Ellis v. City of Seattle

Madsen, J.

(concurring) — The majority holds that “[i]n the context of concerns regarding public safety where imminent harm is present,. . . the jeopardy prong of the Gardner test may be established if an employee has an objectively reasonable belief the law may be violated in the absence of his or her action.” Majority at 461. This “reasonable belief’ standard does not accord with this court’s cases addressing the claim for wrongful discharge against public policy. Further, rather than adhering to the admonition that the public policy exception to the terminable at will doctrine is a narrow exception, the majority’s approach greatly expands the exception and places this court in the unacceptable position of interfering in day to day business personnel decisions. Moreover, even if one accepts the majority’s new reasonable belief standard, I would hold that it is lacking in this case as a matter of law.

The public policy exception to the common law terminable at will doctrine was adopted in Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 685 P.2d 1081 (1984). The court there recognized that the exception applies where application of the common law doctrine would lead “to a result clearly inconsistent with a stated public policy and the community interest it advances.” Id. at 231 (emphasis added). The court also said that “[t]he policy underlying the *468exception is that the common law doctrine cannot be used to shield an employer’s action which otherwise frustrates a clear manifestation of public policy.” Id. (emphasis added). Thus, with initial adoption of the public policy exception, this court focused on the employer’s action as violating clear public policy.

“The employee has the burden of proving his dismissal violates a clear mandate of public policy.” Id. at 232. This mandate may be found where the “ ‘employer’s conduct contravenes the letter or purpose of a constitutional, statutory, or regulatory provision or scheme’ ” and where prior judicial decisions established relevant public policy. Id. (quoting Parnar v. Americana Hotels, Inc., 65 Haw. 370, 652 P.2d 625, 631 (1982)). The court emphasized that this “narrow public policy exception . . . properly balances the interest of both the employer and the employee.” Id.

Subsequent cases bear out the Thompson analysis: the focus is on the employer’s action, and the exception is a narrow one. In Dicomes v. State, 113 Wn.2d 612, 782 P.2d 1002 (1989), involving whistleblowing, the court refused to find the public policy exception applied. There, contrary to the plaintiff’s belief, there was no violation of statute where certain surplus funds in the Department of Licensing budget were not expended, nor was clear legislative intent contravened. The court noted that the employee was not faced with the choice of violating the law or sacrificing her job; she was instead faced with a difference of opinion, and her “good faith belief in the righteousness of her conduct [was] too tenuous a ground upon which to base a claim for wrongful discharge.” Id. at 624. Farnam v. CRISTA Ministries, 116 Wn.2d 659, 807 P.2d 830 (1991) also involved alleged wrongful discharge in violation of public policy for whistleblowing. There, the plaintiff had several times acknowledged that her employee had the legal right to remove nasal-gastric feeding tubes from patients under certain circumstances, but argued nonetheless that she could have believed that removal constituted patient abuse in violation of law because the relevant statutes did not *469specifically include or exclude nasal-gastric feeding tubes as life-sustaining procedures which could be withheld. Id. at 670-71. The court disagreed, saying that the focus is on the employer’s conduct, not the employee’s actions. Id.

As in these whistleblowing cases, the focus in a case where it is claimed the employee has been directed to engage in illegal conduct should be on the employer’s action. This said, I cannot conceive how an employee can be fired for refusing to engage in illegal conduct unless the employer has directed the employee to actually engage in illegal conduct. The employee’s good faith belief cannot render illegal what is not actually illegal.

Just as problematic, where this court steps in and decides that public policy is sufficiently violated based upon the employee’s reasonable belief, it interferes in business management and alters the balance of interests that the narrow public policy exception in Thompson preserved. The line between the conscientious employee and the insubordinate employee is not easily drawn in many circumstances. Given that the public policy exception is the exception, not the rule, the terminable at will doctrine should prevail unless there is an actual violation of a clear mandate of public policy.

Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 913 P.2d 377 (1996) is also contrary to the majority’s pronouncement of a reasonable belief standard. The four-part test stated there is consistent with prior law requiring identification of a clear mandate of public policy and discharge in violation of that policy. The focus again is on the employer’s conduct—does the discharge violate the public policy, in Gardner, the policy encouraging citizens to save persons from life threatening situations. Nowhere does Gardner indicate anything other than actual violation of the policy suffices. To the contrary, Gardner indicates, as do all the court’s preceding cases, that the policy itself must be actually violated.

In addition to these cases, as the majority correctly observes, the Court of Appeals has refused to accept the *470premise that a good faith or reasonable belief suffices. Wlasiuk v. Whirlpool Corp., 81 Wn. App. 163, 179, 914 P.2d 102, 932 P.2d 1266 (1996) (“a plaintiff must show either an actual violation, or that the purpose of the law was violated”); Bott v. Rockwell Int’l, 80 Wn. App. 326, 335-36, 908 P.2d 909 (1996). The court in Bott aptly observed a “good faith” standard undermines this court’s “announced policy of protecting against frivolous lawsuits and ‘allow [ing] trial courts to weed out cases that do not involve any public policy principle ....’” Bott, 80 Wn. App. at 336 (quoting Thompson, 102 Wn.2d at 232).

More importantly, a “good faith” standard undermines the principle “of allowing employers to make personnel decisions without fear of incurring civil liability.” Bott, 80 Wn. App. at 336 (citing Thompson, 102 Wn.2d at 232).

The majority’s reliance on other employment laws for support of its reasonable belief standard is misplaced. For example, the majority notes that the state whistleblower statute contains a good faith belief standard. Majority at 460 (citing RCW 42.40.020(5)). This reliance highlights the fundamental error of the majority. It is one thing for the Legislature to implement a good faith standard. It is quite another thing for this court to do so in the context of the public policy exception to the terminable at will rule.

In my view this court should join other courts that have declined to extend the public policy exception to situations where the employee alleges a reasonable belief that he or she is being directed to engage in illegal conduct in violation of public policy. See, e.g., Antley v. Shepherd, 340 S.C. 541, 549, 532 S.E.2d 294, 298 (Ct. App. 2000); Ran Ken, Inc. v. Schlapper, 963 S.W.2d 102 (Texas App. 1998).

However, even if one accepts the majority’s expansion of the public policy exception, this case is a poor vehicle for finding sufficient evidence of an objective reasonable belief. The identified public policy in this case is certification from the fire department before an individual may service fire alarm systems. However, on more than one occasion the employee, Mr. David Ellis, informed his superiors that he *471would work on the system if he had written authorization from his superiors at Seattle Center. Thus, he would have engaged in the work he was directed to do regardless of any supposed belief in its illegality. Under these circumstances, I would conclude that he has not established an objective reasonable belief that public policy would be violated if he bypassed the fire relay.

While I do not agree with the majority’s good faith belief standard, I nevertheless agree with the majority that there is a fact question as to whether an actual violation of public policy occurred. See majority at 463. Accordingly, I would remand for trial with instructions in accord with this opinion.

For the reasons stated, I concur.

Sanders, J., concurs with Madsen, J.