Carl v. Children's Hospital

MACK, Senior Judge,

with whom Associate Judges FERREN and REID join, and Associate Judge SCHWELB joins in part,* concurring in part:

I.

I concur whole-heartedly in the pronouncement of the en banc court that either a three-judge panel of this court, or the court en banc, may recognize a public policy exception to the employment-at-will doctrine—a position which I advanced at length in dissenting from the panel’s decision denying relief in the instant case. See my dissenting opinion (attached as APPENDIX hereto) in Carl v. Children’s Hosp., 657 A.2d 286 (Carl I), vacated on grant of reh’g en banc, 665 A.2d 650 (D.C.1995). I am, therefore, delighted that today the majority of the members of this court, sitting en bane, agrees with Ms. Carl that the opinion of Gray v. Citizens Bank, 602 A.2d 1096, opinion reinstated on denial of reh’g en banc, 609 A.2d 1143 (D.C. 1992), should be overruled to the extent that it could be interpreted as holding (as did the majority in Carl I) that a division of this court is not free to recognize a public policy exception to the employment-at-will doctrine.

However, as so often is the case, issues convert, expand, take priority, or disappear altogether during en banc consideration. Since a majority of the members of this en banc court agrees today that a division of the court, or the full court, may recognize exceptions to the at-will doctrine, the issues become those of (1) to what extent may the courts identify a wrongful discharge in violation of public policy, (2) whether Ms. Carl has made a sufficient showing to justify a public policy exception, and (3) whether she has been improperly denied the right to do so as a matter of law before the trial court and a three-judge panel of this court.

Thus, as the en bane court notes, see supra at 5, Ms. Carl’s allegations of retaliatory discharge for public activities (and her denial of the hospital’s asserted reasons for the discharge) must be construed in the light most favorable to her; yet the trial court dismissed her complaint for failure to state a claim upon which relief could be granted. In coming to this court, Ms. Carl, understandably without much confidence in division reversal (in view of the Gray dictum which we disapprove today), unsuccessfully sought an initial hearing en bane.

II.

Judge Terry, however, expresses concern “lest we allow ‘public policy’ exceptions to swallow up the at-will doctrine-” Judge Terry’s opinion, supra, at 162. He would, therefore, restrict this court’s recognition of such exceptions to only those cases where the exception is firmly anchored or solidly based in a statute or regulation which clearly reflects the “public policy” being relied *187upon. For the reasons stated at length in my (division) dissent (see APPENDIX, infra ), I cannot agree to such a drastic restriction. See also Judge Ferren’s opinion, issued today, supra, at 166, tracing the history of the common law role of the courts in law making. I would add that the underpinnings of the employment-at-will doctrine (an agrarian, patriarchal, master-servant relationship of the English feudal system) proved to be ill-suited for our increasingly industrialized society. Dawn D. Bennett-Alexander & Laura B. Pincus, Employment Law FOR Business 8-10 (1995) (“Background—The Employment At-Will Doctrine”); see also Judge Schwelb’s opinion, supra, at 174. It is for this very reason that, in our country, legislators, faced with the problems of an ever-increasing workforce, found it necessary to provide statutory guidance in the area of diversified employee-employer relationships. Bennett-Alexander & Pincus, supra, at 9.

In my view, therefore, it would be most unwise for this court, sitting en bane as the highest court of the District of Columbia, to restrict, summarily and in an evidentiary vacuum, its own authority to recognize public policy exceptions to an ancient doctrine (tailored to another time and place) except where that policy is firmly anchored or solidly based in a present-day statute. In the first place, statutes with general preambles of intent (unlike courts which deal with individual but myriad factual situations), ofttimes spawn litigation in a search for the true articulation and possible application of public policy. Thus, it was, and is, that employees like Ms. Carl—both those that fit neatly into a protected category of a statute and those that do not—turn to the courts for what they consider to be unjust treatment, seeking damages or other relief. In answer thereto, both state and federal courts in the role of this common law heritage have identified, on a case by case basis, public policy exceptions to the at-will doctrine. Moreover, this role is not a matter calling for abstract abstinence, since in spite of contractual or legislative protection, it is estimated that some 65% of the work force is still covered by the employment-at-will doctrine. Bennett-Alexander & Pincus, supra, at 11.

In this regard, this court has not been extravagant in recognizing public policy exceptions to the doctrine. As Judge Terry points out, Adams v. George W. Cochran & Co., 597 A.2d 28 (D.C.1991), created only one “narrow exception” to the at-will doctrine (protection from discharge because of refusal to violate a statute). As the en bane court holds, however, nothing in Adams bars this court—either a three-judge panel or the court en banc—from recognizing some other public policy exception when circumstances warrant such recognition. That is why I think it is unwise for us today, sitting en banc, and reading two panel decisions1 “together,” to restrict our historic role in identifying public policy considerations.

Moreover, when one reviews the court decisions in other jurisdictions which have ruled with respect to at-will exceptions (see APPENDIX, infra, at 191-192), one can take a sanguine approach to any expressed fear that public policy is such a nebulous concept as to call for judicial restraint. In this regard, I commend the logic of an Illinois court reviewing a worker’s claim of retaliatory discharge for the act of supplying information to law enforcement officers of a co-worker’s criminal activities. In Palmateer v. International Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876 (1981), the court, after discussing the history of the tort of retaliatory discharge, explained that the law would not support the termination of an at-will employment where the termination would contravene public policy. The court acknowledged that “the Achilles heel of the principle lies in the definition of public policy” and continued:

There is no precise definition of the term. In general it can be said that public policy concerns what is right and just and what affects the citizens of the State collectively. It is to he found in the State’s constitution and statutes and when they are silent, in its judicial decisions. Although there is *188no precise line of demarcation dividing matters that are the subject of public policies from matters purely personal, a survey of cases in other States involving retaliatory discharge shows that a matter must strike at the heart of a citizen’s social rights, duties, and responsibilities before the tort will be allowed.
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It is clear that Palmateer has here alleged that he was fired in violation of an established public policy.... There is no public policy more basic, nothing more implicit in the concept of ordered liberty than the enforcement of a State’s criminal code. There is no public policy mare important or more fundamental than the one favoring the effective protection of the lives and property of citizens.

Id., 52 Ill.Dec. at 15-17, 421 N.E.2d at 878-80 (emphasis added) (citations omitted); see also Bishop v. Federal Intermediate Credit Bank, 908 F.2d 658 (10th Cir.1990) (allowing suit when the plaintiff alleged discharge from employment for testifying before a congressional committee); cf. Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 417 A.2d 505 (1980) (majority and dissenting opinions) (cited in Carl I; see APPENDIX, infra, at 192, 194).

Finally, in the case before us, even if we were to agree that Judge Terry is wise (if not correct) in urging that we limit our ability to define public policy only where such policy is solidly based in a statute, Ms. Carl is entitled to relief because her claim is firmly rooted in statutes.

III.

In the instant case, Ms. Carl (in alleging a retaliatory discharge in violation of public policy) relied inter alia upon the language of D.C.Code § 1-224 (1981), which states:

Whoever, corruptly or by threat of force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any witness in any proceeding pending before the Council ... shall be fined not more than $2,000 or imprisoned not more than 2 years, or both.

Ms. Carl turns to D.C.Code § 1-224 in her attempt to identify the public policy we have been talking about, namely, the promotion and protection of every citizen’s right to testify before the legislature and the enormity of employer conduct that (1) would discharge her for exercising that right, and (2) would assert a pretextual reason for the discharge that would leave her without the protection of a public policy exception. I see no reason for characterizing this criminal statute as being too attenuated from the retaliation issue at hand to deny Ms. Carl the right to rely upon it as a statutory indication of public policy. Cf. Palmateer, supra; Bishop, supra. A threat to the loss of a job is a threat to the loss of property—an injury to victims or prospective victims for their attempts to exercise rights protected under statutes.

Moreover, the identification of public policy exceptions does not rise or fall upon the attenuation, or lack thereof, of a D.C.Code criminal provision.2 In recent years, the threat of “retaliation” has found its way into federal protective employment legislation and case decisions. See, e.g., Title VII of the Civil Rights Act, as amended by the 1991 CM Rights Act, 42 U.S.C. § 2000-e(3)(a) (1994); Age Discrimination in Employment Act, 29 U.S.C. § 623(d) (1994); Family and Medical Leave Act, 29 U.S.C. § 2615 (1994); Americans With Disabilities Act, 42 U.S.C. § 12203(a) (1994).3 Thus only last term, our Supreme Court ruled unanimously that Title VU’s anti-retaliation provision protected a discharged employee who alleged that his former employer gave a negative reference to a prospective employer in retaliation for *189his having filed a charge against the former employer with the Equal Employment Opportunity Commission. See Robinson v. Shell Oil Co., — U.S. -, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). Thus in the broad sense, the principle that it is against public policy to retaliate against an employee for exercising a citizen’s right or duty is solidly based in federal legislation as well as case law we are bound to recognize.

Perhaps the seriousness of this issue is obscured by the suggestion that Ms. Carl has somehow exhibited disloyalty inimical to the interest of her employer. We are in no position, on this record, to make such an assumption. It is somewhat a “leap of logic” to conclude summarily, without more, that tort reform legislation (limiting damages in medical malpractice cases) (1) would benefit this venerable institution, renowned world wide for its services to children, and that (2) the testimony of Ms. Carl “on” that legislation would justify her discharge. The fact that the hospital has asserted legitimate reasons for the discharge (reasons asserted by Ms. Carl to be “pretextual”) should not defeat the right of this employee to have her day in court—a scenario that may well redound ultimately to the benefit of either or both employer and employee. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).

IV.

In conclusion, we may acknowledge the fact that in its inception the employment-at-will doctrine protected both wealthy landowners and, presumably, serfs. Even today, in our highly industrialized society, the right to terminate employment may be mutually advantageous to both employer and employee. The right to discharge, however, is not mutual to both. For this reason, we must also acknowledge an indisputable fact: When an employer decides to discharge an employee, there is always a reason for that discharge. In the broader sense of personal assessment, that reason may be thought to be unfair or unjustified, but that is not important. It is important, however, that the discharge not be grounded on an improper basis as identified in common law court decisions, legislation, or regulations. A discharge based upon a violation of public policy is vulnerable to attack in a judicial setting, and allegations of “retaliation” and “pretext” give cause for a closer look.

I reiterate—I join in the reversal of summary judgment in order to permit Ms. Carl to prove, if she can, that she was fired in retaliation for her testimony before the City Council and that the alleged reasons asserted for that discharge were in fact pretextual.4

APPENDIX

Associate Judge Schwelb does not join the discussion of D.C.Code § 1-224, see infra at 188-189, and expresses no opinion as to the Code of Conduct of the American Nurses Association.

. Adams, supra, and Sorrells v. Garfinckel’s, Brooks Bros., Miller & Rhoads, Inc., 565 A.2d 285 (D.C.1989).

. The fact that the D.C. Council has not seen fit to enact a statute authorizing this court to entertain a civil action against the employer is of no moment. In our common law heritage, as Judge Ferren has so ably traced, we already have that power.

. See also APPENDIX, infra, at 192 (collecting state court cases protecting employees from nine types of retaliation). For example, we take steps to protect employees who appear for jury service to promote our very existence. Certainly in protecting employees who appear to testify before the legislature we are promoting a legislatively defined public service.

. As to the final claim of Ms. Carl that she was wrongfully discharged for providing expert advice on behalf of plaintiffs in medical malpractice eases in contravention of the integrity of the judicial process, see APPENDIX, infra, at 195-196.