Wilson v. City of Monroe, 38868-1-I

• Decision Date: 22 September 1997
• Docket Number: No. 38868-1-I,38868-1-I
• Citation: 88 Wn.App. 113,943 P.2d 1134
• Court: Washington Court of Appeals
• Parties: , 157 L.R.R.M. (BNA) 2365 Darryl WILSON and Deborah Wilson, husband and wife, Appellants, v. CITY OF MONROE, Washington, a municipal corporation, Respondent.

Page 113

88 Wn.App. 113

943 P.2d 1134, 157 L.R.R.M. (BNA) 2365

Darryl WILSON and Deborah Wilson, husband and wife, Appellants, v. CITY OF MONROE, Washington, a municipal corporation, Respondent.

No. 38868-1-I.

Court of Appeals of Washington Division 1.

Sept. 22, 1997.

Brian C. Dale, Deno Millikan, Dale & Decker, Everett, for Appellants.

Deborah Brookings, Keating, Bucklin & McCormack, P.S., Seattle, for Respondent.

BAKER, Chief Judge.

The right to be free from wrongful termination in contravention of public policy is independent of any underlying contractual agreement between employee and employer. When an employee brings a claim against an employer based on nonnegotiable, substantive rights that are not dependent on a collective bargaining agreement (CBA), the employee is not first required to exhaust the remedies provided by a CBA arbitration clause.

Recognizing the independent nature of the wrongful termination tort, we hold that summary judgment dismissal of Darryl Wilson's retaliatory discharge claims against his former employer, the City of Monroe, based upon failure to exhaust the remedies provided to him under the applicable CBA, was improper. We also hold that the tort cause of action for termination in contravention of public policy is not confined to at-will employment situations, but is available to all employees because the tort embodies a strong state interest in protecting against violations of public policy.

Lastly, we hold that the statutory and City policy remedies available to Wilson are neither mandatory nor exclusive remedies. Therefore, we reverse the summary judgment dismissal of Wilson's claims against the City and remand for a trial on the merits.

FACTS

Wilson, a union member, was employed by the City of Monroe as a plant operator at its waste water treatment facility. Under the union's CBA with the City, the City cannot discharge or suspend a union employee without just cause. The CBA's grievance procedure provides: "All matters pertaining to the proper application and interpretation of any and all of the provisions of this Agreement, and/or any other issues in dispute between the parties" shall be resolved through the grievance procedure, including arbitration. The decision of the arbitrator is final and binding on all parties.

According to Wilson, throughout his employment with the City he was instructed to recirculate sewage sludge through the plant, resulting in illegal discharges into the Skykomish River. Wilson complained to the Washington State Department of Ecology and the United States Environmental Protection Agency. Wilson also claims that requests to his employer for standard safety equipment were denied.

The City terminated Wilson's employment for alleged poor performance, and informed him that he was entitled to pursue a grievance against the City pursuant to the CBA. Wilson asked his union representative to file a grievance on his behalf. He also filed a complaint with the City pursuant to City Policy # 92-39, alleging retaliation for his whistleblowing activities. The City contacted the State Office of Administrative Hearings, and the matter was assigned to an administrative law judge. The union put the grievance process on hold pending outcome of the administrative hearing regarding Wilson's retaliation charge.

Wilson later dismissed his administrative claim, indicating a desire to pursue his remedies in Superior Court, including a claim for damages he asserted would not have been allowed in the administrative action. The union did not pursue Wilson's grievance.

Wilson filed suit against the City, alleging termination motivated by retaliation against him for inquiring and complaining about plant operations and for requesting safety equipment. Wilson appeals summary judgment entered in favor of the City.

I

Although federal labor law generally requires employees to seek redress for grievances through arbitration if there is an applicable CBA providing for such dispute resolution, not all employment grievances must be arbitrated under the CBA. ¹ Federal labor policy "does not preempt claims that are based on state laws when those laws grant employees nonnegotiable, substantive rights and when adjudication of those rights does not depend upon a collective bargaining agreement." ²

Wilson's right to be free from wrongful termination in contravention of public policy may not be altered or waived by private agreement, and is therefore a nonnegotiable right. ³ Furthermore, the right does not originate in the CBA provision that requires just cause for termination, or depend on interpretation of the CBA--the right is independent of any contractual agreement between Wilson and the City. ⁴ This is true even though resolution of the dispute may require examination of the same set of facts as would arbitration under the CBA. ⁵ Any attempt on the part of the City to show nonretaliatory reasons for Wilson's discharge would be a purely factual inquiry that does not turn on the meaning of any CBA provision. ⁶

We also note that the CBA provision that arbitration applies not only to matters "pertaining to the proper application and interpretation" of the agreement, but also to "any other issues in dispute between the parties" does not alter the independent status of Wilson's claim based on the nonnegotiable right to be free from retaliatory discharge. ⁷

We reject the City's argument that because Wilson's claims are founded on an allegation of unfair discharge, resolution lies in arbitration. Cases that address employee grievances that do not involve separate pronouncements of state law are distinguishable from Wilson's claim. ⁸ In such cases, arbitration is generally the exclusive remedy available to an employee, unless the union wrongfully failed to pursue the employee's grievance, in which case the employee must also join the union in the complaint. ⁹

We hold that because Wilson's wrongful termination/retaliatory discharge claims are based on nonnegotiable rights established by state law, ¹⁰ and because the claims may be resolved without interpreting the CBA, the claims are not preempted by federal labor law. Wilson was not required to exhaust the remedies provided him under the CBA before bringing his claims, and summary judgment dismissal of his claims for this reason was improper. ¹¹

II

The right to be free from wrongful termination is independent of any contractual agreement between Wilson and the City. Because this is true, we reject the argument that the tort cause of action for wrongful discharge in contravention of public policy, established in Thompson v. St. Regis Paper Co., ¹² applies only to at-will employees.

The United States Supreme Court has disapproved of state "preemption" policy resulting in providing nonunion workers greater protection than union workers under state law. ¹³ We decline to establish a rule that would provide protection against wrongful discharge in contravention of public policy for at-will employees while denying such protection to employees who may be terminated only for cause.

The wrongful discharge tort emerged as an exception to the at-will employment doctrine, and arguably was aimed at providing added job security, similar to that already held by for-cause employees. ¹⁴ Although the cause of action continues to be analytically framed as an exception to the at-will employment doctrine, ¹⁵ Washington case law does not explicitly declare that the tort is available only to at-will employees. ¹⁶ We focus on the public policy aspect of the wrongful discharge tort in holding that the cause of action does not depend on the contractual status of the employment relationship. We agree with the conclusion that "[a] primary purpose behind giving employees a right to sue for discharges in violation of public policy is to protect the vital state interests embodied in such policies." ¹⁷

Concluding that there is no logical basis to distinguish between at-will employees and for-cause employees in cases of wrongful termination for reasons violative of fundamental principles of public policy, the California Court of Appeal noted:

[T]he theoretical reason for labeling the discharge wrongful ... is not based on the terms and conditions of the contract, but rather arises out of a duty implied in law on the part of the employer to conduct its affairs in compliance with public policy, expressed judicially or by statute. ¹⁸

Providing at-will employees a greater remedy than that available to for-cause employees for an employer's violation of public policy is illogical and based on an unjustified distinction. ¹⁹

We hold that the tort of wrongful discharge in contravention of public policy is available to for-cause employees like Wilson. Therefore, we must next consider whether Wilson may bring the common law cause of action notwithstanding the existence of other remedies available to him.

III

The framework for determining whether a cause of action exists for wrongful discharge in contravention of public policy when the declaration of public policy is made in a statute already providing a remedy is set out in Wilmot v. Kaiser Aluminum & Chemical Corp. ²⁰ Whether or not the statute provides the mandatory and exclusive remedy, thus precluding an independent wrongful discharge claim, depends on the particular statute's language and provisions, and may also depend in part on other manifestations of legislative intent. ²¹

Wilson claims that his discharge violated the public policy against terminating employees for engaging in whistleblowing activity. Wilson apparently relies on the expression of this public policy found in the following: (1) the State Employee Whistleblower Act, specifically RCW 42.40.050 (retaliatory action against whistleblower--remedies), (2) the Local Government Whistleblower Act, specifically RCW 42.41.040 (retaliatory action unlawful), (3) Monroe City Policy # 92-39, regarding reporting of improper governmental...