Rose v. Anderson Hay & Grain Co.

This case involves the jeopardy element of the tort for

wrongful discharge against public policy and whether the administrative remedies

available under the Surface Transportation Assistance Act of 1982 (STAA), 1 49

U.S.C. § 31105, preclude Charles Rose from recovery under a common law tort

claim. This is one of three concomitant cases2 before us concerning the "adequacy

of alternative remedies" component of the jeopardy element that some of our cases

seemingly embrace. For the reasons discussed in this opinion, we hold that the

1 Both the parties refer to 49 U.S.C. § 31105 as the "Commercial Motor Vehicle Safety Act." This is not entirely accurate. Although the chapter is titled "Commercial Motor Vehicle Safety,"§ 31105 ofthat chapter is part ofthe STAA.

2 See Be_cker v. Cmty. Heath ~ys., Inc., No. 90946-6 (Wash. Sept. 17, 2015), and Rickman v. Premera Blue Cross, No. 91040-5 (Wash. Sept. 17, 2015).

Rose v. Anderson Hay & Grain Co., No. 90975-0

adequacy of alternative remedies component misapprehends the role of the

common law and the purpose of this tort and must be stricken from the jeopardy

analysis. We reembrace the formulation of the tort as initially articulated in

17'1ompson, Wilmot, and Gardner,3 and reverse the Court of Appeals.

FACTS

The complaint alleges that Anderson Hay & Grain Company terminated

Rose from his position as a semi truck driver when he refused to falsify his drive

time records and drive in excess of the federally mandated drive-time limits. Rose

had worked as a t~uck driver for over 30 years, the last 3 of which he worked as an

en1ployee for Anderson Hay. His position required him to drive loads of hay

weighing 50 tons or more from Ellensburg to ports located in Western Washington.

Rose operated under federal regulations that required him to drive no more than 60

hours per week. 49 C.P.R. § 395.3(b)(l).

In November 2009, Rose's supervisor allegedly directed Rose to transport a

load to Seattle, which would have put Rose over the 60-hour limit. Rose informed

his employer that the trip would put him over the allowable limit, but his

supervisor told him to falsify his drive:timerecords to reflect fewer hours so that

.

3 Gardner v. Loomis Armored Inc .. , 128 Wn.2d 931, 913 P .2d 3 77 (1996); Wilmot v. Kaiser Alurn. & Chem. Corp., 118 Wn.2d 46, 821 P.2d 18 (1991); Thompson v. St. Regis Paper Co., 102 Wn.2d 219,.685 P.2d 1081 (1984).

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he could ~omplete the trip. Concerned that he might fall asleep at the wheel, Rose

refused, and Anderson Hay fired him.

InMarch 2010, Rose sued under the STAA in federal court but his suit was

dismissed for lack of jurisdiction because he failed to first file with the secretary of

labor, as _required by the act.49 U.S.C. § 31105(b)(l). By the time the suit was

disinissecl, the 180-day filing period for administrative remedy had already lapsed.

Rose then filed a complaint in Kittitas County Superior Court, seeking remedy

under the common law tort for wrongful discharge against public policy. The trial

court dismissed his claim on summary judgment, holding that the existence of the

federal administrative remedy under the STAA prevented Rose from establishing

the jeopardy element of the tort. The Court of Appeals affirmed. Rose v. Anderson

Hay & Grain Co., 168 Wn. App. 474,276 P.3cl382 (2012). This court accepted

review of that decision, but remanded Rose's case to the Court of Appeals for

reconsideration in light of Piel v. City of Federal Way, 177 Wn.2d 604, 306 P.3d

879 (2013). Rose v. Anderson Hay & Grain Co., 180 Wn.2d 1001, 327 P.3d 613

(2014). Like the stat,ute at issue in Piel, the STAA contains a nonpreemption

clause, explicitly providing that "[n]othing in this section preempts or diminishes

any other safeguards against discrimination, demotion, discharge, suspension,

threats, harassment, reprimand, retaliation, or any other manner of discrimination

provided by Federal or State law." 49 U.S.C. § 311 05(±).

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On remand, the Court ()f Appeals distinguished Rose's case from Piel,

likening the facts to those presented in Korslund v. DynCorp Tri-Cities Services,

Inc., 156 Wn.2d 168, 125 P.3d 119 (2005), and once again affirmed the superior

court's decision. Rose v. Anderson !-lay & Grain Co., 183 Wn. App. 785, 335 P.3d

440 (2014), review granted, 182 Wn.2d 1009, 343 P.3d 759 (2015).

ANALYSIS

V.fe accepted review of three cases-Rose, Becker v. Community Heath

Systems, Inc., No. 90946-6 (Wash. Sept. 17, 2015), and Rickman v. Premera Blue

Cross, No. 91040-5 (Wash. Sept. 17, 2015)-to determine whether the existence of

other nonexclusive statutory remedies preclude plaintiffs from recovery under a

tort claim for wrongful discharge against public policy. We hold that they do not:

the existence of alternative statutory remedies, regardless of whether or not they

are adequate, does not prevent the plaintiff from bringing a wrongful discharge •,

claim. Reviewing the origination of the tort and its underlying purpose, we find

that our wrongful discharge jurisprudence travels along two irreconcilable tracks,

each of which would dictate a different result in Rose's case. The discrepancy

requires us to clarify and embrace only one. We hold that the "adequacy of

alternative remedies'' analysis must be discarded, and we reembrace the analytical

framework established in Thompson, Wilmot, and Gardner.

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Rose v. Anderson Hay & Grain Co., No. 90975-0

Evolution ofthe Tort

The wrongful discharge against public policy tort has undergone numerous

permutations since its recognition over 30 years ago. When it was first analyzed in

Thompson, we recognized it as an exception to the general principle that absent a

definite contract, employees are terminable at-will. The purpose of the tort

exception is to prevent employers from utilizing the employee at-will doctrine to

subvert public policy---we said, "[T]he common law doctrine cannot be used to

shield an employer's action which otherwise frustrates a clear manifestation of

public policy." Thompson, 102 Wn.2d at 231. We recognize it as a means of

encouraging both employers and employees to follow the law.

In Thompson, the employer allegedly terminated Thompson as divisional

controller in retaliation for Thompson attempting to comply with the Foreign

Corrupt Practices Act of 1977, 15 U.S.C. §§ 78dd-1 to 78dd-3, by implementing a

n~w accounting procedure. In evaluating Thompson's claim in review of dismissal

on summary judgment, we embraced a burden-shifting analysis in which the

analyti~al focus was whether the employee could establish that the discharge

clearly contravened public policy:

The employee has the burden of proving his dismissal violates a ·clear mandate of public policy. Thus, to state a cause of action, the employee must plead and prove that a stated public policy, either legisiatively or judicially recognized, may have been contravened . . . . [O]nce the employee has demonstrated that his discharge may

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Rose v. Anderson Hay & Grain Co., No. 90975-0

have been motivated by reasons that contravene a clear mandate of pt1blic policy, the burden shifts to the employer to prove that the dismissal was. for reasons other than those alleged by the employee.

Thompsort, 102 Wn.2d at 232-33.

vVe j ()ined the growing number of jurisdictions in adopting this burden

' . ' shifting fi·amework, which was designed to track the same burden-shifting

analytical fhnnework used for other employment discrimination claims. Particular

to this tort, however, we insisted that the public policy at issue be judicially or

legislatively recognized, emphasizing that the tort is a narrow exception to the at

wilJ doctrine and must be limited only to instances involving very clear violations

of public policy. Thompson's requirement that the policy be judicially or

legislatively recognized protects employers from having to defend against

amorphous claims. of public policy violations and addresses the employers'

~egitimate concern that a broad common law tort would considerably abridge their

ability to exercise discretion in managing and terminating employees. This strict

clarity requirement ensures that only clear violations of important, recognized . ' . ' ' . .

public policies could expose employers to liability. . . . . .. . . . .

Follow~ng Thompson, the availability of the tort remained narrow and it was

recognized under only four different situations:

( 1) where employees are fired for refusing to commit an illegal act; (2) where employees are fired for performing a public duty or

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Rose v. Anderson Flay & Grain Co., No. 90975-0

obligation, such as serving jury duty; (3) where employees are fired for exercising a legal right or privilege, such as filing workers' · compensatiorrclaims; and (4) where employees are fired in retaliation for reporting employer misconduct, i.e., whistleblowing.

Gardner, 128 Wn.2d at 936 (citing Dicomes v. State, 113 Wn.2d 612, 618, 782

P.2d 1002 (1989)). Under each scenario, the plaintiff is required to identify the

recognized public policy and demonstrate that the employer contravened that

policy by terminating the employee.

Not until our decision in WUmot did we factor into our analysis the existence

of other statutory remedies. In that case, several at-will employees were injured on

the job and were f()rced to continue working under threat of termination. The

Industrial Irisurance Act (IIA ), Title 51 RCW, prohibits such coercion and provides

an administrative remedy for employees who are terminated in retaliation for

taking leave for work-sustained injuries. When we examined the IIA as an

alternative remedy to the tort claim, we examined whether it was a mandatory and

ex:clusive remedy such that it precluded the plaintiff from recovery through a

wrongful discharge tort claim; We concluded that the statute contained permissive

rather than mandatory language, and we held that an aggrieved employee could

seek recourse under either claim. We held the availability of the alternative remedy

did not prech1de the claim from going forward.

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·In Gardner, we refined the tort's analytical framework somewhat but

expt:essly refrained from substantively changing the underlying tort requirements.

In that case,. an armored truck driver was terminated for leaving his truck to save a.

woman's life; ~nd we were presented with the question of whether the termination

violated a clear mandate of public policy. We explained that because the situation

did not involve the common retaliatory discharge scenario, it demanded a more

refined analysis than had been conducted in previous cases. Gardner, 128 Wn.2d at

940. Faced with this unique set of facts, we utilized a four-part framework to guide

our analysis. HENRY H. PERRITT, JR., WORKPLACE TORTS: RIGHTS AND LIABILITIES

§3 .7 (1991 ).

Under this Perritt framework, courts examine (1) the existence of a "clear

public policy" (clarity

With respect to the STAA, we hold that its existence does not affect Rose's

tort clai111. Statutory alternatives will not preclude tort recovery unless such

preclusion is either implied or expr~ssed by the statute. We will not impose our

own judicially created hurdle to recovery. Because Congress expressly provided a

nonpreemption clause in the statute, our analysis need not go any further. We

~;respect Congress' choice to permit Rose to pursue either remedial course of action.

This case involves the jeopardy element of the tort for
wrongful discharge against public policy and whether the administrative remedies available under the Surface Transportation Assistance Act of 1982 This is one of three concomitant cases2 before us concerning the "adequacy
of alternative remedies" component of the jeopardy element that some of our cases seemingly embrace. For the reasons discussed in this opinion, we hold that the 1 Both the parties refer to 49 U.S.C. § 31105 as the "Commercial Motor Vehicle Safety Act." This is not entirely accurate. Although the chapter is titled "Commercial Motor Vehicle Safety,"§ 31105 ofthat chapter is part ofthe STAA.

We reembrace the formulation of the tort as initially articulated in
17'1ompson, Wilmot, and Gardner,3 and reverse the Court of Appeals.