Ivy v. Army Times Pub. Co.

• Decision Date: 10 March 1981
• Docket Number: No. 79-278.,79-278.
• Citation: 428 A.2d 831
• Parties: Sherman C. IVY, Appellant, v. ARMY TIMES PUBLISHING COMPANY and Joseph Varga, Appellees.
• Court: D.C. Court of Appeals

428 A.2d 831

Sherman C. IVY, Appellant, v. ARMY TIMES PUBLISHING COMPANY and Joseph Varga, Appellees.

No. 79-278.

District of Columbia Court of Appeals.

March 10, 1981.

Before NEWMAN, Chief Judge, KELLY, KERN, NEBEKER,^* HARRIS,^* MACK^* and FERREN, Associate Judges, and GALLAGHER, Associate Judge Retired.^**

ORDER

PER CURIAM.

This cause came on for consideration on appellant's petition for rehearing en banc. It appearing that a majority of the court has not voted in favor of granting the petition, it is

ORDERED that appellant's petition for rehearing en banc is hereby denied.

FERREN, Associate Judge, with whom NEWMAN, Chief Judge and KELLY, Associate Judge, join, dissenting:

This case presents the question whether an at will employee states an actionable claim against an employer who requires him to testify in an administrative proceeding brought against that employer, and then fires him in retaliation for testifying truthfully against the employer's interests. In an unpublished memorandum opinion and judgment, a division of this Court held that the employee did not state a claim. I dissent from the denial of this petition because it presents a question of "exceptional importance." D.C.App. R. 40(c). It requires en banc consideration, for the division of this court presumably considered itself bound^* by previous decisions holding that any party to an employment contract of indefinite duration may terminate it for any reason. See Taylor v. Greenway Restaurant, Inc., D.C.Mun.App., 173 A.2d 211 (1961); Pfeffer v. Ernst, D.C.Mun.App., 82 A.2d 763, 764 (1951).

For years it has been the law of this jurisdiction that a landlord may not retaliate by evicting a tenant at will who reports housing code violations in the tenant's apartment. Edwards v. Habib, 130 U.S. App.D.C. 126, 397 F.2d 687 (1968), cert. denied, 393 U.S. 1016, 89 S.Ct. 618, 21 L.Ed.2d 560 (1969). It is at least as important for this court to consider the legality of retaliation by firing an at will employee who testifies truthfully, under compulsion, against his or her employer.

Petitioner's counsel has filed a forceful petition, marshalling a substantial body of authority for our consideration. I set it forth below as the best way of demonstrating the importance of the issue the en banc court declines to consider.

PETITION FOR REHEARING EN BANC

The question presented by this petition is whether the appellant, Sherman C. Ivy, has stated a viable cause of action sounding either in tort, or alternatively in contract, against his former employer, appellee Army Times Publishing Co., where Army Times discharged Mr. Ivy from his position of at will employment solely because Mr. Ivy testified truthfully, albeit adversely to Army Times' interests in a proceeding before the District of Columbia Wage and Hour Board. On December 4, 1980, a panel of this Court answered that question in the negative. Because the result reached by the panel is clearly contrary to the modern trend of the law, and because the practical effect of the panel's decision is to encourage the commission of perjury before administrative agencies of the District of Columbia, we submit that this case raises a question of exceptional importance within the meaning of D.C. App. Rule 40(c) which should be resolved by the Court en banc.

The panel, in its Memorandum Opinion and Judgment at p. 1 (hereinafter cited as "Panel Opinion"), summarized the underlying facts as follows:

The facts pertinent to this case go back to October 1976, when appellant testified at a hearing of the Wage and Hour Board of the District of Columbia. The hearing concerning a complaint brought against appellee Army Times by a former employee who had been supervised by appellant. Prior to his testimony, which was required by appellee Army Times, appellant warned the company's attorney that his testimony would support the complaint against Army Times. In response, the attorney told appellant to testify "the way you think is right."

Following his testimony, appellant claims to have been subjected to frequent verbal attacks, both over the telephone and in person, by appellee Varga, his supervisor at Army Times, and by Henry Belber, the Executive Vice-President of Army Times. In November 1976, appellee Varga allegedly called appellant a "fucking idiot" and "stupid" during the annual meeting of the Army Times sales staff. Leave requested by appellant was cancelled precipitously several times after the Wage and Hour Board Hearing. According to appellant, this abuse caused him to lose 30 pounds and to start taking tranquilizers. Appellant was dismissed by appellee Varga in March 1977. Appellant contends that this dismissal and the abuse to which he was subjected were in the nature of retaliation by appellees for his testimony against Army Times at the Wage and Hour Board hearing.

Based upon those facts, Mr. Ivy filed suit in the Superior Court of the District of Columbia; his complaint alleged, inter alia, that because his dismissal was in contravention of the District of Columbia's statutorily declared public policy in favor of truthful testimony in quasi-judicial administrative proceedings, Army Times' conduct gave rise to a cause of action for wrongful discharge sounding in tort or, alternatively, in contract.¹ For purposes of a summary judgment motion (which was granted, and thus perforce for purposes of this appeal), Army Times conceded that it dismissed Mr. Ivy solely in retaliation for his testimony before the Wage and Hour Board. In December, 1980, the panel affirmed the trial court's order granting summary judgment to appellees on the ground that Mr. Ivy's complaint did "not state a claim upon which relief could be granted . . ."² Panel Opinion, p. 3.

From the outset, Mr. Ivy has acknowledged that the general rule in the District of Columbia is that in the absence of an employment contract for a fixed period, an employee may be terminated at will by the employer for any reason or indeed, for no reason at all. See, e. g., Taylor v. Greenway Restaurant, Inc., 173 A.2d 211 (D.C. Mun.App. 1961). Mr. Ivy has contended, however, that the time has come for the District of Columbia to modify that rule by agreeing with the persuasive body of scholarly ³

and judicial opinion to the effect that even terminable at will employees may resort to the courts for a remedy when their dismissals are in violation of some statutorily declared public policy.⁴

The landmark case on point is Petermann v. International Brotherhood of Teamsters, 174 Cal.App.2d 184, 344 P.2d 25 (1959). In Petermann, the employer instructed an at will employee to testify falsely at a legislative hearing and then fired the employee when he refused to commit perjury; the court held that the employer's conduct abridged the state's declared public policy of encouraging truthful and complete testimony and therefore constituted an abuse of the employer's contractual rights.⁵ The principles enunciated in Petermann were recently reaffirmed in Tamney v. Atlantic Richfield Co., 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330 (1980), where the court made it clear that a tort as well as a contract remedy is available to the abusively discharged employee: "[w]hen an employer's discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions." Id., 164 Cal. Rptr. at 840. For other cases holding that a tort action is available to an at will employee whose dismissal violates an important public policy, see, e. g., Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 417 A.2d 505 (1980); Lally v. Copygraphics, 173 N.J. Super. 162, 413 A.2d 960 (App.Div.1980); Perks v. Firestone Tire & Rubber Co., 611 F.2d 1363 (3d Cir. 1979); Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (1979); Harless v. First National Bank, 246 S.E.2d 270 (W.Va.1978); Brown v. Transcom Lines, 284 Or. 597, 588 P.2d 1087 (1978); Trombelta v. Detroit, Toledo & Ironton R.R. Co., 81 Mich.App. 489, 265 N.W.2d 385 (1978); Sventko v. Kroger, 69 Mich.App. 644, 245 N.W.2d 151 (1976); Nees v. Hocks, 272 Or. 210, 536 P.2d 512 (1975); Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973); Montalvo v. Zamora, 7 Cal.App.3d 74, 86 Cal.Rptr. 401 (1970); Glenn v. Clearman's Golden Cock Inn, 192 Cal.App.2d 793, 13 Cal.Rptr. 760 (1961); McNulty v. Borden, Inc., 474 F.Supp. 1111 (E.D.Pa.1979); O'Sullivan v. Mallon, 160 N.J.Super. 416, 390 A.2d 149 (1978); Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978). Other courts have held that an action for breach of contract is available to an at will employee who is dismissed for bad faith reasons which violate a declared public policy. See, e. g., Fortune v. National Cash Register Co., 364 N.E.2d 1251 (Mass.1977); Monge v. Beebe Rubber Co., 114 N.H. 130, 316 A.2d 549 (1974). See also Pstragowski v. Metropolitan Life Insurance Co., 553 F.2d 1 (1st Cir. 1977); Foley v. Community Oil Co., 64 F.R.D. 561 (D.N.H.1974); Zimmer v. Wells Management Corp., 348 F.Supp. 540 (S.D.N.Y.1972).⁶

Nevertheless, in the face of that substantial body of scholarly commentary and decisional law⁷ supporting the recognition of either a tort or contract cause of action for an at will employee who is discharged in contravention of some declared public policy, the panel in this case saw fit to dispose of Mr. Ivy's wrongful discharge claim in a single terse paragraph:

Appellant seeks to recover damages arising from his dismissal which he alleges was in retaliation for testimony against his employer at the Wage and Hour Board hearing. While some jurisdictions have recognized a cause of action for wrongful discharge in tort, see, e. g., Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973); Petermann v. International Brotherhood of Teamsters, 174 Cal.App.2d 184, 344 P.2d 25 (1959), and in contrast [sic]...