Danny v. Laidlaw Transit Services, Inc.

193 P.3d 128

165 Wn.2d 200

Certification from the United States District Court for the Western District of Washington in Ramona DANNY, Plaintiff, v. LAIDLAW TRANSIT SERVICES, INC., Defendant.

No. 78421-3.

Supreme Court of Washington, En Banc.

Argued September 14, 2006.

Decided October 3, 2008.

Kathleen Phair Barnard, Schwerin Campbell Barnard & Iglitzin LLP, Seattle, WA, for Plaintiff.

Nicholas Michael Beermann, Attorney at Law, Nishi-Azabu, Minato-ku, Tokyo, for Defendant.

Richard D. Reed, Attorney at Law, Vashon, WA, Patricia Sue Rose, Attorney at Law, Seattle, WA, for Amicus Curiae on behalf of Washington Employment Lawyers Association.

Sean M. Phelan, Frank Freed Subit & Thomas, Seattle, WA, Grace S. Huang, WA State Coalition Against Dom Violence, Seattle, WA, for Amicus Curiae on behalf of Washington State Coalition Against Domestic Violence.

OWENS, J.

¶1 The United States District Court for the Western District of Washington (District Court) certified the following question to this court:

Has the State of Washington established a clear mandate of public policy prohibiting an employer from discharging an at-will employee because she experienced domestic violence and took leave from work to take actions to protect herself, her family, and to hold her abuser accountable?

Order at 1. We are unable to answer the question as written because parts of the original question would require us to make factual inquiries that the District Court itself must undertake. We choose to reformulate the question.¹ The reformulated question is: Has the State of Washington established a clear mandate of public policy of protecting domestic violence survivors and their families and holding their abusers accountable? We answer the question in the affirmative. This policy is manifested in numerous legislative, judicial, constitutional, and executive expressions of public policy.

FACTS

¶2 The District Court and the parties prepared a statement of facts to guide this court in reaching its decision. Order at 3-4. According to the statement of facts, defendant Laidlaw Transit Services, Inc. (Laidlaw) hired plaintiff Ramona Danny in February 1997. Laidlaw provides transit services in King County, Washington, working with big subcontractors on projects that provide public transit route bids to King County. In October 2002, Laidlaw promoted Danny to the position of scheduling manager.

¶3 While she was working at Laidlaw, Danny and her five children experienced ongoing domestic violence at the hands of her husband. She moved out of her house in February 2003 after suffering serious physical abuse but had to leave her children behind. In June 2003, she told Project Manager Jeff Kaeder about her domestic violence situation. In August 2003, Danny requested time off so she could move her children away from the abusive situation at their home. The project manager initially refused because Danny was working on a large project with an October deadline. The project was a route bid for Laidlaw's largest subcontractor; the route bid covered 3,000-4,500 of the call center rides each day, and it was Danny's job to put the route bid together. On August 20, 2003, Danny's husband beat her 13-year-old son so badly that he had to be hospitalized. Danny immediately moved all five children out of the home. When she returned to work, Danny again requested time off to move her children to a shelter. The project manager approved paid time off between August 25 and September 8, 2003. The record reveals that during late August and early September 2003, Danny conferred with police regarding protection from her husband and assisted in the prosecution against him for the assault of her son. Danny Decl. at 1. During this time, Danny also used services from the King County Department of Community and Human Services to obtain transitional housing, domestic violence education, counseling and health services, and legal assistance. Id. at 2.

¶4 On October 9, 2003, about a month after returning to work, Laidlaw demoted Danny from manager and offered her the position of scheduler, which she accepted. Laidlaw terminated Danny's employment on December 3, 2003. Laidlaw's stated reason for termination was falsification of payroll records.

¶5 Danny filed her complaint against Laidlaw on May 10, 2005, alleging that Laidlaw terminated her employment in violation of public policy and Washington's Law Against Discrimination, chapter 49.60 RCW. On October 27, 2005, Laidlaw filed a motion for judgment on the pleadings seeking to dismiss Danny's public policy claim. The District Court stayed its decision on Laidlaw's motion and instead certified the above question to this court.

ANALYSIS

¶6 Wrongful Discharge in Violation of Public Policy. Absent a contract to the contrary, Washington employees are generally terminable "at will." Gardner v. Loomis Armored, Inc., 128 Wash.2d 931, 935, 913 P.2d 377 (1996). An at-will employee may quit or be fired for any reason. Id. The common law tort of wrongful discharge is a narrow exception to the terminable-at-will doctrine. Id. at 935-36, 913 P.2d 377. The tort of wrongful discharge applies when an employer terminates an employee for reasons that contravene a clearly mandated public policy. Id. As this court has previously stated, the tort of wrongful discharge "`operates to vindicate the public interest in prohibiting employers from acting in a manner contrary to fundamental public policy.'" Christensen v. Grant County Hosp. Dist. No. 1, 152 Wash.2d 299, 313, 96 P.3d 957 (2004) (emphasis omitted) (quoting Smith v. Bates Technical Coll., 139 Wash.2d 793, 801, 991 P.2d 1135 (2000)).

¶7 To sustain the tort of wrongful discharge in violation of public policy, Danny must establish (1) "the existence of a clear public policy (the clarity element);" (2) "that discouraging the conduct in which [she] engaged would jeopardize the public policy (the jeopardy element);" (3) "that the public-policy-linked conduct caused the dismissal (the causation element);" and (4) "[Laidlaw] must not be able to offer an overriding justification for the dismissal (the absence of justification element)." Gardner, 128 Wash.2d at 941, 913 P.2d 377. Whether Washington has established a clear mandate of public policy is a question of law subject to de novo review. Sedlacek v. Hillis, 145 Wash.2d 379, 388, 36 P.3d 1014 (2001); Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 149 Wash.2d 660, 670, 72 P.3d 151 (2003).

¶8 The reformulated certified question requires us to determine whether Danny has met the "clarity" element of wrongful discharge in violation of public policy. To determine whether a clear public policy exists, we must ask whether the policy is demonstrated in "`a constitutional, statutory, or regulatory provision or scheme.'" Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 232, 685 P.2d 1081 (1984) (quoting Parnar v. Americana Hotels, Inc., 65 Haw. 370, 380, 652 P.2d 625 (1982)). Although judicial decisions may establish public policy, "`courts should proceed cautiously if called upon to declare public policy absent some prior legislative or judicial expression on the subject.'" Id. (emphasis omitted) (quoting Parnar, 65 Haw. at 380, 652 P.2d 625). To qualify as a public policy for purposes of the wrongful discharge tort, a policy must be "truly public" and sufficiently clear. Sedlacek, 145 Wash.2d at 389, 36 P.3d 1014; see also Dicomes v. State, 113 Wash.2d 612, 618, 782 P.2d 1002 (1989) ("`[P]ublic policy concerns what is right and just and what affects the citizens of the State collectively.'" (quoting Palmateer v. Int'l Harvester Co., 85 Ill.2d 124, 130, 421 N.E.2d 876, 52 Ill.Dec. 13 (1981))).

¶9 This court has always been mindful that the wrongful discharge tort is narrow and should be "applied cautiously." Sedlacek, 145 Wash.2d at 390, 36 P.3d 1014. Washington courts have generally recognized the public policy exception when an employer terminates an employee as a result of his or her (1) refusal to commit an illegal act, (2) performance of a public duty or obligation, (3) exercise of a legal right or privilege, or (4) in retaliation for reporting employer misconduct. Gardner, 128 Wash.2d at 935-36, 913 P.2d 377.

¶10 Danny argues that she performed a public duty when she acted to protect herself and her children and that she exercised a legal right to obtain protection from her abuser. Danny points to several sources of this public policy from the legislative, executive, and judicial branches of government. We find a public policy of preventing domestic violence most clearly established in the State's legislative enactments. We also find the policy pronounced by executive and judicial sources.

¶11 Legislative Expression of Public Policy. As early as 1979, the legislature recognized that domestic violence is a community problem that accounts for a "significant percentage" of violent crimes in the nation and is disruptive to "personal and community life." RCW 70.123.010. At that time, the legislature declared "that there is a present and growing need to develop innovative strategies and services which will ameliorate and reduce the trauma of domestic violence." Id. To that end, the legislature created funding for domestic violence shelters, recognizing that many domestic violence victims are unable to leave violent situations without proper resources. Id. Also in 1979, the legislature enacted the domestic violence act (DVA), chapter 10.99 RCW, requiring law enforcement to respond to domestic violence. The legislature stressed "the importance of domestic violence as a serious crime against society and [sought] to assure the victim of domestic violence the maximum protection from abuse which the law and those who enforce the law can provide." RCW 10.99.010. The legislature later expanded the DVA to require the mandatory arrest of domestic violence perpetrators, RCW 10.99.030(6)(a), and has also expanded the definition of...