Korslund v. Dyncorp Tri-Cities Services

• Decision Date: 22 December 2005
• Docket Number: No. 75662-7.,75662-7.
• Citation: 125 P.3d 119,156 Wn.2d 168
• Court: Washington Supreme Court
• Parties: Steven M. KORSLUND, Virginia A. Miller, and John Acosta, Respondents, v. DYNCORP TRI-CITIES SERVICES, INC., a Washington corporation, and Fluor Daniel Hanford, Inc., a Washington corporation, Petitioners.

125 P.3d 119

156 Wn.2d 168

Steven M. KORSLUND, Virginia A. Miller, and John Acosta, Respondents, v. DYNCORP TRI-CITIES SERVICES, INC., a Washington corporation, and Fluor Daniel Hanford, Inc., a Washington corporation, Petitioners.

No. 75662-7.

Supreme Court of Washington, En Banc.

Argued June 7, 2005.

Decided December 22, 2005.

COPYRIGHT MATERIAL OMITTED

Larry E. Halvorson, Michael Bruce Saunders, Halvorson & Saunders PLLC, Seattle, for Petitioner/Appellant.

Victoria Lynn Vreeland, Gordon Thomas Honeywell Malanca Peterson, Seattle, for Appellee/Respondent.

Russell Clayton Brooks, Deborah J. LaFetra, Pacific Legal Foundation, Bellevue, for Amicus Curiae Pacific Legal Foundation.

Jayne Lyn Freeman, Seattle, for Amicus Curiae Washington Defense Trial Lawyers.

Jeffrey Lowell Needle, Susan B. Mindenbergs, Seattle, for Amicus Curiae Washington Employment Lawers Association.

Debra Leigh Williams Stephens, Bryan Patrick Harteniaux, Spokane, for Amicus Curiae Washington State Trial Lawyers Association Foundation.

En Banc.

MADSEN, J.

¶ 1 Steven M. Korslund, Virginia A. Miller, and John Acosta (the plaintiffs) brought suit against DynCorp Tri-Cities Services, Inc., and Fluor Daniel Hanford, Inc. (DynCorp), arising from alleged retaliation and harassment by DynCorp management and employees in response to the plaintiffs' reports of safety violations, mismanagement, and fraud at the Hanford Nuclear Reservation. Two plaintiffs, Korslund and Miller, claim that they were constructively discharged in violation of public policy. All three plaintiffs urge that they have raised valid claims of retaliation in violation of public policy and that their employer breached promises of specific treatment in specific situations. We conclude that the trial court properly granted summary on the tort claims alleging discharge and retaliation in violation of public policy, but that material issues of fact preclude summary judgment on the plaintiffs' claims that their employer breached promises of specific treatment in specific situations.

FACTS

¶ 2 In October 1996, Fluor became the prime Department of Energy contractor at the Hanford site, and its subcontractor DynCorp took over responsibility for the Fire Systems Maintenance (FSM) group. Jon Finley became manager of the FSM group, and his supervisor was Fire Chief Don Good, who reported to Mike Dallas, DynCorp's director of operations. Miller and Acosta were partnered journeymen electricians who had worked in the FSM group since 1979. They were covered by collective bargaining agreements. Korslund was the fire systems administrator and lead engineer in the group. At the time DynCorp took over, Korslund signed an employment application that stated that employment was at will.

¶ 3 Starting early in 1997, the plaintiffs made a series of oral and written reports and complaints, some anonymous, relating to health and safety issues, abuse of overtime, abuse of work hours, misuse of government funds, nepotism, improper gifting of equipment, improper use of government property, and threats and retaliation against them for reporting. Many of the reports implicated Finley. The plaintiffs allege they were mistreated, threatened, harassed by managers and co-workers, and retaliated against in numerous ways. For example, Miller had raised concerns, both anonymously and in a meeting on August 1 that did not include Finley, that other workers were harassing her because she had raised issues about abuse of work hours. On August 4, 1997, allegedly in response to one of the anonymous complaints, Finley issued a memorandum outlining his expectations about workers' starting times and breaks. Miller alleges that other workers were upset that she had raised the issue, and that she and Acosta were ostracized, threatened, and harassed by the group's pipe fitters. She says that she complained about it to another supervisor, but nothing was done.

¶ 4 On September 10, 1997, Finley issued written warnings to Miller and Acosta for extremely serious misconduct and insubordination when they did not move their equipment from a Suburban to a van in a timely fashion. They had used the Suburban for years and believed that Finley wanted it for his own use because it was a nicer vehicle. Both filed union grievances. Then, allegedly as part of his retaliatory conduct and harassment, on September 29, 1997, Finley told Miller that she would have to begin work at 7:30 instead of 8:00, which he said conflicted with the start time of other FSM electricians. Miller alleges that Finley knew that the later starting time was necessary because she has a special needs child.

¶ 5 On November 21, 1997, Finley, and others (including a union representative) met with Miller and notified her that she was being transferred from FSM in order to remove her from what she considered to be a hostile work environment and to accommodate her scheduling needs relating to her child. She was to receive the same salary, benefits, seniority, and job position. Miller filed a union grievance, which was later withdrawn. She never actually transferred because she left work. She alleges the proposed transfer was retaliatory and that in the new position she would have been unable to maintain certain credentials and would have been lower in relative seniority because many workers at the new location had seniority.

¶ 6 In the meantime, on July 25, Finley appointed another man to the FSM electrical lead position, removing Korslund's lead engineer title. Korslund alleges that his work authority and job responsibilities were also diminished. His work hours were not changed and his salary was not reduced. In August, Korslund was asked to submit a revised conflict of interest questionnaire to show his personal relationship with Ms. Miller. The request was later rescinded. On September 17, 1997, Korslund met with Dallas and told him about overtime abuses, theft, and bribery in the FSM group and then sent him a 15-page memorandum raising 29 concerns, some of which were safety and ethical concerns. DynCorp's president then appointed Don Hay to investigate. After the investigation was complete, Korslund was called to a meeting on November 14, 1997, where, he alleges, he was not permitted to dispute findings accusing him of misconduct. He also says he was threatened with termination if he would not support and trust management. In October 1997, Korslund sent a letter to DynCorp's corporate ethics office in Virginia and included reports that health and safety principles were being violated, unqualified persons were directing the work, and he was being harassed for reporting.

¶ 7 Promises contained in policy manuals, which the plaintiffs contend were breached, are discussed below in connection with the claim of breach of promises of specific treatment in specific situations.

¶ 8 All three plaintiffs allege that DynCorp's actions caused them physical and emotional injury. Korslund suffered a panic attack, displayed symptoms associated with posttraumatic stress disorder, aggravated work related high blood pressure, and stomach and bowel problems. In November 1997, Korslund was placed on disability by a Hanford psychologist. He received full salary for three months on paid medical leave, and then was on short-term disability until June 1998. In July 1998, he applied for unemployment benefits, contending he had been constructively discharged. DynCorp responded saying Korslund was still employed but on long-term disability. The Employment Security Department found that an insurer had denied long-term disability benefits, determined that Korslund had quit work with good cause, and awarded unemployment benefits. Korslund notified DynCorp in September 1998 that he had accepted other employment, requested the balance of benefits due him and a rollover of his pension funds, and then moved to Virginia for the new job.

¶ 9 Also in November 1997, Miller was placed on medical disability by a physician. A number of health care professionals determined in 1997 and 1998 that she suffers from too many medical and psychological problems to return to work. She relocated to Virginia with Korslund. In October 2000, Miller was found to be disabled and awarded social security disability benefits. Acosta remained at work with DynCorp. He was treated for problems of depression, nervousness, sleeplessness, anxiety, and fear.

¶ 10 The plaintiffs sued DynCorp, bringing claims, among others, of wrongful discharge in violation of public policy and breach of promises of specific treatment in specific situations. DynCorp moved for summary judgment, which the trial court granted, concluding that the plaintiffs had failed to show they were constructively discharged and that as a matter of law DynCorp did not make promises of specific treatment in specific situations in its policy manuals. The plaintiffs appealed. The Court of Appeals reversed dismissal of Korslund's wrongful discharge claim, holding, among other things, that Korslund did not have to formally quit or resign to show constructive discharge; instead, the court determined, Korslund raised a sufficient fact question as to whether he permanently left the workplace on medical leave as a result of DynCorp's creation of intolerable working conditions. Korslund v. DynCorp Tri-Cities Servs., Inc., 121 Wash.App. 295, 313-16, 88 P.3d 966 (2004). The court affirmed dismissal of Miller's wrongful discharge claim on the basis that reasonable minds could not differ that she had not permanently left her job. Id. at 316, 88 P.3d 966. The Court of Appeals also reversed summary judgment on the plaintiffs' claims of breach of promises of specific treatment in specific situations, concluding that the plaintiffs had raised fact questions as to each element of the cause of action. Id. at 325-31, 88 P.3d 966. The court declined to recognize a cause of action for wrongful retaliation in violation of public policy, ruling that it was precluded from...