Certification From the United States Dist. Court For the Eastern Dist. of Wash. In Matthew Cudney v. Alsco Inc.

• Decision Date: 01 September 2011
• Docket Number: No. 83124–6.,83124–6.
• Citation: 32 IER Cases 1734,172 Wash.2d 524,259 P.3d 244
• Court: Washington Supreme Court
• Parties: Certification from the United States District Court for the Eastern District of Washington in Matthew CUDNEY, Plaintiff,v.ALSCO, INC., a Nevada corporation, Defendant.

172 Wash.2d 524

259 P.3d 244

32 IER Cases 1734

Certification from the United States District Court for the Eastern District of Washington in Matthew CUDNEY, Plaintiff,

v.ALSCO, INC., a Nevada corporation, Defendant.

No. 83124–6.

Supreme Court of Washington, En Banc.

Argued Jan. 12, 2010.Decided Sept. 1, 2011.

Keller W. Allen, Law Firm of Keller W. Allen PC, Spokane, WA, for Plaintiff.Bryce James Wilcox, Attorney at Law, Spokane, WA, for Respondent.James P. Mills, Office of the Attorney General, Tacoma, WA, amicus counsel for Department of Labor and Industries.Jeffrey Lowell Needle, Jesse Andrew Wing, MacDonald Hoague & Bayless, Seattle, WA, amicus counsel for Washington Employment Lawyers Association.George M. Ahrend, Ahrend Law Firm PLLC, Moses Lake, WA, Bryan Patrick Harnetiaux, Attorney at Law, Spokane, WA, amicus counsel for Washington State Association for Justice Foundation.OWENS, J.

[172 Wash.2d 526] ¶ 1 This case allows us to consider whether the Washington Industrial Safety and Health Act of 1973 (WISHA), chapter 49.17 RCW, and Washington's laws prohibiting driving while under the influence (DUI) are inadequate to promote the public policies underlying them. Matthew Cudney, whose employment was terminated by ALSCO Inc., asserted a claim in federal court for wrongful discharge in violation of public policy. Cudney alleges that he was terminated in retaliation for reporting that a managerial employee drove a company vehicle during business hours while that employee was intoxicated. The United States District Court for the Eastern District of Washington certified to us the following questions:

QUESTION NO. 1: Does the Washington Industrial Safety and Health Act (WISHA), in particular RCW 49.17.160, and accompanying Washington Administrative Code (WAC) regulations (WAC 296–360–005 et seq. and WAC 296–800–100 et seq.), adequately promote the public policy of insuring workplace safety and protecting workers who report safety violations so as to preclude a separate claim by a terminated employee for wrongful discharge in violation of public policy?

QUESTION NO. 2: Do the DUI laws of the State of Washington, in particular RCW 9.91.020, RCW 46.61.504, and RCW 4[6].61.502, adequately promote the public policy of protecting the public from drunken drivers so as to preclude a separate claim by a terminated employee for wrongful discharge in violation of public policy?

Certification to Wash. State Supreme Court at 3–4 (Certified R. Doc. 30). In response, we hold that both WISHA and our state's DUI laws adequately promote the stated public policies.

FACTS

¶ 2 In April 2004, ALSCO hired Cudney as the service manager of its Spokane branch. During his tenure at ALSCO, Cudney made numerous complaints to his supervisor about the alcohol use of John Bartich, the Spokane branch's general manager. On June 10, 2008, Cudney observed that Bartich appeared to be intoxicated at work. He noted that Bartich was weaving back and forth, had slurred speech and glazed eyes, and smelled of alcohol. Cudney then observed Bartich drive away in a company vehicle. Cudney reported his observations to the assistant general manager and to the human resources manager. On August 5, 2008, Cudney was terminated from his job.

¶ 3 Cudney brought an action in the Spokane County Superior Court for wrongful discharge in violation of public policy, claiming that he was terminated in retaliation for reporting Bartich's drinking and driving. Cudney asserts that WISHA and Washington's DUI laws are two sources of public policy that prohibit the termination of his employment.

¶ 4 ALSCO removed the case to federal district court and filed a motion for partial summary judgment. The United States District Court for the Eastern District of Washington found that this court has not clearly determined whether these two sets of laws constitute inadequate means of promoting Washington's public policies. Accordingly, it certified the questions above, asking whether WISHA and the DUI laws adequately promote their respective public policies. For purposes of this certification, Cudney and ALSCO agree that WISHA and its accompanying regulations establish a clear public policy of ensuring worker safety and protecting workers who report safety violations from retaliation. Cudney and ALSCO also agree that Washington's DUI laws embody a clear public policy of protecting the public from drunk drivers.

STANDARD OF REVIEW

¶ 5 “RAP 16.16 allows this court to determine questions of law certified by a federal court if the question is one of state law that has ‘not been clearly determined and does not involve a question determined by reference to the United States Constitution.’ ” United States v. Hoffman, 154 Wash.2d 730, 736, 116 P.3d 999 (2005) (quoting RAP 16.16(a)). The question of whether adequate alternative means for promoting a public policy exist presents a question of law as long as “the inquiry is limited to examining existing laws to determine whether they provide adequate alternative means of promoting the public policy.” Korslund v. DynCorp Tri–Cities Servs., Inc., 156 Wash.2d 168, 182, 125 P.3d 119 (2005).

ANALYSIS

¶ 6 Absent a definite contract, employment relationships are generally terminable at will. Sedlacek v. Hillis, 145 Wash.2d 379, 385, 36 P.3d 1014 (2001). This court has recognized, however, “that the tort of wrongful discharge in violation of public policy is a narrow exception to the employment at-will doctrine.” Id.

¶ 7 To prevail on a wrongful discharge claim, a plaintiff must satisfy a four-factor test. Gardner v. Loomis Armored, Inc., 128 Wash.2d 931, 941, 913 P.2d 377 (1996) (citing Henry H. Perritt, Jr., Workplace Torts: Rights and Liabilities § 3.1 (1991)). Specifically, the plaintiff must show: (1) “the existence of a clear public policy (the clarity element)”; (2) “that discouraging the conduct in which [he] engaged would jeopardize the public policy (the jeopardy element)”; (3) “that the public-policy-linked conduct caused the dismissal (the causation element)”; and, finally, (4) that “[t]he defendant [has not] offer[ed] an overriding justification for the dismissal (the absence of justification element).” Id. These elements are conjunctive, meaning that all four elements must be proved. Ellis v. City of Seattle, 142 Wash.2d 450, 459, 13 P.3d 1065 (2000).

¶ 8 From this court's first recognition of the tort of wrongful discharge in Thompson v. St. Regis Paper Co., we emphasized that “ ‘ courts should proceed cautiously.’ ” 102 Wash.2d 219, 232, 685 P.2d 1081 (1984) (quoting Parnar v. Americana Hotels, Inc., 65 Haw. 370, 380, 652 P.2d 625 (1982)). In Thompson, the court was specifically referencing the importance of exercising caution in identifying public policy. Our admonishment to “proceed cautiously” applies with as much force to the jeopardy element as it does to the clarity element because when Thompson was decided this court treated the two elements together. See Gardner, 128 Wash.2d at 941, 913 P.2d 377. We have since confirmed that “[t]his court has always been mindful that the wrongful discharge tort is narrow and should be ‘applied cautiously.’ ” Danny v. Laidlaw Transit Servs., Inc., 165 Wash.2d 200, 208, 193 P.3d 128 (2008) (quoting Sedlacek, 145 Wash.2d at 390, 36 P.3d 1014).

¶ 9 The only element we must decide now is the “jeopardy” element; ¹ that is, whether current laws and regulations provide an adequate means of promoting the public policies of ensuring workplace safety, protecting against retaliation for reporting safety violations, and protecting the public from the dangers of drinking and driving. In order to establish the jeopardy element, a plaintiff must show that other means of promoting the public policy are inadequate, Hubbard v. Spokane County, 146 Wash.2d 699, 713, 50 P.3d 602 (2002), and that the actions the plaintiff took were the “ only available adequate means ” to promote the public policy. Danny, 165 Wash.2d at 222, 193 P.3d 128. Since Gardner, this court has repeatedly applied this strict adequacy standard, holding that a tort of wrongful discharge in violation of public policy should be precluded unless the public policy is inadequately promoted through other means and thereby maintaining only a narrow exception to the underlying doctrine of at-will employment. See Gardner, 128 Wash.2d at 945, 913 P.2d 377; Hubbard, 146 Wash.2d at 713, 50 P.3d 602; Korslund, 156 Wash.2d at 181–82, 125 P.3d 119; Danny, 165 Wash.2d at 222, 193 P.3d 128.

¶ 10 In effect Cudney argues for the expansion of the “wrongful discharge against public policy” tort when he asks to proceed despite the existence of hardy statutory remedies that protect the relevant public policies. We decline to do this because we find that, applying the adequacy analysis of the jeopardy element, Cudney cannot show that WISHA or the DUI laws are inadequate to protect public policy.

I. WISHA

¶ 11 The protections provided by WISHA are adequate to promote the public policies of ensuring workplace safety and protecting workers who report safety violations. The purpose of WISHA is to make workplace conditions as safe and healthful as possible. RCW 49.17.010. WISHA requires every person who has employees to (1) “furnish each of his or her employees employment and a place of employment free from recognized hazards that are causing or [are] likely to cause death or serious physical harm,” and (2) “comply with industrial safety and health standards promulgated under WISHA.” WAC 296–360–010(1). In support of these objectives, WISHA also provides a remedy for employees who believe they have been discharged for reporting workplace safety concerns. RCW 49.17.160.

¶ 12 WISHA's retaliation statute provides extensive protections to employees who claim that they suffered retaliation for filing complaints related to workplace safety. See id. First, the statute provides that an employee may not be discharged for filing a complaint, testifying in...