concurring:
I agree that the judgment should be affirmed, and for the most part, I am pleased to join Judge Easterly’s well-crafted opinion for the court. I write separately, however, to observe that there are necessarily limits to our holding. As I understand it, we are not adopting a hard- and-fast rule that, as a matter of law, a former employee claiming to have been discharged in contravention of a public policy cannot have his or her case submitted to the jury for its consideration unless he or she is able to present direct evidence that the public policy has been violated and that the employer’s claims of a benign motive are pretextual. It is with that understanding that I am “on board.”
In many or most cases, the evidence that the employer discharged the employee for reasons proscribed by a recognized public policy is likely to be entirely circumstantial. Although, after thirty-four years on the bench following twenty-one years at the bar, I am no longer astonished by the frequency with which litigants pass up a golden opportunity to remain silent, the fact remains that in most cases, the employer will not be so imprudent as to admit a proscribed motivation to the complaining employee or to anyone sympathetic to the employee. Absent such an admission, the employee is not competent to testify about the workings of the employer’s mind or, more specifically, as to the employer’s motive for discharging him or her. In order to avoid judgment for the defendant as a matter of law, the employee will therefore have to prove his or her case by circumstantial evidence — e.g., the nature and duration of the employee’s allegedly protected conduct, the treatment of other similarly situated employees, and any inferences to be *714drawn from the sequence of events. This evidence must be sufficient, when viewed in the light most favorable to the plaintiff, to overcome the employer’s innocent explanation, if any, for the discharge and to permit an impartial jury, acting reasonably, to find in the employee’s favor. I also emphasize that the employer’s motive presents a question of fact, and that the jury is presumptively the body charged with ultimately determining whether the employee has satisfied his or her burden of establishing, inter alia, the pretextuality of the employer’s version.
Further, proof that an employee violated the employer’s rules is, of course, highly relevant, but it does not automatically warrant judgment as a matter of law in the employer’s favor. A simple illustration demonstrates why this is necessarily so. Suppose that two employees, A and B, both have too much to drink, “screw up” on a single assignment, and behave in an obnoxious and disrespectful manner to their supervisor. However, A has previously engaged in conduct protected by a public policy, while B has not. A is then fired, while B is reprimanded but retained. Under these circumstances, notwithstanding his misconduct, a jury could reasonably find that A was discharged in violation of public policy. Put another way, perfect job performance cannot be required of those, but only of those, who are seeking public policy protection.
With that said, however, I unhesitatingly agree, for the reasons stated by Judge Easterly, with the affirmance of the judgment as to Ms. Quarles. The case of the late Ms. Byrd is a little more difficult, but given the record as a whole, I cannot say that my colleagues are wrong as to her either. I largely agree with the “close fit” analysis. Accordingly, I concur in the judgment and, subject to my comments above, join the opinion of the court.