Dolliver, J., Smith, Johnson, Alexander, Talmadge, J.j., Pekelis, J.p.t., Guy, J. (concurring by separate opinion). Durham, C.j., Madsen, J. (dissenting by separate opinion). Sanders, J. (did not participate)
DOLLIVER, J.--The United States District Court for the Eastern District of Washington asks whether an employer contravenes public policy when it terminates an at-will employee who violated a company rule in order to go to the assistance of a citizen who was in danger of serious physical injury or death. We answer in the affirmative.
Plaintiff, Kevin M. Gardner, worked for Defendant, Loomis Armored Inc. (Loomis), as a guard and driver of an armored car. On March 10, 1994, Gardner and his partner, Steffon Sobosky, made a scheduled stop at a Seafirst Bank branch in Spokane. Sobosky got out of the truck and entered the bank while Gardner stayed in the driver's compartment.
Gardner then saw a woman, whom he recognized as the bank manager, run out of the bank while pointing behind her and screaming. Gardner looked behind the manager and saw a man with a knife chasing her. The armed man (hereinafter referred to as the suspect) was approximately fifteen feet behind the manager. While running past the front of the truck, the manager looked straight at Gardner and cried out, "Help me, help me." Deposition of Kevin M. Gardner at 203 (Oct. 20, 1994). Gardner described the expression on her face:
It was more than fear. There was a real--it was like a horrified kind of a look, like you--I can't describe it other than that, I mean she--she was horrified, not just afraid.
Deposition of K. Gardner at 203. Gardner looked around the parking lot and saw nobody coming to help the manager. After the manager and the suspect ran past the front of the truck, Gardner got out, locking the door behind him. As he got out of the truck, he temporarily lost sight of the manager and the suspect, who were both on the passenger side of the truck. While out of Gardner's view, the manager reached a drive-in teller booth across the parking lot, where she found refuge. It is unclear whether the manager was safe before Gardner left the truck, but by the time Gardner walked forward to a point where he could see the suspect, the suspect had already grabbed another woman who was walking into the bank. Gardner recognized the second woman as Kathy Martin, an employee of Plant World, who watered plants at the bank. The suspect put the knife to Ms. Martin's throat and dragged her back into the bank. Gardner followed them into the bank where he observed his partner, Sobosky, with his gun drawn and aimed at the suspect. When Sobosky distracted the suspect, Gardner and a bank customer tackled the suspect and disarmed him. The police arrived immediately thereafter and took custody of the suspect. Ms. Martin was unharmed.
Loomis has a "fundamental" company rule forbidding
armored truck drivers from leaving the truck unattended. The employee handbook states, "violations of this rule will be grounds for termination." Employee Handbook at 10. Drivers may not exit the compartment under any circumstance. This rule is for the safety of both the driver and the partner who enters the businesses to make pickups or deliveries. The rule is so absolute, the driver is not allowed to get out of the truck when pulled over by someone who appears to be a police officer. Instead, the driver must show the officer a card which explains the driver will follow the officer to the police station. Employee Handbook at 11. When emergencies arise, the driver, although confined to the compartment, can summon help or take other action using the two-way radio, public address system, and sirens.
Gardner was fired for violating this work rule by exiting the truck during the March 10, 1994, incident. Gardner's partner was not disciplined in any way for his involvement with the hostage situation. Gardner sued Loomis in the United States District Court for the Eastern District of Washington, making multiple claims, one being wrongful discharge in violation of public policy. Judge Quackenbush certified the following question to this court:
Does it violate public policy in the State of Washington to discharge an at-will employee for violating a company rule in order to go to the assistance of a citizen held hostage at the scene of a crime, and/or who is in danger of serious physical injury and/or death?
Under the common law, at-will employees could quit or be fired for any reason. Roberts v. Atlantic Richfield Co., 88 Wash. 2d 887, 891, 568 P.2d 764 (1977). In recent years, courts have created certain exceptions to the terminable-at-will doctrine. One of these exceptions says employees may not be discharged for reasons that contravene public policy. Almost every state has recognized this public policy exception. 1 Henry H. Perritt, Jr., Employee Dismissal Law and Practice §§ 1.13-1.63 (3d ed. 1992 & Supp. 1995) (giving an exhaustive state-by-state survey of
wrongful discharge actions). These public policy tort actions have generally been allowed in 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 obligation, such as serving jury duty; (3) where employees are fired for exercising a legal right or privilege, such as filing workers' compensation claims; and (4) where employees are fired in retaliation for reporting employer misconduct, i.e., whistleblowing. Dicomes v. State, 113 Wash. 2d 612, 618, 782 P.2d 1002 (1989).
This court first allowed a wrongful discharge claim on public policy grounds in Thompson v. St. Regis Paper Co., 102 Wash. 2d 219, 685 P.2d 1081 (1984). Thompson involved a situation where a divisional controller had instituted an accurate accounting program required by the Foreign Corrupt Practices Act of 1977, Pub. L. No. 95-213, 91 Stat. 1494. The employee claimed he was terminated in retaliation for complying with the law, and his discharge was intended to serve as a warning to other divisional controllers. The court ruled a plaintiff could satisfy the elements of a wrongful discharge claim by showing the discharge may have contravened a clearly stated public policy. Thompson, 102 Wash. 2d at 232. Once a plaintiff shows the violation of a public policy, the burden shifts to the employer to prove the dismissal was for reasons other than those alleged by the employee. Thompson, 102 Wash. 2d at 233. See also Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wash. 2d 46, 70, 821 P.2d 18 (1991) ("Employer must articulate a legitimate nonpretextual nonretaliatory reason for the discharge.").
In creating a public policy tort action, Thompson cautioned the exception should be narrowly construed in order to guard against frivolous lawsuits:
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.
However, courts should proceed cautiously if called upon to declare public policy absent some prior legislative or judicial expression on the subject.
Thompson, 102 Wash. 2d at 232 (quoting Parnar v. Americana Hotels, Inc., 65 Haw. 370, 380, 652 P.2d 625 (1982)). Determining what qualifies as a clear mandate of public policy is a question of law. Dicomes, 113 Wash. 2d at 617.
Most of the public policy cases argued in front of this court since Thompson have fallen under the third and fourth categories described in Dicomes v. State, 113 Wash. 2d 612, 782 P.2d 1002. The most recent cases fit into the third category, where employees are fired in retaliation for asserting a legal right. Washington courts have found at least three different legal rights of employees with which employers cannot interfere. See Bravo v. Dolsen Cos., 125 Wash. 2d 745, 888 P.2d 147 (1995) (nonunion employees terminated for exercising their statutory right to engage in concerted action); Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wash. 2d 46, 821 P.2d 18 (1991) (employees terminated for filing workers' compensation claims); see also Hayes v. Trulock, 51 Wash. App. 795, 755 P.2d 830 (acknowledging the trial court's finding, not challenged on appeal, that employees were fired in retaliation for complaining to officials about the employer's refusal to pay overtime), review denied, 111 Wash. 2d 1015 (1988).
This court has also considered several cases falling under the fourth category, where workers are fired in retaliation for whistleblowing on illegal or wrongful employer conduct. See Farnam v. CRISTA Ministries, 116 Wash. 2d 659, 807 P.2d 830 (1991) (nurse unsuccessfully claimed retaliatory wrongful discharge when fired for complaining to the media about the nursing home's legal practice of removing food tubes from terminally ill patients); Bennett v. Hardy, 113 Wash. 2d 912, 784 P.2d 1258 (1990) (allowing a claim of action, analogized to whistleblowing, where sixty-year-old employee was fired in retaliation for hiring an attorney to protect her from age discriminatory practices); Dicomes v. State , 113 Wash. 2d 612,
782 P.2d 1002 (1989) (state employee unsuccessfully claimed wrongful retaliatory discharge where the employee publicly disclosed the existence of surplus funds not accounted for in the department's budget).
Of the two categories of public policy tort cases discussed above, most of the successful cases in this state have presented one-sided situations where no legitimate employer interest was offered to counterbalance the stated public policy furthered by the employee's conduct. The situation presented by this case does not fit neatly into either of the categories of cases previously considered by this court. Gardner was not fired in retaliation for asserting any legal rights, nor has the employer been accused of engaging in any illegal conduct. Both parties in this case have offered legitimate and valid reasons in defense of their actions. To obtain a proper resolution of this case, this court must decide whether several public policies have been successfully invoked by Plaintiffs. Additionally, we must determine whether Defendant has offered legitimate interests in enforcing the work rule which Gardner violated. Prior cases have not demanded such a delicate balancing of interests as is required for a proper resolution in this case. The parties' arguments must be analyzed.
Plaintiffs argue that Gardner's going to the aid of a woman in a hostage situation furthered public policies embodied in common law and an assortment of statutes. Plaintiffs first point to statutes concerning citizens' interaction with law enforcement. One statute gives citizens who aid police officers the same civil and criminal immunity as such officers. RCW 9.01.055. Another statute cited by Plaintiffs makes it a crime to obstruct law enforcement officers from carrying out their duties. RCW 9A.76.020. A third cited statute makes it a crime for a citizen to refuse unreasonably an officer's request to summon aid for the officer. RCW 9A.76.030. Finally, the Crime Victims, Survivors, and Witnesses Act explicitly says victims, survivors of victims, and witnesses of crimes have a civic and moral duty to cooperate fully and voluntarily
with law enforcement and prosecutorial agencies. RCW 7.69.010. Plaintiffs argue Gardner fits within the Act's definition of a crime witness. These statutes allegedly express a clear public policy encouraging citizens to assist law enforcement in the effective apprehension and prosecution of criminals. Plaintiffs argue Gardner's termination for leaving the truck in order to respond to a hostage situation contravened this public policy.
Plaintiffs also argue Gardner's termination violates the public policy which encourages citizens to come to the aid of others in need of care. In support of this public policy argument, Plaintiffs point to the rescue doctrine, RCW 4.24.300, and language in State v. Hillman, 66 Wash. App. 770, 832 P.2d 1369, review denied, 120 Wash. 2d 1011, 841 P.2d 47 (1992).
The rescue doctrine arises in the context of tort claims. The doctrine "is intended to provide a source of recovery to one who is injured while reasonably undertaking the rescue of a person who has negligently placed himself in a position of imminent peril." Maltman v. Sauer, 84 Wash. 2d 975, 976-77, 530 P.2d 254 (1975). Plaintiffs' Reply Brief quotes language from a case which states:
The rescue doctrine encourages efforts to save imperiled persons despite a rescuer's voluntary (though not reckless) exposure to danger.
Ballou v. Nelson, 67 Wash. App. 67, 70, 834 P.2d 97 (1992). Plaintiffs argue that Gardner's involvement with the hostage situation furthered the public policy evinced by the rescue doctrine.
Plaintiffs cite RCW 4.24.300, which encourages persons to render emergency care to those in need by releasing rescuers from liability should injuries result from negligent acts committed in the course of rendering emergency care or transportation. Language from Hillman is also cited in Plaintiffs' Reply Brief to support their assertion of there being a public policy encouraging citizens to come to the aid of those in need. In Hillman, the trial court exceeded the sentencing guidelines when imposing a murder
sentence on the defendant. The Washington State Court of Appeals upheld the exceptional sentence because the victim was a good samaritan who had stopped to help the defendant with a broken down car on the roadside:
Although murder itself offends fundamental notions of morality, to murder a person who comes to one's aid discourages others from offering aid to persons in need of help. The ramifications to a civilized society are indeed disturbing.
Hillman, 66 Wash. App. at 776.
This case also presents a public policy of encouraging citizens to save others from life threatening situations. Plaintiffs did not focus on this third public policy as distinct from the good samaritan doctrine, but the certified question clearly raises the distinct issue. This third policy narrowly focuses on situations where a citizen's life is in imminent danger, whereas the good samaritan doctrine encompasses a broad range of conduct where one renders any kind of aid to someone in need of help.
Loomis argues it did not fire Gardner in retaliation for his saving a hostage -- it fired him solely because he left the truck in violation of the work rule. This claim is supported by the fact that Loomis did not discipline Gardner's partner, who was just as involved with the situation as Gardner. Gardner argues Loomis must take into account his reasons for leaving the truck when choosing the punishment for breaking the rule, but Loomis implies it would terminate an employee for violating the work rule regardless of what kind of excuse the employee offered. Gardner has offered no evidence questioning the sincerity of Loomis' position.
Because this situation does not involve the common retaliatory discharge scenario, it demands a more refined analysis than has been conducted in previous cases. Loomis' seemingly legitimate work rule has come into conflict with employee behavior that may have socially redeemable aspects. This court must decide whether any of the three public policies put forth by Plaintiffs were violated
when Defendant discharged Gardner, and whether the alleged violation of the public policies warrants recovery.
Henry Perritt Jr., one of this country's foremost scholars on labor and employment law, advocates a comprehensive test for analyzing wrongful discharge claims involving violations of public policy. Perritt proposes four elements of a public policy tort case:
(1) The plaintiffs must prove the existence of a clear public policy (the clarity element). Henry H. Perritt Jr., Workplace Torts: Rights and Liabilities § 3.7 (1991) (hereinafter Perritt).
(2) The plaintiffs must prove that discouraging the conduct in which they engaged would jeopardize the public policy (the jeopardy element). Perritt § 3.14.
(3) The plaintiffs must prove that the public-policy-linked conduct caused the dismissal (the causation element). Perritt § 3.19.
(4) The defendant must not be able to offer an overriding justification for the dismissal (the absence of justification element). Perritt § 3.21. See also Collins v. Rizkana, 73 Ohio St. 3d 65, 69-70, 652 N.E.2d 653 (1995) (adopting Perritt's four element test).
Perritt's test serves as an excellent guide for analyzing all public policy wrongful discharge torts, and our adoption of this test does not change the existing common law in this state. Common law already contains the clarity and jeopardy elements. See Dicomes v. State, 113 Wash. 2d 612, 617, 782 P.2d 1002 (1989) ("The employee has the burden to show that the discharge contravened a clear mandate of public policy."). Whereas prior decisions have lumped the clarity and jeopardy elements together, a more consistent analysis will be obtained by first asking if any public policy exists whatsoever, and then asking whether, on the facts of each particular case, the ...