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/ IN CLERKI OPFICI ~
...... COURI',I'I'IaiOI . . .-nxl
I DATE SEP 1 7 20151
h?q~91 Ronald . nt
*upreme Court Ctertr
IN TII:F~ SUPREME COURT OF THE STATE OF WASHINGTON
CI--IAPJ__,ES ROSE, )
) No. 90975-0
Petitioner, )
)
V. ) EnBanc
)
ANDERSON HAY AND GRAIN )
COt\1PANY, )
)
Respondent. )
) Filed
SEP 1 7 20i5
·-~-·--~---~-------
JdHNSON, J.-This case involves the jeopardy element of the tort for
wrongful discharge against public policy and whether the administrative remedies
available under the Surface Transportation Assistance Act of 1982 (STAA), 1 49
U.S.C. § 31105, preclude Charles Rose from recovery under a common law tort
claim. This is one of three concomitant cases 2 before us concerning the "adequacy
of alternative remedies" component of the jeopardy element that some of our cases
seemingly embrace. For the reasons discussed in this opinion, we hold that the
1
Both the parties refer to 49 U.S.C. § 31105 as the "Commercial Motor Vehicle Safety
Act." This is not entirely accurate. Although the chapter is titled "Commercial Motor Vehicle
Safety,"§ 31105 ofthat chapter is part ofthe STAA.
See Be_cker v. Cmty. Heath ~ys., Inc., No. 90946-6 (Wash. Sept. 17, 2015), and Rickman
2
v. Premera Blue Cross, No. 91040-5 (Wash. Sept. 17, 2015).
Rose v. Anderson Hay & Grain Co., No. 90975-0
adequacy of alternative remedies component misapprehends the role of the
common law and the purpose of this tort and must be stricken from the jeopardy
analysis. We reembrace the formulation of the tort as initially articulated in
17'1ompson, Wilmot, and Gardner, 3 and reverse the Court of Appeals.
FACTS
The complaint alleges that Anderson Hay & Grain Company terminated
Rose from his position as a semi truck driver when he refused to falsify his drive-
time records and drive in excess of the federally mandated drive-time limits. Rose
had worked as a t~uck driver for over 30 years, the last 3 of which he worked as an
en1ployee for Anderson Hay. His position required him to drive loads of hay
weighing 50 tons or more from Ellensburg to ports located in Western Washington.
Rose operated under federal regulations that required him to drive no more than 60
hours per week. 49 C.P.R. § 395.3(b)(l).
In November 2009, Rose's supervisor allegedly directed Rose to transport a
load to Seattle, which would have put Rose over the 60-hour limit. Rose informed
his employer that the trip would put him over the allowable limit, but his
supervisor told him to falsify his drive:timerecords to reflect fewer hours so that
3
. Gardner v. Loomis Armored Inc . , 128 Wn.2d 931, 913 P .2d 377 (1996); Wilmot v.
Kaiser Alurn. & Chem. Corp., 118 Wn.2d 46, 821 P.2d 18 (1991); Thompson v. St. Regis Paper
Co., 102 Wn.2d 219,.685 P.2d 1081 (1984).
2
Rose v. Anderson Hay & Grain Co., No. 90975-0
he could ~omplete the trip. Concerned that he might fall asleep at the wheel, Rose
refused, and Anderson Hay fired him.
InMarch 2010, Rose sued under the STAA in federal court but his suit was
dismissed for lack of jurisdiction because he failed to first file with the secretary of
labor, as _required by the act.49 U.S.C. § 31105(b)(l). By the time the suit was
disinissecl, the 180-day filing period for administrative remedy had already lapsed.
Rose then filed a complaint in Kittitas County Superior Court, seeking remedy
under the common law tort for wrongful discharge against public policy. The trial
court dismissed his claim on summary judgment, holding that the existence of the
federal administrative remedy under the STAA prevented Rose from establishing
the jeopardy element of the tort. The Court of Appeals affirmed. Rose v. Anderson
Hay & Grain Co., 168 Wn. App. 474,276 P.3cl382 (2012). This court accepted
review of that decision, but remanded Rose's case to the Court of Appeals for
reconsideration in light of Piel v. City ofFederal Way, 177 Wn.2d 604, 306 P.3d
879 (2013). Rose v. Anderson Hay & Grain Co., 180 Wn.2d 1001, 327 P.3d 613
(2014). Like the stat,ute at issue in Piel, the STAA contains a nonpreemption
clause, explicitly providing that "[n]othing in this section preempts or diminishes
any other safeguards against discrimination, demotion, discharge, suspension,
threats, harassment, reprimand, retaliation, or any other manner of discrimination
provided by Federal or State law." 49 U.S.C. § 311 05(±).
3
Rose v. Anderson Hay & Grain Co., No. 90975-0
On remand, the Court ()f Appeals distinguished Rose's case from Piel,
likening the facts to those presented in Korslund v. DynCorp Tri-Cities Services,
Inc., 156 Wn.2d 168, 125 P.3d 119 (2005), and once again affirmed the superior
court's decision. Rose v. Anderson !-lay & Grain Co., 183 Wn. App. 785, 335 P.3d
440 (2014), review granted, 182 Wn.2d 1009, 343 P.3d 759 (2015).
ANALYSIS
V.fe accepted review of three cases-Rose, Becker v. Community Heath
Systems, Inc., No. 90946-6 (Wash. Sept. 17, 2015), and Rickman v. Premera Blue
Cross, No. 91040-5 (Wash. Sept. 17, 2015)-to determine whether the existence of
other nonexclusive statutory remedies preclude plaintiffs from recovery under a
tort claim for wrongful discharge against public policy. We hold that they do not:
the existence of alternative statutory remedies, regardless of whether or not they
are adequate, does not prevent the plaintiff from bringing a wrongful discharge
•,
claim. Reviewing the origination of the tort and its underlying purpose, we find
that our wrongful discharge jurisprudence travels along two irreconcilable tracks,
each of which would dictate a different result in Rose's case. The discrepancy
requires us to clarify and embrace only one. We hold that the "adequacy of
alternative remedies'' analysis must be discarded, and we reembrace the analytical
framework established in Thompson, Wilmot, and Gardner.
4
Rose v. Anderson Hay & Grain Co., No. 90975-0
Evolution ofthe Tort
The wrongful discharge against public policy tort has undergone numerous
permutations since its recognition over 30 years ago. When it was first analyzed in
Thompson, we recognized it as an exception to the general principle that absent a
definite contract, employees are terminable at-will. The purpose of the tort
exception is to prevent employers from utilizing the employee at-will doctrine to
subvert public policy---we said, "[T]he common law doctrine cannot be used to
shield an employer's action which otherwise frustrates a clear manifestation of
public policy." Thompson, 102 Wn.2d at 231. We recognize it as a means of
encouraging both employers and employees to follow the law.
In Thompson, the employer allegedly terminated Thompson as divisional
controller in retaliation for Thompson attempting to comply with the Foreign
Corrupt Practices Act of 1977, 15 U.S.C. §§ 78dd-1 to 78dd-3, by implementing a
n~w accounting procedure. In evaluating Thompson's claim in review of dismissal
on summary judgment, we embraced a burden-shifting analysis in which the
analyti~al focus was whether the employee could establish that the discharge
clearly contravened public policy:
The employee has the burden of proving his dismissal violates a
·clear mandate of public policy. Thus, to state a cause of action, the
employee must plead and prove that a stated public policy, either
legisiatively or judicially recognized, may have been contravened .
. . . [O]nce the employee has demonstrated that his discharge may
5
Rose v. Anderson Hay & Grain Co., No. 90975-0
have been motivated by reasons that contravene a clear mandate of
pt1blic policy, the burden shifts to the employer to prove that the
dismissal was. for reasons other than those alleged by the
employee.
Thompsort, 102 Wn.2d at 232-33.
vVe j ()ined the growing number of jurisdictions in adopting this burden-
' . '
shifting fi·amework, which was designed to track the same burden-shifting
analytical fhnnework used for other employment discrimination claims. Particular
to this tort, however, we insisted that the public policy at issue be judicially or
legislatively recognized, emphasizing that the tort is a narrow exception to the at-
wilJ doctrine and must be limited only to instances involving very clear violations
of public policy. Thompson's requirement that the policy be judicially or
legislatively recognized protects employers from having to defend against
amorphous claims. of public policy violations and addresses the employers'
~egitimate concern that a broad common law tort would considerably abridge their
ability to exercise discretion in managing and terminating employees. This strict
clarity requirement
. '. ' ' .
ensures
.
that only clear violations of important, recognized
public policies could
. ..
.
expose .employers
.. . .
to. liability.
Follow~ng Thompson, the availability of the tort remained narrow and it was
recognized under only four different situations:
( 1) where employees are fired for refusing to commit an illegal act;
(2) where employees are fired for performing a public duty or
6
Rose v. Anderson Flay & Grain Co., No. 90975-0
obligation, such as serving jury duty; (3) where employees are fired
for exercising a legal right or privilege, such as filing workers'
· compensatiorrclaims; and (4) where employees are fired in retaliation
for reporting employer misconduct, i.e., whistleblowing.
Gardner, 128 Wn.2d at 936 (citing Dicomes v. State, 113 Wn.2d 612, 618, 782
P.2d 1002 (1989)). Under each scenario, the plaintiff is required to identify the
recognized public policy and demonstrate that the employer contravened that
policy by terminating the employee.
Not until our decision in WUmot did we factor into our analysis the existence
of other statutory remedies. In that case, several at-will employees were injured on
the job and were f()rced to continue working under threat of termination. The
Industrial Irisurance Act (IIA ), Title 51 RCW, prohibits such coercion and provides
an administrative remedy for employees who are terminated in retaliation for
taking leave for work-sustained injuries. When we examined the IIA as an
alternative remedy to the tort claim, we examined whether it was a mandatory and
ex:clusive remedy such that it precluded the plaintiff from recovery through a
wrongful discharge tort claim; We concluded that the statute contained permissive
rather than mandatory language, and we held that an aggrieved employee could
seek recourse under either claim. We held the availability of the alternative remedy
did not prech1de the claim from going forward.
7
Rose v. Anderson
.
Hay & Grain Co., No. 90975-0
' :
·In Gardner, we refined the tort's analytical framework somewhat but
expt:essly refrained from substantively changing the underlying tort requirements.
In that case,. an armored truck driver was terminated for leaving his truck to save a.
woman's life; ~nd we were presented with the question of whether the termination
violated a clear mandate of public policy. We explained that because the situation
did not involve the common retaliatory discharge scenario, it demanded a more
refined analysis than had been conducted in previous cases. Gardner, 128 Wn.2d at
940. Faced with this unique set of facts, we utilized a four-part framework to guide
our analysis. HENRY H. PERRITT, JR., WORKPLACE TORTS: RIGHTS AND LIABILITIES
§3 .7 (1991 ).
Under this Perritt framework, courts examine (1) the existence of a "clear
public policy" (clarity 1 • discharge tmi as self-subordinating. Common law remedies should be preempted
by statutory law only where the legislature either implicitly or explicitly expresses
an intent to do so. It is incorrect to overlay the exclusivity analysis with an
additional adequacy analysis.
Third, the jeopardy element, as we described it in Gardner, does not require
an an~lysis into the adequacy of alternative remedies. In Gardner, we analyzed
''adequacy of alternatives" by looking at the alternatives available to the employee
at the time he or she decided to violate the employer's direction; we did not
address alternative remedial statutes. Moreover, the adequacy of alternatives
requirement. is inconsistent with the remainder ofthe jeopardy element. We. said
. '
'
~
the plaintiff establishes jeopardy by demonstrating that his or her conduct was
either directly related to the public policy or necessary for effective enforcement.
The disjunctive language creates two options for establishing jeopardy, and the
plaintiff satisfies the jeopardy element by either means. In the first type of case,
17
Rose v. Anderson Hczy & Grain Co., No. 90975~0
where there is a direct relationship between the employee's conduct and the public
policy, the employer's discharge ofthe employee for engaging in that conduct
inherently implicates the public policy. In the second type of case, where there is
no direct relationship, then the plaintiff must establish that his or her actions were
necessary for effective enforcement of the policy-in other words, the plaintiff
must establish that there was no adequate alternative means of promoting the
policy. If we require the plaintiff to argue inadequacy of alternative means in every
case, we obviate the plaintiffs ability to establish jeopardy by establishing either
disjunctive. Such a requirement renders the first disjunctive superf1uous .
. Finally, the adequacy component undermines the very purpose of the tort.
When we adopted this tort exception to the at-will doctrine, we sought to
encourage ~mployees to follow the law by protecting them from retaliatory
termination. The additional adequacy requirement strips employees of that
protective guarantee. With the vast number of remedial statutes that exist to
address public policies, employees are left to guess whether the law will protect
their actions or whether their claim will slip through the cracks formed by this
nebulous adequac)' standard. In the aggregate, this doubt and uncertainty will erode
employees' trust that the law will protect their lawful actions.
Though we reject this adequacy requirement, courts still must consider
whether a statutory remedy is intended to be exclusive. A review of exclusivity is a
' ','_1· .
18
Rose v. Anderson Hay & Grain Co., No. 90975-0
m?re consistent,. clearer, and legislatively deferential standard. It is more consistent
with our analysis of all other wrongful discharge torts, all of which embrace the
same exclusivity analysis and better reflects the role of the common law in
supplementing statutory principles. Smith, 139 Wn.2d 793; Allstot, 116 Wn. App.
424; Young, 106 Wn. App. 524. Our courts are familiar with analyzing statutes for
preemptory and mandatory language, and our well-established jurisprudence would
guide the application of this tort toward more consistent, predictable results. And
finally, the exclusivity requirement respects the legislature's choice to either
pr~clud~ or supplement the common law remedies as it deems necessary. Congress
and the legislature know how to create exclusive remedies, and as the popularly
responsive branch of government, they are in the best position to determine when
such remedies should be restricted in favor of employers.
Our continued adherence to this adequacy requirement is both unwarranted
and harmful. By requiring a comparison of the relative efficiency between the tort
and the 11Ll;nlerous statutes that may exist that address the same policy, this
adequacy analysis has created confusing and inconsistent precedent. Our court has
struggled with its application, and the time has come to reject the requirement
outright. The adequacy component narrows the tort in an illogical, inconsistent
fashion and does nothing to serve the legitimate interests of the employer. By
19
Rose v. Anderson Ilc~;y & Grain Co., No. 90975-0
discarding this additional adequacy requirement, we hope to bring clarity and
consistency to the adjudication of these claims.
For these reasons, we abrogate our precedent only to the extent that it has
required an adequacy, rather than an exclusivity, analysis of alternative remedies.
\Ne reaffirm the approach we established in Thompson and Gardner as the
appropriate analytical framework for the tort. Wilmot applies the proper exclusivity
i analysis when alternative remedial statutes address the same public policy.
Because our cases since Thompson, Gardner, and Wilmot have embraced the same
core principles) and in large part remain good law, we abrogate them only to the
extent they require an analysis of the adequacy of alternative remedies.
Application to This Case
We review the trial court's summary judgment order de novo. Summary
judgment is proper if there is no genuine issue of material fact and the moving
., '
party is entitled to judgment as a matter of law. CR 56(c); Hubbard, 146 Wn.2d at
707. Vle consider all the facts in the light most favorable to Rose, the nonmoving
party in this case. Viewing the facts in that light, we accept Rose's allegation that
A,.nderson Hay terminated Rose for refusing to drive in excess of the federally
mandated maximum. We determine now whether that termination contravenes a
clear mandate of public policy.
20
Rose v. Anderson Hay & Grain Co., No. 90975-0
As we have said before, there are four scenarios that are easily resolved
under the Thompson framework and will potentially expose the employer to
' . .
liability: ( 1) when employees are fired for refusing to commit an illegal act, (2)
when employees are fired for performing a public duty or obligation, such as
serving jury duty, (3) when employees are fired for exercising a legal right or
privilege, such as tiling workers' compensation claims, and (4) when employees
:~are fired in retaliation for reporting employer misconduct, i.e., whistle-blowing.
Gardner, 128 Wn.2d at 936.
The first scenario applies squarely to the case before us: Anderson Hay
allegedly terminated Rose because he refused to falsify his drive log and drive in
excess of the federally mandated limit. Rose has met his burden in establishing his
termination for refhsing to break the law contravenes a legislatively recognized
public policy~ The burden now shifts to Anderson to establish that Rose's dismissal
was for other reasons. We note that in other instances, when the facts do not fit
neatly into one of the four above-described categories, a more refined analysis may
be necessary. In those circumstances, the courts should look to the four-part Perritt
framewRose v. Anderson Hay & Grain Co.
Combined Opinion