Davis v. Cmty. Alternatives of Wash., No. 11–CV–1497.

• Docket Nº: No. 11–CV–1497.
• Citation: 74 A.3d 707
• Case Date: September 05, 2013
• Court: Court of Appeals of Columbia District

74 A.3d 707

Lahar DAVIS, Tauhid Byrd, and Lisha Quarles, Appellants,
v.
COMMUNITY ALTERNATIVES OF WASHINGTON, D.C., INC., Appellee.

No. 11–CV–1497.

District of Columbia Court of Appeals.

Argued April 11, 2013.
Decided Sept. 5, 2013.

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Leslie D. Alderman III, Washington, DC, for appellant.

J. Michael Hannon, with whom Daniel S. Crowley, Washington, DC, was on the brief, for appellee.

Before FISHER and EASTERLY, Associate Judges, and SCHWELB, Senior Judge.

EASTERLY, Associate Judge:

Appellants Lisha Quarles and Kathie Byrd are former employees of Community Alternatives of Washington, D.C., Inc., which operates group homes that house adults with intellectual disabilities.¹ Contending

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that they were discharged by Community Alternatives because of their complaints about client treatment and staff working conditions, Ms. Quarles, Ms. Byrd, and a third Community Alternatives employee, Michelle Monroe, filed suit, alleging that Community Alternatives was liable for the common law tort of wrongful discharge against public policy. The trial court initially granted summary judgment for Community Alternatives on the grounds that the common law claim was preempted by federal law and that the plaintiffs had failed to exhaust administrative remedies, but this court reversed and remanded with respect to Ms. Quarles and Ms. Byrd.²Byrd v. VOCA Corp. of Washington, D.C., 962 A.2d 927, 929–30, 935–36 (D.C.2008) [hereinafter Byrd I ]. On remand, the case proceeded to trial, and at the close of Ms. Quarles' and Ms. Byrd's case-in-chief, the trial court granted Community Alternatives' motion for judgment as a matter of law, noting that neither plaintiff had established the requisite “close fit” between their conduct, a public policy, and their termination from Community Alternatives.³ This appeal followed. We affirm.

Ms. Quarles and Ms. Byrd primarily challenge the trial court's ruling granting Community Alternatives judgment as a matter of law. We review this ruling de novo and employ the same standard used by the trial court: judgment as a matter of law is appropriate if, viewing the evidence in the light most favorable to the non-moving party, “ ‘no reasonable person ... could reach a verdict in favor of that party.’ ” Bean v. Gutierrez, 980 A.2d 1090, 1093 (D.C.2009) (quoting Lively v. Flexible Packaging Ass'n, 830 A.2d 874, 886–87 (D.C.2003) (en banc)).

We look first to the elements of the common law tort of wrongful discharge in violation of public policy, which creates a “very narrow” exception to the general rule that at-will employees ⁴ may be discharged at any time for any reason. Carl v. Children's Hosp., 702 A.2d 159, 159–60 (D.C.1997) (en banc). In order to make out a claim, an employee must first identify either a public policy that this court has previously recognized or “ ‘make a clear showing, based on some identifiable policy that has been “officially declared” in a statute or municipal regulation, or in the Constitution, that a new exception [to the at-will doctrine] is needed.’ ” Fingerhut v. Children's Nat'l Med. Ctr., 738 A.2d 799, 803–04 (D.C.1999) (quoting Carl, 702 A.2d at 164 (Terry, J., concurring)). The employee must then show “ ‘a close fit between [that] policy ... and the conduct at issue in the allegedly wrongful termination.’

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” Id. at 803 n. 7 (quoting Carl, 702 A.2d at 164 (Terry, J., concurring)).⁵

Critically, we have repeatedly acknowledged the limited reach of this tort and indicated that a plaintiff seeking recovery thereunder must show that her protected activity was the predominant cause of her termination. See Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715 A.2d 873, 886 (D.C.1998) (holding that “[i]t takes more than the plaintiff has alleged to invoke a ‘public policy’ exception to the at-will doctrine,” and that plaintiff's wrongful termination claim failed where “[her] own complaint reveals that she was not terminated solely, or even substantially, for engaging in conduct protected by such an exception” (footnote omitted)); see also Fingerhut, 738 A.2d at 803–04 & n. 7 (noting that, under Carl, 702 A.2d at 164, the only claims that should be “ ‘consider[ed] seriously’ ” are those where there is “ ‘a close fit’ ” between the public policy and “ ‘the conduct at issue in the allegedly wrongful termination’ ”).

It follows that the tort's limited application does not protect employees from termination for conduct that, to borrow a term from our unemployment compensation jurisprudence, would be akin to “gross misconduct.” Cf.7 DCMR § 312.4 (2013) (Gross misconduct includes “[i]nsubordination,” “[r]epeated disregard of reasonable orders,” “[u]nprovoked assault or threats,” or “[t]heft or attempted theft.”). In other words, whatever an employee is doing to promote a public policy interest, she is not immunized from getting fired if she is engaging in serious misbehavior on the job. See Wallace, 715 A.2d at 886 (noting the wrongful discharge tort was “not designed to prevent an employer from terminating an ... employee in order to eliminate unacceptable internal conflict and turmoil” and that “[a]n employer is not required to tolerate an intolerable working environment”). In light of these limitations on the tort, we hold that, even viewing the evidence that they presented at trial in a light most favorable to them, as we must, neither Ms. Quarles nor Ms. Byrd made the necessary showing to send her case to the jury. ⁶

Both Ms. Quarles and Ms. Byrd argue that they acted in furtherance of the public policy of protecting people with disabilities residing in group homes from

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abuse and neglect. Ms. Quarles and Ms. Byrd point to a number of regulations that govern the care of adults with intellectual disabilities housed in group homes in the District. See, e.g., 22–B DCMR ch. B35 (titled “Group Homes for Mentally Retarded Persons”). Assuming that these regulations manifest a general public policy on which they can base their common law claim, see Fingerhut, 738 A.2d at 803–04, Ms. Quarles runs into difficulty to the extent that she advocated for care above and beyond what the law requires. Ms. Quarles presented evidence that she sought an increase in the night-shift staffing at her facility, where Community Alternatives maintained a ratio of two workers for five adult residents. But the Municipal Regulations only require a minimum ratio of one worker per eight adults during nighttime hours. See22–B DCMR § 3511.1(b) (2006) (“The minimum daily ratio of on-duty, direct care staff to residents ... shall be not less than ... 1:8 during sleeping hours.”).

To the extent Ms. Quarles and Ms. Byrd both advocated more broadly for better treatment of group home residents, both women failed to demonstrate the requisite nexus between this protected conduct and their termination. They assert that Community Alternatives discharged them “in retaliation for making repeated complaints to their supervisors, the MRDDA, and D.C. City Council officials about the conditions of Community Alternatives' Group Homes ... and the neglect and abuse of ... [its] clients.” But the evidence at trial established that these women were terminated for serious, job-related misbehavior: Ms. Quarles for falsifying her time and getting paid for hours she had not worked, and Ms. Byrd for...