Briggs v. Nova Services

• Decision Date: 27 August 2009
• Docket Number: No. 79615-7.,79615-7.
• Citation: 213 P.3d 910,166 Wn.2d 794
• Court: Washington Supreme Court
• Parties: Ken BRIGGS, Judy Robertson, Mark Johnson, Beverly Nunn, Jami Smith, Shirley Bader, Pam Zeller, Margaret ("Peggy") Clark, Odalys P. Castillo, and Valerie Bruck, Petitioners, v. NOVA SERVICES, a Washington nonprofit corporation, and Linda Brennan, Respondents.

213 P.3d 910

166 Wn.2d 794

Ken BRIGGS, Judy Robertson, Mark Johnson, Beverly Nunn, Jami Smith, Shirley Bader, Pam Zeller, Margaret ("Peggy") Clark, Odalys P. Castillo, and Valerie Bruck, Petitioners, v. NOVA SERVICES, a Washington nonprofit corporation, and Linda Brennan, Respondents.

No. 79615-7.

Supreme Court of Washington, En Banc.

Argued February 12, 2008.

Decided August 27, 2009.

Mary R. Giannini, Attorney at Law, Spokane, WA, for Petitioners.

Louis Rukavina III, Louis Rukavina PS, Spokane, WA, for Respondents.

Gary Neil Bloom, Harbaugh & Bloom PS, Bryan Patrick Harnetiaux, Attorney at Law, Spokane, WA, Kelby Dahmer Fletcher, Peterson Young Putra, Seattle, WA, Amicus Curiae on behalf of Washington State Trial Lawyers Association Foundation.

Diana M. Kirchheim, Washington State Senate, Olympia, WA, Deborah J. La Fetra, Timothy Sandefur, Pacific Legal Foundation, Sacramento, CA, Amicus Curiae on behalf of Pacific Legal Foundation.

Kathleen Phair Barnard, Schwerin Campbell Barnard Iglitzin & Lav, Jeffrey Lowell Needle, Seattle, WA, Amicus Curiae on behalf of Washington Employment Lawyers Association.

Gary Neil Bloom, Harbaugh & Bloom PS, Bryan Patrick Harnetiaux, Attorney at Law, Spokane, WA, Kelby Dahmer Fletcher, Peterson Young Putra, Seattle, WA, Amicus Curiae on behalf of Washington State Association for Justice Foundation.

J.M. JOHNSON, J.

¶ 1 Eight employees of a nonprofit organization did not support the executive director appointed by its board. Instead, the employees made efforts to remove her from office, including sending a letter to the board of directors demanding she be fired. After the board reviewed the employees' charges and affirmed the board's support of the executive director, six of the employees quit and two were fired. The employees claim that their actions constituted "concerted activities" statutorily protected under Washington law. The employees argue that this prevents the employer from terminating any of the employees. However, we are constrained from creating broad exceptions to the general Washington rule that employers and employees can end their relationship at will. We hold that the conduct at issue here is not encompassed in the public policy of chapter 49.32 RCW protecting the employees' right to engage in concerted activities relating to the improvement of working conditions. The statutory exception to the general rule is simply not broad enough to apply here. Accordingly, we affirm the Court of Appeals, which upheld summary judgment for the nonprofit employer Nova Services and its director.

FACTS

¶ 2 Eight former employees (Employees) allege they were wrongfully terminated by Nova Services, a Washington nonprofit corporation that provides services to disabled persons. Six of the Employees held self-described management positions at Nova, including Ken Briggs, Judy Robertson, Mark Johnson, Shirley Bader, Beverly Nunn, and Jami Smith (collectively Managers). The remaining two Employees, Margaret Clark and Valerie Bruck, held nonmanagement positions.¹ All of the Employees worked under the supervision of Nova's executive director, Linda Brennan.

¶ 3 After unsuccessfully attempting to talk with director Brennan directly, the Managers sent a letter to the board of directors on April 6, 2004, regarding their ongoing concerns about director Brennan's management of the organization. The letter addressed the Managers' dissatisfaction with director Brennan's performance in the areas of leadership, administration, finance, board development, corporate culture, and community and government relations. Clerk's Papers (CP) at 73-77. The Managers requested an in person meeting with the board to elaborate on their concerns and to discuss "plans of action." CP at 76. At the end of the letter, the Managers asserted that they would collectively "leave" Nova if director Brennan terminated one or more of them for raising concerns with the board. Id.

¶ 4 Nova argues that the Managers' letter violated its internal policy barring direct employee communication with the board. However, Nova took no disciplinary action against the Managers at that time. Instead, the board responded to the letter by hiring an attorney, Michael Love, to investigate the Managers' concerns. After conducting an investigation, Mr. Love determined that director Brennan had not engaged in illegal conduct. CP at 81. Love recommended that the board terminate either director Brennan or Briggs and Robertson because "personal animosity runs too deep" to allow continued working together. CP at 120.

¶ 5 The board did not follow Love's recommendation, but employed a human resource consultant, Ellen Flanigan, to mediate. After director Brennan and the Managers refused to attend mediation sessions with each other, Ms. Flanigan arranged a meeting between the Managers and the board on June 29, 2004, to discuss their dissatisfaction with director Brennan.

¶ 6 On July 12, 2004, Ms. Flanigan and director Brennan met with Bader, Nunn, Johnson, and Smith individually. Director Brennan told each that she was willing to make every effort to better communicate to address their concerns, CP at 61, and to take steps "to improve the workplace for all employees." CP at 65, 300. That same day, director Brennan terminated Briggs and Robertson for insubordination, petitioning grievances directly to the board, and for using "company time to enlist the support of fellow managers to undermine [director Brennan's] authority and position." CP at 143.

¶ 7 Upon learning of Briggs's and Robertson's termination, Bader informed director Brennan of her intent to leave Nova in response to those terminations. Bader claims that she and director Brennan agreed that she would remain at Nova until director Brennan found a replacement. Later the same day, director Brennan asked Bader to leave by the end of the day.

¶ 8 On July 15, 2004, the remaining Employees, including Bader, sent a letter to the board requesting the reinstatement of Briggs and Robertson and the firing of director Brennan. CP at 79. The letter indicated that the Employees would "walk out of Nova Services" if the board did not contact them by the end of the following day, that they would not return until their requests were met, and that the requests were "non-negotiable." Id. The board did not contact the Employees the next day. As promised, Johnson, Smith, Clark, Bruck, Zeller, and Nunn did not come to work. Director Brennan considered this action as a group resignation and began to hire replacements for all of the Employees.

¶ 9 The Employees filed a complaint against Nova on September 17, 2004, alleging wrongful "termination" in violation of public policy,² unlawful retaliation-wrongful discharge, negligent infliction of emotional distress, intentional infliction of emotional distress/outrage, and negligent supervision/retention. CP at 3-10. Nova filed a motion for summary judgment before either party had taken depositions. The Employees filed a motion to compel discovery and a motion for continuance based on their inability to complete discovery. After a hearing, the trial court denied the motion for continuance and granted the motion for summary judgment.

¶ 10 The Employees appealed and Division Three of the Court of Appeals affirmed on all grounds. Regarding summary judgment, the court held that the Employees had not engaged in concerted activities protected under RCW 49.32.020, because the Employees' concerns did not relate to a term or condition of employment. Briggs v. Nova Servs., 135 Wash.App. 955, 965-66, 147 P.3d 616 (2006). The court also held that the Managers were excluded from protection under RCW 49.32.020. Id. at 966, 147 P.3d 616. Chief Judge Dennis J. Sweeney dissented on grounds that the Employees' conduct was protected concerted activity, and that the managerial status of the Employees was a question of fact for the jury to determine. Id. at 967-69, 147 P.3d 616 (Sweeney, C.J., dissenting). Petitioners filed a petition for review with this court. We granted review of the summary judgment on the wrongful discharge claim. Briggs v. Nova Services, 161 Wash.2d 1022, 172 P.3d 360 (2007).

ANALYSIS

¶ 11 We review an order granting summary judgment de novo. York v. Wahkiakum Sch. Dist. No. 200, 163 Wash.2d 297, 302, 178 P.3d 995 (2008). Under CR 56(c), summary judgment is appropriate if the record presents no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Oltman v. Holland Line USA, Inc., 163 Wash.2d 236, 243, 178 P.3d 981 (2008). We must view all facts, and draw reasonable inferences therefrom in the light most favorable to the nonmoving party. Viking Props., Inc. v. Holm, 155 Wash.2d 112, 119, 118 P.3d 322 (2005).

¶ 12 Employers and employees generally can terminate their employment relationship at any time for any reason without having to explain their actions to a court. Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 226, 685 P.2d 1081 (1984). We have always made clear that the tort of wrongful discharge in violation of public policy is a narrow exception to this employment at-will doctrine.³ Sedlacek v. Hillis, 145 Wash.2d 379, 385, 36 P.3d 1014 (2001). The exception should be applied cautiously so as to not swallow the rule. Id.

¶ 13 In order to prevail on a claim of wrongful discharge, a plaintiff must be able to show three things: (1) Washington has a clear public policy (the clarity element), (2) discouraging the conduct would jeopardize the public policy (the jeopardy element), and (3) that policy-protected conduct caused the dismissal (the causation element). Gardner v. Loomis Armored, Inc., 128 Wash.2d 931, 941, 913 P.2d 377 (1996). If these three elements are met, an employer will still prevail if it is able to offer an overriding justification for the termination decision (the absence of justification element). Id.

¶ 14 To determine whether a clear mandate of public policy is...