Rose v. Anderson Hay & Grain Co.

F-1--t:E· .
/ 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

framewrk for guidance. But that guidance is unnecessary here: Anderson

allegedly terminated Rose for refusing to break the law. These facts fall directly

within the realm of wrongful discharge in violation of public policy.

21
Rose v. Anderson Hay & Grain Co., No. 90975-0

CONCLUSION
. .

With respect to the STAA, we hold that its existence does not affect Rose's

tort clai111. Statutory alternatives will not preclude tort recovery unless such

preclusion is either implied or expr~ssed by the statute. We will not impose our

own judicially created hurdle to recovery. Because Congress expressly provided a

nonpreemption clause in the statute, our analysis need not go any further. We

~;respect Congress' choice to permit Rose to pursue either remedial course of action.

22
Rose v. Anderson Hay & Grain Co., No. 90975-0

Because the STAA does not prevent Rose from recovery under the tort and

Rose can make out a prima facie case, his wrongful discharge against public policy

claim survives summary judgment. We reverse the Court of Appeals and remand

his claim for further proceedings.

WE CONCUR:

----·-----~-------·

· - - - · - - - - -..

23
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)

No. 90975-0

FAIRHURST, J. (dissenting)-! dissent because Charles Rose does not

satisfy the jeopardy element of the tort of wrongful discharge in violation of public

policy. To reach a different result, the majority overturns precedent and creates a

new analytical framework for the tort. I would proceed according to our precedent

and affirm the Court of Appeals.

The issue in this case is whether Rose's claim of wrongful discharge in

violation of public policy should be dismissed because he cannot satisfy the jeopardy

element of the claim. 1 I would hold that the existence of an adequate alternative

statutory remedy prevents a plaintiff from bringing a wrongful discharge claim.

Here, the remedy provided in the Surface Transportation Assistance Act of 1982

(STAA), 49 U.S.C. § 31105, is adequate to effect the public policy and therefore

1
We accepted review of two other cases-Becker v. Community Health Systems, Inc., No.
90946-6 (Wash. Sept. 17, 2015) and Rickman v. Premera Blue Cross, No. 91040-5 (Wash. Sept.
17, 20 15)-that involve the same issue.
1
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)

Rose cannot satisfy the jeopardy element and his claim for wrongful discharge

should be dismissed.

A. The adequacy of the alternatives analysis is not incorrect and harmful

As the majority notes, the wrongful discharge in violation of public policy tort

has undergone changes to its analytical framework since its recognition 30 years

ago. See majority at 4-8. While the analytical framework for the tort may have

changed, the purpose of the tort has remained the same since the tort's recognition.

"[T]he tort of wrongful discharge is not designed to protect an employee's

purely private interest in his or her continued employment; rather, the tort operates

to vindicate the public interest in prohibiting employers from acting in a manner

contrary to fundamental public policy." Smith v. Bates Tech. Call., 139 Wn.2d 793,

801, 991 P.2d 1135 (2000). The tort was intended to be a narrow public policy

exception to the employment at will doctrine. Thompson v. St. Regis Paper Co., 102

Wn.2d 219, 232, 685 P.2d 1081 (1984). To ensure the tort remains a narrow

exception, a plaintiff should be precluded from bringing a claim for wrongful

discharge in violation of public policy when an adequate alternative remedy exists.

1. The development of the tort of wrongful discharge

Originally, a claim for wrongful discharge in violation of public policy

required the court to perform a burden shifting analysis. !d. The plaintiff had the

2
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)

burden to prove that his or her dismissal violated a clear mandate of public policy.

I d. If the employee met this burden, then the employer would have to demonstrate

that the discharge was for other reasons.Jd. at 232-33.

In Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 941, 913 P.2d 377

( 1996), this court adopted a four-part test for the wrongful discharge tort. After

Gardner, to bring a claim for wrongful discharge in violation of public policy:

( 1) The plaintiffl] must prove the existence of a clear public
policy (the clarity element).
(2) The plaintiff[] must prove that discouraging the conduct in
which [he or she] engaged would jeopardize the public policy (the
jeopardy element).
(3) The plaintiff[] 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 ofjustification element).

I d. (citations omitted). Each element must be met, and these elements are the same

regardless of what conduct prompts the claim. In adopting the four-part test,

Gardner did not intend to change the common law for the wrongful discharge tort.

I d.

At issue here is the jeopardy element. Specifically, Rose's employer,

Anderson Hay and Grain Company, asserts that Rose's claim should be dismissed

because a federal administrative remedy under the STAA prevents Rose from

establishing the jeopardy element.

3
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)

2. The jeopardy element

"The jeopardy element guarantees an employer's personnel management

decisions will not be challenged unless a public policy is genuinely threatened." !d.

at 941-42. To establish jeopardy, the plaintiff must show that he "engaged in

particular conduct, and the conduct directly relates to the public policy, or was

necessary for the effective enforcement of the public policy." !d. at 945 (emphasis

omitted). The plaintiff also must show how the threat of discharge will discourage

others from engaging in desirable conduct. !d. Finally, the plaintiff must demonstrate

that other means of promoting the public policy are inadequate. !d.

The jeopardy element is more difficult to establish where the statute that

declares the alleged public policy provides an administrative remedy. HENRY H.

PERRITT, JR., WORKPLACE TORTS: RIGHTS AND LIABILITIES § 3.15, at 78 (1991).

When the statute that declares the public policy also creates a remedy, the focus of

the jeopardy analysis has centered on the adequacy of that remedy. 2 See Korslund v.

DynCorp Tri-Cities Servs., Inc., 156 Wn.2d 168, 182-83, 125 P.3d 119 (2005);

Cudney v. ALSCO, Inc., 172 Wn.2d 524, 531-33, 259 P.3d 244 (2011); Hubbard v.

Spokane County, 146 Wn.2d 699, 717, 50 P.3d 602 (2002).

2
The question of whether an adequate alternative remedy exists presents a question of law
where the inquiry is limited to examining existing laws to determine if they provide an adequate
alternative means of promoting the public policy. Korslundv. DynCorp Tri-Cities Servs., Inc., 156
Wn.2d 168, 182, 125 P.3d 119 (2005).
4
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)

"[T]his court has repeatedly applied [a] strict adequacy standard, holding that

a tort of wrongful discharge in violation of public policy should be precluded unless

the public policy 1s inadequately promoted through other means and thereby

maintaining only a narrow exception to the underlying doctrine of at-will

employment." Cudney, 172 Wn.2d at 530. When examining an alternative statute

for adequacy, the question is not whether the legislature intended to preclude a tort

claim, but whether other means of protecting the public policy are adequate such that

recognition of the tort claim is not necessary to protect the public policy. Korslund,

156 Wn.2d at 183. Our cases have recognized that the alternative remedy does not

need to be available to the particular plaintiff seeking to use the tort, so long as it

provides an adequate means to protect the public policy. I d.; Cudney, 172 Wn.2d at

538.

In Korslund this court held that as a matter of law the plaintiffs could not

satisfy the jeopardy element because the Energy Reorganization Act of 1974 (ERA),

42 U.S.C. § 5851, provided an adequate alternative means of promoting the public

policy. Korslund, 156 Wn.2d at 181. The plaintiffs in Korslund claimed that they

were wrongfully discharged for reporting safety violations, mismanagement, and

fraud on the part of their employer, DynCorp, at the Hanford nuclear site. Id. at 172-

73. The plaintiffs claimed that to effectuate the policy of protecting the health and

5
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)

safety of the public in the operation of the nuclear industry, the ERA prohibits

retaliation against employees that observe and report potential misconduct. !d. at

182. The ERA provided an administrative process for adjudicating whistle-blower

complaints and required a violator to reinstate the employee to his or her former

position with the same compensation, terms and conditions of employment, back

pay, and compensatory damages. Id. The Korslund court found that the remedies

provided in the ERA were comprehensive "to protect the specific public policy

identified by the plaintiffs." Id. at 182.

Similarly, in Cudney this court found that an employee could not satisfy the

jeopardy element of the wrongful discharge tort because the Washington Industrial

Safety and Health Act of 1973 (WISHA), chapter 49.17 RCW, provided an adequate

alternative remedy. Cudney, 172 Wn.2d at 526, 538. Cudney alleged that he was

terminated for reporting that a manager drove a company vehicle while intoxicated.

!d. at 526. Cudney intended to promote the policies of workplace safety, protecting

employees against retaliation for reporting safety violations, and protecting the

public from the dangers of drinking and driving. Id. at 530. The Cudney court

compared the protections and remedies provided by WISHA to those provided by

the ERA examined in Korslund and found that WISHA was more comprehensive

than the ERA. Id. at 533. Under WISHA the superior court has the power to grant

6
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)

all appropriate relief to the aggrieved employee. Id. at 533. In contrast, the ERA

limited the relief to certain specific categories. Id. The court found that WISHA was

more than adequate to protect the identified public policies and therefore held that

Cudney could not satisfy the jeopardy element. 3 Id. at 533, 536.

Piel v. City of Federal Way, 177 Wn.2d 604, 614-15, 306 P.3d 879 (2013),

was this court's most recent case to address the jeopardy element and the adequate

alternative remedies analysis. The Piel court recognized that there are some cases

where a wrongful discharge tort must exist alongside a statutory scheme in order to

fully vindicate the public policy. I d. The Piel court addressed whether the remedies

through the Public Employment Relations Commission (PERC) under chapter 41.56

RCW were adequate as a matter oflaw to preclude a plaintiff from asserting a claim

for wrongful discharge in violation of policy. I d. at 609. The Piel court found that

an employee could satisfy the jeopardy element because PERC did not provide an

adequate alternative remedy. Id. at 617-18.

Piel did not overrule Korslund and Cudney, and although Piel reaches a

different outcome than Korslund and Cudney, its reasoning is consistent. Like

3
The Cudney court also addressed Washington's driving under the influence laws (DUI)
and found that the DUI laws adequately protected the public from the perils of drunk driving. 172
Wn.2d at 536-37. The court held that Cudney could not show that reporting drunk driving to
another manager was the '"only available adequate means"' to promote the public policy of
protecting the public from drunk driving. !d. at 536 (quoting Danny v. Laidlaw Transit Servs.,
Inc., 165 Wn.2d 200,222, 193 P.3d 128 (2008)).
7
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)

Korslund and Cudney, in Piel this court focused its analysis on whether the

alternative statutory remedy was adequate to promote or vindicate the public policy

at issue. Id. at 615, 617.

The statutory remedies through PERC differed from the remedies in Korslund

and Cudney. Id. at 616-17. The Piel court noted that unlike the statutory remedies at

issue in Korslund and Cudney, PERC remedies were previously recognized by this

court as inadequate to vindicate an important public policy. Id. at 616. The court in

Piel relied on a prior case where this court found that to advance public policy, the

wrongful discharge tort remedy should exist apart from the PERC remedy. !d. at 612

(citing Smith, 139 Wn.2d at 805). In Smith, this court held that PERC's remedial

scheme did not provide adequate redress for an employee when an employer violated

public policy by retaliating against an employee for engaging in a protected activity.

139 Wn.2d at 805-06 (noting that PERC remedies did not allow for an award of

damages for emotional distress and, therefore, only partially compensated the

employee for her damages).

RCW 41.56.905 states that PERC's remedies were intended to be additional

to other remedies. According to the Piel court, this statutory language is significant

because it notes the legislative choice to allow wrongfully discharged employees to

pursue other remedies in addition to those provided by the statute. Id. The court

8
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)

found that language in a statute announcing that the statutory scheme is intended to

be additional to other remedies is the strongest possible evidence that the statutory

remedies are not adequate to vindicate the public policy. Id.

Following Korslund, Cudney, and Piel, to determine whether the plaintiff can

satisfy the jeopardy element requires the examination of the alternative statutory

scheme to determine if it provides a remedy that is adequate in comparison to the

remedy available under a common law tort action. Part of this examination includes

an analysis of the statutory language to determine whether the legislature indicated

that the statute would be insufficient to adequately promote the public policy at issue.

The majority asserts that the adequacy of the alternative remedy analysis as it

operates after Pie! is inconsistent with the jeopardy element as it was described in

Gardner. Majority at 17. The majority states that Gardner set forth a disjunctive test

that allowed the plaintiff to establish the jeopardy element by demonstrating that his

or her conduct was either directly related to the public policy or necessary for

effective enforcement. !d. According to the majority, where the plaintiff showed that

his or her action directly related to the public policy, he or she does not need to show

that there are no adequate alternative remedies. Majority at 18. The majority is

correct that in Gardner this court set forth a disjunctive test, but that was only a piece

of the plaintiffs burden. The Gardner court also stated that to establish the jeopardy

9
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)

element, the plaintiff must show that other means of promoting the policy are

inadequate. 128 Wn.2d at 945. Therefore, it has never been sufficient for the plaintiff

to demonstrate that his or her conduct directly relates to the public policy.

Since its recognition, the jeopardy element has required the plaintiff to

demonstrate that alternative means are not adequate to promote the public policy.

See id. This makes sense because when an alternative adequate statutory remedy

exists, employees have the same incentive to perform the desired behavior. Whether

an available statutory remedy is adequate to vindicate the public policy at issue

should remain a part of the analysis for the wrongful discharge tort.

3. The majority's analytical framework does not advance the purpose of
the tort

According to the majority, the adequacy of the alternatives analysis

misapprehends the role of the common law and the purpose of the tort. Majority at

2. The majority proposes a new framework for the tort that would eliminate the

adequacy of the alternatives analysis. Under the majority's new framework, a trial

court examining whether a plaintiff has a claim for the tort of wrongful discharge in

violation of public policy must begin by determining whether the facts of the case

fit one of the four common factual scenarios. Majority at 21. These include where

an employee is fired for: (1) refusing to commit an illegal act, (2) performing a legal

duty or obligation, (3) exercising a legal right or privilege, and (4) reporting

10
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)

employer misconduct. Majority at 6-7 (citing Gardner, 128 Wn.2d at 93 6). If the

facts of the case fit one of the four common factual scenarios, then the court must

determine if the employee met his or her burden of proving that his or her dismissal

violates a clear mandate of public policy. Majority at 21. If the employee can meet

this burden, then the burden shifts to the employee to demonstrate that dismissal was

for other reasons. !d. Alternatively, if the facts do not fall within one of the four

recognized factual scenarios, then the court should use the four-part test set forth in

Gardner. Id. Further, according to the majority's analytical framework, if a statutory

alternative is relevant, it will preclude a claim for wrongful discharge in violation of

public policy only if the statute provides an exclusive remedy. Majority at 22. The

exclusivity of a statutory remedy can be express or implied. According to the

majority, a nonpreemption clause in a federal statute demonstrates that the statute is

not exclusive and should not preclude a tort claim for wrongful discharge in violation

of public policy. !d.

The majority's new framework does not advance the purpose of the tort and

confuses the application of the tort claim further. The purpose of the tort is to protect

the interests of the public and to promote public policy. Smith, 139 Wn.2d at 801.

When examining the jeopardy element where there is a statutory alternative, the

question for the court should not be whether the applicable statutory alternative

11
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)

precludes the tort but whether the statute adequately promotes the public policy such

that the tort claim is not necessary. See Korslund, 156 Wn.2d at 183. Rejecting the

adequacy analysis and focusing on the exclusivity of an alternative statute does not

promote public policy. Instead, it may give a plaintiff the opportunity to recover

under the tort claim and under the statutory remedy. In addition, the new framework

broadens the scope of the tort beyond what was intended in Thompson.

B. Rose cannot satisfy the jeopardy element

After rejecting the majority's framework, I would apply our precedent to the

facts at issue here and hold that Rose fails to establish the jeopardy element. Rose

alleges that he was fired for refusing to drive over the hour limitation set forth in 49

C.P.R.§ 395.3(b)(1) and for refusing to misrepresent the hours he drove.

The STAA established a system under which employees may pursue remedies

for discharge in violation of its provisions. The STAA prohibits an employer from

discharging an employee if the employee refuses to operate a vehicle because the

operation violates a regulation or standard related to commercial vehicle safety. 49

U.S.C. § 311 05(a)(l)(B)(i). An employee alleging a violation of the statute can file

a complaint with the secretary of labor no later than 180 days after the alleged

violation occurred. 49 U.S.C. § 311 05(b ). If after receiving the complaint the

secretary reasonably believes that a violation occurred, the secretary will include

12
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)

with the findings a preliminary order for relief. 49 U.S.C. § 311 05(b )(2)(A). The

complainant and the person alleged to have committed the violation may file

objections to the preliminary order or the findings and request a hearing. 49 U.S.C.

§ 311 05(b )(2)(B). If a hearing is not requested within 30 days, then the preliminary

order is final and not subject to judicial review. Id. If the secretary finds that a

violation did occur, he or she shall order the violator to affirmatively abate the

violation; reinstate the complainant to his or her former position with the same pay

and privileges of employment, and pay compensatory damages, including back pay

and any special damages sustained by the complainant. 49 U.S.C. §

311 05(b )(3 )(A)(i)-(iii). Compensatory damages include damages for emotional

distress. See Carter v. Tropicana Prods. Sales, Inc., No. 07-10921-RWZ, 2008 WL

190791, at *3 (D. Mass. Jan. 4, 2008) (court order). Relief may also include punitive

damages. 49 U.S.C. § 311 05(b )(3)(C).

The Court of Appeals found that the remedies provided by the STAA were

adequate and that Rose could not satisfy the jeopardy element. Rose v. Anderson

Hay & Grain Co., 183 Wn. App. 785, 793, 335 P.3d 440 (2014), review granted,

182 Wn.2d 1009 (2015). I would agree with the Court of Appeals. The remedies

provided under the STAA are comprehensive. The remedies available under the

STAA are similar to those available under the ERA examined in Korslund. These

13
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)

included back pay, reinstatement, and compensatory damages. Korslund, 156 Wn.2d

at 182. Although Rose cannot receive a remedy pursuant to the STAA because he

failed to timely file his complaint with the Department of Labor, the alternative

statutory remedies do not need to be available to the particular employee so long as

the remedies are adequate to promote the public policy. Hubbard, 146 Wn.2d at 717.

Courts in other jurisdictions have found that the STAA's remedies are

adequate. The Oregon Supreme Court recognizes the tort of wrongful discharge and,

like Washington, has found that where statutes provide an adequate remedy, the tort

is not available. Rice v. Comtek Mfg. of Or., Inc., 766 F. Supp. 1539, 1546 (D. Or.

1990). A federal district court applying Oregon law found that the STAA provides

an adequate alternative statutory remedy, precluding plaintiffs from asserting a tort

claim for wrongful discharge in violation of public policy. Dooijes v. K&B Transp.,

Inc., No. CV04-608-MO, 2005 WL 1838962, at *1 (D. Or. Aug 2, 2005) (court

order).

Next, I would find that the statute does not contain language indicating that

its remedy is insufficient. Unlike PERC, the statutory scheme in Pie!, the STAA

does not contain language indicating that the legislature intended the statute to be an

additional remedy. Instead, the STAA contains a nonpreemption clause. 49 U.S.C.

14
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)

§ 31105(£). 4 The ERA-the statute examined in Kors/und-contained similar

nonpreemption language as in the STAA. 42 U.S.C. § 5851(h) ("This section may

not be construed to expand, diminish, or otherwise affect any right otherwise

available to an employee under Federal or State law."). The Korslund court found

that this language did not indicate that the statutory remedy was inadequate. 156

Wn.2d at 183; see also Pie!, 177 Wn.2d at 617. The STAA provides an adequate

alternative remedy, and Rose cannot satisfy the jeopardy element.

By finding that the wrongful discharge tort is not available here, it does not

give Anderson the discretion to commit acts that violate the STAA. The tort action

is not available because the STAA provides sufficient remedies for an employee who

is wrongfully discharged for refusing to commit an illegal act. Dismissing Rose's

suit would not discourage future employees from taking similar action to Rose

because employees that take similar action to Rose are afforded adequate remedies

and protections under the STAA.

I would continue to examine the adequacy of alternative remedies as part of

the jeopardy element for the wrongful discharge tort. Because the adequate

alternative remedies analysis is not incorrect and harmful, we should not overrule

4
"Nothing 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(:f).
15
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)

our precedent. The jeopardy element is critical to the analytical framework of the

wrongful discharge tort because it ensures that the tort is available only when a

public policy is genuinely threatened. Here, the STAA provides an adequate

alternative remedy. I would affirm the Court of Appeals.

16
Rose v. Anderson Hay & Grain Co., No. 90975-0
Fairhurst, J. (dissenting)

17