Carl v. Children's Hospital

TERRY, Associate Judge,

with whom Chief Judge WAGNER and Associate Judges FARRELL and RUIZ join, concurring:

I agree with the majority that Adams v. George W. Cochran & Co., 597 A.2d 28 (D.C. *1621991), does not bar this court from recognizing exceptions to the at-will doctrine in addition to the one adopted in Adams. However, lest we allow “public policy” exceptions to swallow up the at-will doctrine, I would also hold that the recognition of any such exception must be firmly anchored either in the Constitution or in a statute or regulation which clearly reflects the particular “public policy” being relied upon. Applying this standard to the case before us, I conclude that Ms. Carl has made a sufficient showing to justify a public policy exception here.

I

A. Ms. Carl’s contentions

In deference to our previous wrongful discharge eases, Ms. Carl does not seek to invoke the “very narrow exception” to the at-will doctrine that we articulated in Adams. She concedes that her ease does not fall within this exception. Ms. Carl also does not contend that the hospital’s alleged retaliatory firing of her was conduct prohibited by D.C.Code § 1-224. Instead, she reiterates the argument she made before the division “that the statute embodies a broader legislative disapproval of any acts that punish an individual for testifying before the Council.” Carl I, 657 A.2d at 289 n. 5. Thus she now invites the en banc court, as she invited the division, “to expand Adams to encompass a claim such as the one alleged by her, arguing that [section 1-224], the national nursing code, and District of Columbia case law set forth clear public policy, the violation of which creates a wrongful discharge cause of action.” Id. at 289. For the reasons that follow, I agree with Ms. Carl with respect to her reliance upon section 1-224, but I reject her other arguments.

B. The proper standard for a public policy exception

This court has long and consistently adhered to the rule that employment is presumed to be at will, unless the contract of employment expressly provides otherwise. Thus “an employer may discharge an at-will employee at any time and for any reason, or for no reason at all.” Adams v. George W. Cochran & Co., supra, 597 A.2d at 30 (citing cases);1 see, e.g., Thigpen v. Greenpeace, Inc., 657 A.2d 770, 771 (D.C.1995); Taylor v. Greenway Restaurant, Inc., 173 A.2d 211, 211 (D.C.Mun.1961); Pfeffer v. Ernst, 82 A.2d 763, 764 (D.C.Mun.1951). In Adams we reiterated our commitment to this principle, but created a “very narrow exception”

under which a discharged at-will employee may sue his or her former employer for wrongful discharge when the sole reason for the discharge is the employee’s refusal to violate the law, as expressed in a statute or municipal regulation.2

597 A.2d at 32 (citations omitted).3

In Sorrells v. Garfinckel’s, supra note 3, a pre-Adams opinion, this court had turned down another plea to carve out a public policy exception to the at-will doctrine. We also observed that even if we had been so inclined, there was no “statutorily declared public policy” to support that particular plaintiffs wrongful discharge claim. Sorrells, 565 A.2d at 289 (citing Ivy v. Army Times Publishing Co., 428 A.2d 831, 833 (D.C.1981) (Ferren, J., dissenting)). We rejected a request “to ‘broaden’ the policies expressed in [a certain statute] and to fill a *163perceived ‘gap’ in the [statute],” 565 A.2d at 289, choosing instead to limit ourselves to ascertaining whether any specific statutory right of the plaintiff had been infringed. Adams likewise limits its focus to an “identifiable” or “officially declared” public policy in considering whether to recognize a public policy exception. 597 A.2d at 34.

I would hold that the recognition of any public policy exception to the at-will doctrine must be solidly based on a statute or regulation that reflects the particular public policy to be applied, or (if appropriate) on a constitutional provision concretely applicable to the defendant’s conduct.4 This is consistent with Sorrells and Adams, read together. See also Gantt v. Sentry Insurance, 1 Cal.4th 1088, 1095, 824 P.2d 680, 687-688, 4 Cal.Rptr.2d 874, 881-882 (1992). To hold otherwise would reduce the at-will doctrine to a virtual nullity, for it would leave this court (and the trial court as well) without any standard by which to assess the so-called policy being urged upon us in a given case.

I am aware that other courts have adopted public policy exceptions that are more expansive and based on broader foundations than ours. See Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 106 & n. 3 (Colo.1992) (noting thirty-seven jurisdictions with some sort of public policy exception to the at-will doctrine). One court, for example, has defined “public policy” as “that principle of law which holds that no one can lawfully do that which tends to be injurious to the public or against the public good." Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859, 871 (Mo.Ct.App.1985). But this definition illustrates just how nebulous the concept of public policy can be. What court can, with any reasonable degree of certainty, identify “the public good” or decide just what is “injurious to the public”? One person’s notion of public injury may well be another person’s societal good. Indeed, the very notion of “public policy” is often vague and exists primarily in the eye of the beholder. In general, I believe that courts should refrain from trying to determine or articulate public policy. Unless the issue to be decided directly affects the administration of justice or the judicial process, or the application of established legal principles, courts should generally abstain from making declarations of public policy. Such pronouncements should be left to the other branches of government, particularly the legislature, which is in a far better position than a court to make policy decisions on behalf of the citizenry.

The common law that the courts of the District of Columbia have developed over the years is that employment is at will unless a contract or a statute provides otherwise, or unless there is a “public policy” exception. This case does not alter that basic legal framework; it presents only the question whether Ms. Carl’s situation involves a proper public policy exception. I do not question the judicial power to “revis[e] and enlarg[e] the common law ... to meet the changes of a dynamic society,”5 and to look to prior decisions for guidance in recognizing and enforcing some policy that has already been established by the executive or legislative branch of the government. Indeed, judges throughout the land do exactly that on a daily basis. Where I disagree with some of my colleagues is over the suggestion that a judge or group of judges may create public policy and then enforce it. I am unwilling to accept the notion that a court can or should go that far, for policy-making is not part of the “usual judicial function.” Linkins, supra note 5, 87 U.S.App. D.C. at 355, 187 F.2d at 361.

Judge Ferren’s separate opinion, although primarily addressed to Judge Steadman’s dissent, appears to find an inconsistency between my view of the general advisability of *164abstention by the courts from declaring public policy and this court’s decision in Williams v. Baker, 572 A.2d 1062 (D.C.1990) (en banc). In Williams, however, while we recognized that the issue presented there (whether, and to what extent, a plaintiff can recover tort damages for fear of harm to a third person) was “a question of policy for the court” to decide, id. at 1072, we were referring to “policy” in the sense of “the framework of traditional and accepted negligence principles,” id. at 1073 (citation omitted). Within that framework we modestly expanded the scope of recovery for the tort of negligent infliction of emotional distress. That is very different from a court’s undertaking in every ease of claimed wrongful discharge to “balance the interests of the employee, the employer, and the public,” Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 71, 417 A.2d 505, 511 (1980), and decide for itself the proper “public policy” outcome of the dispute. In this regard we are mindful of what the Supreme Court of California has said:

“[P]ublie policy” as a concept is notoriously resistant to precise definition, and [therefore] courts should venture into this area, if at all, with great care and due deference to the judgment of the legislative branch, “lest they mistake their own predilections for public policy which deserves recognition at law.”
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... [C]ourts in wrongful discharge actions may not declare public policy without a basis in either the constitution or statutory provisions. A public policy exception carefully tethered to fundamental policies that are delineated in constitutional or statutory provisions strikes the proper balance among the interests of employers, employees, and the public. The employer is bound, at a minimum, to know the fundamental public policies of the state and nation as expressed in their constitutions and statutes; so limited, the public policy exception presents no impediment to employers that operate within the bounds of law. Employees are protected against employer actions that contravene fundamental state policy. And society’s interests are served through a more stable job market, in which its most important policies are safeguarded.

Gantt v. Sentry Insurance, supra, 1 Cal.4th at 1095, 824 P.2d at 687-688, 4 Cal.Rptr.2d at 881-882 (citations omitted; emphasis in original). Like the court in Gantt, this court in the past has sought to make sure that any judicially recognized public policy exception to the at-will doctrine is “carefully tethered”6 to rights officially recognized in statutes or regulations by the elected representatives of the people—the “public” whose policy we are talking about.

Future requests to recognize such exceptions, therefore, should be addressed only on a ease-by-case basis. This court should consider seriously only those arguments that reflect a clear mandate of public policy—i.e., those that make a clear showing, based on some identifiable policy that has been “officially declared”7 in a statute or municipal regulation, or in the Constitution, that a new exception is needed. Furthermore, there must be a close fit between the policy thus declared and the conduct at issue in the allegedly wrongful termination.8

II

Ms. Carl maintains that D.C.Code § 1-224 embodies just such a policy as I have been *165talking about, .namely, the promotion and protection of every citizen’s right to testify before the legislature. Section 1-224, quoted in footnote 2 of the Per Curiam opinion, ante at 160, prohibits any endeavor “to influence, intimidate, or impede any witness in any proceeding before the Council” and specifies the prohibited means: “corruptly or by threat of force, or by any threatening letter or communication.” The statute also makes it a crime to “injure[ ] any ... witness in [her] person or property ... on account of [her] testifying or having testified to any matter pending” before the Council. Although the alleged firing of Ms. Carl by Children’s Hospital because she testified before the Council—an allegation which we must accept as true for the purposes of a Rule 12(b)(6) motion to dismiss—is not expressly prohibited by section 1-224, Ms. Carl contends that it fits within the scope of the public policy expressed in the statutory prohibition against “injuring] a witness in [her] person or property” because of that witness’ testimony.

This court has not had occasion to interpret D.C.Code § 1-224, nor is it called upon to do so here. In particular, we need not conclude—and would be hard-pressed to conclude—that Children’s Hospital violated this criminal statute when it fired Ms. Carl. Rather, in determining whether a public policy exception to the at-will doctrine applies to this case, we need only decide whether the alleged firing because Ms. Carl testified before the Council is sufficiently within the scope of the policy embodied in the statute so that a court may consider imposing liability on Children’s Hospital for Ms. Carl’s termination for otherwise permissible reasons. Although the question is not an easy one to answer, I think the statute speaks with sufficient clarity to entitle Ms. Carl to proceed beyond a motion to dismiss her complaint under Rule 12(b)(6). In the context of this case, I read section 1-224 as a declaration of policy by the Council seeking to ensure the availability of information essential to its legislative function by imposing criminal penalties on anyone who seeks to impede Council access to such information.

A couple of examples may clarify application of the statutory policy in the employer-employee context. It seems clear enough that, under section 1-224, an employer could not slash the tires of an employee’s car in retaliation for that employee's testifying before the Council. Nor could the employer send a letter threatening to do so as a way of frightening the employee into not giving testimony. Such thuggery, however, is not likely to be the manner in which an employer would choose to impede or injure an employee whom it does not want to testify before the Council. An employer’s most effective power to injure an employee arises from the employment relationship itself. There are many actions that an employer could take against an employee which conceivably could “influence, intimidate, or impede” that employee’s testimony before the Council. But the most severe and most effective one—the one that would inflict the greatest injury on the person or property of the employee—is the termination of employment. That is the injury that Ms. Carl has alleged. Given the intent of the Council in section 1-224 to shield persons who testify before it from retaliation against their person or property interests, I think she is entitled to prove that injury if she can, and therefore the dismissal of her complaint should be reversed.9

. This principle is subject, of course, to the caveat that an employer may not discharge an employee for a reason that has been made unlawful by a statute specifically applicable to the employer-employee relationship—for example, a statute prohibiting discriminatory practices in employment, such as the District of Columbia Human Rights Act, D.C.Code § 1-2512 (1997 Supp.).

. The discharged employee in Adams, a delivery truck driver, had refused to drive a truck that did not have an inspection sticker on its windshield, as required by a municipal regulation. We allowed the employee to maintain his action because it was "unacceptable and unlawful for his employer to compel him to choose between breaking the law and keeping his job.” 597 A.2d at 34.

.Prior to Adams, this court had rejected several attempts to create a broad "public policy” exception to the general rule of at-will employment. See, e.g., Sorrells v. Garfinckel's, Brooks Brothers, Miller & Rhoads, Inc., 565 A.2d 285, 289 (D.C. 1989); Ivy v. Army Times Publishing Co., 428 A.2d 831 (D.C.1981) (denying petition for rehearing en banc).

. I leave open whether, in an unusual case, where the legislature has not yet had occasion to address by law or regulation a substantial danger to public health or public safety, termination of an employee for reporting such danger to public authorities would be actionable. Ms. Carl's decision to speak out publicly on general issues relating to public health, specifically tort reform, certainly does not rise to that level.

. Linkins v. Protestant Episcopal Cathedral Foundation, 87 U.S.App.D.C. 351, 355, 187 F.2d 357, 361 (1950) (common law "should not be followed where changes in conditions have made it obsolete”; court has "never hesitated to exercise the usual judicial function of revising and enlarging the common law”). See also Kay v. Cain, 81 U.S.App.D.C. 24, 25, 154 F.2d 305, 306 (1946).

. At various places in this opinion, I have used such phrases as "carefully tethered,” "firmly anchored,” and "solidly based” to describe the relationship between the particular public policy at issue and the statute or regulation from which I believe it should be derived. To avoid any uncertainty about the meaning of these terms, the reader should know that I use them interchangeably and regard them as synonymous with one another.

. This phrase comes from Adams, 597 A.2d at 33. In Sorrells we spoke only of a "statutorily de-dared public policy,” 565 A.2d at 289 (citing Judge Ferren’s dissent in Ivy v. Army Times, 428 A.2d at 833). Adams expanded this concept, however, to include not only statutes but municipal regulations which have the force and effect of law. See 597 A.2d at 33 n. 8.

.For these reasons, I would reject Ms. Carl's attempt to glean a public policy exception from a rule of evidence and other sources related to expert testimony in medical malpractice actions.

. I am not persuaded by Ms. Carl’s other two arguments. First, she relies on D.C.Code § 2-3301.2(17)(C) (1994), a small part of a much larger statute regulating "health occupations" in general. This provision simply defines the term "practice of registered nursing” as it is used in the larger statute, outlining some of the areas in which a registered nurse’s specialized knowledge may be applied. It offers no declaration of policy of the sort needed to support a public policy exception to the at-will doctrine.

Ms. Carl also relies on section 11.2 of the Code for Nurses with Interpretive Statements (1985), promulgated by the American Nursing Association, which directs nurses to "promote the welfare and safety of all people” through "active participation in decision-making in institutional and political arenas.” While there may be some professional codes of ethics, such as this court’s Rules of Professional Conduct for members of its bar, that could be regarded as a possible source of public policy because they have been adopted under the court’s authority to regulate lawyer conduct, see D.C.Code § 11-2501(a) (1995)—a matter that need not be decided here—the Code for Nurses is not in that category. I agree with *166the New Jersey court in Warthen v. Toms River Community Memorial Hospital, 199 N.J.Super. 18, 28, 488 A.2d 229, 234, cert. denied, 101 N.J. 255, 501 A.2d 926 (1985), which concluded "as a matter of law" that "the ethical considerations [set forth in the Code for Nurses] ... do not rise to the level of a public policy mandate". See also Wright v. Shriners Hospital for Crippled Children, 412 Mass. 469, 473, 589 N.E.2d 1241, 1244 (1992) ("We would hesitate to declare that the ethical code of a private professional organization can be a source of recognized public policy"). Moreover, Ms. Carl does not claim that the hospital fired her for refusing to violate the CODE FOR NURSES, nor does she contend that it would have been an ethical violation for her, as a voluntary witness, to refrain from advocating publicly a position contrary to her employer’s interests. I can find no basis in the CODE FOR NURSES for Ms. Carl's public policy claim.