Ramos v. Docomo Pac., Inc., (2012)

2012 Guam 20

EDGAR RAMOS, Plaintiff-Appellant,

v.DOCOMO PACIFIC, INC., Defendant-Appellee.

Supreme Court Case No. CVA11-019 Superior Court Case No. CV1414-09

SUPREME COURT OF GUAM

Dated: December 27, 2012

OPINION

Appeal from the Superior Court of Guam

Argued and submitted May 21, 2012

Hagåtña, Guam

Appearing for Plaintiff-Appellant

William L. Gavras, Esq.

Appearing for Defendant-Appellee:

Kathleen V. Fisher, Esq. (argued)

Michael A. Pangelinan, Esq. (briefed)BEFORE: F. PHILIP CARBULLIDO, Chief Justice; ROBERT J. TORRES, Associate Justice; KATHERINE A. MARAMAN, Associate Justice.

TORRES, J.:

[1] Plaintiff-Appellant Edgar Ramos appeals the Superior Court's order dismissing his complaint for wrongful termination and demand for jury trial. Ramos' complaint alleged that he was wrongfully terminated for reporting to the Federal Communications Commission that Defendant-Appellee Docomo Pacific, Inc. falsely informed the Commission that Docomo was in compliance with federal statutes and regulations designed to protect Customer Proprietary Network Information from disclosure. The Superior Court dismissed the complaint, finding that no relevant exception applies to a privately employed person under Guam law that would provide Ramos with relief for termination of his at-will employment. Ramos argues that the trial court erred in finding that Guam does not recognize a common law cause of action by an employee of a private employer who reports to governmental authorities an illegal act committed by the employer and as a result has his employment terminated by the employer.

[2] We join the overwhelming majority of jurisdictions who recognize that an at-will employee cannot be terminated if such termination would be counter to public policy. To prevail under this public policy exception, an employee must prove that:

1. [A] clear public policy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in the common law (the clarity element);

2. [D]ismissing employees under circumstances like those involved in the plaintiff's dismissal would jeopardize the public policy (the jeopardy element);

3. The plaintiff's dismissal was motivated by conduct related to the public policy (the causation element); and4. The employer lacked overriding legitimate business justification for the dismissal (the overriding justification element).

Henry H. Perritt, Jr., The Future of Wrongful Dismissal Claims: Where Does Employer Self Interest Lie?, 58 U. Cin. L. Rev. 397, 398-99 (1989).

[3] Although we recognize a public policy exception to the employment at-will doctrine exists, Ramos did not meet his burden of proving a clear public policy existed under Guam law or that a federal law or regulation accurately articulates Guam's public policy such that it provides a proper basis for his wrongful discharge claim. Accordingly, he did not satisfy the first prong, or "clarity" element, of the four-part test, justifying the adoption of a public policy exception, and we affirm the trial court's dismissal of the complaint on other grounds.

I. FACTUAL AND PROCEDURAL BACKGROUND

[4] Edgar Ramos filed a complaint in the Superior Court of Guam for wrongful termination and demand for jury trial. The complaint alleged Ramos, an at-will employee of Docomo Pacific, Inc. ("Docomo"), reported to the Federal Communications Commission ("FCC") that the company, through one of its officers, had falsely informed the FCC it was in compliance with statutes, regulations and/or rules aimed at protecting Customer Proprietary Network Information ("CPNI").¹ The complaint further alleged that as a result of Ramos' report to the FCC, Ramos'employment with Docomo was terminated, or Docomo intentionally created intolerable conditions that induced Ramos to leave his employment.²

[5] After Ramos amended his complaint and both parties engaged in discovery, Docomo filed a motion for judgment on the pleadings arguing that Ramos' wrongful termination claim in tort must be dismissed because Guam law does not recognize a public policy exception to the at-will employment doctrine. Ramos, in turn, argued the court should recognize a cause of action which encourages employees to report to the authorities when employers violate the law. The Superior Court of Guam issued a Decision and Order granting Docomo's motion for judgment on the pleadings. The court found "no relevant exception applying to a privately employed person under Guam [s]tatute that would provide [Ramos] with relief for his termination of an at-will employment." Record on Appeal ("RA"), tab 26 at 2 (Dec. & Order, Aug. 30, 2011). Ramos appeals.

II. JURISDICTION

[6] This court has jurisdiction over appeals from a final judgment. 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 112-197 (2012)); 7 GCA §§ 3107, 3108(a) (2005).

III. STANDARD OF REVIEW

[7] In the federal courts, a motion for judgment on the pleadings pursuant to Federal Rules of Civil Procedure Rule 12(c) is subject to the same standard of review as a motion to dismiss under Rule 12(b)(6). Warrior Sports, Inc. v. Nat'l Collegiate Athletic Ass'n, 623 F.3d 281, 284 (6th Cir. 2010); Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009); Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006); Dworkin v. Hustler Magazine,Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). In the past, this court has referenced federal case law when the Guam Rules of Civil Procedure are identical to the Federal Rules of Civil Procedure. See Sananap v. Cyfred, Ltd., 2011 Guam 21 ¶ 14 n.13. Compare Guam R. Civ. P. 12(c), with Fed. R. Civ. P. 12(c). In Guam, "[p]ursuant to this court's power on appeal to convert a Rule 12(b)(6) motion to dismiss into a summary judgment motion, the appropriate standard to review the grant of a motion for summary judgment is . . . de novo." Core Tech Int'l Corp. v. Hanil Eng'g & Constr. Co., 2010 Guam 13 ¶16; see also Iizuka Corp. v. Kawasho Int'l (Guam), Inc., 1997 Guam 10 ¶ 7; Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996).

IV. ANALYSIS

[8] Ramos argues this court "has never determined whether Guam recognizes a cause of action for wrongful termination on the basis that an employer terminated its employee because the employee reported illegal activities of the employer to Governmental Authorities." Appellant's Br. at 7 (Jan. 30, 2012). Ramos rests his argument on the District Court of Guam's decision in Hill v. Booz Allen Hamilton, Inc., in which the district court noted forty-three states recognize a public policy exception to the at-will employment doctrine. 2009 WL 1620403, at *11 (D. Guam June 9, 2009).

[9] Docomo argues the Superior Court correctly held that Guam does not recognize a public policy exception to the at-will doctrine for employees of private companies. Appellee's Br. at 6 (Feb. 29, 2012). It supports this argument by urging this court to uphold the existing Guam statutory scheme which provides for no exception to at-will employment for private employees, reminding this court that case law from other jurisdictions is not controlling and such law should not alter the Guam statutory scheme. Id. at 11. Docomo further contends that under theseparation of powers principle, the question of whether to create an exception to the at-will doctrine for private employees is a matter for the Guam Legislature, not for the court system. Id. at 15. Finally, Docomo argues that if this court recognizes a public policy exception, it should protect employers against bad faith actions and retaliation. Id. at 17.

A. Supreme Court's Authority to Create a Public Policy Exception to the Employment At-Will Doctrine

[10] We give great deference to the Guam Legislature. As we have previously held, "it is not this court's function to legislate those protections by implication." Sky Enter, v. Kobayashi, 2003 Guam 5 ¶ 11 (quoting Paulino v. Biscoe, 2000 Guam 13 ¶ 28); see also Bank of Guam v. Reidy, 2001 Guam 14 ¶ 22 ("[J]udicial legislation . . . is clearly not the prerogative of the courts."); People v. Villapando, 1999 Guam 31 ¶ 54 ("[I]t is within the purview of the Legislature to make statutory changes to an ill-conceived statutory scheme."); People v. Palomo, 1998 Guam 12 ¶ 17 ("Although a harsh result may occur, the problem exists not within the judicial system, but instead with the Legislature where the sole remedy lies in the amendment or repeal of [the statute in question].").

[11] We believe, however, that we would not be at odds with legislative intent if we were to adopt a public policy exception to the at-will employment doctrine. Docomo argues 18 GCA § 55404 (2005), Guam's at-will employment statute, is "plain, clear and unambiguous . . . [in not] providing] an exception for whistleblowers working for private companies." Appellee's Br. at 6. Docomo adds:

The Guam Legislature had the opportunity to add a whistleblower exception for private employees, but did not do so. Specifically, in 4 GCA §§ 4501, et seq. the Legislature enacted a narrow whistleblower protection scheme to shield public employees working for the Government of Guam who satisfy certain requirements before making public disclosures. The Legislature could have crafted the statutemore broadly to cover employees working for private employers like Docomo, but did not. This decision should be deemed to have been deliberate.

Id. at 7 (footnote omitted). The legislature recently revised sections 4501-4508 and specifically amended the section entitled, "Public Employee Protection." 4 GCA §§ 4501-4508 (added by Guam Pub. L. 24-069:1 (Sept. 30, 1967) and Guam Pub. L. 31-138:3 (Nov. 17, 2011)). Title 4 applies only to public employees and the government. See 4 GCA § 4501. We, therefore decline to conclude, as Docomo suggests, that the omission of private employees from the public employee whistleblower statute indicates a decision on the part of the legislature to preclude whistleblower protection to private employees. Appellee's Br. at 7. The legislature would...