Rhonda Moen v. Northwest Educational Service District No. 189 ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
RHONDA MOEN, a married individual, No. 74260-4-
Respondent, O
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UNPUBLISHED OPINION ——
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NORTHWEST EDUCATIONAL a* il'J .'•
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SERVICE DISTRICT NO. 189, a
municipal corporation,
Appellant. FILED: December 5, 2016
Schindler, J. — To establish wrongful discharge in violation of public policy, a
plaintiff must identify a clear mandate of public policy in the constitution, a statute, or a
prior court decision. Rhonda Moen filed a lawsuit against Northwest Educational
Service District No. 189 alleging constructive wrongful discharge in violation of public
policy. The court denied summary judgment dismissal of the claim. We granted
discretionary review. Because Moen does not identify a clear mandate of public policy,
we reverse and remand to enter an order dismissing the lawsuit.
FACTS
Educational Service Districts are regional agencies that provide "informational
services to local school districts" and "[a]ssist the superintendent of public instruction
and the state board of education in the performance of their respective statutory or
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constitutional duties" including "[cooperative curriculum services such as health
promotion and health education services." RCW28A.310.010(1), (2); RCW
28A.310.350(2).
Northwest Educational Service District No. 189 (NWESD) provides services to
school districts in Island, San Juan, Skagit, Snohomish, and Whatcom counties. One of
the services NWESD offers the school districts is a drug and alcohol prevention and
intervention curriculum—"Project SUCCESS." The goal of Project SUCCESS is to help
adolescents understand substance abuse and prevent and reduce the use of alcohol,
tobacco, and drugs. Project SUCCESS is funded through a grant from the Washington
State Department of Social and Health Services Division of Behavioral Health and
Recovery and implemented under the auspices of the Washington State Office of
Superintendent of Public Instruction (OSPI).
NWESD employs prevention intervention specialists to implement Project
SUCCESS at participating schools. The prevention intervention specialist is
accountable to NWESD and the school principal. The school principal is responsible for
the on-site supervision of the prevention intervention specialist and the day-to-day
operation of Project SUCCESS.
Project SUCCESS is designed to be presented in three phases. In Phase I, the
"Prevention Education Series," the curriculum addresses adolescence, the cause and
effect of drug abuse, and how substance abuse can affect a family. The Prevention
Education Series is presented over the course of six to eight class periods one to three
times a week. During Phase II, the prevention intervention specialist assesses the level
of risk as well as the physical and mental functioning of students including family and
No. 74260-4-1/3
peer relationships; alcohol, tobacco, and other drug use; risk-taking behavior; and
violence. In Phase III, the prevention intervention specialist may schedule individual or
group sessions with students or parents and refer students to substance abuse or
mental health treatment.
In November 2012, NWESD hired Rhonda Moen as a Project SUCCESS
prevention intervention specialist at Marysville Middle School for the 2012-2013 school
year. The NWESD policy manual states that prevention intervention specialists are at-
will employees "granted provisional trial status during the first six (6) months of
employment. During that period of time, they are subject to termination without advance
notice." At the time of hire, Moen acknowledged she received and reviewed the
NWESD policy manual.
After being assigned to Marysville Middle School, Moen received training on the
Project Success curriculum. Because Moen was not hired until November 2012 and
was not trained until January 2013, implementation of the Project SUCCESS curriculum
was delayed until spring of the 2012-2013 school year.
On March 5, 2013, Moen informed her supervisor, NWESD Behavioral Health
and Prevention Services Director Jodie DesBiens, about her frustration with Marysville
Middle School Principal Susan Hegeberg. Moen told DesBiens that Hegeberg had not
sent out the parental permission slips necessary to begin teaching the Project
SUCCESS curriculum. DesBiens told Moen she would talk to Hegeberg "and try and
hurry things along."
DesBiens contacted Hegeberg to discuss Moen's frustration with the permission
slips. According to DesBiens, Hegeberg said she "was not aware of the timeliness"
No. 74260-4-1/4
need for the permission slips. Hegeberg sent the permission slips to parents on March
18.
DesBiens met with Moen on March 19. According to DesBiens, because of the
delay in sending out the permission slips, Moen "felt like it was too late in the year" to
teach the curriculum. Moen also said she "wasn't comfortable" delivering the
Prevention Education Series curriculum in front of classrooms. DesBiens told Moen "we
were still going forward" as planned and approved by OSPI. DesBiens said NWESD
Behavioral Health and Prevention Services Program Manager Wendi Thomas was
available to help Moen teach the curriculum.
On March 26, Moen met with DesBiens and Thomas to discuss her "ongoing
frustration" with Hegeberg. DesBiens and Thomas explained to Moen that "she must
follow directives given by Principal Hegeberg."
On March 28, DesBiens and Thomas met with Hegeberg. Hegeberg told
DesBiens and Thomas that Moen did not respect her authority and argued with her in
front of the Marysville Middle School staff.
On March 29, Hegeberg met with Moen. According to Moen, Hegeberg told her
to teach Phase I of Project SUCCESS to 109 students in the school cafeteria for 20
minutes each day "but not Phase II and III." Moen said she told Hegeberg it would be
unethical for her to teach the program in the manner requested by Hegeberg because "it
could potentially cause emotional harm to the students."
After DesBiens learned that Moen refused to implement Project SUCCESS as
directed by Hegeberg, NWESD placed Moen on paid administrative leave.
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Moen tried without success to contact the developer of Project SUCCESS. Moen
then contacted Community Prevention and Wellness Initiative Coalition Coordinator
Joseph Neigel. DesBiens also talked to Neigel. Neigel's "only concern" was that if the
program began during the last week of school, "there would not be an opportunity to
follow-up with students before school was out for the summer."
On April 1, DesBiens and NWESD Assistant Superintendent for Operations
Buckley Evans met with Moen. Moen told DesBiens and Evans that Neigel told her
NWESD should not leave students "exposed and emotional the last week of school."
DesBiens and Evans stated that "no decision had been made on when Project Success
would start, but that it would not be within the last two weeks of school." Evans told
Moen he wanted to schedule a meeting between Moen and Hegeberg to resolve their
differences.
Moen insisted she "could not teach Project Success with only three months left in
the school year." Evans told Moen her refusal to teach Project SUCCESS meant "she
was not fulfilling the requirements of her job" as a prevention intervention specialist.
Moen stated she "realized she was putting herself in a position of insubordination and
that she would resign her position."
After the meeting, Moen submitted a letter of resignation to NWESD dated April
1, 2013. The letter states, in pertinent part:
After looking back at the suggested ways to implement Project
Success with Fidelity it is my belief that it is not true enough to how it's
supposed to be presented. I do not feel morally or ethically able to
implement the Project Success curriculum in the manner in which it is
being asked of me. I refuse to teach Project Success as it goes against
my professional, moral and ethical judgment with students.
No. 74260-4-1/6
I have not been able to perform the necessary requirements of
project success because of Susan Hegebergs [sic] in-ability to allow the
flow of services to occur.
In addition to Project Success, I have not been given adequate time
to talk with staff which is also a requirement of my job. I was given 5 min.
to present on Jan. 11, 2013.
I do realize that my refusal puts me in a position of insubordination
and I am willing to accept those consequences.
Moen filed a lawsuit against NWESD alleging constructive wrongful discharge in
violation of public policy, negligent infliction of emotional distress, defamation of
character, and false light.
The complaint alleged that demanding Moen to teach Program SUCCESS as
required by NWESD and Hegeberg placed the students at risk for emotional harm. The
complaint alleged, in pertinent part:
[l]t was demanded of [Moen] that she teach this class contrary to the
methodology in which the class was designed to be instructed and without
fidelity. . . . The manner in which Ms. Hegeberg demanded the class be
taught and the refusal of [NWESD] to support the Plaintiff placed the
students who would attend this class at risk for emotional harm.
NWESD filed a motion for summary judgment dismissal of the lawsuit. The court
dismissed all claims except constructive wrongful discharge in violation of public policy.
The court ruled genuine issues of material fact precluded summary judgment dismissal
of the claim. We granted discretionary review.
ANALYSIS
NWESD contends the court erred in denying summary judgment dismissal of the
constructive wrongful discharge in violation of public policy claim. NWESD argues that
as a matter of law Moen did not identify a clear public policy to establish the clarity
element of wrongful discharge in violation of public policy.
No. 74260-4-1/7
We review summary judgment de novo. Citizens All, for Prop. Rights Legal Fund
v. San Juan County. 184 Wash. 2d 428, 435, 359 P.3d 753 (2015). Summary judgment is
proper when there are no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law. CR 56(c); Scrivener v. Clark Coll.. 181 Wash. 2d
439, 444, 334 P.3d 541 (2014). If the nonmoving party" 'fails to make a showing
sufficient to establish the existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial,'" then the court should grant
summary judgment. Young v. KevPharm., Inc.. 112 Wn.2d216, 225, 770 P.2d 182
(1989) (quoting Celotex Corp. v. Catrett. 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed.
2d 265 (1986)).
As a general rule, an employer may terminate an at-will employee "without fear of
liability." Thompson v. St. Regis Paper Co.. 102 Wash. 2d 219, 226, 685 P.2d 1081
(1984). But the Washington Supreme Court recognizes as a narrow exception to the
common law doctrine of at-will employment a cause of action in tort for wrongful
discharge in violation of public policy. Thompson. 102 Wash. 2d at 232.
To establish a cause of action for wrongful discharge in violation of public policy,
the employee must "plead and prove that a stated public policy, either legislatively or
judicially recognized, may have been contravened." Thompson. 102 Wash. 2d at 232.
In Gardner v. Loomis Armored Inc.. 128 Wash. 2d 931, 913 P.2d 377 (1996), the
Washington Supreme Court utilized the four-part Perritt framework to analyze a claim
for wrongful discharge in violation of public policy. Gardner. 128 Wash. 2d at 941; Henry
H. Perritt, Jr., Workplace Torts: Rights and Liabilities §§3.7-3.21 (1991).
No. 74260-4-1/8
However, the court makes clear that adoption of this test "does not change the existing
common law in this state." Gardner. 128 Wash. 2d at 941.
Under the Perritt framework, the court examines (1) the existence of a clear
public policy, the clarity element; (2) whether the employer's actions would jeopardize
the public policy, the jeopardy element; and (3) whether the public-policy-linked conduct
caused the dismissal, the causation element. Rose v. Anderson Hay & Grain Co.. 184
Wash. 2d 268, 277, 358 P.3d 1139 (2015). If the plaintiff proves these three elements,
then the burden shifts to the defendant to prove (4) there was an overriding justification
for terminating the employee, the absence of justification element. Rose. 184 Wash. 2d at
277; Gardner. 128 Wash. 2d at 941.
Whether there is a clear mandate of public policy is a question of law we review
denovo. Dicomes v. State. 113 Wash. 2d 612, 617, 782 P.2d 1002 (1989); Gardner, 128
Wash. 2d at 937. The public policy " 'for which we search is an authoritative public
declaration of the nature of the wrong.'" Roe v. TeleTech Customer Care Mgmt.
(Colorado) LLC, 171 Wash. 2d 736, 757, 257 P.3d 586 (2011) (quoting Roberts v. Dudley.
140 Wash. 2d 58, 63, 993 P.2d 901 (2000)). Only clear violations of important recognized
public policies can expose employers to liability. Rose. 184 Wash. 2d at 27.
In Dicomes. the Washington Supreme Court states:
Courts have found contravention of a clear mandate of public policy
in four general 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 termination
resulted because the employee exercised a legal right or privilege; and (4)
where the discharge was premised on employee "whistleblowing" activity.
Dicomes. 113 Wash. 2d at 618.1
Citations omitted.
No. 74260-4-1/9
In Rickman v. Premera Blue Cross. 184 Wash. 2d 300, 309, 358 P.3d 1153(2015),
the court reiterated "the employee has the burden of proving the dismissal violates a
clear mandate of public policy" in the constitution, a statute, or a prior court decision.
This means "a court may not sua sponte manufacture public policy but
rather must rely on that public policy previously manifested in the
constitution, a statute, or a prior court decision." Roberts v. Dudley. 140
Wash. 2d 58, 65, 993 P.2d 901 (2000); see also Thompson. 102 Wash. 2d at
232 (noting we determine the public policy from " 'the letter or purpose of a
constitutional, statutory, or regulatory provision or scheme'" or" '[p]rior
judicial decisions'" (quoting Parnarv. Americana Hotels. Inc.. 65 Haw.
370, 652 P.2d 625, 631 (1982))).
Rickman. 184 Wash. 2d at 309-10.2
NWESD argues Moen does not identify a clear mandate of public policy to
support her wrongful discharge in violation of public policy claim. In her complaint,
Moen alleges NWESD demanded she teach the Project SUCCESS curriculum "contrary
to the methodology in which the class was designed to be instructed" and in a manner
that "placed the students who would attend this class at risk for emotional harm." Moen
identifies four statutes in support of her wrongful discharge in violation of public policy
claim: RCW28A.300.070, RCW 28A.310.500, RCW28A.320.127, and RCW
28A.320.1271. In opposition to summary judgment, Moen also cited RCW
28A.310.010. On appeal, Moen concedes RCW 28A.310.010 does not establish the
clarity element.3 In support of the motion to modify the commissioner's ruling granting
2 Alteration in original.
3 RCW 28A.310.010 states:
It shall be the intent and purpose of this chapter to establish educational service districts
as regional agencies which are intended to:
(1) Provide cooperative and informational services to local school districts;
(2) Assist the superintendent of public instruction and the state board of
education in the performance of their respective statutory or constitutional duties; and
(3) Provide services to school districts and to the Washington state center for
childhood deafness and hearing loss and the school for the blind to assure equal
educational opportunities.
No. 74260-4-1/10
discretionary review, for the first time Moen identified two additional statutes—RCW
28A.300.2851 and RCW 28A.320.125. But when reviewing an order denying a motion
for summary judgment, we consider only the evidence and issues called to the attention
of the trial court. RAP 9.12; Wash. Fed'n of State Emp.'s. Council 28. AFL-CIO v. Office
of Fin. Mgmt. 121 Wash. 2d 152, 157, 849 P.2d 1201 (1993).4
The interpretation of a statute is a matter of law subject to de novo review.
Castro v. Stanwood Sch. Dist. No. 401, 151 Wash. 2d 221, 224, 86 P.3d 1166(2004).
"Where the language of a statute is clear, legislative intent is derived from the language
of the statute alone." City of Spokane v. Rothwell. 166 Wash. 2d 872, 876, 215 P.3d 162
(2009).
Three of the statutes Moen relies on, RCW 28A.310.500,5
4 RCW 28A.300.2851 states, in pertinent part:
(1) The office of the superintendent of public instruction and the office of the education
ombuds shall convene a work group on school bullying and harassment prevention to
develop, recommend, and implement strategies to improve school climate and create
respectful learning environments in all public schools in Washington. The superintendent
of public instruction or a designee shall serve as the chair of the work group.
RCW28A.320.125 states, in pertinent part:
(1) The legislature considers it to be a matter of public safety for public schools and staff
to have current safe school plans and procedures in place, fully consistent with federal
law. The legislature further finds and intends, by requiring safe school plans to be in
place, that school districts will become eligible for federal assistance. The legislature
further finds that schools are in a position to serve the community in the event of an
emergency resulting from natural disasters or man-made disasters.
5 Former RCW 28A.310.500 (Laws of 2013, ch. 197, § 6) states:
Each educational service district shall develop and maintain the capacity to offer training
for educators and other school district staff on youth suicide screening and referral, and
on recognition, initial screening, and response to emotional or behavioral distress in
students, including but not limited to indicators of possible substance abuse, violence,
and youth suicide. An educational service district may demonstrate capacity by
employing staff with sufficient expertise to offer the training or by contracting with
individuals or organizations to offer the training. Training may be offered on a fee-for-
service basis, or at no cost to school districts or educators if funds are appropriated
specifically for this purpose or made available through grants or other sources.
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No. 74260-4-1/11
RCW 28A.320.127,6 and RCW 28A.320.1271,7 were not in effect when Moen resigned
on April 1, 2013. On April 22, 2013, the legislature passed "K-12 SCHOOLS-
TROUBLED YOUTH AN ACT Relating to increasing the capacity of school districts
to recognize and respond to troubled youth." Laws of 2013, ch. 197. This act added
new sections to chapter 28A.310 RCW and chapter 28A.320 RCW including RCW
28A.310.500, RCW28A.320.127, and RCW 28A.320.1271. Laws of 2013, ch. 197, §§
6, 4, 5. The governor signed the act on May 10, 2013 and it became effective on July
28,2013. Laws of 2013, ch. 197, § 10; Laws of 2013, at ii. Because RCW
28A.310.500, RCW28A.320.127, and RCW 28A.320.1271 were not in effect at the time
Moen resigned, they do not establish a clear mandate of public policy related to her
claim.
RCW 28A.300.070 was in effect when Moen resigned. RCW 28A.300.070
provides:
The state of Washington and/or any school district is hereby authorized to
receive federal funds made or hereafter made available by acts of
congress for the assistance of school districts in providing physical
facilities and/or maintenance and operation of schools, or for any other
educational purpose, according to provisions of such acts, and the state
6 Former RCW 28A.320.127 (Laws of 2013, ch. 197, § 4) states, in pertinent part:
(1) Beginning in the 2014-15 school year, each school district must adopt a plan for
recognition, initial screening, and response to emotional or behavioral distress in
students, including but not limited to indicators of possible substance abuse, violence,
and youth suicide. The school district must annually provide the plan to all district staff.
7RCW28A.320.1271 states:
The office of the superintendent of public instruction and the school safety [center]
advisory committee shall develop a model school district plan for recognition, initial
screening, and response to emotional or behavioral distress in students, including but not
limited to indicators of possible substance abuse, violence, and youth suicide. The model
plan must incorporate research-based best practices, including practices and protocols
used in schools and school districts in other states. The model plan must be posted by
February 1, 2014, on the school safety center web site, along with relevant resources and
information to support school districts in developing and implementing the plan required
under RCW 28A.320.127.
(Alteration in original.)
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No. 74260-4-1/12
superintendent of public instruction shall represent the state in the receipt
and administration of such funds.
The clear and unambiguous language of RCW 28A.300.070 authorizes school
districts to receive federal funds for educational purposes. RCW 28A.300.070 does not
establish a clear mandate of public policy that supports Moen's wrongful discharge in
violation of public policy claim—that she was required to teach the Project SUCCESS
curriculum contrary to the methodology of the program or in a manner that might place
students at risk of emotional harm.
As a matter of law Moen has not identified a statute containing a clear mandate
of public policy. We reverse denial of summary judgment and remand to enter an order
of dismissal of the wrongful discharge in violation of public policy claim.8
^C&x^r-^&.
WE CONCUR:
^fr"j Ac^ Wr/w^J.
8 Because Moen does not identify a clear mandate of public policy, we need not consider whether
Moen "presented sufficient evidence to take the issue of constructive discharge to a trier of fact." See
Korslund v. DvnCorp Tri-Cities Servs.. Inc.. 156Wn.2d 168, 181, 125 P.3d 119 (2005V overruled on other
grounds by Rose, 184 Wash. 2d at 280.
12