Carl v. Children's Hosp., No. 93-CV-1476.

• Docket Nº: No. 93-CV-1476.
• Citation: 702 A.2d 159
• Case Date: September 23, 1997
• Court: Court of Appeals of Columbia District

702 A.2d 159

Linda C. CARL, Appellant,
v.
CHILDREN'S HOSPITAL, Appellee.

No. 93-CV-1476.

District of Columbia Court of Appeals.

Reargued En Banc October 12, 1995.

Decided September 23, 1997.

Michael B. Waitzkin, Washington, DC, with whom Stacy A. Feuer, New York City, and Stephen H. Marcus, Washington, DC, were on the brief, for appellant.

J. Patrick Hickey, with whom Paul F. Mickey, Jr., Teresa L. Diaz, and Leslie Stout Tabackman, Washington, DC, were on the brief, for appellee.

Barbara J. Sapin, Washington, DC, and Susan E. Scheider, filed a brief for amici curiae, American Nurses Association and District of Columbia Nurses Association.

Tresa Schlecht, Annandale, VA, and Barbara E. Hirsch, Columbia, MD, filed a brief for amicus curiae, the Capital Area Network of Nurse-Attorneys, Inc.

Before WAGNER, Chief Judge, FERREN, TERRY, STEADMAN, SCHWELB, FARRELL, KING, RUIZ and REID, Associate Judges, and MACK, Senior Judge.

PER CURIAM:

We granted appellant's petition for rehearing en banc to consider her contention that the narrow public policy exception to the employment-at-will doctrine which we first recognized in Adams v. George W. Cochran & Co., 597 A.2d 28, 32 (D.C.1991), should be expanded to include the rights of employees to speak out publicly on issues affecting the public interest without fear of retaliation by their employers. The division that initially heard this appeal affirmed the trial court's denial of relief because it was bound by precedent to do so. Carl v. Children's Hospital, 657 A.2d 286, 289 (D.C.1995), citing Gray v. Citizens Bank, 602 A.2d 1096, 1097 (D.C.) ("a division of this court is not free to expand the Adams exception"), vacated, id.

702 A.2d 160

at 1102, opinion reinstated on denial of rehearing en banc, 609 A.2d 1143 (D.C.1992); see M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971). A majority of the en banc court now agrees with Ms. Carl that Adams does not foreclose any additional "public policy" exceptions to the general rule that employment contracts are always at will unless they expressly provide otherwise

We hold that the "very narrow exception" created in Adams should not be read in a manner that makes it impossible to recognize any additional public policy exceptions to the at-will doctrine that may warrant recognition. We think Judge Schwelb, in his concurring opinion in Gray v. Citizens Bank, read Adams correctly: "We could not and did not hold in Adams that this was the only public policy exception, because that question was simply not presented." Gray, supra, 602 A.2d at 1098 (Schwelb, J., concurring). Adams simply said that there is "a very narrow exception to the at-will doctrine," 597 A.2d at 34 (emphasis added), not "just one and only one" such exception. There is nothing in the Adams opinion that bars this court — either a three-judge panel or the court en banc — from recognizing some other public policy exception when circumstances warrant such recognition. On this point a majority of the en banc court agrees. To the extent that Gray v. Citizens Bank holds differently, it is overruled.

I

From October 1991 until she was fired in March 1992, Linda Carl was employed as a part-time nurse in the Neonatal Intensive Care Unit ("NICU") of Children's Hospital. Shortly thereafter, Ms. Carl filed this suit against the hospital and Cathy Fonner, a nurse employed by the hospital as a clinical educator, alleging that she had been discharged because of her advocacy for patients' rights before the legislature and the courts. Ms. Carl claimed specifically that she was fired because she had testified before the Council of the District of Columbia on proposed tort reform legislation, taking a position contrary to the interests of her employer,¹ and because she had appeared in court as an expert witness for plaintiffs in medical malpractice cases. She sought recovery on six separate theories: wrongful discharge, promissory estoppel, defamation, intentional infliction of emotional distress, breach of contract, and intentional interference with contractual relations. With respect to the wrongful discharge claim, Ms. Carl asserted that her termination contravened specific public policies recognized in the District of Columbia. This court's prior decision summarized these claimed policies as follows:

(1) a citizen's right to engage in political expression before the Council without fear of harassment or intimidation;² (2) a professional nurse's duty to participate in the legislative process, to advocate positions of public importance on behalf of patients, and to educate the legislature so that it can make informed public policy decisions;³ and (3) the evidentiary rule requiring expert testimony to establish a prima facie case of negligence in a medical malpractice action.⁴

702 A.2d 161

Carl v. Children's Hospital, 657 A.2d 286, 288 (hereafter "Carl I"), vacated on grant of rehearing en banc, 665 A.2d 650 (D.C.1995).

The hospital moved under Super. Ct. Civ. R. 12(b)(6) to dismiss Ms. Carl's complaint for failure to state a claim upon which relief could be granted. In its motion, the hospital defended its decision to fire Ms. Carl on the ground that she was originally hired as a probationary employee and that, as such, "she was required to complete the NICU orientation program, which consisted of both clinical and classroom components, in order to be fully qualified to care for the infants in the unit, and to work a minimum of twenty hours per week." Carl I, 657 A.2d at 287. According to the hospital, Ms. Carl never completed her orientation classes,⁵ and she consistently failed to meet her weekly twenty-hour quota. Hospital personnel held at least three meetings with Ms. Carl in February 1992 to discuss her employment status. Citing her failure to meet the orientation requirements, the hospital fired her on March 20, 1992.

Ms. Carl alleged, on the other hand, that she was not a probationary employee, that she requested to defer orientation only once, and that she met her minimum work requirements as scheduled by her supervisor, who made the assignments on a weekly basis. Since the trial court dismissed Ms. Carl's complaint under Rule 12(b)(6), we must construe the complaint in the light most favorable to her and must take her allegations as true. See, e.g., McBryde v. Amoco Oil Co., 404 A.2d 200, 202 (D.C.1979).

The trial court, after a hearing, granted the hospital's motion to dismiss Ms. Carl's wrongful discharge claim. Apparently relying on Adams v. George W. Cochran & Co., supra, the court said:

I really don't think there's much dispute about what the law is here.... That's a claim that only lies if there's a dismissal based on the refusal to perform an illegal act. And I don't think that's what we have here....

After further proceedings related mainly to discovery, Ms. Carl voluntarily dismissed her remaining claims so as to put her case in an appealable posture.⁶ Her appeal was briefed and argued before a division of this court, which affirmed the dismissal of her wrongful discharge claim and found no abuse of discretion in the denial of her motion to compel discovery. Carl I, supra. She petitioned for rehearing en banc on the wrongful discharge claim, which we granted in Carl v. Children's Hospital, 665 A.2d 650 (D.C.1995).⁷

II

On the merits of the controversy between the parties, a majority of the court concludes that Ms. Carl's complaint was dismissed in error and should be reinstated. The judgment of the trial court is therefore reversed, and the case is remanded for such further proceedings as may be appropriate.

Reversed and remanded.

TERRY, Associate Judge, with whom Chief Judge WAGNER and Associate Judges FARRELL and RUIZ join, concurring:

I agree with the majority that Adams v. George W. Cochran & Co., 597 A.2d 28 (D.C.

702 A.2d 162

1991), does not bar this court from recognizing exceptions to the at-will doctrine in addition to the one adopted in Adams. However, lest we allow "public policy" exceptions to swallow up the at-will doctrine, I would also hold that the recognition of any such exception must be firmly anchored either in the Constitution or in a statute or regulation which clearly reflects the particular "public policy" being relied upon. Applying this standard to the case before us, I conclude that Ms. Carl has made a sufficient showing to justify a public policy exception here

I

A. Ms. Carl's contentions

In deference to our previous wrongful discharge cases, Ms. Carl does not seek to invoke the "very narrow exception" to the at-will doctrine that we articulated in Adams. She concedes that her case does not fall within this exception. Ms. Carl also does not contend that the hospital's alleged retaliatory firing of her was conduct prohibited by D.C.Code § 1-224. Instead, she reiterates the argument she made before the division "that the statute embodies a broader legislative disapproval of any acts that punish an individual for testifying before the Council." Carl I, 657 A.2d at 289 n. 5. Thus she now invites the en banc court, as she invited the division, "to expand Adams to encompass a claim such as the one alleged by her, arguing that section 1-224, the national nursing code, and District of Columbia case law set forth clear public policy, the violation of which creates a wrongful discharge cause of action." Id. at 289. For the reasons that follow, I agree with Ms. Carl with respect to her reliance upon section 1-224, but I reject her other arguments.

B. The proper standard for a public policy exception

This court has long and consistently adhered to the rule that employment is presumed to be at will, unless the contract of employment expressly provides otherwise. Thus "an employer may discharge an at-will employee at any time and for any reason, or for no reason at all." Adams v. George W. Cochran & Co., supra, 597 A.2d at 30 (citing cases);¹ see, e.g., Thigpen v. Greenpeace, Inc., 657 A.2d 770, 771 (D.C.1995); Taylor v....