Ah, the tort of wrongful termination in violation of public policy (“WTVPP”). It’s one of those little quirks of Washington law that made the bar exam so fun to study for. In Charles Rose v. Anderson Hay & Grain Company (Division 3, May 22, 2012), the Court of Appeals held that, even assuming there existed a Washington public policy in need of protection, the relevant federal statute adequately protected that policy. Accordingly, the plaintiff’s claim for WTVPP under Washington law was properly dismissed.
Charles Rose was fired by his former employer, Anderson Hay and Grain Company (“Anderson”). Rose claimed that his termination was retaliatory in response to his refusal to violate federal law. Rose therefore sued Anderson in federal court. However, the federal court dismissed Rose’s federal claim because he had failed to exhaust administrative remedies. And by the time the case was dismissed, it was too late for Rose to file for administrative relief. (The Court of Appeals doesn’t discuss the rules regarding tolling of administrative time limits during the pendency of district court actions.)
So Rose filed a claim here in state court alleging WTVPP based on the public policy set forth in the federal statute that formed the basis for his initial suit – the Commercial Motor Vehicle Safety Act. To state a claim for WTVPP a plaintiff must show (1) a clear Washington public policy, (2) that discouraging the employee’s conduct (that allegedly got him fired) would jeopardize that public policy, and (3) a causal connection between the employee’s protected conduct and the termination. To satisfy the second element (the “jeopardy” element) “the plaintiff must show other means of promoting public policy are inadequate.”
This case is all about the jeopardy element. Federal law provides a statutory remedy for drivers who are terminated because they have refused to violate federal commercial safety rules. But there are procedural prerequisites to filing such a claim – prerequisites that Rose failed to satisfy.
The Court of Appeals concluded that “the federal statute provides an adequate remedy” to the asserted policy. Accordingly, Rose cannot satisfy the “jeopardy” element of his TVPP claim. It did not matter to the Court of Appeals that Rose could no longer avail himself of that federal remedy. The relevant issue, according to the Court of Appeals and Supreme Court precedent, is whether “other means are adequate to protect the public policy” generally, not the plaintiff in any specific case.