Gardner v. Loomis Armored Inc.

• Decision Date: 04 April 1996
• Docket Number: No. 63060-7,63060-7
• Court: Washington Supreme Court
• Parties: , 131 Lab.Cas. P 58,112, 11 IER Cases 993 . GARDNER and Teri E. Gardner, husband and wife, Plaintiffs, v. LOOMIS ARMORED INC., a foreign corporation, Defendant. Supreme Court of Washington, En Banc

Page 931

128 Wn.2d 931

913 P.2d 377, 131 Lab.Cas. P 58,112,

11 IER Cases 993

Certification from the United States District Court for the Eastern District of Washington In Kevin M. GARDNER and Teri E. Gardner, husband and wife, Plaintiffs, v. LOOMIS ARMORED INC., a foreign corporation, Defendant.

No. 63060-7.

Supreme Court of Washington En Banc.

April 4, 1996.

Perkins, Coie, Thomas F. Kingen, Spokane, Wallace, Brennan & Folan, Patrick J. Folan, Torrance, CA, for Defendant Loomis Armored, Inc.

Paul J. Burns, Spokane, WA, for Plaintiffs Kevin and Teri Gardner.

DOLLIVER, Justice.

The United States District Court for the Eastern District of Washington asks whether an employer contravenes public policy when it terminates an at-will employee who violated a company rule in order to go to the assistance of a citizen who was in danger of serious physical injury or death. We answer in the affirmative.

Plaintiff, Kevin M. Gardner, worked for Defendant, Loomis Armored Inc. (Loomis), as a guard and driver of an armored car. On March 10, 1994, Gardner and his partner, Steffon Sobosky, made a scheduled stop at a Seafirst Bank branch in Spokane. Sobosky got out of the truck and entered the bank while Gardner stayed in the driver's compartment.

Gardner then saw a woman, whom he recognized as the bank manager, run out of the bank while pointing behind her and screaming. Gardner looked behind the manager and saw a man with a knife chasing her. The armed man (hereinafter referred to as the suspect) was approximately fifteen feet behind the manager. While running past the front of the truck, the manager looked straight at Gardner and cried out, "Help me, help me." Deposition of Kevin M. Gardner at 203 (Oct. 20, 1994). Gardner described the expression on her face:

It was more than fear. There was a real--it was like a horrified kind of a look, like you--I can't describe it other than that, I mean she--she was horrified, not just afraid.

Deposition of K. Gardner at 203. Gardner looked around the parking lot and saw nobody coming to help the manager. After the manager and the suspect ran past the front of the truck, Gardner got out, locking the door behind him. As he got out of the truck, he temporarily lost sight of the manager and the suspect, who were both on the passenger side of the truck. While out of Gardner's view, the manager reached a drive-in teller booth across the parking lot, where she found refuge. It is unclear whether the manager was safe before Gardner left the truck, but by the time Gardner walked forward to a point where he could see the suspect, the suspect had already grabbed another woman who was walking into the bank. Gardner recognized the second woman as Kathy Martin, an employee of Plant World, who watered plants at the bank. The suspect put the knife to Ms. Martin's throat and dragged her back into the bank. Gardner followed them into the bank where he observed his partner, Sobosky, with his gun drawn and aimed at the suspect. When Sobosky distracted the suspect, Gardner and a bank customer tackled the suspect and disarmed him. The police arrived immediately thereafter and took custody of the suspect. Ms. Martin was unharmed.

Loomis has a "fundamental" company rule forbidding armored truck drivers from leaving the truck unattended. The employee handbook states, "[v]iolations of this rule will be grounds for termination." Employee Handbook at 10. Drivers may not exit the compartment under any circumstance. This rule is for the safety of both the driver and the partner who enters the businesses to make pickups or deliveries. The rule is so absolute, the driver is not allowed to get out of the truck when pulled over by someone who appears to be a police officer. Instead, the driver must show the officer a card which explains the driver will follow the officer to the police station. Employee Handbook at 11. When emergencies arise, the driver, although confined to the compartment, can summon help or take other action using the two-way radio, public address system, and sirens.

Gardner was fired for violating this work rule by exiting the truck during the March 10, 1994, incident. Gardner's partner was not disciplined in any way for his involvement with the hostage situation. Gardner sued Loomis in the United States District Court for the Eastern District of Washington, making multiple claims, one being wrongful discharge in violation of public policy. Judge Quackenbush certified the following question to this court:

Does it violate public policy in the State of Washington to discharge an at-will employee for violating a company rule in order to go to the assistance of a citizen held hostage at the scene of a crime, and/or who is in danger of serious physical injury and/or death?

Under the common law, at-will employees could quit or be fired for any reason. Roberts v. Atlantic Richfield Co., 88 Wash.2d 887, 891, 568 P.2d 764 (1977). In recent years, courts have created certain exceptions to the terminable-at-will doctrine. One of these exceptions says employees may not be discharged for reasons that contravene public policy. Almost every state has recognized this public policy exception. 1 Henry H. Perritt, Jr., Employee Dismissal Law and Practice §§ 1.13-1.63 (3d ed. 1992 & Supp.1995) (giving an exhaustive state-by-state survey of wrongful discharge actions). These public policy tort actions have generally been allowed in four different situations: (1) where employees are fired for refusing to commit an illegal act; (2) where employees are fired for performing a public duty or obligation, such as serving jury duty; (3) where employees are fired for exercising a legal right or privilege, such as filing workers' compensation claims; and (4) where employees are fired in retaliation for reporting employer misconduct, i.e., whistleblowing. Dicomes v. State, 113 Wash.2d 612, 618, 782 P.2d 1002 (1989).

This court first allowed a wrongful discharge claim on public policy grounds in Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 685 P.2d 1081 (1984). Thompson involved a situation where a divisional controller had instituted an accurate accounting program required by the Foreign Corrupt Practices Act of 1977, Pub.L. No. 95-213, 91 Stat. 1494. The employee claimed he was terminated in retaliation for complying with the law, and his discharge was intended to serve as a warning to other divisional controllers. The court ruled a plaintiff could satisfy the elements of a wrongful discharge claim by showing the discharge may have contravened a clearly stated public policy. Thompson, 102 Wash.2d at 232, 685 P.2d 1081. Once a plaintiff shows the violation of a public policy, the burden shifts to the employer to prove the dismissal was for reasons other than those alleged by the employee. Thompson, 102 Wash.2d at 233, 685 P.2d 1081. See also Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wash.2d 46, 70, 821 P.2d 18 (1991) ("[E]mployer must articulate a legitimate nonpretextual nonretaliatory reason for the discharge.").

In creating a public policy tort action, Thompson cautioned the exception should be narrowly construed in order to guard against frivolous lawsuits:

In determining whether a clear mandate of public policy is violated, courts should inquire whether the employer's conduct contravenes the letter or purpose of a constitutional, statutory, or regulatory provision or scheme. Prior judicial decisions may also establish the relevant public policy.

However, courts should proceed cautiously if called upon to declare public policy absent some prior legislative or judicial expression on the subject.

Thompson, 102 Wash.2d at 232, 685 P.2d 1081 (quoting Parnar v. Americana Hotels, Inc., 65 Haw. 370, 380, 652 P.2d 625 (1982)). Determining what qualifies as a clear mandate of public policy is a question of law. Dicomes, 113 Wash.2d at 617, 782 P.2d 1002.

Most of the public policy cases argued in front of this court since Thompson have fallen under the third and fourth categories described in Dicomes v. State, 113 Wash.2d 612, 782 P.2d 1002. The most recent cases fit into the third category, where employees are fired in retaliation for asserting a legal right. Washington courts have found at least three different legal rights of employees with which employers cannot interfere. See Bravo v. Dolsen Cos., 125 Wash.2d 745, 888 P.2d 147 (1995) (nonunion employees terminated for exercising their statutory right to engage in concerted action); Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wash.2d 46, 821 P.2d 18 (1991) (employees terminated for filing workers' compensation claims); see also Hayes v. Trulock, 51 Wash.App. 795, 755 P.2d 830 (acknowledging the trial court's finding, not challenged on appeal, that employees were fired in retaliation for complaining to officials about the employer's refusal to pay overtime), review denied, 111 Wash.2d 1015 (1988).

This court has also considered several cases falling under the fourth category, where workers are fired in retaliation for whistleblowing on illegal or wrongful employer conduct. See Farnam v. CRISTA Ministries, 116 Wash.2d 659, 807 P.2d 830 (1991) (nurse unsuccessfully claimed retaliatory wrongful discharge when fired for complaining to the media about the nursing home's legal practice of removing food tubes from terminally ill patients); Bennett v. Hardy, 113 Wash.2d 912, 784 P.2d 1258 (1990) (allowing a claim of action, analogized to whistleblowing, where sixty-year-old employee was fired in retaliation for hiring an attorney to protect her from age discriminatory practices); Dicomes v. State, 113 Wash.2d 612, 782 P.2d 1002 (1989) (state employee unsuccessfully claimed wrongful retaliatory discharge where the employee publicly disclosed the existence of surplus funds not accounted for in the department's budget).

Of the two categories of public policy tort cases discussed above, most of the successful cases in this state have presented one-sided...