¶36 (concurring) — The author of the majority opinion admirably analyzes the tort of wrongful discharge in violation of public policy and the tort’s jeopardy element, and I concur in the decision of the majority. I agree with the majority that the statutes and regulations on which Rockwood Clinic and its parent rely are closer in nature to the statutes and regulations at issue in Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 685 P.2d 1081 (1984) and Piel v. City of Federal Way, 177 Wn.2d 604, 609-17, 306 P.3d 879 (2013) rather than those at issue in Korslund v. DynCorp Tri-Cities Services., Inc., 156 Wn.2d 168, 125 P.3d 119 (2005) and Cudney v. ALSCO, Inc., 172 Wn.2d 524, 531-33, 259 P.3d 244 (2011). More importantly, I accept the significance of the majority’s observation that the Sarbanes-Oxley Act of 2002 (SOX) and the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank), despite including comprehensive whistle-blower protections, declare their remedies to be nonexclusive. See 15 U.S.C. § 78u-6(h)(3); 18 U.S.C. § 1514A(d).
*955¶37 I write separately, however, because I cannot reconcile the teachings of Piel and Cudney. Yes, one may find distinguishing features between the two decisions, but those differences pale in importance when considering principles on which the jeopardy element is based. The two decisions, combined with other high court opinions, create confusion amongst practitioners and lower court judges as to the nature and extent of the jeopardy element of a claim for wrongful discharge in violation of public policy. In addition to deciding disputes between parties, appellate decisions are meant to declare and explain law and to provide guidance to lawyers, litigants, and lower courts, particularly when a busy tort is the subject matter. Pronouncements on the subject of the jeopardy element offer puzzlement, not direction. I thought, upon reading the ruling in Cudney, that the tort languidly lay, on life support, in the intensive care unit. Piel revived the tort. But practitioners and trial courts must wonder if the next decision will return the tort to the sick bay.
¶38 As a cause of action matures, courts insist on promulgating a list of elements necessary to a successful suit. Therefore, in Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 941, 913 P.2d 377 (1996), the state high court congealed a claim for wrongful discharge in violation of public policy into four elements by relying on the treatise Henry H. Perritt, Jr., Workplace Torts: Rights and Liabilities (1991). As one of the four elements, plaintiff must establish that discouraging the conduct in which the plaintiff engaged would jeopardize the public policy. The purpose of the jeopardy element is to guarantee “ ‘an employer’s personnel management decisions will not be challenged unless a public policy is genuinely threatened.’ ” Ellis v. City of Seattle, 142 Wn.2d 450, 460, 13 P.3d 1065 (2000) (quoting Gardner, 128 Wn.2d at 941-42). The jeopardy element was implicitly already part of a prima facie case since the plaintiff needed to prove his or her firing contravened a clear mandate of public policy. Thompson, 102 Wn.2d at 232.
*956¶39 As elements emerge from the legal kiln, courts enamel each element with unnecessary gloss. Gardner went beyond listing jeopardy as one of the four elements of the tort of wrongful discharge. The landmark decision added a fluffy description of the element, fraught with ambiguity and nuance that created the puzzlement about which I write. A critical passage in Gardner lies on page 945:
[(1)] Under the second element, the employee’s discharge must jeopardize the public policy. [(2)] To establish jeopardy, plaintiffs must show they engaged in particular conduct, and the conduct directly relates to the public policy, or was necessary for the effective enforcement of the public policy. [Henry H.] Perritt, [Jr., Workplace Torts: Rights and Liabilities] § 3.14, at 75-76. [(3)] This burden requires a plaintiff to “argue that other means for promoting the policy . . . are inadequate.” Perritt § 3.14, at 77. [(4)] Additionally, the plaintiff must show how the threat of dismissal will discourage others from engaging in the desirable conduct.
128 Wn.2d at 945. I numbered the sentences for ease of discussion. Unfortunately, the Gardner decision did not limit its description of the jeopardy element to the first sentence or initial statement that discouraging the plaintiff’s conduct must jeopardize public policy.
¶40 The Gardner court wrote in the second sentence of the passage that, to establish the jeopardy element, plaintiff must also show the particular conduct in which she engaged directly relates to the public policy or was necessary for the effective enforcement of the public policy. 128 Wn.2d at 945 (citing Perritt, supra, § 3.14, at 75-76). Note that this component of the jeopardy element is in the alternative. The sentence employs the word “or.” This “language is a paraphrase of Perritt’s treatise (1991), which clearly states the jeopardy analysis in the disjunctive, i.e., the conduct furthers public policy either because the policy directly promotes the conduct or because the conduct is necessary to effective enforcement of the policy. Perritt, supra, § 3.14, at 75-76.” Cudney, 172 Wn.2d at 540 (Stephens, J., dissenting). *957If the plaintiff proves her conduct directly relates to a public policy, she should not need to prove her conduct was necessary to effectively enforce the policy. The tort of wrongful discharge in violation of public policy would be easier to apply if Gardner ended its discussion of the jeopardy element there.
¶41 Gardner added two more sentences. The third sentence reads, “This burden requires a plaintiff to ‘argue that other means for promoting the policy .. . are inadequate.'" 128 Wn.2d at 945 (quoting Perritt, supra, § 3.14, at 77). This third sentence launched the many appellate decisions that give rise to the current unpredictability particularly because its relationship to the second or previous sentence in Gardner lacks exposition. Showing the lack of other means to enforce the public policy should not be a requirement if the plaintiff’s conduct directly relates to the public policy. Showing the lack of another adequate means of enforcing the public policy should be required only if the plaintiff seeks to prove the tort by showing her conduct was necessary to effectively enforce the policy.
¶42 Gardner added even more language to the jeopardy element that now frequently introduces a case’s discussion of the element. In the fourth sentence, the high court wrote, “Additionally, the plaintiff must show how the threat of dismissal will discourage others from engaging in the desirable conduct.” Gardner, 128 Wn.2d at 945.
¶43 In later decisions, the state high court imposed more restrictions to the jeopardy element. For instance, in order to establish the jeopardy element, a plaintiff must show that the actions the plaintiff took were the “ ‘only available adequate means’ ” to promote the public policy. Cudney, 172 Wn.2d at 530 (quoting Danny v. Laidlaw Transit Servs., Inc., 165 Wn.2d 200, 222, 193 P.3d 128 (2008)). The point of the jeopardy prong of the tort is to consider whether the statutory protections are adequate to protect the public policy, not whether the claimant could recover more through a tort claim. Cudney, 172 Wn.2d at 534. Going even *958further, the other means of promoting the public policy need not be available to a particular individual so long as the other means are adequate to safeguard the public policy. Hubbard v. Spokane County, 146 Wn.2d 699, 717, 50 P.3d 602 (2002) (citing Perritt, supra, § 3.14, at 77). As can be seen, the jeopardy element is encumbered with many layers of rules beyond the employee simply showing that her conduct directly related to the public policy.
¶44 Decision after decision has impliedly held that regardless of whether plaintiff’s conduct directly relates to the public policy, plaintiff must prove that means other than her civil lawsuit for damages are inadequate to enforce the public policy. Piel, 177 Wn.2d 604; Cudney, 172 Wn.2d 524; Danny, 165 Wn.2d 200; Korslund, 156 Wn.2d 168; Hubbard, 146 Wn.2d 699; Ellis, 142 Wn.2d 450; Smith v. Bates Tech. Coll., 139 Wn.2d 793, 991 P.2d 1135 (2000); Wilmot v. Kaiser Alum. & Chem. Corp., 118 Wn.2d 46, 821 P.2d 18 (1991); Worley v. Providence Physician Servs. Co., 175 Wn. App. 566, 307 P.3d 759 (2013); Weiss v. Lonnquist, 173 Wn. App. 344, 359, 293 P.3d 1264, review denied, 178 Wn.2d 1025 (2013); Rose v. Anderson Hay & Grain Co., 168 Wn. App. 474, 276 P.3d 382 (2012), review granted, 180 Wn.2d 1001 (2014); Wilson v. City of Monroe, 88 Wn. App. 113, 123-24, 943 P.2d 1134 (1997). Stated differently, if another “available adequate means” promotes the public policy, plaintiff loses even if her conduct directly impacts the public policy. Danny, 165 Wn.2d at 222. Nearly all, if not all, public policies have alternative means for enforcement.
¶45 Washington decisions often entail reviewing a statutory scheme to determine whether the other available remedies are adequate and, more in particular, whether the remedies are adequate for the fired employee. Nevertheless, according to another inconsistent rule, whether remedies are adequate for the employee should be immaterial since the other means of promoting the public policy need not be available to a particular individual so long as the *959other means are adequate to safeguard the public policy. Hubbard, 146 Wn.2d at 717.
¶46 Cases irreconcilably examine whether the other means are “adequate.” For example, some decisions stand for the proposition that statutory remedies are inadequate, for purposes of the jeopardy element, when the remedies may not allow recovery of emotional distress damages for the discharged employee. Piel, 177 Wn.2d 604; Smith, 139 Wn.2d 793; Wilmot, 118 Wn.2d 46; Wilson, 88 Wn. App. 113. Both Piel and Smith address RCW 41.56.160, a portion of the Public Employees’ Collective Bargaining Act. The statute allows the Public Employees Relations Commission to award “payment of damages and the reinstatement of employees” if the employer engages in an unfair labor practice. RCW 41.56.160. Each plaintiff was permitted to proceed with his or her tort claim because whether emotional distress damages could be awarded under the statute was not clear.
¶47 Wilmot, 118 Wn.2d 46, examined RCW 51.48.025, which prohibits an employer from discharging an employee for filing a workers’ compensation claim. The statute authorizes the director of the Department of Labor and Industries (Department) to sue, on behalf of the employee, in superior court, and for the court “to order all appropriate relief including rehiring or reinstatement of the employee with back pay.” RCW 51.48.025(4). The Wilmot court also allowed the employee to proceed with a tort action because it was unclear whether the statute allowed for an award of emotional distress damages.
¶48 Wilson, 88 Wn. App. 113, explored RCW 49.17.160, a portion of the Washington Industrial Safety and Health Act of 1973 that prohibits an employer from discriminating against an employee who files a complaint about work safety with the Department. The statute allows an employee to file a complaint of discrimination with the Department, and, if the Department refuses to file suit against the employer, the employee may file suit on his *960own. The statute allows the superior court “for cause shown,... restrain violations ... and order all appropriate relief including rehiring or reinstatement of the employee to his or her former position with back pay.” RCW 49.17.160. The Wilson court allowed the employee to proceed with a private suit because it was unclear whether the statute allowed for an award of emotional distress damages.
¶49 But Piel, Wilmot, and Wilson conflict with Cudney, which teaches that whether the claimant could recover more through a tort claim is irrelevant to the jeopardy analysis. Therefore, whether plaintiff can recover emotional distress damages under an alternative remedy should be unimportant.
¶50 Cudney addresses the same statute, RCW 49.17.160, as Wilson. The two cases have conflicting outcomes. Although Wilson is a court of appeals decision, the majority decision in Cudney does not even mention Wilson. Nor does the majority decision in Cudney mention established precedence that, if the employee cannot recover emotional distress damages under the alternate remedy, the plaintiff satisfies the jeopardy element. Cudney ignores rather than overrules the contradictory decisions.
¶51 Wilson contradicts Jones v. Industrial Electric-Seattle, Inc., 53 Wn. App. 536, 539, 768 P.2d 520 (1989). In Jones, a worker also complained he was fired for reporting unsafe working conditions. Michael Jones, however, did not file a complaint with the Department within the 90-day time period afforded under the statute. This court dismissed his suit for wrongful discharge on the ground that he did not timely complain to the Department. Wilson did not mention the decision in Jones.
¶52 Piel, Smith, Wilmot, and Wilson also conflict with Hubbard, which instructs that the other means of promoting the public policy need not be available to the plaintiff. So, whether the plaintiff can recover any damages should be unimportant. The Public Employees’ Collective Bargaining Act, ch. 41.56 RCW, the workers’ compensation laws, *961and the Washington Industrial Safety and Health Act of 1973 (WISHA), ch. 49.17 RCW, all provide remedies to punish employers who violate their provisions. These statutory schemes even afford some recovery for the discharged employee.
¶53 A principal basis on which we base our decision, in the pending appeal, is language in SOX and Dodd-Frank that mentions its respective remedies are not exclusive. A number of decisions rely on similar language in the statute being examined. Piel, 177 Wn.2d 604; Rose, 168 Wn. App. at 478. But such statutory terms should be irrelevant in a jeopardy analysis, since the tort is independent of the statute and the tort fails if there is another remedy to enforce the public policy, regardless of whether the remedy benefits the discharged employee. Cudney, 172 Wn.2d 524; Danny, 165 Wn.2d at 222; Hubbard, 146 Wn.2d at 717. Also, decisions have allowed the employee to proceed with a private action even without such language in the pertinent statute. Smith, 139 Wn.2d 793; Bravo v. Dolsen Cos., 125 Wn.2d 745, 888 P.2d 147 (1995); Wilmot, 118 Wn.2d 46; Wilson, 88 Wn. App. 113.
¶54 The majority in Piel distinguished between the statute at issue in its decision, RCW 41.56.905, and the statute at issue in Cudney. As previously mentioned, Piel involved the Public Employees Collective Bargaining Act, which includes the language, “ ‘The provisions of this chapter are intended to be additional to other remedies and shall be liberally construed to accomplish their purpose.’ ” Piel, 177 Wn.2d at 617 (quoting RCW 41.56.905). No similar language was identified in WISHA, the statutory scheme at issue in Cudney. This distinction between the two decisions is unsatisfactory given the other conflicting language between the two decisions. Also, the test is not whether the alternate remedy declares itself exclusive, but rather whether the remedy is adequate.
¶55 In short, Cudney and Piel cannot be reasonably reconciled. The dissent in Cudney is correct that the “result *962departs from long-standing precedent in Washington.” Cudney, 172 Wn.2d at 538 (Stephens, J., dissenting). The dissent in Piel is also correct that “[i]n Cudney, we emphasized that whether the jeopardy element is met hinges on the adequacy of the alternative remedies available to protect the public policy, not on whether the remedies fully compensate the individual claimant.” Piel, 177 Wn.2d at 632-33 (J.M. Johnson, J., dissenting). Cudney and Piel begin at different departure points and travel in opposite directions. They are two ships passing in the dark of night because they seek to advance different objectives.
¶56 I could discuss other examples of pertinent inconsistencies in the jeopardy element’s body of law. Examples include whether the employee fulfills the jeopardy element when his theory focuses on his individual rights rather than the good of the community; whether there is another available adequate remedy when, to obtain the remedy, the employee must file an administrative complaint within a short time period; and whether the alternate remedy is adequate if the employee is not afforded a jury trial. Suffice it to say that the law of wrongful discharge in violation of public policy may advance by turning back time to before Gardner, when the employee only needed to show his discharge implicated a clear mandate of public policy. At least, the law could be more consistent if the jeopardy element faithfully followed the language in Gardner that the plaintiff need not show her private suit necessary to effective enforcement of the identified public policy as long as her conduct directly related to the policy.
¶57 The tort of wrongful termination in violation of public policy is independent of any underlying contractual agreement or statute. Therefore, Washington courts have held that an employee need not exhaust her contractual or administrative remedies to proceed before suing in tort. Piel, 177 Wn.2d at 612; Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299, 311, 96 P.3d 957 (2004); Smith, 139 Wn.2d at 808; Allstot v. Edwards, 116 Wn. App. 424, *963431, 65 P.3d 696 (2003); Young v. Ferrellgas, LP, 106 Wn. App. 524, 530, 21 P.3d 334 (2001). For the same reason, other remedies that address the violation of public policy should not interfere with establishing the jeopardy element of the tort.
¶58 Jeopardy and the other three elements announced in Gardner come from a treatise about the tort, Henry H. Perritt, Jr., Workplace Torts: Rights and Liabilities. Gardner, 128 Wn.2d at 945. The four critical Gardner sentences concerning jeopardy also derive from the treatise. Although Gardner characterizes the Perritt treatise as “leading,” one might question this characterization. Although we recognize Henry J. Perritt as an expert in employment law, Perritt fails to analyze the four sentences and the problems they create. The treatise is more a collection of decisions than it is a reasoned discussion of the tort of wrongful discharge.
¶59 Gardner lists Collins v. Rizkana, 73 Ohio St. 3d 65, 69-70, 1995-Ohio-135, 652 N.E.2d 653, as the only decision to parrot Henry H. Perritt Jr.’s four elements of the tort of wrongful discharge in violation of public policy and to have embraced the jeopardy element. A review of decisions across the United States suggests that only Iowa, Utah, and Guam have since adopted Perritt’s four elements of the tort. Fitzgerald v. Salsbury Chem., Inc., 613 N.W.2d 275, 282 n.2 (Iowa 2000); Ryan v. Dan’s Food Stores, Inc., 972 P.2d 395, 404 (Utah 1998); Ramos v. Docomo Pac., Inc., 2012 Guam 20, 2012 WL 6738152, 2012 Guam LEXIS 19.
¶60 82 Am. Jur. 2d Wrongful Discharge § 54 (2013) proclaims what may be the majority rule in the United States:
To prevail, an employee asserting a discharge that undermines public policy must establish a number of key elements, including the following:
(1) the existence of a clear public policy;
(2) that he or she was engaged in conduct protected by public policy;
*964(3) that the employer knew or believed that the employee was engaged in a protected activity;
(4) that retaliation was a motivating factor in the dismissal decision; and
(5) that the discharge would undermine an important public policy.
(Footnotes omitted.) Note that neither jeopardy nor the lack of another adequate remedy is an element.
¶61 Interests and goals clash when determining the breadth of the tort of wrongful discharge in violation of public policy. Society wishes employers to be free to discharge poor performing employees and render management decisions that will not be challenged unless strong public policies interfere. Society does not wish employees to win money by “ginning” false reasons for termination from employment. Nor does society wish the discharged employee to recover against the employer if the conduct that led to the discharge advanced the employee’s own interests, rather than the interests of others or society as a whole. At the same time, society wishes to protect a giraffe who heroically sticks his or her neck out and does good no matter the cost. The employee’s actions in Gardner wonderfully illustrate such a heroic deed. If a heroic deed benefits the community but leads to the giraffe’s firing, society prefers the employer, not the employee, pay for the loss suffered by the employee. Under such circumstances, the employer has engaged in intentional misconduct and should pay for the loss caused by its conduct.
¶62 These competing interests are served by a description of the tort of wrongful discharge that simply requires the employee to prove a clear mandate of public policy and that the conduct directly relates to the policy. The requirement of a clear manifestation of public policy limits the suits to worthwhile suits. The requirement of causation also limits recovery to firings that intentionally flaunt a clear *965public policy. Requiring the discharged employee to prove more compounds, confounds, and contorts the tort.
Lawrence-Berrey, J., concurs with Fearing, J.
Reconsideration denied September 18, 2014.
Review granted at 182 Wn.2d 1009 (2015).