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Farnam v. Crista Ministries

April 4, 1991; As Corrected April 16, 1991.


En Banc. Durham, J. Utter, Brachtenbach, Dolliver, Andersen, and Guy, JJ., and Callow, J. Pro Tem., concur. Dore, C.j. (concurring in part, dissenting in part). Smith and Johnson, JJ., did not participate in the disposition of this case.

Author: Durham

Nancy Farnam brought a civil action against her employer, CRISTA Ministries (CRISTA), claiming religious discrimination and wrongful discharge in violation of public policy. The jury returned a verdict for Farnam on both counts. CRISTA moved for judgment n.o.v., and the trial court upheld the wrongful discharge claim. However, the court reversed and dismissed the religious discrimination claim, holding that because CRISTA was a religious organization, it was therefore exempt from such actions pursuant to RCW 49.60.040.

As to each ruling, the aggrieved party appeals. We hold that Farnam has not stated a cause of action for wrongful discharge in violation of public policy. Accordingly, the trial court's denial of CRISTA's motion for judgment n.o.v. as to that claim is reversed. We also hold that CRISTA is a religious organization within the exemption of RCW 49.60.040, and affirm the trial court's dismissal of Farnam's religious discrimination claim.

Before proceeding with our analysis, a caution regarding the dissent is in order. This case involves only the interpretation of the applicable law of employment. The dissent's unwarranted foray into the emotionally charged theater of bio-ethics is as dangerous as it is irrelevant. Termination of life support is one of the most complex issues of our time and demands thoughtful and informed analysis. Neither the trial judge nor the parties dealt with this issue, and it has not been presented to this court. As such, it has no place in this case.


CRISTA is a nonprofit interdenominational Christian organization, which is a single corporate entity encompassing seven divisions, including schools, counseling services, radio stations and health care facilities. Nancy Farnam was employed as a nurse at one of CRISTA's nursing homes

from approximately April 1979 until September 1985. All CRISTA employees, including Farnam, are required to sign a "doctrinal statement" stating that they adhere to a statement of Christian faith. Farnam testified that she wanted to work at CRISTA because she believed that it was a Christian organization. She also testified that she received assurances, prior to being hired, that CRISTA did not permit the withholding of food and water from patients. At all relevant times, Farnam was a counit supervisor, or primary care nurse, at Poplar Court, the acute care wing of the nursing home.

In July 1984, a decision was made to remove the nasalgastric feeding tube (NG tube) from Ellen Goodhope. The decision was made by her doctor in connection with a prognosis board and Goodhope's family. Farnam and other nurses objected to the decision. Farnam objected on religious grounds and also because she was concerned that aspiration and pneumonia were likely to occur if she tried to give food or water orally after the tube was removed. It is disputed whether or not CRISTA had a policy requiring the giving of food or water under those circumstances. Because Farnam was Goodhope's primary care nurse, she believed that she was the one who would have to remove the NG tube.

Jeffrey Crandall, the administrator of the nursing center at CRISTA Senior Community, initially told Farnam that she had to remove the NG tube if she wanted to continue working at CRISTA. However, Crandall later changed his position and told Farnam that the removal of NG tubes was not a condition of her employment. Goodhope was transferred to another facility for the removal of her NG tube.

In March 1985, the decision was made to remove the NG tube of another terminal patient, Clarine Perkins. JoAnn Beaumont, assistant director of nursing services, suggested to Farnam that, if she refused to remove the NG tube, she would be transferred to another unit. Again, Farnam objected. Farnam suggested that if the tube was to be

removed, Perkins should be transferred to another unit, rather than transferring the objecting nurses. Eventually, the tube was removed by supervisory staff and Perkins was transferred to another unit within CRISTA.

In April, Farnam and other concerned nurses sent a letter to the head of the Board of Trustees of CRISTA stating that they realized that the removal of NG tubes was legally protected, but they believed it violated their Christian values and CRISTA's image as a Christian provider of care for the elderly. The letter went on to request a meeting with the Board to discuss the issue.

Farnam also spoke with Yong Hall, the long-term care ombudsman at the Washington State Department of Social and Health Services, regarding Farnam's concerns about CRISTA's life support removal policies and her legal rights if she refused to remove NG tubes.

Farnam, through her husband, initiated a contact with The Seattle Times that resulted in an article being printed in that paper. The article, which appeared on the front page of the April 14, 1985 Sunday edition, described CRISTA as having permitted "death by starvation". Farnam was quoted in the article as saying that CRISTA was "trying to make us the executioners. And if I don't like it, I'm supposed to stay quiet." Farnam testified that these quotes were accurate.

Sometime in 1985, in response to an anonymous call, Yong Hall met with Crandall regarding the policies at CRISTA. Hall reviewed CRISTA's policies on the withdrawal of life support systems. She took no action against CRISTA, but suggested that CRISTA form a committee to address the issue and develop clear policies. In late April, CRISTA established an ad hoc committee to develop a formal policy with regard to the withdrawal issue.

The reports during Farnam's remaining tenure are disputed. Farnam testified generally that her beliefs were criticized as not being Christian, that her supervisors were spying on her in attempt to document enough deficiencies in her performance to fire her, and that she was unfairly

suspended and criticized in her work evaluation. She claimed that Poplar Court was intentionally understaffed so that she could not complete her work. She filed a grievance pursuant to CRISTA's written policies but contends it was not taken seriously.

CRISTA management employees testified generally that Farnam's work performance was deteriorating. They attributed this to Farnam spending too much time on the feeding tube controversy by organizing meetings, discussing it with others during business hours, and making personal phone calls. Management testified that Poplar Court was not understaffed -- Farnam was simply not properly managing her time or delegating duties. Management also testified that, rather than spying on Farnam, it was conducting proper employee evaluations. Management did request that any complaints made regarding Farnam be put in writing. Further, Farnam's grievance had been taken seriously.

On September 3, Farnam's nursing license expired and she was told she would have to leave work until her new license arrived. Farnam contends that CRISTA was singling her out because no other nurse had been sent home in similar situations. CRISTA contends that it was simply complying with applicable state law. Farnam went home the day her nursing license expired and did not return.

Farnam sent CRISTA a letter stating that she considered herself discharged. CRISTA responded with a letter stating that she had not been terminated. CRISTA gave Farnam until September 16 to inform CRISTA of the date she intended to return to work. The letter also stated that a failure to respond would be considered a voluntary resignation. Farnam did not respond. By a letter dated September 18, 1985, CRISTA acknowledged recognition and acceptance of Farnam's resignation.

Farnam filed suit against CRISTA and individual members of its management staff. She claimed that she had been constructively discharged in retaliation for expressing her religious views and, therefore, was wrongfully discharged in violation of public policy. She also brought

claims for intentional infliction of emotional distress, breach of contract, intentional interference with contractual relations, and religious discrimination. Her husband claimed emotional distress and loss of consortium. His claim was dismissed with prejudice by stipulation of the parties. CRISTA moved for summary judgment, and all of Farnam's claims, except those against CRISTA for discharge in violation of public policy and religious discrimination, were dismissed. The trial court denied reconsideration of the order.

In Farnam's original complaint, she alleged that she was discharged in violation of public policy for expressing her religious views. However, the claim was tried, over CRISTA's objection, on the theory that Farnam was discharged in violation of the public policy set forth in Washington's patient abuse reporting statute, RCW 70.124.

The case was tried to a jury, which returned verdicts for Farnam on both claims and awarded her a total of $100,000, which was not segregated by claim.

CRISTA brought a motion for judgment notwithstanding the verdict or, in the alternative, a new trial. Farnam moved for an award of attorney fees. The trial court reversed and dismissed the religious discrimination by harassment claim, holding that CRISTA was exempt from such claims under RCW 49.60 because it was a religious organization. However, the trial court upheld the jury verdict and award of $100,000 on the claim of wrongful discharge in violation of public policy based on Thompson v. St. Regis Paper Co., 102 Wash. 2d 219, 685 P.2d 1081 (1984). The court denied Farnam's motion for attorney fees under RCW 49.48 as not timely pleaded. Farnam moved for reconsideration. The court had initially denied Farnam's motion for attorney fees under RCW 49.60. However, on reconsideration the court concluded that because the jury found that Farnam had been discharged for reporting patient abuse in violation of the public policy supporting the patient abuse reporting statute, RCW 70.124, CRISTA's exemption under RCW 49.60 must yield to the

reporting statute. The court entered judgment on the verdict and awarded Farnam $197,000 additional in costs and attorney fees.

CRISTA filed a notice of appeal to this court. The appeal was granted and Farnam cross-appeals.


Wrongful Discharge

CRISTA appeals the denial of its motion for judgment n.o.v. on Farnam's claim for wrongful discharge in violation of public policy.*fn1 CRISTA asserts that Farnam was not wrongfully discharged because, as a matter of law, there was no abuse that would have required Farnam to make a report, Farnam's departure from CRISTA was not causally connected to her making a report, and she left voluntarily, she was not discharged.

Farnam contends that she did not leave voluntarily but was constructively discharged because CRISTA made her working conditions intolerable. Further, she argues that the alleged deterioration in her working conditions was a direct result of CRISTA retaliating against her for voicing objections about the removal of NG tubes to her superiors and to Yong Hall, the state long-term care ombudsman. Farnam contends that her constructive discharge was wrongful because it violated public policy as set forth in Washington's patient abuse reporting statute, RCW 70.124.

[1] Generally, where an employment contract is indefinite in duration, either the employer or employee may terminate the contract at will. Roberts v. ARCO, 88 Wash. 2d 887, 894, 568 P.2d 764 (1977), cited in Dicomes v. State,

113 Wash. 2d 612, 617, 782 P.2d 1002 (1989). In Thompson v. St. Regis Paper Co., 102 Wash. 2d 219, 685 P.2d 1081 (1984), this court recognized a public policy exception to the common law terminable-at-will doctrine. Under Thompson, a plaintiff has a cause of action in tort for wrongful discharge if the discharge of the employee contravenes a clear mandate of public policy. Thompson, at 232.

In determining whether a clear mandate of public policy is violated, courts should inquire whether the employer's conduct contravenes the letter or purpose of a constitutional, statutory, or regulatory provision or scheme. Prior judicial decisions may also establish the relevant public policy.

Thompson, at 232 (quoting Parnar v. Americana Hotels, Inc., 65 Hawaii 370, 380, 652 P.2d 625 (1982)). The court characterized this exception as a "narrow" one, which "properly balances the interest of both the employer and employee" by protecting against frivolous lawsuits and allowing employers to make personnel decisions without fear of incurring civil liability, while at the same time protecting employee job security against employer actions that contravene a clear public policy. Thompson, at 232-33.

[2] In Dicomes, this court stated that contravention of a clear mandate of public policy has been found in four general areas:

(1) where the discharge was the result of refusing to commit an illegal act, see, e.g, Tameny v. ARCO, 27 Cal. 3d 167, 164 Cal. Rptr. 839, 610 P.2d 1330 (1980) (termination for refusal to engage in price-fixing); (2) where the discharge resulted due to the employee performing a public duty or obligation, see, e.g., Nees v. Hocks, 272 Or. 210, 536 P.2d 512 (1975) (discharge because employee absent from work to serve on jury duty); (3) where the termination resulted because the employee exercised a legal right or privilege, see, e.g., Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 384 N.E.2d 353 (1978) (pursuit of workers' compensation claim); and (4) where the discharge was premised on employee "whistleblowing" activity, see, e.g., Wagner v. Globe, 150 Ariz. 82, 722 P.2d 250 (1986).

Dicomes, at 618. The court expressly recognized the public policy found in protecting employees who are discharged in retaliation for reporting employer misconduct; i.e., "whistleblowing". In determining if a discharged employee

may state a tort claim for wrongful discharge under this exception, the court examines "the degree of alleged employer wrongdoing, together with the reasonableness of the manner in which the employee reported, or attempted to remedy, the alleged misconduct." Dicomes, at 619 (citing 1 L. Larson, Unjust Dismissal ยง 7.02 (1989)). The court expressly declined to limit the scope of what constitutes contravention of public policy to clear statutory violations. Dicomes, at 619. A finding that the employer violated either the letter or the purpose of the law is sufficient "so long as the employee sought to further the public good, and not merely private or proprietary interests". Dicomes, at 620.

Here, the public policy Farnam relies on to support her wrongful discharge cause of action is found in RCW 70.124. Under RCW 70.124.030, any employee of a nursing home who has reasonable cause to believe that a nursing home patient has suffered abuse or neglect "shall report such incident, or cause a report to be made, to either a law enforcement agency or to the [Department of Social and Health Services]." Abuse or neglect is defined as "the nonaccidental physical injury or condition, sexual abuse, or negligent treatment of a nursing home or state hospital patient under circumstances which indicate that the patient's health, welfare, and safety is harmed thereby." RCW 70.124.020(9). Failure to make a report is a misdemeanor, RCW 70.124.070, and it is an unfair practice under RCW 49.60 to dismiss an employee for reporting suspected abuse. RCW 70.124.060.

Because Farnam's concerns focused on the removal of NG tubes, the Natural Death Act (NDA), RCW 70.122, must also be examined in determining if Farnam can state a cause of action. The NDA authorizes the withdrawal of life-sustaining procedures when certain conditions are met and the act's procedural requirements are followed. RCW 70.122.030, .060. Furthermore, RCW 70.122.050 provides immunity for facilities and practitioners who act in good faith in accordance with the requirements of the act.

It is undisputed that CRISTA complied with the procedural requirements of the NDA and that CRISTA believed that removal of NG tubes was provided for under the act. Indeed, Farnam does not contend that CRISTA actually violated any specific provisions of either the reporting statute or the NDA. To the contrary, on April 9, Farnam and other concerned nurses sent a letter to the head of the Board of Trustees of CRISTA, which stated, in part:

While we realize that there is legal protection which allows the withdrawal of hydration and nutrition from our patients, we think that it violates every basic tenet we hold as Christian nurses and which Crista has developed as their image in the care of the elderly.

(Italics ours.) Furthermore, on June 1, 1985, Farnam gave a personal statement to the ad hoc committee formed at CRISTA to develop a formal policy regarding the withdrawal of life support systems. Farnam stated, in part:

[W]e recognize that in some cases patients, families and doctors may choose to make judgments about withholding or withdrawing care which is their right under current and proposed secular law. Those individuals now and will continue to have the option to exercise those choices at many other facilities. We will not impose our values on them in such cases. We will in no way interfere with their choice or their rights under secular law. Those who wish to withdraw or withhold care should claim their secular right in a secular facility.

(Some italics ours.)

[3] Thus Farnam twice, while still an employee at CRISTA, stated in writing that she believed CRISTA had the legal right to remove NG tubes under the NDA. A narrow public policy exception intended to protect employees who report employer wrongdoing should not be extended to an employee who has twice told her employer that she believed the actions taken were legally protected.

Farnam also argues that, even though her statements concede that she believed CRISTA acted within the law, she could have believed removal of the NG tubes constituted abuse, which she was required to report, because the NDA does not specifically include or exclude NG tubes

within the definition of life-sustaining procedures that may be withdrawn under the act.*fn2

This does not change the result. The focus under the Dicomes test for whistleblowing is on CRISTA's level of ...

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