Roberts v. Dudley

Decision Date17 February 2000
Docket NumberNo. 67365-9.,67365-9.
Citation140 Wash.2d 58,993 P.2d 901
PartiesLynne Elizabeth ROBERTS, Respondent, v. Eric G. DUDLEY, D.V.M., and Rebecca Dudley, and their marital community, Petitioners.
CourtWashington Supreme Court

Gregory Murphy, Amy Lewis, Clemencia Castro-Woolery, Tacoma, for Petitioners.

David Murdach, Tacoma, Amy Stephson, Seattle, for Respondents.

Jayne Freeman, Seattle, Amicus Curiae on behalf of Washington Defense Trial Lawyers.

Timothy O'Connell, Jill Bowman, Keelin Curran, Seattle, Amicus Curiae on behalf of Independent Business Association, et al.

Susan Mindenbergs, Seattle, Amicus Curiae on behalf of American Civil Liberties Union.

Kelby Fletcher, Seattle, Bryan P. Harnetiaux, Debra Stephens, Spokane, Amicus Curiae on behalf of Wa. State Trial Lawyers Association.


The question is whether an employee who lacks a statutory remedy for wrongful discrimination may nevertheless assert the common law tort of wrongful discharge. The answer is the employee may, if public policy renders such termination "wrongful."

The trial court dismissed such a claim on summary judgment whereas the Court of Appeals reversed, reinstating the claim. We affirm the Court of Appeals and remand for trial, finding multiple bases in the public policy of this state upon which the tort of wrongful, gender-based discharge may be based.


An appeal from an order of summary judgment requires us to view the facts of record in the light most favorable to the nonmoving party. CR 56(c); Sea-Pac Co. v. United Food & Commercial Workers Local Union 44, 103 Wash.2d 800, 801, 699 P.2d 217 (1985). Because the employer (Dudley) brought the motion for summary judgment, we must therefore view the record in the light most favorable to the employee (Roberts).

Lynne Roberts began working at the North End Veterinary Clinic on December 4, 1972 and still worked there in July 1991 when Eric Dudley, D.V.M., purchased and continued operating the clinic. It is undisputed that at all relevant times Dudley never employed eight or more employees at the clinic.

On February 1, 1993 Roberts commenced unpaid maternity leave. On May 1, 1993 Dudley discharged Roberts, claiming her position was no longer available due to a business slowdown. Dudley readvertised the position in May 1994 but when Roberts applied she was refused reemployment. Roberts claims the reason given for her discharge (economic slowdown) was pretextual whereas the real reason for her discharge was that she was pregnant.

Roberts sued Dudley for gender discrimination, initially stating a cause of action under RCW 49.60, but subsequently amended her complaint to state a claim for common law wrongful discharge in violation of the public policy against sex discrimination.

Dudley moved for partial summary judgment to dismiss the wrongful discharge claim. He argued Roberts had no cause of action under state law even if she were discharged because of her gender because Dudley was a small employer, employing fewer than eight persons. The trial court agreed and granted Dudley's motion for partial summary judgment, dismissing the wrongful discharge claim. We denied direct review, transferring the case to the Court of Appeals.

The Court of Appeals reversed the trial court, finding a clear public policy against discrimination, holding a common law cause of action exists for wrongful discharge when the discharge violates the public policy against discrimination. Roberts v. Dudley, 92 Wash.App. 652, 659-60, 966 P.2d 377 (1998). We then granted review.

Dudley relies heavily on this court's decision in Griffin v. Eller, 130 Wash.2d 58, 922 P.2d 788 (1996), arguing Griffin recognized a public policy to protect small employers from discrimination suits, precluding the possibility of a common law cause of action for employment discrimination. Dudley further argues the public policy exception to the employment at-will doctrine should be applied narrowly and cautiously, citing Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 232, 685 P.2d 1081 (1984) and subsequent cases, asserting a common law cause of action for wrongful discharge based on gender discrimination is inconsistent with those cases. Additionally he argues neither the Equal Rights Amendment, Wash. Const. art. XXXI, § 1 (amend.61), nor RCW 49.12.200 creates a source of public policy against discrimination, as neither is directed at private employment. The Washington Defense Trial Lawyers and the Independent Business Association1 each submitted amicus curiae briefs in support of Dudley.

Roberts argues there is nothing in Griffin, 130 Wash.2d 58,922 P.2d 788, inconsistent with a common law cause of action for wrongful discharge in violation of a clear public policy against sex discrimination because Griffin did not decide that issue but rather involved a statutory claim under RCW 49.60. Roberts further argues RCW 49.12.200, the law against discrimination (RCW 49.60), and the Equal Rights Amendment2 all evidence a clear public policy against sex discrimination in employment. Roberts relies on Bennett v. Hardy, 113 Wash.2d 912, 784 P.2d 1258 (1990), and Gardner v. Loomis Armored, Inc., 128 Wash.2d 931, 913 P.2d 377 (1996), to support her claim that there is a common law cause of action for wrongful discharge in violation of the public policy against discrimination. Amicus American Civil Liberties Union of Washington3 agrees with Roberts, as does the Washington State Trial Lawyers Association which filed an amicus curiae brief arguing this court need only look to the Equal Rights Amendment, to find a clear public policy against discrimination.

A. Common Law Wrongful Discharge

An indefinite employment contract is generally terminable at will. Roberts v. Atlantic Richfield Co., 88 Wash.2d 887, 894, 568 P.2d 764 (1977). However in Thompson, 102 Wash.2d 219, 685 P.2d 1081, we recognized an exception to the at-will rule in the form of a common law cause of action in tort for wrongful discharge of an employee where the discharge contravenes "a clear mandate of public policy." Id. at 232, 685 P.2d 1081. The "public policy" for which we search is an authoritative public declaration of the nature of the wrong.

In Thompson we were careful to limit the wrongful discharge cause of action to situations where a public policy was already clearly expressed in the constitution, a statute, or a prior court decision:

"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."

Id. (quoting Parnar v. Americana Hotels, Inc., 65 Haw. 370, 652 P.2d 625, 631 (1982)). As we noted in Thompson, "to state a cause of action, the employee must plead and prove that a stated public policy, either legislatively or judicially recognized, may have been contravened." Thompson, 102 Wash.2d at 232, 685 P.2d 1081. Any finding of public policy must therefore be clearly grounded in legislation or prior jurisprudence to protect employers from frivolous lawsuits, thus balancing the interests of the employer and the employee. Id.

We elaborated on the meaning of a clearly mandated public policy in Dicomes v. State, 113 Wash.2d 612, 782 P.2d 1002 (1989), stating:

"In general, it can be said that public policy concerns what is right and just and what affects the citizens of the State collectively.... Although there is no precise line of demarcation dividing matters that are the subject of public policies from matters purely personal, a survey of cases in other States involving retaliatory discharges shows that a matter must strike at the heart of a citizen's social rights, duties, and responsibilities before the tort will be allowed."

Id. at 618, 782 P.2d 1002 (quoting Palmateer v. International Harvester Co., 85 Ill.2d 124, 130, 421 N.E.2d 876, 52 Ill.Dec. 13 (1981)). Gardner, 128 Wash.2d 931,913 P.2d 377, involved a common law claim for wrongful discharge following the termination of an armored truck driver who left his truck in violation of company policy to rescue a hostage at a bank robbery. Although we found the "situation presented by this case does not fit neatly into ... the categories of [public policy tort] cases previously considered by this court,"4id. at 938, 913 P.2d 377, we nevertheless found the truck driver had a cause of action for wrongful discharge based on the public policy in favor of protecting human life. Id. at 944-46, 913 P.2d 377. We there identified four necessary elements upon which a common law claim for wrongful discharge in violation of public policy must be heard:

(1) The plaintiffs must prove the existence of a clear public policy (the clarity element).
(2) The plaintiffs must prove that discouraging the conduct in which they engaged would jeopardize the public policy (the jeopardy element).
(3) The plaintiffs must prove that the public-policy-linked conduct caused the dismissal (the causation element).
(4) The defendant must not be able to offer an overriding justification for the dismissal (the absence of justification element).

Id. at 941, 913 P.2d 377 (citations omitted). The first element (determining what is a clear mandate of public policy) is a question of law, Dicomes, 113 Wash.2d at 617, 782 P.2d 1002, and it is this element of the four-part test which is at issue here.

Dudley argues the Court of Appeals decision on review conflicts with Thompson and its progeny, asserting those cases apply the public policy exception to the at-will rule very narrowly. However the rule announced by the Thompson line of cases is that a court may not sua sponte...

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