Piel v. City of Fed. Way

• Decision Date: 27 June 2013
• Docket Number: No. 83882–8.,83882–8.
• Court: Washington Supreme Court
• Parties: Robert PIEL & Jacqueline Piel, husband and wife, Appellants, v. The CITY OF FEDERAL WAY, a Municipality organized pursuant to the laws of the State of Washington, Respondent.

177 Wash.2d 604

306 P.3d 879

Robert PIEL & Jacqueline Piel, husband and wife, Appellants,

v.The CITY OF FEDERAL WAY, a Municipality organized pursuant to the laws of the State of Washington, Respondent.

No. 83882–8.

Supreme Court of Washington,

En Banc.

June 27, 2013.

Kenneth Wendell Masters, Shelby R. Frost Lemmel, Masters Law Group PLLC, Bainbridge Island, WA, Stephen Michael Hansen, Law Offices of Stephen M. Hansen PS, Tacoma, WA, for Appellant.

John H. Chun, Otto G. Klein III, Summit Law Group, P.L.L.C., Seattle, WA, for Respondent.

George M. Ahrend, Ahrend Albrecht PLLC, Ephrata, WA, Bryan Patrick Harnetiaux, Attorney at Law, Spokane, WA, for Amicus Curiae on behalf of Washington State Assocation.

Daniel Foster Johnson, Breskin Johnson & Townsend PLLC, Jeffrey Lowell Needle, Seattle, WA, for Amicus Curiae on behalf of Washington Employment Lawyers.

STEPHENS, J.

[177 Wash.2d 606]¶ 1 This case requires us to consider whether a tort claim for wrongful termination in violation of public policy is viable based on provisions of chapter 41.56 RCW involving the Public Employees Relations Commission (PERC). The lower court dismissed Richard Piel's suit against the city of Federal Way (City), concluding the existence of statutory remedies authorized under chapter 41.56 RCW prevented him from establishing the “jeopardy prong” of the common law claim. We take this opportunity to better explain our jeopardy analysis and harmonize our recent decisions in Cudney v. ALSCO, Inc., 172 Wash.2d 524, 259 P.3d 244 (2011), and Korslund v. DynCorp Tri–Cities Services., Inc., 156 Wash.2d 168, 125 P.3d 119 (2005), with Smith v. Bates Technical College, 139 Wash.2d 793, 991 P.2d 1135 (2000). In Smith, we recognized that an employee protected by a collective bargaining agreement may bring a common law claim for wrongful termination based on the public policy provisions of chapter 41.56 RCW notwithstanding the administrative remedies available through PERC. Nothing in our later opinions in Korslund and Cudney altered this holding. We reverse the lower court's order of dismissal and remand for further proceedings.

FACTS

¶ 2 At the time of incidents giving rise to this action, Richard Piel was a 25–year veteranof law enforcement, with over 11 years in the Federal Way Police Department (Department). Piel was promoted to lieutenant in 1998. Until the incidents at issue here, Piel had consistently received high marks in performance reviews.

¶ 3 In late 2002, the 12 lieutenants in the Department decided to create a union and Piel was chosen by the other lieutenants to manage its formation. Although the Department's administration was initially supportive of the union activity, according to Piel the administration's attitude toward the efforts later soured. Shortly thereafter, Piel began experiencing a marked increase in his duties and responsibilities without commensurate support. By 2004, Piel began to feel his unit was the target of unusual and obstreperous internal affairs investigations.

¶ 4 In January 2005, the lieutenant's guild was officially certified. That same month, Piel received his yearly evaluation, albeit late. The evaluation rated Piel as performing poorly in his job functions. Piel later learned the negative reports were not generated by his commanding officer, but by the deputy chief of the Department, which was outside the normal procedure for performance reviews. Meanwhile, his requests for assignments were denied and his unit continued to be the target of investigations from internal affairs.

¶ 5 In May 2005, Piel was injured on the job and had to take three months of leave to recover from corrective knee surgery. During his medical leave and upon his return, Piel was told he would be demoted and was relieved of some of his responsibilities based on allegedly poor performance. Similar incidents continued into 2006.

¶ 6 In March 2006, Piel advised an officer over the phone about the officer's options after the officer stopped a fireman on suspicion of driving while under the influence. The Department alleged that Piel's advice and involvement in the matter violated Department standards. On April 18, 2006, Piel was placed on administrative leave pending an investigation. He was terminated in July 2006. Piel successfully grieved his termination and was reinstated 14 months later. The City was ordered to pay all back pay and benefits.

¶ 7 Upon returning to his job, Piel was discouraged by the reception from his fellow officers. The City had not yet paid him his award of back pay and benefits. He was nervous and had not been sleeping well. His first two days back at work were stressful and tense. During this time, a conversation took place in the briefing room between Piel and other officers in which Piel allegedly expressed violent feelings against members of the Department. The parties dispute the facts about what actually happened in the briefing room.

¶ 8 An investigation followed. Ultimately, Piel was terminated for being untruthful about what had happened in the briefing room. Piel and his wife brought this suit for wrongful termination in violation of public policy, claiming, among other things, that he was fired for engaging in protected union-organizing activities.

¶ 9 The trial court dismissed the Piels' suit on summary judgment. The court explained that

Korslund [, 156 Wash.2d 168, 125 P.3d 119,] is the controlling authority. Based on Korslund, the Court concludes that the remedies available to Piel through PERC are adequate to protect the public policy grounded in RCW 41.56. Since Piel cannot satisfy the “jeopardy” element, his wrongful discharge in violation of public policy claims grounded in RCW 41.56 are dismissed.

Clerk's Papers at 771. The Piels sought direct review by this court based on the apparent conflict between Smith and Korslund. Consideration was stayed pending this court's final decision in Cudney, 172 Wash.2d 524, 259 P.3d 244. After Cudney was decided, we retained this case for hearing and decision.

ISSUE

¶ 10 Are the remedies available to a public employee under chapter 41.56 RCW adequate as a matter of law, such that the employee may not assert a tort claim for wrongful discharge in violation of public policy? (Short Answer: No.)

ANALYSIS

¶ 11 This court first recognized a common law cause of action for wrongful discharge in violation of a clear mandate of public policy in the landmark case of Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 685 P.2d 1081 (1984). In cases following Thompson, we acknowledged that public policy tort claims generally arise in four areas: “(1) where the discharge was a result of refusing to commit an illegal act, (2) where the discharge resulted due to the employee performing a public duty or obligation, (3) where the [discharge] resulted because the employee exercised a legal right or privilege, and (4) where the discharge was premised on employee ‘whistleblowing’ activity.” Dicomes v. State, 113 Wash.2d 612, 618, 782 P.2d 1002 (1989) (citations omitted).

¶ 12 In Gardner v. Loomis Armored, Inc., 128 Wash.2d 931, 941, 913 P.2d 377 (1996), the court adopted the analytical framework set forth in a leading treatise to assess when an employee may recover for wrongful discharge in violation of public policy. SeeHenry H. Perritt Jr., Workplace Torts: Rights and Liabilities § 3.1 (1991). This test examines (1) the existence of a “clear public policy” (“clarity” element), (2) whether “discouraging the conduct in which [the employee] engaged would jeopardize the public policy” (“jeopardy” element), (3) whether the “public-policy-linked conduct caused the discharge” (“causation” element), and (4) whether the employer is “able to offer an overriding justification for the [discharge]” (“absence of justification” element). Gardner, 128 Wash.2d at 941, 913 P.2d 377. Here, only the jeopardy element is at issue.

¶ 13 Prior to our adoption of Perritt's four-part test, our decisions tended to “lump[ ] the clarity and jeopardy elements together....” Id.; see also Dicomes, 113 Wash.2d at 617, 782 P.2d 1002 (“[T]he employee has the burden to show that the discharge contravened a clear mandate of public policy.”). By parsing out these two related but conceptually distinct concepts, this court in Gardner sought to achieve “a more consistent analysis.” Gardner, 128 Wash.2d at 941, 913 P.2d 377. And in doing so, we made clear that “our adoption of this test does not change the existing common law in this state.” Id.

¶ 14 Describing the jeopardy element, we explained it serves to “guarantee [ ] an employer's personnel management decisions will not be challenged unless a public policy is genuinely threatened.” Id. at 941–42, 913 P.2d 377 (emphasis added). Also, we articulated the requisite showing a plaintiff must make in order to establish jeopardy:

To establish jeopardy, plaintiffs must show they engaged in particular conduct, and the conduct directly relates to the public policy, or was necessary for the effective enforcement of the public policy. This burden requires a plaintiff to “argue that other means for promoting the policy ... are inadequate.” Perritt[, supra,] § 3.14, at 77. Additionally, the plaintiff must show how the threat of dismissal will discourage others from engaging in the desirable conduct.

Id. at 945, 913 P.2d 377 (alteration in original) (citation omitted).

¶ 15 We considered the viability of a wrongful termination claim based upon the statutory remedies under chapter 41.56 RCW in Smith, 139 Wash.2d 793, 991 P.2d 1135. Consistent with our decision in Gardner, we recognized that the tort of wrongful termination was not limited to at-will employment settings. Id. at 806–07, 991 P.2d 1135. And we allowed the public employee's claim to go forward notwithstanding her failure to pursue administrative remedies through PERC. Id. at 811, 991 P.2d 1135. In the course of our analysis, we examined key distinctions between available tort remedies and statutory...