Fingerhut v. CHILDREN'S NAT. MED. CENTER, No. 95-CV-939.

• Docket Nº: No. 95-CV-939.
• Citation: 738 A.2d 799
• Case Date: October 07, 1999
• Court: Court of Appeals of Columbia District

738 A.2d 799

J. Michael FINGERHUT, Appellant,
v.
CHILDREN'S NATIONAL MEDICAL CENTER, Appellee

No. 95-CV-939.

District of Columbia Court of Appeals.

Argued January 6, 1999.

Decided October 7, 1999.

738 A.2d 800

John F. Karl, Washington, DC, for appellant. Abbey G. Hairston, Washington, DC, and Adrian V. Nelson, II, Rockville, MD, were on the brief for appellant

Robert L. Duston, with whom Ira M. Shepard, Washington, DC, was on the brief for appellee.

Before SCHWELB and REID, Associate Judges, and KERN, Senior Judge.

REID, Associate Judge:

This case involves a challenge to the dismissal of appellant J. Michael Fingerhut's wrongful discharge action against appellee Children's National Medical Center ("CNMC"). The motions court granted appellee's motion to dismiss the complaint under Super. Ct. Civ. R. 12(b)(6). On appeal, Fingerhut contended that he made a sufficient showing to withstand the dismissal of his wrongful discharge claim which alleged a violation of a public policy exception to the employment at-will doctrine. After our decision in Carl v. Children's Hosp., 702 A.2d 159 (D.C.1997) (en banc), we asked the parties to file supplemental briefs. In his supplemental brief, Fingerhut maintains that he should prevail either under Carl or Adams v. George W. Cochran & Co., Inc., 597 A.2d 28 (D.C. 1991). We conclude that the motions court erred in dismissing Fingerhut's wrongful discharge claim because, under Carl, his claim is sufficient to survive a Rule 12(b)(6) motion. Accordingly, we reverse and remand the case with instructions to reinstate Fingerhut's wrongful discharge claim.

FACTUAL SUMMARY

Based upon allegations in Fingerhut's complaint and the pleadings pertaining to CNMC's motion to dismiss, the record shows the following. From about November 1989 to July 1993, Fingerhut was employed with CNMC as the Director of Security. Throughout this period, he received "satisfactory to excellent" performance evaluations and a number of commendations from CNMC management. He was never advised that his work was unsatisfactory. Fingerhut also enjoyed the status of a "Commissioned Special Police Officer" while working for CNMC.¹

738 A.2d 801

In 1992, CNMC was awarded a federal construction grant that required the hiring of a minority contractor. CNMC wanted to use Hyman Construction, a non-minority contractor, but could only do so with a waiver from the District of Columbia Minority Business Opportunity Commission ("MBOC"). On March 20, 1992, Ron Tobin, the Vice President of Facilities Engineering for CNMC, informed Fingerhut of the construction grant. He explained to Fingerhut that he wished to bribe Moses Anamashune, an official of the MBOC, with computer equipment in order to obtain the necessary waiver to use Hyman Construction. Tobin feared that Anamashune would not grant the waiver, even after accepting the bribe. For this reason, Tobin asked Fingerhut to videotape the transaction using security cameras. Fingerhut expressed concern over the entire undertaking and asked Tobin to reconsider the bribe. Tobin declared that if Fingerhut did not agree to videotape the transaction, he would find another person who would, prompting Fingerhut to agree to videotape the exchange. Tobin asked Joseph Jardina, the Director of Purchasing at CNMC, to handle the exchange and informed him that Fingerhut would be videotaping the transfer. Jardina transferred the computer equipment to Anamashune. Fingerhut taped the transaction and made copies of the tape, intending to give them to the proper authorities

Shortly thereafter, Fingerhut met with a District of Columbia police lieutenant to discuss concerns regarding a "possible bribe" of a government official. The lieutenant referred Fingerhut to the FBI. Fingerhut spoke to the FBI's Health Care Fraud Squad and the FBI Public Corruption Squad and gave them a copy of the videotape. Over the next few months, the FBI contacted Fingerhut approximately twice a week to request further information.

Between February and June of 1993, nearly a year after the incident, Fingerhut began to develop a relationship with Rick Paris, the Vice President of Human Resources for CNMC. In June 1993, Fingerhut informed Paris about the bribery scheme, his involvement in an ongoing FBI investigation, and the possibility that arrests might take place soon. Fingerhut was subsequently terminated on July 8, 1993. CNMC told Fingerhut that his termination was due to a reduction in force and that his position would no longer exist. Fingerhut later learned that the position did exist and had been filled by the Assistant Director of Security.

On April 6, 1995, Fingerhut filed a complaint against CNMC alleging: wrongful discharge based upon a public policy exception to the employment at-will doctrine; negligent supervision; and intentional infliction of emotional distress. On May 12, 1995, CNMC moved to dismiss all counts for failure to state a claim upon which relief can be granted, pursuant to Super. Ct. Civ. R. 12(b)(6). CNMC argued that Fingerhut had failed to allege the elements of a wrongful discharge claim based upon a public policy exception to the at-will doctrine. CNMC contended that Fingerhut was alleging a whistleblower claim which was not recognized in the District of Columbia.² Moreover, CNMC asserted that

738 A.2d 802

Fingerhut did not allege a valid claim under the Adams, supra, exception because he did not explicitly refuse an express request to assist in an illegal activity, and also because his silence would not have violated the law

The motions court entered an order on June 20, 1995, dismissing the complaint without prejudice for the reasons argued by CNMC. On July 21, 1995, Fingerhut noted an appeal challenging only the dismissal of his wrongful discharge claim.

ANALYSIS

Fingerhut argues that his wrongful discharge claim should not have been dismissed because he was fired for refusing to violate certain District of Columbia statutes, and therefore, his complaint stated a claim within the Adams public policy exception to the employment at-will doctrine. More specifically, he contends that his termination resulted from his refusal to violate D.C.Code § 4-142,³ as well as § 22-704.⁴ Alternatively, Fingerhut maintains that his wrongful discharge claim falls under Carl because it is covered by District public policy firmly anchored in the following statutes: D.C.Code §§§ 4-142, 22-704 and 4-175.⁵

In response, CNMC contends that: 1) Fingerhut fails to state a valid wrongful

738 A.2d 803

discharge claim under Adams because Adams requires an outright refusal to violate a specific law, and neither implied requests to report illegal activities nor constructive refusals to violate the law is sufficient in stating a claim under Adams; 2) Adams does not recognize a whistleblower cause of action; 3) "[t]he decision in Carl v. Children's Hosp. does not change the scope of the claim under Adams v. Cochran, and this Court should affirm the dismissal of [Fingerhut's] claim premised on Adams"; and 4) this court should not adopt or expand the tort of wrongful discharge under Carl to embrace a whistleblower claim because Fingerhut has failed to identify a specific relevant statute which applies to this case, and because such an expansion is a legislative rather than a judicial responsibility.

Standard of Review

In reviewing a motion to dismiss for failure to state a claim, "[t]he question whether the complaint states a claim upon which relief may be granted is one of law, and our review of the trial judge's disposition is therefore de novo." Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715 A.2d 873, 877 (D.C.1998) (citing Abdullah v. Roach, 668 A.2d 801, 804 (D.C. 1995)). "A pleading `should not be dismissed for failure to state a claim unless it is beyond doubt that the plaintiff can prove no set of facts in support of [his] claim which would entitle [him] to relief.'" Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). "The allegations in the complaint must be taken as true and construed in the light most favorable to the plaintiff and, if these allegations are sufficient, the case must not be dismissed even if the court doubts that the plaintiff will ultimately prevail." Id. (citing Atkins v. Industrial Telecomms. Ass'n, 660 A.2d 885, 887 (D.C.1995)). See also Freas v. Archer Servs., 716 A.2d 998, 999 (D.C.1998).

The Adams and Carl Exceptions

This court first recognized an intentional tort for wrongful discharge based upon a "very narrow" public policy exception to the at-will doctrine in Adams. Carl, supra, 702 A.2d at 162. Adams held that the exception applies "when the sole reason for the discharge is the employee's refusal to violate the law, as expressed in a statute or municipal regulation." Adams, supra, 597 A.2d at 34.⁶

We permitted further limited expansion of the public policy exception to the at-will doctrine in Carl, supra, when we held that: "[T]he `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." 702 A.2d at 160. Furthermore, we said in Carl, "We could not and did not hold in Adams that this was the only public policy exception, because that question was simply not presented.'" Id. (quoting Gray v. Citizens Bank, 602 A.2d 1096, 1098 (D.C.), vacated at 1102, opinion reinstated on denial of rehearing en banc, 609 A.2d 1143 (D.C.1992) (Schwelb, J., concurring). A majority in Carl left room for additional public policy exceptions to the at-will doctrine:

Future requests to recognize [public policy] exceptions ... should be addressed only on a case-by-case basis. This court should consider seriously only those arguments that reflect a clear mandate of public policy—i.e., those that make a clear showing, based on some identifiable policy that has been "officially declared" in a

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