element in Gardner,
128 Wash. 2d at 941, 945-46. There, an armored vehicle driver sued his employer for
wrongful discharge in violation of public policy, alleging the employer discharged him for
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exiting the vehicle to disarm an attacker inside a bank. Id. at 933-35. The Gardner
court concluded the threat of discharge would jeopardize the public policy of supporting
altruism and protecting human life by discouraging an employee like the driver from
rescuing a person from imminent life threatening harm. Id. at 945-46. The court
reasoned the driver's conduct was both directly related to the public policy and
necessary to effectively promote the public policy. Id. While the driver technically could
have,remained in the vehicle and summoned help through its radio, public address
system, or siren, the court reasoned his conduct was the only available adequate
means for serving the public policy because other people were not then prepared to
help. Id. at 935, 945-46.
In Korslund, 156 Wash. 2d at 182-83, our Supreme Court held the comprehensive
remedies available under the Energy Reorganization Act of 1979 (ERA), 42 U.S.C. §
5851, adequately promoted public health and safety, and prevented fraudulent use of
public funds in the nuclear industry. Specifically, the ERA prohibits specific employers
from taking adverse employment action against employees for, among other things,
reporting violations of nuclear industry laws. 42 U.S.C. § 5851 (a). If an employer takes
adverse employment action, the employee may complain to an administrative agency
with power to investigate the claim. Id. § 5851 (b)(1)-(2)(A). If the agency decides the
claim has merit, the ERA requires it to order the employer abate the violation; reinstate
the employee to his or her former position with the same compensation and
employment terms, conditions, and privileges; and pay the employee back pay,
compensatory damages, as well as attorney and expert fees and costs. Id. §
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5851 (b){2)(B). But if the agency does not decide within one year, the ERA allows the
employee to sue the employer in federal district court. Id. §·5841{b)(4). Because these
remedies adequately promoted the relevant public policy, the Korslund court was
unwilling to provide a private common law tort remedy. See 156 Wash. 2d at 182-83.
In Cudney v. ALSCa, Inc., 172 Wash. 2d 524, 531·33,259 P.3d 244 (2011), our
Supreme Court held the robust remedies available under the Washington Industrial
Safety and Health Act of 1973 (WISHA), RCW 49.17.160, adequately promoted
workplace safety. Specifically, WISHA prohibits general employers from taking adverse
employment action against employees for, among other things, reporting violations of
workplace safety laws. RCW 49.17.110, .160(1). If an employer takes adverse
employment action, the employee may complain to an administrative agency with power
to investigate the claim. RCW 49.17.160(2). If the agency decides the claim has merit,
WISHA requires it to sue the employer in superior court on behalf of the employee. Id.
But if the agency decides the opposite, WISHA allows the employee to sue the
employer in superior court on his or her own behalf. Id. In either case, the court may
order all appropriate relief, including requiring the employer to cease the violation as
well as restore and compensate the employee. Id. Again, because these remedies
adequately promoted the relevant public policy, the Cudney court was unwilling to
recognize a provide common law tort remedy. See 172 Wn.2d at 536,538.
In Cudney, our Supreme Court additionally held law enforcementaction available
under Washington statutes criminalizing drunk driving adequately protected the public
from drunk driving. Id. at 536-38. There. the employee reported to his private employer
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that his supervisor drove a company vehicle while intoxicated. Id. at 527-28. But the·
employee did not inform law enforcement agencies, who theoretically could have
stopped the supervisor. Id. at 537. In those circumstances, the Cudney court could not
say the actions the employee took were the 'only available adequate means' to protect
the public from drunk driving. Id. at 536-38. Then, in Piel v. City of Federal Way, 177 Wash. 2d 604, 609-17,306 P.3d 879
(2013), our Supreme Court held the administrative remedies·available through the
Public Employment Relations Commission (PERC) under chapter 41.56 RCW were
inadequate, on their own, to fully vindicate public policy when a public employer
discharges a public employee for asserting collective bargaining rights. Unlike Korslund
and Cudney, Piel involved a prior case holding PERC remedies failed to fully address
the broader public interests involved because it protected personal contractual rights
solely. Id. at 616-17 (quoting Smith v. Bates Technical Coli., 139 Wash. 2d 793, 805, 809,
991 P.2d 1135 (2000)). And unlike Korslund and Cudney, Piel involved a statute
declaring PERC remedies supplement others and must be liberally construed to
accomplish their purpose. Id. at 617 (quoting RCW 41.56.905). In those
circumstances, the Piel court recognized a private common law tort remedy as
necessary to fully vindicate public policy. Id. at 617.
Meanwhile, our Division of this court issued two opinions adhering to Korslund
and Cudney, though our Supreme Court recently remanded one case for
reconsideration in light of Piel. See Worley v. Providence Physician Servs. Co., 175
Wn. App. 566,574-76,307 P.3d 759 (2013) (holding whistleblower protections available
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under the Washington health care act, RCW 43.70.075, adequately promoted
workplace safety, ensured compliance with the accepted standard of care, and
prevented fraudulent billing in the health care industry): Rose v. Anderson Hay & Grain
Co., 168 Wash. App. 474, 478-79, 276 P.3d 382 (2012) (holding the employee remedies
available under the Commercial Motor Vehicle Safety Act, 49 U.S.C. § 31105,
adequately protected truck drivers who refuse to violate commercial motor vehicle
safety laws, even though a statute declared these remedies do not preclude others),
remanded, _ Wn.2d _ , 2014 WL 1325569. Division One of this court issued
another opinion applying Korslund and Cudney, and our Supreme Court denied review
of that case despite Piel. See Weiss v. Lonnquist, 173 Wash. App. 344, 353-60, 293 P.3d
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1264 (holding the misconduct reporting and disciplinary process prescribed hy the
Washington Rules of Professional Conduct, RPC 3.3 and 8.3, adequately promoted
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attorney candor toward the tribunal), review denied, 178 Wash. 2d 1025 (2013).
Our recent cases faithfully analyzed the jeopardy element in a manner we
thought the reasoning of Korslund and Cudney required. We now realize our jeopardy
analysis overemphasized the abstract adequacy of statutes and regulations while
forgetting the concrete public policy impact of chilling protected employee conduct. See
HENRY H. PERRin, JR., EMPLOYEE DISMISSAL LAW AND PRACTICE § 7.06[A], at 7-82.1 to.4
(Supp. 2013) [hereinafter PERRITT, EMPLOYEE DISMISSAL]' This approach tended to
foreclose private common law tort remedies for employees any time statutes or
regulations provided some means of promoting public policy. See Cudney, 172 Wash. 2d
at 548 (Stephens, J., dissenting). But doing so actually undermined public policy
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enforcement by chilling employee conduct advocating compliance with statutes and
regulations. See PERRin, EMPLOYEE DISMISSAL, supra, § 7.06[A], at 7-82.3 to.4-1; id. §
7.09[D], at 7-173 (5th ed. 2006). Thus, in Mr. Becker's case, we reform our jeopardy
analysis under the reasoning of Thompson, Gardner, and Piel.
As the trial court concluded, Mr. Becker's amended complaint implicates the
public policy of honesty in corporate financial reporting because he alleged he was
constructively discharged after refusing to submit a false or misleading EBITDA
projection. To establish the jeopardy element, Mr. Becker must show the threat of
constructive discharge would jeopardize the public policy of honesty in corporate
financial reporting by discouraging a CFO like him from refusing to submit a false or
misleading EBITDA projection. Mr. Becker's refusal must have been either directly
related to the public policy or necessary to effectively enforce the public policy. Thus,
Mr. Becker's refusal must have been the only available adequate means for promoting
the public policy. For the reasons discussed belOW, we think it undoubtedly was.
Initially, the parties dispute whether Mr. Becker's case concerns constructive
discharge for refusing to commit an illegal act, engaging in whistleblower activity, or
both. But Mr. Becker clearly elected his legal theory where he alleged, "Rockwood and
CHS engaged in retaliation and in adverse employment action against [Mr. Becker] for
his refusal to engage in improper accounting practices" involving "illegal and unethical
acts." CP at 744 (emphasis added). Mr. Becker did not allege Rockwood and CHS
constructively discharged him for engaging in whistleblower activity. However, any
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whistleblower options available to him are still relevant in determining whether his
refusal was the only available adequate means for promoting the public policy.
The parties mainly dispute if other available means for promoting the public
policy of honesty in corporate financial reporting are adequate in Mr. Becker's case.
First, Rockwood and CHS cite section 806(a) of the Sarbanes-Oxley Act of 2002 (SOX),
18 U.S.C. § 1514A, and section 922(a) of the Dodd-Frank Wall Street Reform and
Consumer Protection Act of 2010, 15 U.S.C. § 78u-6. These statutes provide
comprehensive whistleblower protections. See 15 U.S.C. § 78u-6(h)(1)-(2); 18 U.S.C. §
1514A(a)-(c). These statutes apply even when an employee reports misconduct he or
she reasonably believes is "about to" or "'likely to'" occur. 12 C.F.R. § 240.21 F-
2(b)(1)(i) (implementing 15 U.S.C. § 78u-6); Wiestv. Lynch, 710 F.3d 121, 133 (3d Cir.
2013) (quoting Sylvesterv. Parexellnt'l LLC, No. 07-123,2011 WL 2165854, at *13 I
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(U.S. Dep't of Labor Admin. Review Bd. May 25,2011» (construing 18 U.S.C. § I
1514A). But because these statutes declare their remedies do not preclude others, see f
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15 U.S.C. § 78u-6(h)(3); 18 U.S.C. § 1514A(d), we have the "strongest possible I
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evidence" these remedies are inadequate, on their own, to fully vindicate public policy, f
Piel, 177 Wash. 2d at 617. Therefore, we do not reach the parties' remaining arguments f
on these statutes.
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Second, Rockwood and CHS cite numerous statutes imposing criminal penalties
on a person responsible for false or misleading statements related to corporate financial I
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reporting. SOX section 302(a) requires both a CEO and CFO to certify in periodic
corporate financial reports that
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(2) based on the officer's knowledge, the report does not contain any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made, in light of the
circumstances under which such statements were made, not misleading;
(3) based on such officer's knowledge, the financial statements, and
other financial information included in the report, fairly present in all
material respects the financial condition and results of operations of the
[corporation] as of, and for, the periods presented in the report.
15 U.S.C. § 7241(a). SOX section 906(a) imposes criminal penalties on a CEO or CFO
who willfully certifies the report knowing it contains a false or misleading statement. 18
U.S.C. § 1350{c){1)-{2). Under long-standing criminal principles, a corporation is
responsible for the crime of its CEO or CFO if the corporation "aids, abets, counsels,
commands, induces or procures [the] commission [of that crime]." 18 U.S.C. § 2{a).
SOX section 903(a) and (b) enhance criminal penalties for mail fraud and wire
. fraud while section 807{a) separately criminalizes securities fraud. 18 U.S.C. §§ 1341,
1343, 1348. Under SOX section 902{a), attempting or conspiring to commit any of
these crimes invokes "the same penalties as those prescribed for the offense, the
commission of which was the object of the attempt or conspiracy." 18 U.S.C. § 1349.
Section 24 of the Securities Act of 1933, 15 U.S.C. § 77x, and section 32{a) of
the Securities Exchange Act of 1934, 15 U.S.C. § 78ff(a), impose criminal penalties on
a person who willfully violates securities laws, including by knowingly making false or
misleading statements related to corporate financial reporting or connected to the offer
or sale of securities. See also Securities Act § 17(a), 15 U.S.C. §§ 77q(a); Securities
Exchange Act § 10{b), 15 U.S.C. § 78j(b); SEC Rule 10b-5, 17 C.F.R. § 240.10b-5.
Moreover, SOX section 11 07{a) imposes criminal penalties on a person who
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"knowingly, with the intent to retaliate, takes any action harmful to any person, including
interference with the lawful employment or livelihood of any person, for providing to a
law enforcement officer any truthful information relating to the ... possible commission
of any Federal offense." 18 U.S.C. § 1513(e).
Even a state statute imposes criminal penalties on a corporate agent who
"knowingly make[s] or publish[es] or concur[s] in making or publishing any written ...
report ... or statement of [the corporation's] affairs or pecuniary condition, containing
any material statement that is false or exaggerated." RCW 9.24.050. This statute
exists to protect members of the public who may rely on such reports or statements but
are not conversant with the corporation's finances. State v. Swanson, 16 Wash. App. 179,
185-86,554 P.2d 364 (1976) (citing State v. Pierce, 175 Wash. 461, 467,27 P.2d 1083
(1933); State v. O'Brien, 143 Wash. 636,639,255 P. 952 (1927». Attempting,
conspiring, or soliciting another person to commit this crime is also a crime. RCW
9A.28.020(1), .030(1), .040(1).
Third, Rockwood and CHS cite statutes and regulations providing an investor a
private right of action against a person responsible for false or misleading statements
connected to the offer or sale of securities. 2 See Securities Exchange Act § 10(b), 15
2 Accepting all factual allegations as true, we assume, without deciding, the
EBITDA projection Rockwood and CHS demanded would not have been protected by
the safe harbor provisions of the Private Securities Litigation Reform Act of 1995, 15
U.S.C. § 78u-5(c)(1). The projection certainly would have been a forward-looking
statement. See id. § 78u-5(i)(1); Prime Mover Capital Pariners L.P. .v. Elixir Gaming
Techns., Inc., 898 F. Supp. 2d 673,689 & n.95 (S.D.N.Y. 2012) (citing Slayton v. Am.
Express Co., 604 F.3d 758,766-67 (2d Cir. 2010». But the complaint implies
Rockwood and CHS knew the projection would have been false or misleading, and
material to investors and creditors. See 15 U.S.C. § 78u-5(c)(1)(A)(ii), (B). Because
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U.S.C. § 78j(b); SEC Rule 10b-5, 17 C.F.R. § 240.10b-5; Securities Act of Washington,
RCW 21.20.010, .430(1); Superintendent oflns. of N. Y. v. Bankers Life & Cas. Co., 404
U.S. 6,13,92 S. Ct. 165,30 L. Ed. 2d 128 (1971); Janus Capital Grp., Inc. v. First
Derivative Traders, _ U.S. _,131 S. Ct. 2296, 2301,180 L. Ed. 2d 166 (2011).
Finally, Rockwood and CHS cite statutes granting the SEC administrative powers
against a person responsible for false or misleading statements connected to the offer
or sale of securities. Specifically, the SEC may initiate an investigation upon complaint
or its own initiative, and, if it determines a person has violated or is about to violate
securities laws, it may issue a cease and desist order; impose civil monetary penalties;
and sue in federal district court for injunctive relief, disgorgement of profits, prohibition
from future service as a corporate director or officer, and additional civil monetary
penalties. See Securities Act §§ 8A, 20,15 U.S.C. §§ 77h-1, 77t; Securities Exchange {
Act §§ 21, 21B, 21C, 15 U.S.C. §§ 78u, 78u-2, 78u-3.
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These statutes and regulations provide comprehensive criminal, civil, and
administrative enforcement mechanisms promoting the important public policies they
secure. But those means of promoting public policy do not foreclose private common
law tort remedies for employees. See Cudney, 172 Wash. 2d at 549-50 (Stephens, J.,
dissenting). "The central idea of the public policy tort is to create privately enforceable
disincentives for ... employers to use their power in the workplace to undermine
important public policies," PERRITT, EMPLOYEE DISMISSAL, supra, § 7.06[Al, at 7-82.3
(Supp. 2013). And the public policy tort may sometimes coexist with comprehensive
the pleadings do not address the issue, we do not consider whether the projection
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criminal, civil, and administrative enforcement mechanisms. See Piel, 177 Wash. 2d at
614-16. Such coexistence is essential where, as here, the threat of constructive
discharge would jeopardize the public policy of honesty in corporate financial reporting
by discouraging a CFO like Mr. Becker from refusing to submit a false or misleading
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EBITDA projection.
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Mr. Becker claimed hisEBITDA projection correctly showed a $12 million I
operating loss in 2012 but Rockwood and CHS demanded he recalculate his projection i
to show a target $4 million operating loss in 2012. Mr. Becker refused to submit the $4
million figure because he reasonably believed it would require overstating income and I
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understating expenses, fraudulently misleading investors and creditors in violation of
criminal laws. Rockwood and CHS rated his job performance as "'unacceptable,'"
placed him on a probationary '''performance improvement plan,'" and gave him an !
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ultimatum to either submit the $4 million figure or lose his job. CP at 735-36. Then, he
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told Rockwood's CEO and CHS's internal auditor he thought Rockwood and CHS were
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using the false $4 million figure to fraudulently mislead investors and creditors. Mr. f
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Becker hypothesized that, upon acquiring Rockwood, CHS procured investments and
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credits using the false $4 million figure. He reported his concerns to Rockwood and
CHS but did not report the misconduct to law enforcement agencies. Soon, Mr. Becker
saw signs that Rockwood and CHS were preparing to use his subordinate to submit the
false $4 million figure under the auspices of his department. Mr. Becker detailed these
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matters in writing to Rockwood and CHS, advising them he would have no choice but to
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would have contained any meaningful cautionary statement. See id. § 78u-5(c)(1)(A)(i). f
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resign unless they responded appropriately to abate the misconduct. They sent him a
one-line e-mail accepting his resignation the next day.
Mr. Becker's case is "[t]he most compelling case for protection" under a public
policy tort because by instructing him to commit a crime for which he would be
personally responsible, Rockwood and CHS forced him to choose between the
consequences of disobeying his employer and the consequences of disobeying criminal
laws. JANIE F. SCHULMAN & NANCY M. MODESITT, WHISTLEBLOWING: THE LAw OF
RETALIATORY DISCHARGE ch. 5.11.A.1., at 101 (2d ed. 2004). Recognizing this dilemma,
I
"most courts have readily responded ... by recognizing a cause of action" in similar
cases. Id. ch. 5.II.A.1.a., at 102; see also id. ch. 5.11.A.1.a., at 5-7 (Supp. 2013).
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For example, in McGanity v. Berlin Metals, Inc., 774 N.E.2d 71,75-79 (Ind. Ct.
App. 2002), a CFO sued his corporate employer for wrongful discharge in violation of
public policy, alleging the employer discharged him for refusing to fraudulently
underreport tax liability in violation of criminal laws. The triat court granted the employer
judgment on the evidence and the Indiana Court of Appeals reversed, partly reasoning
the common law would not countenance a scenario where the employer could abuse its
workplace authority by giving the CFO an ultimatum to either commit an illegal act for
which he would be personally responsible or lose his job. Id. at 76-78.
Similarly, in Gossett v. Tractor Supply Co., 320 S.W.3d 777, 779-80 (Tenn.
2010), a CFO sued hi~ corporate employer for wrongful discharge in violation of public
policy, alleging the employer discharged him for refusing to make misleading account
alterations that would have produced misleading SEC filings. The trial court granted the
17
No. 31234-8-111
Becker v. Cmty. Health Sys. Inc.
employer summary judgment and the Tennessee Supreme Court reversed, partly
reasoning the common law did not require the CFO to show he reported the misconduct
externally after he refused to participate in it. Id. at 787-89.
The jeopardy analysis in Mr. Becker's case "proceeds from the proposition that
permitting such dismissals would encourage conduct in violation of [criminal laws],
because employers could shield themselves from detection." PERRITT, EMPLOYEE
DISMISSAL, supra, § 7.06, at 7-72 (Supp. 2012). We recognize the jeopardy element is
difficult to satisfy where, as here, statutes and regula~ions provide comprehensive
criminal, civil, and administrative enforcement mechanisms promoting the important
public policies they secure. See id. § 7.06, at 7-69 to -71. But the jeopardy analysis in
Mr. Becker's case does not end there. The jeopardy element becomes easier to satisfy
where, as here, the employee has special responsibilities or expertise connected with
the public policy and other enforcement mechanisms are less likely to succeed because
they depend on the employee's individual pro-compliance efforts. See id. § 7.06, at 7­
71; id. § 7.09[0], at 7-159 (5th ed. 2006). In those circumstances, chilling employee
conduct advocating compliance with statutes and regulations renders public policy
enforcement uncertain, at best, or a matter of chance, at worst. See Cudney, 172
Wash. 2d at 548-49 (Stephens, J., dissenting); PERRITT, EMPLOYEE DISMISSAL, supra, §
7.06[A], at 7-82.4-1 (Supp. 2013).
In sum, we follow the reasoning of Thompson, Gardner, and Piel to conclude Mr.
Becker'S amended complaint establishes the jeopardy element. Accepting all factual
allegations as true, the threat of constructive discharge would jeopardize the public
18
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No. 31234-8-111
Becker v. Cmty. Health Sys. Inc.
policy of honesty in corporate financial reporting by discouraging a CFO like Mr. Becker
from refusing to submit a false or misleading EBITDA projection. Mr. Becker's refusal
was both directly related to the public policy and necessary to effectively enforce the
public policy. And, Mr. Becker's refusal was the only available adequate means for
promoting the public policy, given the uncertainty of other enforcement mechanisms and
their dependence on his individual pro-compliance efforts. We must evaluate each
public policy tort "in light of its particular context." Piel, 177 Wash. 2d at 617. Because
I
Korslund and Cudney addressed different enforcement mechanisms, they do not dictate
the outcome in Mr. Becker's case. See id. Therefore, the trial court did not err under
CR 12(b)(6) in declining to dismiss Mr. Becker's claim for wrongful discharge in violation
of public policy.
Affirmed.
I CONCUR:
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Lawrence-Berrey, J.
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No. 31234-8-III
FEARING, J. (concurring) - The author of the lead opinion admirably analyzes the
tort of wrongful discharge in violation of public policy and the tort's jeopardy element,
and I concur in the decision of the majority. I agree with the majority that the statutes
and regulations, upon which Rockwood Clinic and its parent relies, are closer in nature to
the statutes and regulations at issue in Thompson v. St. Regis Paper Co., 102 Wash. 2d 219,
685 P.2d 1081 (1984) and Piel v. City ofFederal Way, 177 Wash. 2d 604,609-17,306 P.3d
879 (2013) rather than at issue in Korslund v. DynCorp Tri-Cities Servs., Inc., 156 Wash. 2d
168,125 P.3d 119 (2005) and Cudneyv. ALSCa, Inc., 172 Wash. 2d 524,531-33,259 PJd
244 (2011). More importantly, I accept the significance of the majority's observation
that the Sarbanes-Oxley Act of2002 (SOX) and the Dodd-Frank Wall Street Reform and
Consumer Protection Act of2010 (Dodd-Frank), despite including comprehensive
whistleblower protections, declare their remedies to be nonexclusive. See 15 U.S.C. §
78u-6(h)(3); 18 U.S.C. § 1514A(d).
I write separately, however, because I cannot reconcile the teachings of Piel and
Cudney. Yes, one may find distinguishing features between the two decisions, but those
differences pale in importance when considering principles upon which the jeopardy
element is based. The two decisions, combined with other high court opinions, create
confusion amongst practitioners and lower court judges as to the nature and extent of the
jeopardy element of a claim for wrongful discharge in violation of public policy. In
No. 31234-8-III
Becker v. Cmty. Health Sys. Inc. (concurrence)
addition to deciding disputes between parties, appellate decisions are meant to declare
and explain law and to provide guidance to lawyers, litigants, and lower courts,
particularly when a busy tort is the subject matter. Pronouncements on the subject of the
jeopardy element offer puzzlement, not direction. I thought, upon reading the ruling in
Cudney, that the tort languidly lay, on life support, in the intensive care unit. Piel revived
the tort. But practitioners and trial courts must wonder if the next decision will return the
tort to the sick bay.
As a cause of action matures, courts insist on promulgating a list of elements
necessary to a successful suit. Therefore, in Gardner v. Loomis Armored, Inc., 128
Wash. 2d 931, 941, 913 P.2d 377 (1996), the state high court congealed a claim for
wrongful discharge in violation of public policy into four elements by relying on the
treatise, HENRY H. PERRITT JR., WORKPLACE TORTS: RIGHTS AND LIABILITIES (1991).
As one of the four elements, plaintiff must establish that discouraging the conduct in
which the plaintiff engaged would jeopardize the public policy. The purpose of the
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jeopardy element is to guarantee '''an employer's personnel management decisions will
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not be challenged unless a public policy is genuinely threatened.'" Ellis v. City of
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Seattle, 142 Wash. 2d 450, 460, 13 P.3d 1065 (2000) (quoting Gardner, 128 Wash. 2d at 941­
42). The jeopardy element was implicitly already part of a prima facie case since the
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plaintiff needed to prove his or her firing contravened a clear mandate of public policy.
Thompson, 102 Wash. 2d at 232.
As elements emerge from the legal kiln, courts enamel each element with
unnecessary gloss. Gardner went beyond listing jeopardy as one of the four elements of
the tort of wrongful discharge. The landmark decision added a fluffy description of the
element, fraught with ambiguity and nuance that created the puzzlement about which I
write. A critical passage in Gardner lies on page 945:
[1] Under the second element, the employee's discharge must jeopardize
the public policy. [2] 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.
[Henry H.] Perritt, [Jr., Workplace Torts: Rights and Liabilities] § 3.14, at
75-76. [3] This burden requires a plaintiff to "argue that other means for
promoting the policy ... are inadequate." Perritt § 3.14, at 77. [4]
Additionally, the plaintiff must show how the threat of dismissal will
discourage others from engaging in the desirable conduct.
128 Wash. 2d at 945. I numbered the sentences for ease of discussion. Unfortunately, the
Gardner decision did not limit its description of the jeopardy element to the first sentence
or initial statement that discouraging the plaintiff's conduct must jeopardize public
policy.
The Gardner court wrote in the second sentence of the passage that, to establish
the jeopardy element, plaintiff must also show the particular conduct, in which she
engaged, directly relates to the public policy, or was necessary for the effective
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No. 31234-8-III
Becker v. Cmty. Health Sys. Inc. (concurrence)
enforcement of the public policy. 128 Wash. 2d at 945 (citing PERRITT § 3.14, at 75-76).
Note that this component of the jeopardy element is in the alternative. The sentence
employs the word "or." This "language is a paraphrase of Perritt's treatise (1991), which
clearly states the jeopardy analysis in the disjunctive, i.e., the conduct furthers public
policy either because the policy directly promotes the conduct or because the conduct is
necessary to effective enforcement of the policy. PERRITT, supra § 3.14, at 75-76."
Cudney, 172 Wash. 2d at 540 (Stephens, J., dissenting). If the plaintiff proves her conduct
directly relates to a public policy, she should not need to prove her conduct was necessary
to effectively enforce the policy. The tort of wrongful discharge in violation of public
policy would be easier to apply if Gardner ended its discussion of the jeopardy element
there.
Gardner added two more sentences. The third sentence reads, "This burden
requires a plaintiff to 'argue that other means for promoting the policy ... are
inadequate.'" 128 Wash. 2d at 945 (quoting PERRITT § 3.14, at 77). This third sentence
launched the many appellate decisions that give rise to the current unpredictability
particularly because its relationship to the second or previous sentence in Gardner lacks
exposition. Showing the lack of other means to enforce the public policy should not be a
requirement if the plaintiffs conduct directly relates to the public policy. Showing the
lack of another adequate means of enforcing the public policy should only be required if
4
No. 31234-8-III
Becker v. Cmty. Health Sys. Inc. (concurrence)
the plaintiff seeks to prove the tort by showing her conduct was necessary to effectively
enforce the policy.
Gardner added even more language to the jeopardy element that now frequently
introduces a case's discussion of the element. In the fourth sentence, the high court
wrote, "Additionally, the plaintiff must show how the threat of dismissal will discourage
others from engaging in the desirable conduct." Gardner, 128 Wash. 2d at 945.
In later decisions, the state high court imposed more restrictions to the jeopardy
element. For instance, in order to establish the jeopardy element, a plaintiff must show
that the actions the plaintiff took were the '" only available adequate means'" to promote
the public policy. Cudney, 172 Wash. 2d at 530 (quoting Danny v. Laidlaw Transit Servs.,
Inc., 165 Wash. 2d 200,222, 193 P.3d 128 (2008)). The point of the jeopardy prong of the
tort 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. Cudney, 172
Wash. 2d at 534. Going even further, 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. Hubbardv. Spokane County, 146 Wash. 2d 699,717,50 P.3d
602 (2002) (citing PERRITT, supra, § 3.14, at 77). As can be seen, the jeopardy element
is encumbered with many layers of rules beyond the employee simply showing that her
conduct directly related to the public policy.
5
No. 31234-8-II1
Becker v. Cmty. Health Sys. Inc. (concurrence)
I
Decision after decision has impliedly held that regardless of whether plaintiff's
conduct directly relates to the public policy, plaintiff must prove that means other than
her civil lawsuit for damages are inadequate to enforce the public policy. Piel, 177
Wash. 2d 604; Cudney, 172 Wash. 2d 524; Danny, 165 Wash. 2d 200; Korslund, 156 Wash. 2d 168; J:
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Hubbard, 146 Wash. 2d 699; Ellis, 142 Wash. 2d 450; Smith v. Bates Technical Coli., 139 f
Wn.2d 793,991 P.2d 1135 (2000); Wilmot v. Kaiser Aluminum & Chemical Corp., 118 I
Wn.2d 46,821 P.2d 18 (1991); Worleyv. Providence Physician Servs. Co., 175 Wn.
J
App. 566,307 P.3d 759 (2013); Weiss v. Lonnquist, 173 Wash. App. 344, 359,293 P.3d !
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1264, review denied, 178 Wn.2d lO25 (2013); Rose v. Anderson Hay & Grain Co., 168 !
Wn. App. 474, 276 P.3d 382 (2012); review granted, 180 Wn.2d 1001,327 P.3d 613
(2014); Wilson v. City ofMonroe, 88 Wash. App. 113, 123-24, 943 P.2d 1134 (1997).
I
Stated differently, if another "available adequate means" promotes the public policy, I
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plaintiffloses even ifher conduct directly impacts the public policy. Danny, 165 Wash. 2d
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at 222. Nearly all, if not all, public policies have alternative means for enforcement.
Washington decisions often entail reviewing a statutory scheme to determine
whether the other available remedies are adequate, and, more in particular, whether the
remedies are adequate for the fired employee. Nevertheless, according to another
inconsistent rule, whether remedies are adequate for the employee should be immaterial
since the other means of promoting the public policy need not be available to a particular
6
No. 31234-8-III
Becker v. Cmty. Health Sys. Inc. (concurrence)
individual so long as the other means are adequate to safeguard the public policy,
Hubbard, 146 Wash. 2d at 717.
Cases irreconcilably examine whether the other means are "adequate." For
example, some decisions stand for the proposition that statutory remedies are inadequate,
for purposes of the jeopardy element, when the remedies may not allow recovery of
emotional distress damages for the discharged employee. Piel, 177 Wash. 2d 604; Smith,
139 Wash. 2d 793; Wilmot, 118 Wash. 2d 46; Wilson, 88 Wash. App. 1l3. Both Piel and Smith
address RCW 41.56.160, a portion of the Public Employees Relations Act. The statute
allows the Public Employees Relations Commission to award "payment of damages and
the reinstatement of employees" if the employer engages in an unfair labor practice.
RCW 41.56.160. Each plaintiff was permitted to proceed with his or her tort claim
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because whether emotional distress damages could be awarded under the statute was not
clear.
Wilmot, 118 Wash. 2d 46, examined RCW 51.48.025(4), which prohibits an
employer from discharging an employee for filing a workers compensation claim. The
statute authorizes the director of the Department of Labor & Industries (Department) to
sue, on behalf of the employee, in superior court, and for the court "to order all
appropriate relief including rehiring or reinstatement of the employee with back pay,"
RCW 51.48.025(4). The Wilmot court also allowed the employee to proceed with a tort
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No. 31234-8-III
Becker v. Cmty. Health 8ys. Inc. (concurrence)
action because it was unclear whether the statute allowed for an award of emotional
distress damages.
Wilson, 88 Wash. 2d 113, explored RCW 49.17.160, a portion of the Washington
Industrial Safety and Health Act, which prohibits an employer from discriminating
against an employee who files a complaint about work safety with the Department of
Labor & Industries. The statute allows an employee to file a complaint of discrimination
with the Department, and, if the Department refuses to file suit against the employer, the
employee may file suit on his own. The statute allows the superior court "for cause
shown, ... restrain violations ... and order all appropriate relief including rehiring or
reinstatement of the employee to his or her former position with back pay." RCW
49.17.160. The Wilson court allowed the employee to proceed with a private suit because
it was unclear whether the statute allowed for an award of emotional distress damages.
But Piel, Wilmot, and Wilson conflict with Cudney, which teaches that whether the
claimant could recover more through a tort claim is irrelevant to the jeopardy analysis.
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Therefore, whether plaintiff can recover emotional distress damages under an alternative
remedy should be unimportant.
Cudney addresses the same statute, RCW 49.17.160, as Wilson. The two cases
have conflicting outcomes. Although Wilson is a court of appeals decision, the majority
decision in Cudney does not even mention Wilson. Nor does the majority decision in
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No. 31234-8-III
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Cudney mention established precedence that, ifthe employee cannot recover emotional
distress damages under the alternate remedy, the plaintiff satisfies the jeopardy element.
Cudney ignores rather than overrules the contradictory decisions.
Wilson contradicts Jones v. Industrial Electric-Seattle, Inc., 53 Wash. App. 536,
539, 768 P.2d 520 (1989). In Jones, a worker also complained he was fired for reporting
unsafe working conditions. Michael Jones, however, did not file a complaint with the
Department within the 90-day time period afforded under the statute. This court
dismissed his suit for wrongful discharge on the ground that he did not timely complain
to the Department. Wilson did not mention the decision in Jones.
Piel, Smith, Wilmot, and Wilson also conflict with Hubbard, which instructs that
the other means of promoting the public policy need not be available to the plaintiff. So,
whether the plaintiff can recover any damages should be unimportant. The Public
Employees Relations Act, the workers compensation laws, and the Washington Industrial
Safety and Health Act of 1973 (WISHA) all provide remedies to punish employers who
violate their provisions. These statutory schemes even afford some recovery for the
discharged employee.
A principal basis upon which we base our decision, in the pending appeal, is
language in SOX and Dodd-Frank that mentions its respective remedies are not
exclusive. A number of decisions rely upon similar language in the statute being
9
No. 31234-8-III
Becker v. Cmty. Health Sys. Inc. (concurrence)
examined. Piel, 177 Wash. 2d 604; Rose, 168 Wash. App. at 478. But such statutory terms
should be irrelevant in ajeopardy analysis, since the tort is independent of the statute and
the tort fails ifthere is another remedy to enforce the public policy, regardless of whether
the remedy benefits the discharged employee. Cudney, 172 Wash. 2d 524; Danny, 165
Wash. 2d at 222; Hubbard, 146 Wash. 2d at 717. Also, decisions have allowed the employee
to proceed with a private action even without such language in the pertinent statute. t
Smith, 139 Wash. 2d 793; Bravo v. Dolsen Cos., 125 Wash. 2d 745, 888 P.2d 147 (1995); I
Wilmot, 118 Wash. 2d 46; Wilson, 88 Wash. App. 113. l
The majority in Piel distinguished between the statute at issue in its decision, I
RCW 41.56.905, and the statute at issue in Cudney. As previously mentioned, Piel
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involved the Public Employees Relations Act, which includes the language, "~The
provisions of this chapter are intended to be additional to other remedies and shall be I
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liberally construed to accomplish their purpose.'" Piel, 177 Wash. 2d at 617 (quoting
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RCW 41.56.905). No similar language was identified in WISHA, the statutory scheme
at issue in Cudney. This distinction between the two decisions is unsatisfactory given the
other conflicting language between the two decisions. Also, the test is not whether the
alternate remedy declares itself exclusive, but rather whether the remedy is adequate.
In short, Cudney and Piel cannot be reasonably reconciled. The dissent in Cudney
is correct that the "result departs from long-standing precedent in Washington." Cudney,
10
No. 31234-8-111
Becker v. Cmty. Health Sys. Inc. (concurrence)
172 Wash. 2d at 538 (Stephens, J., dissenting). The dissent in Piel is also correct that "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." Piel, 177 Wash. 2d at 632-33
(Johnson, J.M., J., dissenting). Cudney and Piel begin at different departure points and
travel in opposite directions. They are two ships passing in the dark of night because
they seek to advance different objectives.
1 could discuss other examples of pertinent inconsistencies in the jeopardy
element's body of law. Examples include: whether the employee fulfills the jeopardy
element when his theory focuses on his individual rights rather than the good of the
community; whether there is another available adequate remedy when, to obtain the
remedy, the employee must file an administrative complaint within a short time period;
and whether the alternate remedy is adequate if the employee is not afforded a jury trial.
Suffice it to say that the law of wrongful discharge in violation of public policy may f
advance by turning back time to before Gardner, when the employee only needed to
I
show his discharge implicated a clear mandate of public policy. At least, the law could
be more consistent if the jeopardy element faithfully followed the language in Gardner
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that the plaintiff need not show her private suit necessary to effective enforcement of the
identified public policy as long as her conduct directly related to the policy.
11
No. 31234~8~III
Becker v. Cmty. Health Sys. Inc. (concurrence)
The tort of wrongful tennination in violation of public policy is independent of
any underlying contractual agreement or statute. Therefore, Washington courts have held
that an employee need not exhaust her contractual or administrative remedies to proceed
before suing in tort. Piel, 177 Wash. 2d at 612; Christensen v. Grant County Hosp. Dist.
No.1, 152 Wn.2d 299,311, 96 P.3d 957 (2004); Smith, 139 Wash. 2d at 808; Allstot v.
Edwards, 116 Wash. App. 424, 431,65 P.3d 696 (2003); Young v. Ferrellgas, L.P., 106
Wash. App. 524, 530,21 P.3d 334 (2001). For the same reason, other remedies that
address the violation of public policy should not interfere with establishing the jeopardy
element of the tort.
Jeopardy and the other three elements announced in Gardner come from a treatise
about the tort, HENRY H. PERRITT JR., WORKPLACE TORTS: RIGHTS AND LIABILITIES
(1991). Gardner, 128 Wash. 2d at 945. The four critical Gardner sentences concerning
jeopardy also derive from the treatise. Although Gardner characterizes the Perritt treatise
as "leading," one might question this characterization. Although we recognize Henry J.
Perritt as an expert in employment law, Perritt fails to analyze the four sentences and the
problems they create. The treatise is more a collection of decisions than it is a reasoned
discussion of the tort of wrongful discharge.
Gardner lists Collins v. Rizkana, 73 Ohio St. 3d 65, 69~ 70, 652 N.E.2d 653
(1995), as the only decision to parrot Henry H. Perritt, Jr.'s, four elements of the tort of
12
No. 31234-8-III
Becker v. Cmty. Health Sys. Inc. (concurrence)
wrongful discharge in violation of public policy and to have embraced the jeopardy
element. A review of decisions.across the United States suggests that only Iowa, Utah
. and Guam have since adopted Perritt's four elements of the tort. Fitzgerald v. Salsbury
Chem., Inc., 613 N.W.2d 275,282 n.2 (Iowa 2000); Ryan v. Dan's Food Stores, Inc., 972
P.2d 395, 404 (Utah 1998); Ramos v. Docomo Pacific, Inc., 2012 Guam 20,2012 WL
6738152.
82 AM. JUR. 20 Wrongful Discharge § 54 (2014) proclaims what may be the
majority rule in the United States:
To prevail, an employee asserting a discharge that undennines
public policy must establish a number of key elements, including the
following:
(1) the existence of a clear public policy;
(2) that he or she was engaged in conduct protected by public
policy;
(3) that the employer knew or believed that the employee was
engaged in a protected activity;
(4) that retaliation was a motivating factor in the dismissal
decision; and
(5) that the discharge would undennine an important public
policy.
(footnotes omitted). Note that neither jeopardy nor the lack of another adequate remedy
is an element.
Interests and goals clash when detennining the breadth of the tort of wrongful
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No. 3 I 234-8-III
Becker v. Cmty. Health Sys. Inc. (concurrence)
discharge in violation of public policy. Society wishes employers to be free to discharge
poor performing employees and render management decisions that will not be challenged
unless strong public policies interfere. Society does not wish employees to win money
by ginning false reasons for termination from employment. Nor does society wish the
discharged employee to recover against the employer if the conduct that led to the
discharge advanced the employee's own interests, rather than the interests of others or
society as a whole. At the same time, society wishes to protect a giraffe, who heroically
sticks his or her neck out and does good no matter the cost. The employee's actions in
Gardner wonderfully illustrate such a heroic deed. If a heroic deed benefits the
community but leads to the giraffe's firing, society prefers the employer, not the
employee, pay for the loss suffered by the employee. Under such circumstances, the
employer has engaged in intentional misconduct and should pay for the loss caused by its
conduct.
A description of the tort of wrongful discharge that simply requires the employee
to prove a clear mandate of public policy and her conduct directly relates to the policy
serves these competing interests. The requirement of a clear manifestation of public
policy limits the suits to worthwhile suits. The requirement of causation also limits
14
No. 31234-8-III
Becker v. Cmty. Health Sys. Inc. (concurrence)
recovery to firings that intentionally flaunt a clear public policy. Requiring the
discharged employee to prove more compounds, confounds, and contorts the tort.
Feari~~l~
I CONCUR:
Lawrence-Berrey, J.
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