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Washington Public Employment
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Wrongful Discharge Tort
Sample Articles:
DIVIDED
SUPREME COURT SIGNIFICANTLY EXTENDS WRONGFUL DISCHARGE ACTION
KEY ARENA FIRE ALARM PROBLEM LEADS TO EMPLOYEE
LAWSUIT
EMPLOYER
NOT LIABLE FOR VERBALLY ABUSIVE SUPERVISOR
DIVIDED
SUPREME COURT SIGNIFICANTLY EXTENDS
WRONGFUL DISCHARGE ACTION
In a ruling having broad employment law implications, a
divided Washington Supreme Court expanded the common law tort for wrongful
discharge in violation of public policy. In so doing, the court's majority
emphasized the independence of the common law tort claim from legislative
action, while the dissent accused the majority of engaging in judicial
legislating.
In Smith v. Bates Technical College, the court decided that the wrongful
discharge action is available to employees who also enjoy the protection of
civil service rules or a collective bargaining agreement. The court further
ruled that employees need not exhaust contractual or administrative remedies
before suing. Finally, and most startling, the court ruled that the tort of
wrongful discharge is available to employees discharged in violation of RCW
41.56, the Public Employees Collective Bargaining Act. Employees can bypass
PERC as well as the grievance arbitration process and go directly to court,
or they can pursue more than one avenue of relief.
Kelly Smith worked for Bates Technical College at its radio station. She
was covered by a collective bargaining agreement with a just cause clause.
She filed a grievance alleging that her supervisor unilaterally changed her
job description after a restructuring of the work force. At that point, her
relationship with the employer began to deteriorate and after filing numerous
additional grievances and reportedly making threatening remarks about several
co-workers, she was terminated. Her union took it to arbitration.
The arbitrator determined that the employer lacked just cause when it
fired her without following the steps for progressive discipline and awarded
her reinstatement and back pay. The employer complied with the arbitrator's
remedial order. The employee also filed several unfair labor practice claims
with PERC alleging that she was fired in retaliation for exercising her
rights under RCW 41.56. Before PERC had a chance to hear her charges, she
filed a lawsuit alleging that she was terminated in violation of public
policy and the First Amendment. Although she had been reinstated and awarded
back pay, she sought additional damages, including damages for emotional
distress.
Contractual and PERC Remedies Distinct from Courts'
On appeal from a dismissal of her suit, the court majority found that
Smith could be barred from seeking additional relief available in court.
Justice Sanders, writing for the majority, rejected the employer's argument
that sufficient remedies were available to and had been obtained under the
arbitration clause of her union contract:
Contractual remedies do not
protect an employee who is fired not only "for cause" but also in
violation of public policy ... 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.
The court also ruled that Smith could proceed with her tort claim before
exhausting her remedies through PERC. The majority reasoned that "the
right to be free from wrongful termination in violation of public policy is
independent of any underlying contractual agreement or civil service
law." It is a "nonnegotiable right."
The court rejected its prior pronouncements that would have barred the
tort claim. For example, in its 1998 Reninger v. Department of Corrections
decision, the same court wrote that "our case law has questioned the
viability of such a tort where other relief is available to an affected
employee." In that case, two prison guards resigned after being demoted
took their case to the Personnel Appeals Board (PAB) which denied their
appeal and found they were justifiably disciplined for engaging in gross
misconduct. The high court found that the findings of the PAB had a
preclusive effect on the guards' subsequent court action for wrongful
constructive discharge.
In a 1997 decision, White v. State, the court refused to recognize the
tort of "wrongful transfer," stating that disciplinary decisions of
the employer should not be subject to judicial scrutiny particularly "in
instances like this one where an employee's rights are already protected by
civil service rule, by a collective bargaining agreement, and by civil rights
statutes."
No Requirement to Pursue Contractual and Administrative Remedies
The court took the matter a step further and held that there is no
requirement to exhaust contractual or administrative remedies before suing in
superior court. Although it did not overrule the Reninger decision giving
preclusive effect to agency findings, it essentially ruled that employees can
avoid this result by simply bypassing the administrative process and going
directly to court. The court explained that tort claims occupy a category
separate and distinct from contract claims (such as those arising under a
collective bargaining agreement) and from statutory claims, even those with
an administrative procedure attached.
It is at this point that one encounters the most radical aspect of the
court's ruling. After asserting that tort claims and statutory claims are
distinct beings, it proceeded to base the tort claim on the statutory claim.
The majority's analytical threshold was the definition of "public
policy" -- a necessary determination because the wrongful discharge tort
is only available when the discharge violates "a clear mandate of public
policy." Based on prior rulings, the majority stated that public policy
is violated when the "employer's conduct contravenes the letter or purpose
of a constitutional, statutory, or regulatory provision or scheme," when
the employee is fired for "exercising a legal right or privilege,"
or when the discharge runs counter to public policy established in prior
court decisions.
The public policy in Smith's case was that found in RCW 41.56, the Public
Employment Collective Bargaining Act. Smith had asserted that her discharge
was in retaliation for exercising her statutory right to file unfair labor
practice charges and grievances. The court assumed, without further
discussion, that the employee rights expressed or implied in RCW 41.56
evidenced "a clear mandate of public policy." In the court's view,
the fact that Smith asserted that her discharge violated a statute was
sufficient to elevate her case to the level of a tort claim.
Dissent: Collective Bargaining Law Undercut by Majority Ruling
The irony of the court's decision was that it based Smith's right to a
wrongful discharge claim on RCW 41.56, even though the Legislature, when
enacting the statute, set up and empowered an administrative agency to
address and remedy violations. One questions the efficacy of creating an
agency with the exclusive authority to administer and enforce a statutory
scheme when those claiming a violation can avoid the agency's process and
receive a more generous remedy through a jury trial in superior court. This
point was emphasized by Justice Talmadge, who wrote for the dissent:
The majority discerns a
"clear mandate of public policy" from the very statute its opinion
effectively undercuts. If the public policy mandate of CBAs and PERC is so
clear, the majority should simply allow that public policy to be applied as
the Legislature envisioned in Kelly Smith's case. Instead, the majority
appears to suggest only the judiciary knows best.
Justice Talmadge called this an "unfathomable extension of judicial
power, heedless of any restraint," that "short circuits" the
process created by the Legislature. The dissenting opinion warned that the
majority's decision is:
positively dangerous to public
employers and employees. The expertise of PERC and labor arbitrators may be
freely disregarded in favor of court actions before judges whose expertise in
public labor law certainly is not as great.
The dissent added that:
The majority affords public
employees greater protection than other workers in our state and provides
significant disincentives for public employees to use the statutory and
contractual mechanisms created for protection of their employment rights. Why
use a CBA's arbitration clause or the Public Employment Relations Commission
(PERC) when the majority permits a public employee to go to court?
The dissenting justices also observed that the "great weight of
authority from around the United States" is contrary to the majority's
ruling and lamented that the employee was allowed a cause of action in tort
"even though the statutory and contractual remedies worked for
her."
Smith v. Bates Technical College, No. 67374-8
(Wn. S.Ct., January 27, 2000)
For a decision that seems to run
counter to Smith v. Bates Technical College, see our discussion of Flores v.
San Diego County (REVIEW, Spring 2000). In that case, the federal appeals
court ruled that an employee cannot obtain reinstatement and back pay in state
court and then seek additional damages in federal court.
Element of Wrongful Discharge Claim Clarified
KEY
ARENA FIRE ALARM PROBLEM LEADS TO EMPLOYEE LAWSUIT
The fire alarm system at Key Arena is designed to block out other uses of
the Arena's PA system in case of a fire, so that emergency officials can use
it to give directions to patrons. Sound technicians were aware of this
design, and correctly believed that it was illegal to tamper with the alarm
system without proper fire department authorization.
When there were false alarms on two successive evenings, the Seattle
Center's Events Services Representative (ESR) and a Sonics official directed
David Ellis, a licensed engineer and a sound technician, and a co-worker, to
disable the bypass feature to that the PA system could be used as normal.
Concerned about the legality and the potential danger to the public, Ellis
and his co-worker, both Seattle Center employees, refused to comply without
authorization from the Seattle Fire Department or from Seattle Center
management.
A few days later, the Center's Human Resources Manager advised them that
they had to comply with an order from a superior regardless of their belief
as to the order's legality. A fire department official, through an inquiry
made by the employees' union representative, affirmed the employees'
understanding that tampering with the alarm system is illegal. After Ellis
and his co-worker complained to the Department of Labor & Industries
(L&I), the Center began disciplinary proceedings. The co-worker resigned,
and Ellis was terminated for "gross insubordination."
Ellis brought suit for wrongful termination in violation of public policy
and for retaliatory discharge in violation of the whistleblower provision of
the Washington Industrial Safety and Health Act (WISHA). Both claims were
dismissed by the trial court, and he appealed. In an opinion authored by
Justice Talmadge, a unanimous Washington State Supreme Court reversed.
The high court reviewed the four required elements of a wrongful discharge/public
policy claim:
- The plaintiffs must
prove the existence of a clear public policy (the clarity element).
- The plaintiffs must
prove that discouraging the conduct in which they engaged would
jeopardize the public policy (the jeopardy element).
- The plaintiffs must
prove that the public-policy-linked conduct caused the dismissal (the
causation element).
- The defendant must not
be able to offer an overriding justification for the dismissal (the
absence of justification element).
With respect to the clarity element, the court agreed with Ellis that the
Seattle Fire Code clearly made the employer's order to bypass the alarm
system illegal.
Middle Ground Taken on "Jeopardy;" "Causation"
Easily Met
On the jeopardy element, the high court noted the courts of appeals have
had differing views as to whether a claimant "must prove an actual
violation of the public policy or must simply have an objectively reasonable
belief the policy may be violated." In a retaliatory discharge context,
however, the courts have agreed that "an objectively reasonable
belief" is sufficient. The court noted that:
to establish his retaliation
claim under RCW 49.17.160(1), Ellis is not required to prove an actual WISHA
violation. All he has to do is prove the City terminated him for making a
WISHA complaint.
The court adopted the "objectively reasonable" test only when
public safety is at issue:
where imminent harm is present,
we hold the jeopardy prong ... may be established if an employee has an
objectively reasonable belief the law may be violated in the absence of his
or her action.
More will be required of plaintiffs whose concerns do not involve public
safety, the court stated.
The court ultimately rejected the employer's claim that Ellis was not being
asked to work on the fire alarm system per se, but only on the public address
component. After examining some of the fire code interpretation difficulties
against the engineering of the system, the court decided that "the
automatic disabling feature of the PA system was an integral part of the
design of the fire alarm system at Key Arena." It also noted the fire
code's definition of a fire alarm system includes "associated electrical
wiring."
The court was not persuaded by a fire department captain's sworn statement
that had he been asked, he would have authorized the bypass of the system. It
noted that "Seattle Center officials never conveyed this information to
Ellis, despite his persistent requests for official Fire Department
authorization for the bypass."
Addressing the causation element, the court found it undisputed that the
employer fired Ellis because he refused to alter the fire alarm system.
Employer's Defense: A "Post-Hoc" Rationalization
Lastly, the court addressed the employer's justification defense.
Ironically, the employer claimed that its own public safety concerns
justified Ellis's termination, citing an engineer's opinion that the PA
system might be needed to prevent panic in the Key Arena, and the fire
marshal's statement that the Arena itself, which has better visibility, could
be the better location for safety announcements than the fire control room.
The court dismissed that defense, stating that:
These statements appear to be
further post hoc rationalizations and are entirely vitiated by Ellis's
assertions from the very beginning that he would always follow the verbal
orders of Fire Department personnel.
The court also cited an admission by the employer that for nearly three
months after the discipline, the Human Resources Manager did not know if
Ellis had refused to comply with a legal or an illegal order:
Rather than finding out whether
Ellis's concerns were legitimate, the City fired him, and only after he sued
did the City attempt to justify its actions by obtaining statements from Fire
Department personnel.
The high court remanded the suit for trial.
Ellis v. City of Seattle, d/b/a Seattle Center, No. 68252-6 (Wa. S.Ct.,
December 14, 2000)
EMPLOYER
NOT LIABLE FOR VERBALLY ABUSIVE SUPERVISOR
Does the rude, boorish, overbearing behavior of a supervisor that results
in an employee's emotional distress give rise to a cause of action where the
employer has no reason to know of the employee's susceptibility to emotional
problems? The answer to the question is "no," according to Division
III of the Court of Appeals.
An employee with a history of emotional problems (which were not known to
the employer) was verbally abused by her supervisor after a dispute
concerning overtime work. The supervisor was known to be difficult; three
other employees had resigned because of her conduct. The employer would not
accommodate the employee's request for assignment to a different supervisor,
and the employee resigned. She brought two tort claims and a claim of
handicap discrimination against the employer.
No Tort of Outrage or Emotional Distress
The tort of outrage "does not extend to mere insults, indignities,
threats, annoyances, petty oppressions, or other trivialities," the
court observed. Acting with a "callous lack of consideration," as
the supervisor did in this case, is not the kind of incivility that supports
a claim of outrage. The employee's claim was rejected.
As with any claim of negligence, the foreseeability of the risk and the
reasonableness of the defendant's conduct are key elements. In addition, the
plaintiff must show objective symptoms of the emotional distress, which
should "be the reaction of a normally constituted person," absent
the defendant's knowledge of the plaintiff's peculiar characteristic's or
condition. Importantly, the court addressed policy considerations supporting
its ruling against the employee, stating that "emotional distress is a
fact of life," and "the workplace is not stress free," meaning
that there are limits to an employer's liability:
The employers, not the courts,
are in the best position to determine whether such disputes should be
resolved by employee counseling, discipline, transfers, terminations or no
action at all. While such actions undoubtedly are stressful to impacted
employees, the courts cannot guarantee a stress-free workplace.
In a broad pronouncement, the court stated that "absent a statutory
or public policy mandate, employers do not owe employees a duty to use
reasonable care to avoid the inadvertent infliction of emotional distress
when responding to workplace disputes."
Handicap Discrimination Not Shown
The court rejected the employee's claim for handicap discrimination on the
grounds that the accommodation she sought, assignment to a different
supervisor, was not reasonable. The court found no relevant federal cases
requiring "an employer to accommodate an employee's request for a new
supervisor." The court also observed that not "every personal
discomfort nor workplace embarrassment rises to the level of a recognized
disability requiring accommodation under the law." In addition, the
court observed that "the intent of the ADA is to avoid interfering with
personnel decisions."
Constructive Discharge OK Absent Prohibited Reasons
An employee is constructively discharged when an employer deliberately
makes the employee's working conditions intolerable and thereby forces the
employee to resign. The question is whether the discharge was for a legally
prohibited reason. Otherwise, under Washington law, the employee may be
terminated at will, whether it be by direct or constructive means. The
employee had no valid claim for prohibited discrimination; therefore her
actual or constructive discharge was permissible.
Snyder v. Medical Service Corp., No. 18053-1-III, (Wn.
App., December 2, 1999)
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