Gray v. Citizens Bank of Washington, 90-1021.

• Docket Nº: No. 90-1021.
• Citation: 602 A.2d 1096
• Case Date: February 04, 1992
• Court: Court of Appeals of Columbia District

602 A.2d 1096

Charles E. GRAY, Appellant,
v.
CITIZENS BANK OF WASHINGTON Formerly McLachlen National Bank, Appellee.

No. 90-1021.

District of Columbia Court of Appeals.

Argued April 11, 1991.

Decided February 4, 1992.

Rehearing En Banc Granted and Opinion Vacated April 13, 1992.

Thomas R. Nedrich, Falls Church, Va., for appellant.

Katherine K. Brewer, with whom Ira Michael Shepard, Washington, D.C., was on the brief, for appellee.

Before SCHWELB and FARRELL, Associate Judges, and REILLY, Senior Judge.

FARRELL, Associate Judge:

On this appeal from an order dismissing the complaint on the ground that plaintiff failed to state a claim upon which relief could be granted, Super.Ct.Civ.R. 12(c) (1991), plaintiff asks us to create a novel exception to the general rule in the District of Columbia that an at-will employee may not sue a former employer in tort for wrongful discharge. Recently, this court adopted "a very narrow exception to the at-will doctrine under which a discharged at-will employee may sue his or her former employer for wrongful discharge 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 v. George W. Cochran & Co., 597 A.2d 28, 34 (D.C.1991). Appellant, in effect, asks us to extend that "very narrow exception" to embrace a claim, such as he alleges, that the employee was discharged for reporting illegal activities by other employees to his employer. Concluding under our decisions that a division of the court is not free to expand the Adams exception, we affirm the dismissal of the complaint.

In considering a motion to dismiss for failure to state a claim upon which relief can be granted, "the complaint must be construed in the light most favorable to the plaintiff and its allegations taken as true." McBryde v. Amoco Oil Co., 404 A.2d 200, 202 (D.C.1979). Thus construed, the complaint here alleged that plaintiff, a bank official, was fired after reporting to a senior official on numerous occasions evidence of possible illegal conduct by another managerial employee related to bank operations. The complaint alleged that the firing—which ostensibly derived from plaintiff's own failure to follow bank audit procedures—was a pretext motivated by the bank's desire to conceal evidence of illegal activities from federal regulatory officials, bank shareholders and depositors, and other concerned third parties. The trial judge dismissed the complaint apparently in reliance on our "at-will" cases, including Sorrells v. Garfinckel's, Brooks Bros., Miller & Rhoads, Inc., 565 A.2d 285 (D.C.1989).

In Adams, supra, the court summarized our past decisions enunciating the "long

602 A.2d 1097

... settled principle in the District of Columbia that an employer may discharge an at-will employee at any time and for any reason, or for no reason at all." 597 A.2d at 30. We noted in particular our holding in Sorrells that no cause of action would lie there because "no statutorily declared public policy supported appellant's claim of wrongful discharge in this case." Id. at 31 (internal quotation marks omitted) (quoting Sorrells, 565 A.2d at 289). By contrast, in Adams the jury had found that the defendant "discharged Adams for his refusal to violate a municipal regulation that prohibits the operation of a vehicle without a valid inspection sticker." Id. at 33. We pointed out that, "unlike the plaintiff in Sorrells, Adams can point to 18 DCMR § 602.4 (1987) as an officially declared public policy." Id.; cf. Sorrells, 565 A.2d at 289. We referred to, and found persuasive, a rule adopted by the Supreme Court of Texas "permitting a fired at-will employee to sue for wrongful discharge only if the firing was `for the sole reason that the employee refused to perform an illegal act.'" Id. (citation omitted). To illustrate the narrowness of the "Texas rule" we were adopting, we pointed to another Texas decision which "affirmed the intermediate court's refusal ... to extend the exception to cover a claim by an employee that he was discharged for reporting illegal activities by other employees to his employer." Id. at 34. In the latter case, unlike the situation in Adams, the plaintiff was not forced "to choose between breaking the law and keeping his job." Id. The narrow exception we adopted in Adams was restricted to the latter situation

Of course, Adams itself did not involve a claim of wrongful discharge by an employee-"whistleblower"; its citation to the Texas decision rejecting that extension may arguably be termed dictum. Sorrells also did not require the court to consider whether a nonstatutory policy relating to reporting of illegal activity justifies an exception to the at-will doctrine.¹ Nevertheless, we think Sorrells and Adams together demonstrate the extent of and limitations upon an exception to the at-will doctrine under current District of Columbia law. It may well be, as appellant urges, that the "public policy" urged in Sorrells, which was anchored in no "officially declared public policy," Adams, 597 A.2d at 33 (emphasis added), and which we therefore rejected as the basis for an exception, had considerably less to commend it than a policy of protecting persons who report suspected unlawful behavior;² we express no opinion on that issue. The fact remains that we have so far insisted upon that anchor before departing from a doctrine repeatedly characterized as "long ... settled," id. at 30, or "well-settled" in the District of Columbia. Sorrells, 565 A.2d at 289. We are of the view that, absent a relevant legislative change, only the en banc court may undertake the extension appellant urges upon us.

The judgment of the Superior Court is

Affirmed.

SCHWELB, Associate Judge, concurring:

I join the opinion of the court, but only because I recognize that dictum, even ill-considered dictum, sometimes becomes so pervasive that it becomes embedded in the "warp and woof" of our law. I "go along" with the decision to affirm with some reluctance, because this court has never been called upon to decide, and thus should not be deemed to have conclusively decided, whether a "whistle-blower" situation such as that alleged to exist here would fall within a sound public policy exception to the "at-will" doctrine. On the merits, I believe that we ought to give serious consideration to fashioning an exception which would cover the present case, and that en banc consideration may well be warranted.

602 A.2d 1098

I

In United States v. Alston, 580 A.2d 587, 594 n. 12 (D.C.1990), this court reiterated some important principles which are perhaps honored by lawyers, and sometimes by courts, more in the breach than in the observance:

In Kraft v. Kraft, 155 A.2d 910 (D.C. 1959), the court pointed out that:

It is well to remember that significance is given to broad and general statements of the law only by comparing the facts from which they arise with those facts to which they supposedly apply.

155 A.2d at 913. See also Armour & Co. v. Wantock, 323 U.S. 126, 132-33, 65 S.Ct. 165, 168, 89 L.Ed. 118 (1944), where the Supreme Court aptly stated:

It is timely again to remind counsel that words of our opinions are to be read in the light of the facts of the order under discussion. To keep opinions within reasonable bounds precludes writing into them every limitation or variation which might be suggested by the circumstances of cases not before the Court. General expression transposed to other facts are often misleading.

With these principles in mind, I briefly examine in chronological order not only the cases cited by the majority, but also the authorities on which those decisions are based. In Pfeffer v. Ernst, 82 A.2d 763 (D.C.1951), we held primarily that the plaintiff housekeeper had not been offered a contract to reemploy her in her old position, and that the defendant was not liable in tort for refusing to do so. In Taylor v. Greenway Restaurant, Inc., 173 A.2d 211 (D.C.1961), a bartender and night manager was discharged without being provided a week's notice, and the court held that no such notice was required. This court pointed out in both opinions that employment for an indefinite period is terminable at the will of either party, but neither case addressed the question whether this is true where the employer is motivated by a desire to prevent disclosure of criminal activity. I do not think that these decisions can properly be viewed as binding precedents with respect to an issue which is squarely presented here, but which was not before the court in Pfeffer or Taylor.

Later decisions in this jurisdiction are likewise inconclusive. Ivy v. Army Times Publishing Co., 428 A.2d 831 (D.C.1981) (en banc) was an unpublished memorandum opinion and judgment, and the petition for rehearing en banc was denied when the full court split 4:4. In Sorrells v. Garfinckel's, et al., 565 A.2d 285, 289 (D.C.1989), the court pointed out that no "statutorily declared public policy" supported the plaintiff's claim, but no non-statutory public policy was at issue either.

Finally, in ...