Piel v. City of Federal Way

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IN CLERKS OFFICE

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

ROBERT PIEL & JACQUELINE PIEL,
husband and wife,
NO. 83882-8
Appellants,

v. ENBANC
THE CITY OF FEDERAL WAY, a
Municipality organized pursuant to the laws Filed - - - -7 2013 -
OUN 2
of the State of Washington, --

Respondent.

STEPHENS, J.-This case requires us to consider whether a tort claim for

wrongful termination in violation of public policy is viable based on provisions of

chapter 41.56 RCW involving the Public Employees Relations Commission

(PERC). The lower court dismissed Richard Piel's suit against the city of Federal

Way (City), concluding the existence of statutory remedies authorized under

chapter 41.56 RCW prevented him from establishing the "jeopardy prong" of the
I
I

common law claim. We take this opportunity to better explain our jeopardy

analysis and harmonize our recent decisions in Cudney v. ALSCO, Inc., 172 Wn.2d
Piel v. The City of Federal Way, 83882-8

524, 259 P.3d 244 (2011), and Korslund v. DynCorp Tri-Cities Services., Inc., 156

Wn.2d 168, 125 P.3d 119 (2005), with Smith v. Bates Technical College, 139

Wn.2d 793, 991 P.2d 1135 (2000). In Smith, we recognized that an employee

protected by a collective bargaining agreement may bring a common law claim for

wrongful termination based on the public policy provisions of chapter 41.56 RCW

notwithstanding the administrative remedies available through PERC. Nothing in

our later opinions in Korslund and Cudney altered this holding. We reverse the

lower court's order of dismissal and remand for further proceedings.

FACTS

At the time of incidents giving rise to this action, Richard Piel was a 25-year

veteran of law enforcement, with over 11 years in the Federal Way Police

Department (Department). Piel was promoted to lieutenant in 1998. Until the

incidents at issue here, Piel had consistently received high marks in performance

reviews.

In late 2002, the 12 lieutenants in the Department decided to create a union

and Piel was chosen by the other lieutenants to manage its formation. Although

the Department's administration was initially supportive of the union activity,

according to Piel the administration's attitude toward the efforts later soured.

Shortly thereafter, Piel began experiencing a marked increase in his duties and

responsibilities without commensurate support. By 2004, Piel began to feel his

unit was the target of unusual and obstreperous internal affairs investigations.

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Pie! v. The City of Federal Way, 83882-8

In January 2005, the lieutenant's guild was officially certified. That same

month, Piel received his yearly evaluation, albeit late. The evaluation rated Piel as

performing poorly in his job functions. Piellater learned the negative reports were

not generated by his commanding officer, but by the deputy chief of the

Department, which was outside the normal procedure for performance reviews.

Meanwhile, his requests for assignments were denied and his unit continued to be

the target of investigations from internal affairs.

In May 2005, Piel was injured on the job and had to take three months of

leave to recover from corrective knee surgery. During his medical leave and upon

his return, Piel was told he would be demoted and was relieved of some of his

responsibilities based on allegedly poor performance. Similar incidents continued

into 2006.

In March 2006, Piel advised an officer over the phone about the officer's

options after the officer stopped a fireman on suspicion of driving while under the

influence. The Department alleged that Piel' s advice and involvement in the

matter violated Department standards. On April 18, 2006, Piel was placed on

administrative leave pending an investigation. He was terminated in July 2006.

Piel successfully grieved his termination and was reinstated 14 months later. The

City was ordered to pay all back pay and benefits.

Upon returning to his job, Piel was discouraged by the reception from his

fellow officers. The City had not yet paid him his award of back pay and benefits.

He was nervous and had not been sleeping well. His first two days back at work

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Piel v. The City of Federal Way, 83882-8

were stressful and tense. During this time, a conversation took place in the

briefing room between Piel and other officers in which Piel allegedly expressed

violent feelings against members of the Department. The parties dispute the facts

about what actually happened in the briefing room.

An investigation followed. Ultimately, Piel was terminated for being

untruthful about what had happened in the briefing room. Piel and his wife

brought this suit for wrongful termination in violation of public policy, claiming,

among other things, that he was fired for engaging in protected union-organizing

activities.

The trial court dismissed the Piels' suit on summary judgment. The court

explained that

Korslund[,156 Wn.2d 168,] is the controlling authority. Based on
Korslund, the Court concludes that the remedies available to Piel through
PERC are adequate to protect the public policy grounded in RCW 41.56.
Since Piel cannot satisfy the "jeopardy" element, his wrongful discharge in
violation of public policy claims grounded in RCW 41.5 6 are dismissed.

Clerk's Papers at 771. The Piels sought direct review by this court based on the

apparent conflict between Smith and Korslund. Consideration was stayed pending

this court's final decision in Cudney, 172 Wn.2d 524. After Cudney was decided,

we retained this case for hearing and decision.

ISSUE

Are the remedies available to a public employee under chapter 41.56 RCW

adequate as a matter of law, such that the employee may not assert a tort claim for

wrongful discharge in violation of public policy? (Short Answer: No.)

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Piel v. The City of Federal Way, 83882-8

ANALYSIS

This court first recognized a common law cause of action for wrongful

discharge in violation of a clear mandate of public policy in the landmark case of

Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 685 P.2d 1081 (1984). In cases

following Thompson, we acknowledged that public policy tort claims generally

arise in four areas: "(1) where the discharge was a result of refusing to commit an

illegal act, (2) where the discharge resulted due to the employee performing a

public duty or obligation, (3) where the [discharge] resulted because the employee

exercised a legal right or privilege, and (4) where the discharge was premised on

employee 'whistleblowing' activity." Dicomes v. State, 113 Wn.2d 612, 618, 782

P.2d 1002 (1989) (citations omitted).

In Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 941, 913 P .2d 3 77

( 1996), the court adopted the analytical framework set forth in a leading treatise to

assess when an employee may recover for wrongful discharge in violation of

public policy. See HENRY H. PERRITT JR., WORKPLACE TORTS: RIGHTS AND

LIABILITIES § 3.1 (1991). This test examines (1) the existence of a "clear public

policy" ("clarity" element), (2) whether "discouraging the conduct in which [the

employee] engaged would jeopardize the public policy" ("jeopardy" element), (3)

whether the "public-policy-linked conduct caused the discharge" ("causation"

element), and (4) whether the employer is "able to offer an overriding justification

for the [discharge]" ("absence of justification" element). Gardner, 128 Wn.2d at

941. Here, only the jeopardy element is at issue.

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Piel v. The City of Federal Way, 83882-8

Prior to our adoption of Perritt's four-part test, our decisions tended to

"lump[] the clarity and jeopardy elements together .... " Id.; see also Dicomes,

113 Wn.2d at 617 ("[T]he employee has the burden to show that the discharge

contravened a clear mandate of public policy."). By parsing out these two related

but conceptually distinct concepts, this court in Gardner sought to achieve "a more

consistent analysis." Gardner, 128 Wn.2d at 941. And in doing so, we made clear

that "our adoption of this test does not change the existing common law in this

state." Id.

Describing the jeopardy element, we explained it serves to "guarantee[] an

employer's personnel management decisions will not be challenged unless a public

policy is genuinely threatened." Id. at 941-42 (emphasis added). Also, we

articulated the requisite showing a plaintiff must make in order to establish

jeopardy:

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. This burden
requires a plaintiff to "argue that other means for promoting the policy ...
are inadequate." Perritt[, supra,] § 3.14, at 77. Additionally, the plaintiff
must show how the threat of dismissal will discourage others from
engaging in the desirable conduct.

I d. at 945 (alteration in original) (citation omitted).

We considered the viability of a wrongful termination claim based upon the

statutory remedies under chapter 41.56 RCW in Smith, 139 Wn.2d 793. Consistent

with our decision in Gardner, we recognized that the tort of wrongful termination

was not limited to at-will employment settings. I d. at 806-07. And we allowed the

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Piel v. The City of Federal Way, 83882-8

public employee's claim to go forward notwithstanding her failure to pursue

administrative remedies through PERC. Id. at 811. In the course of our analysis,

we examined key distinctions between available tort remedies and statutory

remedies and concluded that Smith should not be barred from bringing a tort claim

"simply because her administrative and contractual remedies may partially

compensate her wrongful discharge." Id. at 806.

Not surprisingly, the Piels rely on Smith in asserting a wrongful termination

claim against the City. The City counters that our recent decisions in Korslund and

Cudney are inconsistent with recognition of a public policy tort claim where

statutory remedies exist. Because Smith did not directly address the jeopardy

analysis, while Korslund and Cudney did, the City insists Smith is not on point.

We do not agree. It is hard to miss the similarity between the second question at

issue in Smith (Must the plaintiffs tort claim be dismissed for failure to pursue

statutory remedies through PERC?) and the question here (Must the plaintiffs tort

claim be dismissed because he can pursue statutory remedies through PERC?). See

Smith, 139 Wn.2d at 808-11.

The City emphasizes that the tort of wrongful discharge operates to protect

the public interest rather than the plaintiff's private interest. Br. ofResp't at 17. If

the suggestion is that Smith concerned only the private interest in personal

compensation, this theory is belied by clear language in the Smith opinion. In

recognizing Smith's right to pursue a wrongful discharge tort claim

notwithstanding for-cause provisions of a collective bargaining agreement and

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Pie! v. The City of Federal Way, 83882-8

available PERC remedies, the court focused on preservmg important public

policies. See Smith, 139 Wn.2d at 804 ("'What is vindicated through the cause of

action is not the terms or promises arising out of the particular employment

relationship involved, but rather the public interest in not permitting employers to

impose as a condition of employment a requirement that an employee act in a

manner contrary to fundamental public policy."' (quoting Foley v. Interactive Data

Corp., 47 Cal. 3d 654, 667 n.7, 254 Cal. Rptr. 211 (1988))); see also id. at 809

("As we have explained, the tort of wrongful discharge seeks to vindicate the

public interest in prohibiting employers from acting in a manner contrary to

fundamental public policy. Because the right to be free from wrongful termination

in violation of public policy is independent of any underlying contractual

agreement or civil service law, we conclude Smith should not be required to

exhaust her contractual or administrative remedies.").

The point of this discussion in Smith was to highlight the importance of

having a tort remedy apart from the PERC remedy in order to advance public

policy, not the plaintiffs personal compensation. Quoting favorably from

Retherford v. AT&T Communications of Mountain States, Inc., 844 P.2d 949 (Utah

1992), the court explained, "'When an employer's act violates both its own

contractual just-cause standard and a clear and substantial public policy, we see no

reason to dilute the force of the double sanction. In such an instance, the employer

is liable for two breaches, one in contract and one in tort. It therefore must bear the

consequences of both."' Smith, 139 Wn.2d at 806 (quoting Retherford 844 P.2d at

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Piel v. The City of Federal Way, 83882-8

960). These passages convincingly refute any characterization of Smith as

concerning only personal compensation, not public policy.

Nor is it possible to dismiss Smith as unconcerned with issues arising under

the jeopardy prong of the Perritt test. While it is true that the court in Smith did not

walk through the four-part Perritt test, it plainly considered the adequacy of PERC

remedies and held they were insufficient to foreclose a common law tort claim.

See 139 Wn.2d at 805 (identifying additional tort remedies and concluding that

"Bates' assumption that Smith's pending action before PERC will fully resolve her

wrongful discharge claim is wholly unsupported"); id. at 810 (emphasizing

unavailability of emotional distress and other tort damages under RCW 41.56.160).

The adequacy of available remedies is the heart of jeopardy analysis in cases

involving statutes that provide administrative schemes. In fact, the remedy

analysis in Smith echoes the jeopardy analysis in Korslund and Cudney by calling

out the available relief under the applicable statutes. See Korslund, 156 Wn.2d at

182 (noting "comprehensive remedies" under Energy Reorganization Act of 1974

(ERA) including back pay, compensatory damages, and attorney and expert

witness fees); Cudney, 172 Wn.2d at 533 (describing remedies under the

Washington Industrial Safety and Health Act of 1973 (WISHA), chapter 49.17

RCW, and observing "WISHA is actually more comprehensive than the ERA and

is more than adequate").

Even after Korslund, Justice Madsen, in her concurrence/dissent in Danny v.

Laidlaw Transit Services, Inc., 165 Wn.2d 200, 193 P.3d 128 (2008), recognized

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Pie! v. The City of Federal Way, 83882-8

that Smith involved the same adequacy analysis as Korslund. Significantly, she

drew a clear distinction between the results in the two cases:

In such instances, the legal component of the jeopardy analysis is
whether the remedies provided by the legislature adequately protect the
public policy. See, e.g., Korslund, 156 Wn.2d at 181 (concluding, as a
matter of law, comprehensive statutory remedies against retaliation for
reporting safety violations in nuclear industry adequately protects relevant
public policy interests); cf Smith, 139 Wn.2d at 805 (finding statutory
remedies for wrongful discharge for filing a grievance inadequate where no
recovery for emotional distress is available).

Danny, 165 Wn.2d at 232-33 (Madsen, J., concurring/dissenting). This direct

contrast of Korslund and Smith undercuts the City's view that the cases involved

different issues.

To accept the proposition that Smith failed to consider the adequacy of

PERC remedies, we would have to disregard its holding recognizing "the

fundamental distinction between a wrongful discharge action based in tort and an

action [through PERC] based upon an alleged violation of an employment contract

or a [collective bargaining agreement]." Smith, 139 Wn.2d at 809. Under Smith,

the PERC remedial scheme does not provide adequate redress for the employer's

public policy violation in retaliating against the employee for engaging in protected

activity. How then can the remedial scheme under PERC be deemed adequate as a

matter of law? If it were, then we would have to conclude that the plaintiffs claim

in Smith should have been dismissed on summary judgment.

Similarly, other cases which have recognized the need for a public policy

tort despite the existence of statutory remedies would be called into question. See,

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Pie! v. The City of Federal Way, 83882-8

e.g., Thompson, 102 Wn.2d 219 (allowing claim for reporting violation of federal

Foreign Corrupt Practices Act of 1977); Ellis v. City of Seattle, 142 Wn.2d 450, 13

P.3d 1065 (2000) (recognizing claim for retaliation for making safety complaints);

Roberts v. Dudley, 140 Wn.2d 58, 993 P.2d 901 (2000) (allowing tort claim under

RCW 49.12.200 and Washington's Law Against Discrimination (WLAD), chapter

49.60 RCW); Bennett v. Hardy, 113 Wn.2d 912, 784 P.2d 1258 (1990)

(recognizing claim under WLAD). An overbroad reading of Korslund and Cudney

would fail to account for this long line of precedent allowing wrongful discharge

tort claims to exist alongside sometimes comprehensive administrative remedies.

Importantly, neither case purported to overrule anything.

Declaring a wrongful termination tort claim dead on arrival in the face of

administrative remedies would likewise unsettle the body of law this court has

developed addressing collateral estoppel where wrongful discharge tort claims

coexist with administrative remedies. We have on several occasions discussed the

interplay between administrative proceedings such as under PERC and wrongful

termination tort actions. In Reninger v. Department of Corrections, 134 Wn.2d

437,951 P.2d 782 (1998), we held that an employee who loses in an administrative

proceeding (there, a personnel appeals board hearing) may be collaterally estopped

from asserting a wrongful discharge claim. In Smith, we noted that Reninger made

it "even more compelling" to hold that the public policy tort does not require first

pursuing PERC administrative remedies. 139 Wn.2d at 810. Recognizing the

collateral estoppel effect of a prior administrative proceeding, we observed:

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Piel v. The City of Federal Way, 83882-8

Thus, if employees are required to exhaust all available administrative
remedies in order to bring a civil suit for wrongful termination, the
administrative remedy could be the only available remedy. Such a rule
goes beyond the usual understanding of exhaustion as a prerequisite to
seeking judicial relief ... and ignores the fundamental distinction between
contract and tort actions."

I d. at 811 (citation omitted). And, in Christensen v. Grant County Hospital

District No. 1, 152 Wn.2d 299, 96 P.3d 957 (2004), we examined both Reninger

and Smith, and held that factual findings in a PERC administrative proceeding have

preclusive effect in a later tort action for wrongful discharge. We found it

especially important that the plaintiff "chose to litigate in the administrative

setting" before bringing a tort claim. I d. at 313; see also id. at 318 n.1 0 (noting

plaintiff had a choice). We never doubted the appropriateness of bringing a tort

claim instead of or in addition to a PERC action because both administrative and

tort claims were contemplated by the legislature. Id. at 316. Lower courts and

litigants would fairly ponder why we have been so careful to define the limits of

collateral estoppel in a wrongful discharge action that follows a PERC action if, at

the end of the day, no such action were possible.

In short, we refuse to disregard the body of law we have developed

addressing wrongful termination claims in the context of statutory schemes

providing for administrative remedies. In the particular context of PERC, Smith

and later cases recognize that the limited statutory remedies under chapter 41.56

RCW do not foreclose more complete tort remedies for wrongful discharge. Smith

cannot be dismissed as concerned with only personal compensation and not public

policy, nor can it be recast as having nothing to do with the jeopardy question.

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Pie! v. The City of Federal Way, 83882-8

Recognizing the continued vitality of Smith does not require retreat from our

recent cases. The asserted tension between Smith, Korslund, and Cudney eases

upon a closer examination of the administrative remedies at issue in each case.
Neither Korslund nor Cudney involved an administrative scheme that this court

had previously recognized is inadequate to vindicate an important public policy.

See Korslund, 156 Wn.2d at 181, 183 (involving federal ERA); Cudney, 172

Wn.2d at 526-27 (involving WISHA and Washington laws prohibiting driving

under the influence). In contrast, in Smith the court emphasized that the

administrative remedies allowed through PERC fall short of addressing the broader

public interests at issue in a wrongful discharge tort claim. See 139 Wn.2d at 805

("But while the contractual remedies available to certain employees redress

violations of the underlying employment contract, these remedies do not protect an

employee who is fired not only 'for cause' but also in violation of public policy.");

id. at 809 (rejecting exhaustion requirement as counter to "fundamental distinction

between a wrongful discharge action based in tort and an action based upon an

alleged violation of an employment contract or a [collective bargaining

agreement]"). Smith unequivocally held that PERC is inadequate to vindicate the

public policy at issue when an employee is terminated in retaliation for asserting

collective bargaining rights. Nothing in Korslund or Cudney provides a basis to

second-guess this aspect of Smith.

Moreover, we should not reach to expand the jeopardy analysis of Korslund

or Cudney when the very statutory scheme that announces the public policy at

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Pie! v. The City of Federal Way, 83882-8

issue also cautions that its administrative remedies are intended to be additional to

other remedies. PERC contains such a provision, RCW 41.56.905, which states,

"The provisions of this chapter are intended to be additional to other remedies and

shall be liberally construed to accomplish their purpose." No similar language was

identified under the statutory schemes at issue in Korslund or Cudney. This

language is significant because it respects the legislative choice to allow a

wrongfully discharged employee to pursue additional remedies beyond those

provided by statute. It is the strongest possible evidence that the statutory

remedies are not adequate to vindicate a violation of public policy.

Each public policy tort claim must be evaluated in light of its particular

context. We must carefully consider the PERC administrative scheme before us

and acknowledge that we have previously held it is not adequate to vindicate

public policy when an employee is terminated for asserting collective bargaining

rights. Korslund and Cudney addressed different statutory schemes and do not

dictate the outcome here. Consistent with Smith, we hold that the statutory

remedies available to public employees through PERC are inadequate-and a

wrongful discharge tort claim is therefore necessary-to vindicate the important

public policy recognized in chapter 41.56 RCW. Accordingly, we reverse the

lower court's order granting summary judgment of dismissal and remand for

further proceedings consistent with this opinion.

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Piel v. The City of Federal Way, 83882-8

WE CONCUR:

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Piel v. City of Federal Way

No. 83882-8

MADSEN, C.J. (concurring in dissent)-! agree with the dissent, but write

separately to emphasize several key points. First, the majority concedes that the issue in

the present case is whether the jeopardy element is established. Common sense tells us

this means we should apply the Perritt jeopardy analysis, given that we adopted this

analysis in Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 913 P.2d 377 (1996).

However, the majority does not cite a single case in which this court ever addressed the

jeopardy element of the public policy tort claim with regard to remedies in chapter 41.56

RCW.

Instead, according to the majority Smith v. Bates Technical College, 139 Wn.2d

793, 799-800, 991 P.2d 1135 (2000), necessarily recognized that the jeopardy prong of

the analysis was met there and Smith is controlling precedent. The majority thus attempts

to bind this court to a theoretical holding purportedly implicit in Smith.

But Smith is not controlling. It never addressed the jeopardy prong of the Perritt

analysis. At most, it assumed the plaintiff would be able to satisfy the elements of the

cause of action. '"In cases where a legal theory is not discussed in the opinion, that case

is not controlling on a future case where the legal theory is properly raised."' State ex

rel. Gallwey v. Grimm, 146 Wn.2d 445, 459, 48 P.3d 274 (2002) (quoting

Berschauer/Phillips Constr. Co. v. Seattle Sch. Dist. No. I, 124 Wn.2d 816, 824, 881
No. 83882-8
Madsen, C.J. (concurring in dissent)

P.2d 986 (1994)). Questions lurking in the record that are not ruled on '"are not

considered to have been decided so as to constitute precedent."' I d. (quoting

Berschauer/Phillips, 124 Wn.2d at 824 and citing Webster v. Fall, 266 U.S. 507, 511, 45

S. Ct. 148, 69 L. Ed. 411 (1925)). As the court in ETCO, Inc. v. Department of Labor &

Industries, 66 Wn. App. 302,307, 831 P.2d 1133 (1992), aptly stated:

Where the literal words of a court opinion appear to control an issue, but
where the court did not in fact address or consider the issue, the ruling is
not dispositive and may be reexamined without violating stare decisis in the
same court or without violating an intermediate appellate court's duty to
accept the rulings of the Supreme Court. "An opinion is not authority for
what is not mentioned therein and what does not appear to have been
suggested to the court by which the opinion was rendered." Continental
Mutual Savings Bank v. Elliot, 166 Wash. 283, 300, 6 P.2d 638 (1932).

Accord Cazzanigi v. Gen. Elec. Credit Corp., 132 Wn.2d 433, 442-43, 938 P.2d 819

( 1997) (despite a prior case appearing to rule that a certain statute did not apply

retroactively, the court concluded that the prior case did not address the issue or

arguments that were raised in the later case and declined to find the prior case

controlling).

The apparent assumption in Smith that the plaintiff would be able to satisfy all of

the elements of the tort claim cannot substitute for an actual analysis and holding on the

jeopardy element, specifically the adequacy of existing protections for the public policy.

The majority says, though, that in Smith the second issue addressed was whether

"the plaintiffs tort claim [had to] be dismissed for failure to pursue statutory remedies

through PERC [(Public Employees Relations Commission)]" and that this is similar to

the issue as in the present case. Majority at 7. But the issues at the pages cited by the

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No. 83882-8
Madsen, C.J. (concurring in dissent)

majority were whether there was a clear mandate of public policy and whether the

plaintiff exhausted administrative remedies (or had to exhaust administrative remedies).

See Smith, 139 Wn.2d at 808-11.

The numerous statements the majority lifts out of context should not be considered

severed from the analysis in which they appear. For example, the majority says that "[t]o

accept the proposition that Smith failed to consider the adequacy of PERC remedies, we

would have to disregard its holding recognizing 'the fundamental distinction between a

wrongful discharge action based in tort and an action [through PERC] based upon an

alleged violation of an employment contract or a [collective bargaining agreement.]'"

Majority at 10 (alteration in original) (quoting Smith, 139 Wn.2d at 809).

But the context belies the majority's recitation of this supposed "holding." Here is

what actually appears in Smith:

Bates [(the employer)] argues that because Smith did not pursue her ULPs
[(unfair labor practice claims)] with PERC [(Public Employees Relations
Commission)], she did not exhaust her administrative remedies to the
extent required by law. Due to this failure Bates asserts the trial court
properly exercised its discretion to dismiss Smith's wrongful termination
claim. But Bates' argument ignores the fundamental distinction between a
wrongful discharge action based in tort and an action based upon an alleged
violation of an employment contract or a CBA [(collective bargaining
agreement)]. As we have explained, the tort of wrongful discharge seeks to
vindicate the public interest in prohibiting employers from acting in a
manner contrary to fundamental public policy. Because the right to be free
from wrongful termination in violation of public policy is independent of
any underlying contractual agreement or civil service law, we conclude
Smith should not be required to exhaust her contractual or administrative
remedies.

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No. 83882-8
Madsen, C.J. (concurring in dissent)

Smith, 139 Wn.2d at 808-09. As can be seen, the court was addressing the exhaustion of

remedies issue, and it is an extraordinary stretch to describe the sentence in the middle of

this paragraph as a "holding" compelling us to conclude that the court considered the

adequacy of remedies under the jeopardy prong of the Perritt public policy wrongful

discharge action.

The majority is so thin in terms of actual support for what it says that it relies on

things such as a comparison made between Korslund v. DynCorp Tri-Cities Services,

Inc., 156 Wn.2d 168, 182, 125 P.3d 119 (2005), and Smith appearing in the concurrence-

dissent in Danny v. Laidlaw Transit Services, Inc., 165 Wn.2d 200, 232-33 193 P.3d 128

(2008) (Madsen, J., concurring-dissenting). Majority at 10. Whatever else might be said,

the focus of that concurrence-dissent was not remedies but instead the public policy, with

the writing justice's view being that there was no clear mandate of public policy shown in

the case. In any event, there was certainly no recognition that Smith contained an actual

jeopardy analysis.

The majority also cites a number of other cases in an effort to create the

impression the issue is resolved, but none of the cases addresses the jeopardy element

with regard to remedies under chapter 41.56 RCW and whether these remedies

adequately protect the claimed public policy. As examples, the majority refers to Smith's

discussion of Reninger v. State Department of Corrections, 134 Wn.2d 437, 951 P.2d 782

(1998), and Christensen v. Grant County Hospital District No. 1, 152 Wn.2d 299, 96

P.3d 957 (2004). Majority at 11-12. These cases concern exhaustion of administrative

4
No. 83882-8
Madsen, C.J. (concurring in dissent)

remedies and collateral estoppel, respectively. As pointed out at the outset of this

opinion, cases that appear to make assumptions about legal conclusions in a case but do

not actually address them are not binding on the assumptions. Insofar as the majority

believes Reninger and Christensen are relevant on the jeopardy element, the belief is

misplaced.

The majority's reference to a "body of law ... addressing wrongful termination

claims in the context of statutory schemes providing for administrative remedies" must be

viewed skeptically because it is obvious that there is no body of law regarding whether

remedies under chapter 41.56 RCW are adequate to protect a clear mandate of public

policy. Majority at 12.

The bottom line is that there is simply no analysis of the jeopardy prong in Smith

and, more specifically, there is absolutely no analysis of whether existing laws provide an

adequate alternative means for promoting the public policy such that it is unnecessary to

recognize a private action wrongful discharge claim in order to protect the public policy.

See Korslund, 156 Wn.2d at 182 (discussing the required showing). More strikingly,

there is no analysis of the jeopardy prong in the majority.

The majority has lost sight of the nature of the tort. The tort for wrongful

discharge in violation of public policy was originally created by this court as a judicial

exception to the terminable at will doctrine. Thompson v. St. Regis Paper Co., 102

Wn.2d 219, 232, 685 P.2d 1081 (1984). It has from that time to the present been

characterized as a "narrow" public policy exception. Id.; see also, e.g., Cudney v.

5
No. 83882-8
Madsen, C.J. (concurring in dissent)

ALSCO, Inc., 172 Wn.2d 524, 529, 259 P.23d 244 (2011); Roe v. TeleTech Customer

Care Mgmt. (Colorado) LLC, 171 Wn.2d 736,755,257 P.3d 586 (2011); Fordv.

Trendwest Resorts, Inc., 146 Wn.2d 146, 154, 43 P.3d 1223 (2002); Sedlacek v. Hillis,

145 Wn.2d 379, 385, 36 P.3d 1014 (2001); Snyder v. Med. Serv. Corp. of E. Wash., 145

Wn.2d 233, 239, 35 P.3d 1158 (2001); Havens v. C&D Plastics, Inc., 124 Wn.2d 158,

177, 876 P.2d 435 (1994); Wilmot v. Kaiser Aluminum. & Chern. Corp., 118 Wn.2d 46,

53,821 P.2d 18 (1991); Grimwoodv. Univ. ofPugetSound, Inc., 110 Wn.2d 355,367,

753 P.2d 517 (1988); Farnam v. CRISTA Ministries, 116 Wn.2d 659, 807 P.2d 830

(1991). Rather than a narrowly recognized tort claim, the majority bends over backwards

to cobble together disparate cases in an effort to convince the reader that there is a body

of law supporting the conclusion that Smith controls here.

But as the dissent correctly says, there is no holding on the jeopardy prong of the

Perrit analysis in Smith. It is not precedential on this point. It is not controlling. Smith

should not be followed as if it is controlling.

The purpose of the Perritt jeopardy analysis is to determine whether a clear

mandate of public policy would be unprotected in the absence of the private public policy

wrongful discharge claim. The plaintiff has to show that "discouraging the [employee's]

conduct" that led to the discharge "would jeopardize the public policy (the jeopardy

element)." Gardner, 128 Wn.2d at 941 (citing HENRY H. PERRITT JR., WORKPLACE

TORTS: RIGHTS AND LIABILITIES§ 3.7 (1991)). This means that the plaintiff here was

required to establish that he engaged in particular conduct that relates directly to the

6
No. 83882-8
Madsen, C.J. (concurring in dissent)

public policy or was necessary for effective enforcement of the public policy, Hubbard v.

Spokane County, 146 Wn.2d 699, 713, 50 P.3d 602 (2002); Gardner, 128 Wn.2d at 945,

and that discouraging the conduct he engaged in would jeopardize the public policy, see

Ellis v. City of Seattle, 142 Wn.2d 450, 460, 13 P.3d 1065 (2000). He had to show that

other means of promoting the public policy are inadequate. Hubbard, 146 Wn.2d at 713;

Gardner, 128 Wn.2d at 945.

The plaintiff failed to make the requisite showing. When there are adequate

means to protect the public policy regardless of whether an employer is exposed to the

wrongful discharge tort claim, then a tort action should not be recognized since the public

policy is not jeopardized by the employment action.

Finally, it is critical to bear in mind that the issue is not whether the employee will

be adequately compensated, fully compensated, or compensated to a greater extent, or for

more injuries than if the public policy tort is not recognized. Instead, the inquiry is solely

to decide whether the tort must be recognized to ensure that the public policy at issue is

adequately protected.

I concur in the dissent because it correctly concludes that the Piels are unable to

satisfy the jeopardy element of their tort claim and that Smith is not controlling on the

jeopardy prong of the claim. Contrary to the majority's incorrect conclusion, Korslund

and Cudney are the relevant precedent that must be followed if the court is to adhere to

the core purpose of the tort of wrongful discharge in violation of public policy. Instead

7
No. 83882-8
Madsen, C.J. (concurring in dissent)

of treating Smith as controlling on an issue it never addressed, the majority should apply

the jeopardy prong analysis from Korslund and Cudney.

8
No. 83882-8
Madsen, C.J. (concurring in dissent)

9
Pie! v. City of Federal Way, No. 83882-8
Dissent by J.M. Johnson, J.

No. 83882-8

J.M. JOHNSON, J. (dissenting)-The Federal Way Police

Department discharged Officer Robert Piel for telling fellow officers in a

meeting at the department offices that he had considered "murdering or

shooting Department members." Clerk's Papers (CP) at 279. As an

additional ground for termination, the department determined that Officer

Piel had been "dishonest" when he was questioned about these murder

comments. CP at 280-81.

Officer Piel and his wife sued the city of Federal Way for wrongful

termination in violation of public policy (WTVP), claiming Officer Piel was

actually fired for engaging in statutorily protected collective bargaining

activities. The trial court granted the city summary judgment, holding that

the Piels' tort claim was barred because the statutory remedies available

were adequate to protect the public policies expressed in chapter 41.56

1
Pie! v. City of Federal Way, No. 83882-8

RCW. Because the majority completely fails to conduct a jeopardy analysis,

instead choosing to read a holding into Smith v. Bates Technical College, I

dissent. 139 Wn.2d 793, 991 P.2d 1135 (2000). We should affirm the trial

court; the remedies provided and available under RCW 41.56.160

adequately protect public employee collective bargaining rights.

ANALYSIS

I. The Jeopardy Element

Under Washington common law, an employer may generally

discharge an employee with or without cause absent an agreement to the

contrary. Roberts v. Atl. Richfield Co., 88 Wn.2d 887, 891, 568 P.2d 764

(1977). The tort of WTVP is a common law exception to the at-will

employment doctrine. Gardner v. Loomis Armored, Inc., 128 Wn.2d 931,

935-36, 913 P.2d 377 (1996). "The policy underlying the exception is that

the common law doctrine cannot be used to shield an employer's action

which otherwise frustrates a clear manifestation of public policy."

Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 231, 685 P.2d 1081

(1984).

A WTVP claim reqmres the plaintiff to establish four elements:

(1) "the existence of a clear public policy (the clarity element)," (2) that

2
Pie! v. City of Federal Way, No. 83882-8

"discouraging the conduct in which [the plaintiff] engaged would jeopardize

the public policy (the jeopardy element)," (3) that the protected conduct

"caused the dismissal (the causation element)," and (4) that the employer-

defendant does not have a "justification for the dismissal (the absence of

justification element)." Gardner, 128 Wn.2d at 941. We have "always been

mindful that the . . . [WTVP] tort is narrow and should be 'applied

cautiously."' Danny v. Laidlaw Transit Servs., Inc., 165 Wn.2d 200, 208,

193 P.3d 128 (2008) (quoting Sedlacek v. Hillis, 145 Wn.2d 379, 390, 36

P.3d 1014 (2001)). In the present case, we were asked to examine only the

jeopardy element.

To establish jeopardy, a plaintiff must show that he or she "engaged in

particular conduct, and the conduct directly relates to the public policy, or

was necessary for the effective enforcement of the public policy." Gardner,

128 Wn.2d at 945 (emphasis omitted). We have stated this requires a

plaintiff to "show that other means of promoting the public policy are

inadequate and that the actions the plaintiff took were the 'only available

adequate means' to promote the public policy." Cudney v. ALSCO, Inc., 172

Wn.2d 524, 530, 259 P.3d 244 (2011) (citation and emphasis omitted)

(quoting Danny, 165 Wn.2d at 222). This is a question of law so long as our

3
Piel v. City of Federal Way, No. 83882-8

"inquiry is limited to examining existing laws to determine whether they

provide adequate alternative means of promoting the public policy."

Korslund v. DynCorp Tri-Cities Servs., Inc., 156 Wn.2d 168, 182, 125 P.3d

119 (2005).

II. The Smith Court Did Not Hold that The Remedies Available in RCW
41.56.160 Are Inadequate To Protect Public Employee Collective
Bargaining and Union Rights

In order to avoid having to conduct a jeopardy analysis, the majority

twists Smith into something it is not. In Smith, this court was asked to

answer three distinct questions and only those questions. First, "whether the

common law tort of . . . [WTVP] extends to employees who may be

terminated only for cause." Smith, 139 Wn.2d at 796. This court answered

this first question in the affirmative. I d. at 807. Second, "whether an

employee must first exhaust administrative or contractual remedies before

pursuing such an action." Id. at 796. This court answered this second

question in the negative. Id. at 811. Third, "whether a public employee

establishes a cause of action under 42 U.S.C. § 1983 [through the First

Amendment to the United States Constitution] when a public agency

discharges her in retaliation for filing an employment related grievance." Id.

at 796. This court answered this third question in the negative. Id. at 815-

4
Pie! v. City of Federal Way, No. 83882-8

16. Nowhere in Smith was this court asked if the Public Employees

Relations Commission (PERC) adequately protected the public policy found

in chapter 41.56 RCW.

Tellingly, the majority does not explain why the Smith court fails to

even mention "jeopardy," let alone state that it is conducting a jeopardy

analysis. Smith was decided some four years after this court adopted the

Perritt test, which was implemented to clarify this court's WTVP analysis by

breaking it up into four distinct elements. See Gardner, 128 Wn.2d at 941.

It is logical to assume that if the Smith court meant to address the jeopardy

element, it would have done so expressly.

In essence, the majority miscomprehends the procedural posture of

Smith. The trial court granted the college summary judgment on the grounds

that Smith had failed to exhaust her administrative remedies and because she

was not an at-will employee. 139 Wn.2d at 799. In remanding the case, the

court expected the trial court to walk through the four-step analysis,

including that of the jeopardy prong, for the first time. In other words, the

Smith court was never asked to resolve the jeopardy question; the court was

deciding whether the trial court should even get to the jeopardy question.

5
Pie! v. City of Federal Way, No. 83882-8

The majority's miscomprehension 1s further demonstrated by its

failure to acknowledge that the Smith court was not asked whether for-cause

public employees are entitled to bring a WTVP tort claim, but rather whether

for-cause employees in general can bring such a tort. Smith's broader effect

is illustrated by the fact that as a result of the decision, private sector for-

cause employees do not have to exhaust their administrative or contractual

remedies as a prerequisite to pursuing a WTVP claim. It is important to note

that the Smith court used terminology consistent with its awareness of the

broader implications of its decision. For example, the court used terms like

"contractual employees" instead of something like "unionized public

employees." See id. at 805.

Accordingly, the majority dwells too much on the language in Smith,

comparing and contrasting a tort claim with an action based on an

employment contract or collective bargaining agreement (CBA) m its

attempt to convince us that Smith answered the jeopardy question. Id. at

807-09. These statements provide the rationale for why the Smith court

extended the tort to for-cause employees in general but are insufficient as an

analysis of the adequacy of the remedies found in chapter 41.56 RCW. To

the extent the Smith court's statements appear to answer the jeopardy

6
Pie! v. City of Federal Way, No. 83882-8

question, they show a complete lack of understanding of the jeopardy prong

and amount to dicta.

For example, the Smith court commented that there is a "fundamental

distinction between a wrongful discharge action based in tort and an action

based upon an alleged violation of an employment contract or a CBA" and

that "additional and distinct remedies would be available ... in tort." Id. at

809, 805. This statement wrongly suggests that a WTVP claim should

always be available, regardless of the existence of alternative remedies,

because only a tort can provide tort remedies. Another example is the Smith

court's statement that WTVP claims should be available to for-cause

employees because such a cause of action "is independent of any . . .

statute." Id. at 811. Yes, there is no WTVP statute, but that does not mean

that existing statutory remedies are inadequate. The very essence of the

jeopardy analysis, which is conducted to determine whether a tort action is

even available, is an examination of the statutory remedies. If these

statements are an accurate reflection of our law, then Korslund and Cudney

were wrongly decided and a WTVP action should always be available.

Instead, these comments are overbroad and reflect the fact that the Smith

court was not engaging in a jeopardy analysis of PERC, but rather was

7
Pie! v. City of Federal Way, No. 83882-8

giving its rationale for extending the availability of WTVP claims to for-

cause employees in general. The Smith court's conclusory citation to the

lack of emotional distress damages available through PERC and to the fact

that PERC cannot administer WTVP claims does not provide a satisfactory

analysis of the adequacy of the PERC remedies. I d. at 805. In sum, after

Smith the question remains whether PERC adequately protects the public

policy (public employee collective bargaining and union rights) it embodies.

III. The Remedies Available in RCW 41.56.160 Adequately Protect
Public Employee Collective Bargaining Rights

Our recent decisions in Korslund and Cudney provide a solid

foundation for this court to decide that the PERC remedies are more than

adequate. In Korslund, three employees of DynCorp Tri-Cities Services

(DynCorp) brought suit alleging retaliation and harassment by DynCorp

management after the plaintiffs had reported safety violations and

mismanagement. Two of the employees claimed constructive termination in

violation of the public policy expressed in the federal Energy Reorganization

Act of 1974 (ERA), 42 U.S.C. § 5851(a)(1)(A). 156 Wn.2d at 181.. The

ERA prohibits an employer from discharging or discriminating against an

employee who reports a violation of the Atomic Energy Act of 1954, 42

8
Pie! v. City of Federal Way, No. 83882-8

U.S.C. § 2011. !d. The trial court granted summary judgment in favor of

DynCorp, which we affirmed.

We first noted that the jeopardy element of a WTVP claim requires

the plaintiff to prove two things: ( 1) "that discouraging the conduct he or she

engaged in would jeopardize the public policy" and (2) "that other means of

promoting the public policy are inadequate." !d. at 181-82 (citing Hubbard

v. Spokane County, 146 Wn.2d 699, 713, 50 P.3d 602 (2002)). The ERA

provides an administrative process for adjudicating whistleblower

complaints. !d. at 182. Remedies under the ERA may require the violator to

take affirmative action to abate the violations, reinstate the complainant with

back pay, or pay compensatory damages, attorney fees, and expert witness

fees. !d. (citing 42 U.S.C. § 5851(b)(2)(B)). We determined these remedies

were adequate as a matter of law to protect the public policy expressed in the

ERA. !d. at 183. Accordingly, we held that the Korslund plaintiffs' WTVP

claim was barred. !d.

9
Pie! v. City of Federal Way, No. 83882-8

The Piels claim the trial court held that Korslund overruled Smith sub

silentio. 1 The city argues that Smith and Korslund concern entirely different

issues. The city is correct.

The rule of law established in Korslund does not directly contradict

that set forth in Smith. The Korslund holding focuses on the adequacy of

alternative remedies in terms of protecting the public policy at issue. In

contrast, Smith held that a WTVP claim was available to both at-will and

for-cause employees and that a plaintiff need not exhaust administrative

remedies before pursuing a WTVP claim because such remedies may not

fully compensate the plaintiffs private interests. As I explained above, the

Smith court was not asked to address whether the administrative remedies

available adequately protected the public interest at stake in that case.

Indeed, Smith did not even mention the jeopardy element, which is at issue

here. Thus, the two cases may be harmonized.

Read together, Smith and Korslund provide that a plaintiff need not

exhaust administrative remedies for his or her personal compensation when

1
A holding from a prior case may be overruled sub silentio if it is directly contradicted
by a later holding. Lunsford v. Saber hagen Holdings, Inc., 166 Wn.2d 264, 280, 208
P.3d 1092 (2009).

10
Pie! v. City of Federal Way, No. 83882-8

pursumg a WTVP claim, but such a claim is unavailable if adequate

alternative means exist to protect the public interest. This is logical given

that the WTVP claim exists primarily to protect public interests, not private.

See Hubbard, 146 Wn.2d at 717 ("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.").

This interpretation is supported by our recent decision in Cudney, 172

Wn.2d 524. 2 In Cudney, we addressed a similar issue. We noted our prior

decision in Wilmot v. Kaiser Aluminum & Chemical Corp., 118 Wn.2d 46,

821 P.2d 18 (1991) did not change our jeopardy analysis in Korslund.

Cudney, 172 Wn.2d at 535-36. In Wilmot, we held RCW 51.48.025 did not

provide a mandatory and exclusive remedy for an employee allegedly fired

for filing a workers' compensation claim. But, we said, this was an "entirely

separate issue[]" from whether the means of protecting a given public policy

are adequate apart from a WTVP claim. Cudney, 172 Wn.2d at 535 ("Even

if ... [the] statute is not mandatory and exclusive, as in Wilmot, ... [the

2
Our consideration of the Piels' case was stayed pending the resolution of Cudney.

11
Piel v. City ofFederal Way, No. 83882-8

Washington Industrial Safety and Health Act (WISHA, chapter 49.17

RCW)] is still adequate to protect public policy.").

Cudney alleged he was terminated in violation of public policy for

reporting that one of his managers drove a company vehicle while

intoxicated. Id. at 527. The case was removed to the United States District

Court for the Eastern District of Washington. The federal district court

certified to us the questions paraphrased here: (1) whether WISHA

adequately promoted the public policy of ensuring workplace safety and

protecting workers who report safety violations so as to preclude a

terminated employee's WTVP claim and (2) whether the State's driving

under the influence laws adequately promoted the public policy of protecting

the public from drunk drivers so as to preclude a terminated employee's

WTVP claim. ld.

We recognized that Korslund was "[t]he controlling case, governing

whether statutory remedies are adequate to promote a given public policy."

Cudney, 172 Wn.2d at 532. We therefore used the ERA as a guidepost, as it

had been found to be adequate in Korslund. ld. Both WISHA and the ERA

allow an administrative agency to perform investigations and allow plaintiffs

to bring claims if the administrative agency does not take action. ld.

12
Pie! v. City of Federal Way, No. 83882-8

Moreover, WISHA authorizes the superior court to order all appropriate

relief, not limited to back pay. Jd. at 531-32. Remedies available under the

ERA are more limited but were still found adequate in Korslund. Therefore,

we held the remedies available under WISHA to be "more than adequate."

Jd. at 533. This was so even though a claim under WISHA carries a 30-day

statute of limitations. I d. at 534 (citing WAC 296-360-030( 4)).

Furthermore, we considered it irrelevant that the lawsuit available under

WISHA was handled by an administrative agency and not the complainant.

This is because a WTVP claim exists to protect the public policy not private

concerns. I d. at 534 n.3 ("[T]he point of the jeopardy prong of the analysis

... 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.").

Using WISHA as a guidepost, the remedies available under chapter

41.56 RCW are adequate to protect the public policy embodied therein.

RCW 41.56.160(1) empowers and requires PERC, like the Department of

Labor and Industries under WISHA, to "prevent any unfair labor practice"

and to issue appropriate remedial orders to that end. If PERC determines an

unfair labor practice has occurred,

13
Pie! v. City of Federal Way, No. 83882-8

the commission shall issue and cause to be served upon the
person an order requiring the person to cease and desist from
such unfair labor practice, and to take such affirmative action as
will effectuate the purposes and policy of this chapter, such as
the payment of damages and reinstatement of employees.

RCW 41.56.160(2). Even legal expenses may be recovered. See, e.g.,

Wash. Fed 'n of State Emps. v. Ed. of Trs. of Cent. Wash. Univ., 93 Wn.2d

60, 69, 605 P.2d 1252 (1980) (holding that remedial action under former

RCW 41.56.160 (1975) may include an award of attorney fees). To enforce

such orders, like the Department of Labor and Industries under WISHA,

PERC may invoke the power ofthe superior courts. RCW 41.56.160(3).

RCW 41.56.160(1) requires the aggrieved employee to file a

complaint within six months of the unfair labor practice. That period,

however, is more than adequate for the same reason we articulated in

Cudney: "[E]mployees will almost always receive immediate notice oftheir

own termination" or other interference with their union rights. 172 Wn.2d at

534. Significantly, six months is appreciably longer than the 30 days we

considered sufficient in Cudney. ld. at 533-34.

Chapter 41.56 RCW specifies certain damages (damages for

emotional distress are unavailable). See Smith, 139 Wn.2d at 806. This fact,

however, is irrelevant as the remedies that are available are adequate to

14
Pie! v. City of Federal Way, No. 83882-8

protect the public policy. In 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. 172 Wn.2d at 534 n.3.

In sum, if PERC determines that a defendant engaged in an unfair

labor practice it must issue appropriate remedial orders, including those to

cease and desist, pay damages, reinstate a terminated employee, and pay

attorney fees. RCW 41.56.160. PERC is also authorized to take other

affirmative action as necessary to effectuate the purpose and policy of

chapter 41.56 RCW. RCW 41.56.160(2). Like with WISHA, chapter 41.56

RCW remedies are sufficiently adequate to protect public employees' ability

to exercise their collective bargaining rights.

The majority inakes much of RCW 41.56.905, in that it reflects the

legislature's intent that the remedies available through PERC not be

mandatory or exclusive. In Cudney, however, we held that the jeopardy

analysis is separate and distinct from the determination of whether statutory

remedies are mandatory or exclusive. !d. at 535. Consequently, RCW

41.56.905 does not require us to find the PERC remedies inadequate. As

Korslund and Cudney illustrate, this court determines the scope of this

15
Pie! v. City of Federal Way, No. 83882-8

common law tort remedy it created. There is no WTVP statute. Moreover,

there are many other remedies available to public employees who feel they

are being mistreated at work. For example, chapter 41.06 RCW (state civil

service law) includes protections for public employees. Certainly, if the

legislature decided to pass additional legislation that served to provide

supplementary protection for public employees' collective bargaining rights,

it would qualify as an "other remedy." The legislature wanted to leave itself

and the courts the room to create additional remedies. RCW 41.56.905 is

not a legislative declaration that chapter 41.56 RCW is inadequate.

Additionally, the majority's worry that holding the PERC remedies

adequate will destroy our precedent allowing WTVP claims to coexist with

administrative remedies is overblown. The majority is right when it says

that there are other statutory schemes that can coexist with WTVP claims.

Chapter 41.56 RCW, however, is not one of them because it adequately

protects the public policy in question. The majority forgets that a WTVP

claims is a judicial creation that we apply narrowly. See Danny, 165 Wn.2d

at 208. This court has clearly acknowledged that some statutory schemes

will adequately protect the public policy they embody and therefore will

16
Pie! v. City of Federal Way, No. 83882-8

foreclose a plaintiff's access to a claim ofWTVP. See Korslund, 156 Wn.2d

at 183; Cudney, 172 Wn.2d at 533.

The majority's concern that such a holding would unsettle our law

governing collateral estoppel is similarly exaggerated. If this court decided

that the PERC remedies are adequate, then it would still be the case that

pursuing administrative proceedings may collaterally estop a prospective

plaintiff from filing a tort claim. See Christensen v. Grant County Hasp.

Dist. No.1, 152 Wn.2d 299,321,96 P.3d 957 (2004). The majority cites the

Christensen court's assumption that a WTVP tort action is available to a

public employee who has not yet brought an administrative action through

PERC as evidence that we already decided that the PERC remedies are

inadequate. The central question in Christensen, however, was whether a

completed PERC administrative action collaterally estopped the plaintiff

from bringing a WTVP tort action, not whether the PERC remedies were

adequate to protect the public policy embodied in chapter 41.56 RCW. Id. at

302. In the interest of judicial restraint, this court properly tries to limit

itself to answering only the questions posed by the petitioners. The

adequacy question was not posed to the Christensen court as it was not

posed to the court in Smith.

17
Piel v. City of Federal Way, No. 83882-8

CONCLUSION

The Piels are unable to satisfy the jeopardy element of their WTVP

claim. Smith stands for the proposition that both at-will and for-cause

employees can bring WTVP claims and that such plaintiffs need not exhaust

administrative remedies before suing to obtain personal compensation. Our

recent decisions in Korslund and Cudney made clear that where alternative

remedies adequately protect the public policy in question, separate WTVP

claims are unavailable. WTVP claims exist to ensure the protection of

public policy, not to provide individual plaintiffs with additional claims and

compensation. The remedies available under chapter 41.56 RCW

adequately protect the public policy recognized in that chapter. There is no

genuine issue of material fact and the city was entitled to judgment as a

matter of law on that claim. Because we should affirm the trial court's order

granting summary judgment to the city, I dissent.

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Pie! v. City of Federal Way, No. 83882-8

19