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WELA is very active in providing amicus briefs on issues that affect workers in Washington. In the past several years, we have weighed in on every Washington State Supreme Court case, and many Court of Appeals and Ninth Circuit cases, interpreting employment law, by either submitting an amicus brief or assisting the plaintiff's attorney in presenting his or her argument.

CURRENTLY PENDING

Scrivener v. Clark College, No. 89377-2

The plaintiff alleges that Clark College refused to hire her based on her age, 54, and hired less qualified younger applicants for tenure-track positions in the college’s English department. The plaintiff was selected from a pool of 156 applicants as one of four finalists for two open positions. The college’s president, who was involved in the final decision to hire the younger (under 40) applicants instead of the plaintiff, said in his “State of the College” address that the institution needed to hire “younger talent.” At the time, 87 percent of tenure-track faculty were over 40 years old. That academic year, the college filled 13 tenure-track positions, only 4 of which it filled with candidates older than 40.

Scrivener filed suit and the trial court granted summary judgment for the college. The Court of Appeals affirmed. The Court of Appeals applied the burden shifting framework adopted from McDonnell Douglas, and ruled that the “substantial factor” standard for WLAD claims, which applies at trial, does not apply at summary judgment. The Court of Appeals affirmed based on finding that Plaintiff could not prove as a matter of law that Defendant’s stated reason for the hiring decisions was a pretext. The Court of Appeals dismissed the college president’s statement about hiring “younger talent” as “a ‘stray comment,’ a remark that does not give rise to an inference of discriminatory intent … and cannot demonstrate pretext.”

WELA filed an amicus memorandum in support of the petition for review, arguing that the Court of Appeals’ rulings dramatically raised the bar for an employee to survive summary judgment. The Supreme Court granted review and WELA filed an amicus brief, arguing that the “substantial factor” standard applies both at trial and summary judgment, regardless of the framework utilized for deciding the case or the characterization of Plaintiff’s evidence as “direct” or “circumstantial.” WELA argued that prior precedent is clear that Plaintiff may choose which framework to use for responding to a motion for summary judgment, and is not required to submit “direct evidence” of discrimination to avoid using the McDonnell Douglas burden-shifting scheme. Plaintiff may use the “direct or circumstantial model” as an alternative option for prevailing in response to a motion for summary judgment by showing with any form of admissible evidence that discriminatory intent was a “substantial factor” in the Defendant’s adverse action. WELA argued that the Court of Appeals’ formulation of pretext erroneously transformed the Plaintiff’s burden to proving that discrimination was the “only factor.” WELA also argued that the Supreme Court should reject the “stray remarks” doctrine, as it undermines the function of the jury and improperly weighs the evidence. 

View WELA's brief

Campbell v Employment Security Dept.

In 2009, the Washington legislature amended the Employment Security Act to provide unemployment benefits for claimants who “(a) Left work to relocate for the employment of a spouse or domestic partner that is outside the existing labor market area; and (b) remained employed as long as was reasonable prior to the move.” RCW 50.20.050(2)(B)(iii). This case represents the first time an appellate court has interpreted Washington’s “quit to follow” statute.

In June 2010, Robert Campbell was a full-time teacher with the University Place School District, when his wife received a Fulbright grant to research and teach in Finland from February to May 2011. Mr. Campbell asked the District for a leave of absence for the spring semester of 2010-2011 school year to accompany his wife and young daughter to Finland. The District denied this request. Mr. Campbell then requested a leave of absence for the entire 2010-2011 school year, which was also denied. Mr. Campbell subsequently resigned his position effective June 21, 2010.

Mr. Campbell applied for unemployment benefits and provided the circumstances of his resignation on his voluntary quit statement. The Employment Security Department (“ESD”) denied his request for benefits, finding that he did not have good cause to quit. Mr. Campbell appealed ESD’s decision, which was affirmed by an administrative law judge and adopted by the ESD commissioner. On appeal to Superior Court, the commissioner’s decision was reversed. ESD filed a timely appeal of the Superior Court’s decision.

In a published opinion, the Court of Appeals (Division II) affirmed the ESD commissioner’s decision denying Mr. Campbell’s claim for unemployment benefits. The Court of Appeals found that Mr. Campbell’s explanation for resigning at the end of the school year involved ethical and professional concerns for his employer, but failed to establish that he remained employed “as long as was reasonable.”

The Supreme Court granted review. WELA filed an amicus brief, asking that the Court hold that determination of whether an employee remained employed “as long as was reasonable” requires consideration of the totality of the unemployed worker’s circumstances. WELA also asked the Court to expressly reject ESD’s interpretation that the statute requires exhaustion of all reasonable alternatives. WELA argued that the suggestion that Mr. Campbell should have acted unethically by abruptly resigning his position mid-year and leaving his students and employer in a chaotic situation, in order to maintain his unemployment benefits status, is contrary to the statute and public policy.

View WELA's Brief

Kumar v Gate Gourmet

The plaintiffs in this case are members of various religions. They filed a class action claim alleging that their employer prohibited them from bringing their own food and failed to provide meals that met the dietary requirements of their sincerely held religious beliefs.

The trial court, relying upon Short v. Battle Ground School District, 169 Wn. App. 188, 279 P.3d 902 (2012), ruled that the WLAD did not provide a claim for religious accommodation and dismissed the lawsuit for failure to state a claim upon which relief can be granted.

The Supreme Court of the State of Washington granted direct review to determine “[w]hether an action may be brought against an employer under Washington Law Against Discrimination for failure to accommodate employees religious practices.”

WELA joined by ACLU-WA filed an amicus brief, arguing that the Supreme Court should overrule the Court of Appeals decision in Short v. Battle Ground School District. WELA argued that the Supreme Court should recognize that the WLAD, which prohibits religious discrimination in all its forms, established a claim for religious accommodation within the context of employment. WELA urged the Court to adopt the federal standard for proving religious accommodation claims under Title VII. Such standard requires that an employer engage in an “interactive process” with an employee who holds a bona fide religious belief, the practice of which conflicts with an employment duty. If the interactive process does not result in a proposal that the employer will accept, then the employer must demonstrate that the employee’s proposed accommodation would cause “undue hardship.” For purposes of a Title VII religious accommodation claim, an employer establishes “undue hardship” by demonstrating more than de minimis cost.

WELA took no position on the ultimate resolution of the case’s merits. It requested that the Court remand the matter to the trial court for the parties to further develop the record so that it can be determined whether religious accommodations are available to the plaintiffs under the standard applied to such claims under Title VII. 

View WELA's brief

RECENTLY DECIDED

Ockletree v. Franciscan Health System, No. 88218-5 (view Court's opinion)

The plaintiff in this case was employed by Franciscan Health Systems (FHS) as a security guard working in the emergency department at St. Joseph’s Hospital. During his employment, he suffered a stroke that left his nondominant arm impaired. FHS determined that Ockletree could no longer perform his job and terminated his employment.  Ockletree sued in state court, alleging discrimination on the basis of race and disability in violation of federal law and the WLAD. The case was removed to federal court, where FHS asserted that as a nonprofit religious organization, it was exempt from liability under the WLAD which expressly excludes from coverage “any religious or sectarian organization not organized for private profit.” RCW 49.60.040(11).  The federal district court certified two questions to the Washington Supreme Court: (1) whether the exemption of nonprofit religious organizations from the definition of “employer” under the WLAD violates article I, section 11 establishment clause or article I, section 12 privileges and immunities clause of the Washington Constitution; and (2) whether the exemption is unconstitutional as applied to an employee claiming that the religious non-profit organization discriminated against him for reasons wholly unrelated to any religious purpose, practice or activity.

In response to the certified questions, the Supreme Court issued three opinions. Justice Charles Johnson authored the lead opinion, in which Justices Madsen, Owens, and James Johnson joined. This plurality of four justices concluded that the exemption of nonprofit religious organizations from the WLAD did not grant a “privilege or immunity” for purpose of article I, section 12; and that even if it did implicate a “privilege or immunity,” reasonable grounds exist for the legislature to distinguish nonprofit religious organizations from other employers. The lead opinion also concluded that the WLAD’s definition of “employer” does not involve the appropriation of money or property, and therefore does not violate article 1, section 11’s establishment clause. The lead opinion did not directly address Ockletree’s “as applied” challenge.

Justice Stephens wrote the nominally dissenting opinion, in which Justices González, Fairhurst and McCloud joined. This plurality of four justices concluded that the exemption of nonprofit religious organizations from the WLAD did grant a “privilege or immunity” for such entities and that the legislature lacked reasonable economic or regulatory grounds for distinguishing between religious and secular nonprofits in applying the WLAD. The Stephens plurality concluded that, as applied to Ockletree, the WLAD exemption immunized FHS from liability for employment discrimination based on grounds unrelated to its religious beliefs or practice. Justice Stephens wrote that “the exemption is not necessary to satisfy FHS’s free exercise right and does not alleviate a substantial state-imposed burden on religious freedom. Consequently, it exceeds the limits of an accommodation of religion in violation of the federal establishment clause.” Thus, these four justices would hold that the exemption “cannot be applied to bar WLAD claims alleging race or disability discrimination.”

Justice Wiggins wrote a third opinion, which contains the holding of the Court’s majority. Justice Wiggins concurred with the dissenting opinion that the exemption of nonprofit religious organizations from the WLAD grants a “privilege or immunity,” yet also concurred with the lead opinion’s conclusion that reasonable grounds exist for the legislature to distinguish nonprofit religious organizations from other employers covered by the WLAD. According to the lead opinion and Justice Wiggins, exempting nonprofit religious organizations from the WLAD avoids excessive entanglement with religious doctrines and practices and facilitates the free exercise of religion guaranteed by the Washington Constitution. Thus, a five justice majority held that the WLAD’s exclusion of religious nonprofit organization from the definition of “employer” is facially constitutional.

However, with respect to the second certified question, Justice Wiggins joined the four justices led by Justice Stephens for a five justice majority to hold that the WLAD’s exclusion of religious nonprofit organizations was unconstitutional as applied to Ockletree. In reaching this conclusion, Justice Wiggins revised the second certified question and reasoned that the focus ought not to be on whether the employer discriminated on religious grounds, but rather should “depend[] entirely on whether the employee’s job responsibilities relate to the organization’s religious practices.” Justice Wiggans would find the WLAD’s exemption “constitutionally applied in cases in which the job description and responsibilities include duties that are religious or sectarian in nature.” Thus, a five justice majority held that the WLAD’s exclusion of religious nonprofit organization is unconstitutional when applied to an employee whose duties bear no relationship to religion or religious practices.

WELA filed an amicus brief and argued that the exemption conferred under the WLAD is an “immunity” under article I, section 12, and that the exemption was unconstitutional as applied to religious non-profits to the extent that they acted beyond the protections guaranteed under the First Amendment.

Weiss v. Lonnquist, 153 Wn. App. 502 (2009) (view Court’s opinion)

In Weiss v. Lonnquist, the Plaintiff was an attorney associate employed by the Defendant.  As part of her employment, Weiss was requested to advocate for a client who had sued the employer for disability discrimination. After reviewing the client’s file, Weiss discovered a faxed message from the client indicating that she knew that her deposition testimony may have been untruthful. After consulting with an ethics experts, Weiss refused to continue working on the case.  Lonnquist took over the case and submitted the client’s allegedly false testimony in her case.

Approximately two weeks later Lonnquist gave Weiss 30 days notice of her termination from employment.  Lonnquist argued that Weiss was terminated from employment because she failed to generate sufficient revenue.  Weiss believed that a substantial factor in the decision to terminate was her employment was her refusal to violate the public policy reflected in the Rules of Professional Conduct including RPC 3.3, which mandates candor toward a tribunal.  Although Weiss considered a complaint with the WSBA, she did not do so, in part because it would not address wrongful termination.  Weiss brought suit alleging inter alia wrongful termination in violation of public policy. 

The case went to trial on the wrongful termination theory and a claim of lost wages.  The jury found for Weiss and the Court entered judgment for damages in the amount of $36,465, and $128,386 in attorney fees.  Lonnquist appealed.  After the case was tried and appealed, the Washington Supreme Court decided Cudney v. ALSOCO, Inc., 172 Wn.2d 524, 259 P.3d 244 (2011).

The Court of Appeals concluded that “[t]he jeopardy element sets up a relatively high bar.”  In particular, Plaintiff must show “that other means of promoting the public policy are inadequate.”  “The question of whether adequate alternative means for promoting a public policy exist presents a question of law as long as ‘the inquiry is limited to examining existing laws to determine whether they provide adequate alternative means of promoting the public policy.’” Citing Cudney, 172 Wn.2d at 528-29, quoting Korslund, 156 Wn.2d at 182.  Relying upon Cudney, the Court concluded that the trial court erred by failing to grant summary judgment in Lonnquist’s favor.  The Court concluded as a matter of law that despite the lack of any remedy for Weiss, the disciplinary process provided by the WSBA was an adequate alternative remedy to foreclose the jeopardy element of the wrongful discharge claim: “The Supreme Court has repeatedly emphasized that it does not matter whether or not the alternative means of enforcing the public policy grants a particular aggrieved employee any private remedy.” (Emphasis original).  The Court explained that “[w]e might have a different case if Weiss had reported Lonnquist to the bar association and had been discharged for taking that action.”  The Court rejected Weiss’s argument that a report to the Bar Association would have required her to disclose confidential information in violation of RPC 1.6. 

WELA filed an amicus curiae brief in support of a more expansive interpretation of the public policy tort.  

View WELA’s brief

IUOE v. Port of Seattle, ___ Wn.2d ___, (2013) (view Court’s opinion)

In this case an employee of the Port of Seattle hung a noose at work.  After an investigation, the Port of Seattle determined that the conduct violated its zero tolerance policy against racial harassment, and terminated the employee.  The employee’s union, IUOE, filed a grievance and ultimately an arbitration.  The arbitrator found that the employee intended the noose as a “joke” toward a 70 year old white co-worker, who did not find it harassing.  He further found credible the employee’s testimony that he didn’t know the noose was racial and “his impression of a noose was not racial, but derived from ‘Cowboys and Indians.’” The arbitrator found that the employee was “more clueless than racist,” and reduced the discipline from a termination to a 20 day suspension.  The Arbitrator ordered the employee reinstated with back pay.  The union appealed.

The Superior Court reversed the Arbitrator’s ruling, and ordered a six month suspension instead.  The Superior Court found that the Arbitrator’s ruling was so lenient that it violated the well-established, explicit, and dominant public policy reflected in the WLAD.  The Superior Court also ordered a sincere letter of apology, diversity and antiharassment training, and a four year period of probation. The Union appealed and the Court of Appeals affirmed except insofar as the Superior Court substituted its discipline for the discipline ordered by the Arbitrator.  Int'l Union of Operating Eng'rs, Loca/286 v. Port of Seattle, 164 Wn. App. 307, 326, 264 P.3d 268 (2011). 

On review, the Supreme Court acknowledged that “the noose has hateful, racist, and violent history in this country . . . .” “We acknowledge this terrible and tragic history and condemn the racial violence and threats of violence symbolized by the noose in the strongest terms possible.”  It condemned the employee’s actions as “ignorance and unacceptable.”  The Court nevertheless acknowledged the limited review available from the decision of an arbitrator pursuant to the collective bargaining process, and that it was bound by the Arbitrator’s findings.

The Court acknowledged that “like any contract, an arbitration decision arising out of a collective bargaining agreement can be vacated if it violates public policy.” Citing Kitsap County Deputy Sheriff's Guildv. Kitsap County, 167 Wn.2d 428,435,219 P.3d 675 (2009).  A Union arbitration decision can only be vacated “if it violates an ‘explicit,' 'well defined,' and 'dominant' public policy, not simply 'general considerations of supposed public interests.’”  The Court rejected to the Union’s argument to the contrary, and found that a union arbitrator’s decision could be vacated if it violated that public policy reflected in the WLAD.  The Court ruled  that in order to qualify the statute need not “list all possible discriminatory acts” and assign levels of discipline for each.  

The Court concluded that in light of the Arbitrator’s factual findings that a 20 day suspension in this case did not violate the public policy reflected in the WLAD: “[W]e cannot say that a 20-day unpaid suspension would not provide sufficient discipline to cause this or other employees to understand the serious nature of a noose in the workplace and thus prevent a similar incident in the future.”  The Court was careful to limit its ruling to the unique facts of this case: “We choose not to speculate what level of discipline would have been insufficient to prevent a similar incident in the future. . . . . We must leave those questions to another day.”

Last, the Court confirmed that even where an arbitrator’s ruling violates public policy, “trial courts cannot impose their own remedy after vacating an arbitration decision.”  “[I]nstead it should remand to the arbitrator for further proceedings.”

WELA filed an amicus brief and argued that the WLAD was an explicit, well defined and dominant public policy sufficient to vacate an arbitrator’s ruling.  WELA took no position about whether the discipline in this case was sufficient to violate the public policy reflected in the WLAD.  

View WELA’s brief

Piel v. City of Federal Way, 177 Wn.2d 604 (2013) (view Court’s opinion)

The plaintiff in this case was a Lieutenant for the Federal Way Police Department.  He claimed he was harassed and ultimately terminated because of his role in the creation of a union and in filing grievances against his employer.  He alleged wrongful termination in violation of the public policy expressed in the Public Employees' Collective Bargaining Act, RCW 41.56.  The trial court granted summary judgment, and the Supreme Court took the case on direct review.

The case was briefed before Cudney v. ALSCO, but argued and decided afterward.  In its 5-4 decision reversing summary judgment, the Court set out "to better explain our jeopardy analysis and harmonize our recent decisions” in Cudney and Korslund v. DynCorp Tri-Cities Services, Inc. 

The court first reaffirmed its holding in Smith v. Bates Technical College that a union member could bring a common law wrongful termination claim based on the public policies expressed in RCW 41.56 notwithstanding the administrative remedies available.  The Court rejected the employer's argument that because Smith did not directly address the jeopardy element per se, Smith was inconsistent with Korslund and Cudney.  The court explained that, although Smith did not "walk through the four-part Perritt test" used for analyzing the jeopardy prong, it concluded that the tort was necessary to advance public policy, not just the plaintiff's own interests, and found the administrative remedies available through PERC inadequate. 

The Court concluded that an overbroad reading of Korslund and Cudney would fail to account for a “long line of precedent allowing wrongful discharge tort claims to exist alongside sometimes comprehensive administrative remedies.”  The court pointed to cases in which it had held employees could be collaterally estopped from seeking tort remedies after losing on the same claims in an administrative forum.  The issue would not have even arisen if a tort action were legally unavailable in any event.

It distinguished Cudney and Korslund by observing that neither involved administrative remedies that had already been deemed inadequate, as the PERC scheme had in Smith, and noted that the PERC statute specifically preserves other sources of relief.

Justice Jim Johnson dissented, arguing that Smith did not address the adequacy of PERC remedies to protect the public interest and that based on Cudney and Korslund, those remedies are clearly adequate for that purpose.  Justice Madsen concurred with the dissent and argued that Smith did not address jeopardy and therefore is not authoritative on the question.

WELA filed an amicus curiae brief and argued that the Court should follow Smith, distinguish between public policies whose purpose is to protect employees from those which protect only the public at large, and conclude that PERC remedies were not adequate to protect employees who exercise their rights to organize and present grievances to their employers.  

View WELA’s brief

Wash. State Nurses Ass'n v. Sacred Heart Med. Ctr., No. 86563-9 (view WELA's brief)

In this case, the Plaintiffs were nurses who were denied rest breaks. The defendant argued that the rest breaks should not be added to the 40 hours already worked, and that the nurses should be compensated only at straight time for the missed rest breaks.  The nurses argued that they should be paid overtime at time and a half the hourly rate. WELA argued that compensation at straight time would create an incentive to deny rest breaks. WELA also presented substantial sociological evidence demonstrating the importance of rest breaks to the health and safety of workers and also that rest breaks enhanced workers' overall productivity. The WELA brief was authored by Steve Festor and Toby Marshall.

The Court ruled 9-0 in favor of the nurses.  Its analysis embraced many of WELA's arguments, construing both the missed rest break and the time spent working instead of resting as "hours worked," which combined had the effect of extending the number of hours worked to more than 40.  It noted that the employer received extra work from the employees, beyond what it would obtain in a normal 40-hour workweek in which rest breaks were actually provided, and should not be rewarded by having to pay only straight time for that extra work.  And it noted that rest periods are mandatory and promote employee health and productivity as well as patient safety.

The Court ruled against the nurses on double damages, finding that where the employer reasonably believed it was following the terms of a collective bargaining agreement as interpreted by a labor arbitrator, the proper amount of compensation was fairly debatable and failure to pay overtime was not "willful" under the double-damages statute.

View Court's Decision: Wash. State Nurses Ass'n v. Sacred Heart

Perez-Farias v. Global Horizons Inc., No. 86793-3 (view WELA's brief)

This was a case brought by a class of 650 farm workers in federal court against three growers and a farm workers contractor under the state Farm Labor Contractor Act (FLCA). They alleged multiple violations which were not disputed. They claimed the statutory damages of $500 per violation in lieu of actual damages. The federal district court determined that it had the discretion to award less than $500 per violation depending upon the severity of the violation. The farm workers appealed and the Ninth Circuit certified three questions to the Washington State Supreme Court.

The Supreme Court held that courts do not have discretion to award less than $500 per plaintiff per violation when awarding statutory damages under the FLCA.  It observed that remedial statutes must be construed liberally to further their intended purposes and that permitting courts to subjectively interpret the quality of violations would undermine the goals of deterrence in the statute.  It rejected the defendants' state law public policy and due process arguments that the statutory penalties are excessive and deferred to the Ninth Circuit those questions under federal law, including whether, as WELA argued, the due process analysis for determining whether a civil penalty is excessive is controlled by St. Louis, IM & S. Ry. Co. v. Williams, 251 U.S. 63 (1919), and not the standard for punitive damages set forth in BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996).  Similarly, the Court found nothing in Washington law that prevented workers who were not "injured" to be nonetheless "aggrieved" under the FLCA, and left to the Ninth Circuit the standing question under federal law.

View Court's Decision: Perez-Farias v. Global Horizons

Anfinson v. FedEx Ground Package System , Inc., No. 85949-3 (view WELA's brief)
 
The Plaintiff brought a class action alleging that the class was erroneously classified as independent contractors instead of employees and were therefore denied overtime pay under the Washington Minimum Wage Act (MWA).  The case went to trial, and the jury was instructed that the determination of whether the Plaintiffs were independent contractors or employees was to be made under the common law  " right to control "  test and not the economic realities test.  The court also ruled that representative evidence could not be used to determine class liability.  The verdict was in favor of the Defendants and the Plaintiffs appealed.  The Court of Appeals reversed.  159 Wn.App. at 35.  The Defendants appealed and the Supreme Court accepted review.

WELA argues that representative evidence is fundamental to utilization of the class action litigation, and that the economic realities test is required to further the broad remedial purpose of the MWA.

Cudney v. ALSCO, Inc.  --- Wn.2d ----, 259 P.3d 244 (9/1/11) (view Wela's brief)

The Plaintiff was employed by the Defendant as a service manager.  During his employment he made numerous complaints about his supervisor's use of alcohol.  On June 10, 2008, Cudney observed his supervisor intoxicated at work, and then observed him drive away in a company vehicle.  He reported his observations to his general manager, and was terminated from employment on August 5, 2008.

Mr. Cudney sued, alleging wrongful discharge in violation of public policy. He alleged that a substantial factor in the employer's decision to terminate his employment was his internal report that a managerial employee drove a company vehicle while intoxicated. The employer denied these allegations and insisted that the employee was terminated from employment for reasons entirely unrelated to his internal report. The employer removed the case to federal court on the basis of diversity, and both sides moved for summary judgment.

The United States District Court for the Eastern District of Washington certified questions to the Washington Supreme Court concerning the "jeopardy" element of the public policy wrongful discharge claim. In particular, the federal court asked whether the stated sources of public policy---the Washington Industrial Safety and Health Act and/or the state's laws against drunken driving---provide adequate alternative means of protecting public policy. WELA filed an amicus brief in support of Mr. Cudney, arguing that, in order for an alternative source of public policy to provide an adequate alternative, the remedies and process available must be at least equal to the remedies available under the public policy tort, and that neither of the stated sources provide an adequate alternative remedy to the plaintiff.

 The Court ruled for the Defendant by a 5-4 margin.  In relevant part, the majority held "whether adequate alternative means for promoting a public policy exist presents a question of law as long as 'the inquiry is limited to examining existing laws to determine whether they provide adequate alternative means of promoting the public policy."'  The Court limited the reach of its ruling to the jeopardy prong. 

With respect to WISHA, the Court stated that the statute "provides a remedy for employees who believe they have been discharged for reporting workplace safety concerns."  The Court found that these protections against retaliation were "extensive."  WISHA prohibits retaliation for having filed a complaint, and sets out a procedure which 1) allows any employee who believes that he or she has been terminated in violation of WISHA to file a complaint within 30 days to the director of the Department of Labor and Industries; 2) requires the director to investigate any claim; and 3) if the investigation supports the claim, requires the director to bring suit against the violator.  If the director finds no cause, the employee may bring suit within 30 days and recover all appropriate relief.  The Court found that these protections against retaliation were "extensive."

In reference to the DUI statutes, the Court stated that "[w]hile drinking and driving remains a social problem, it does not necessarily follow that the laws in place are an inadequate means to address the problem."  The Court ruled that to succeed, Cudney must prove that reporting drunk driving to his manager is 'the only available means' to promote the public policy of protecting the public from drunk driving."  To qualify, "criminal laws, enforcement mechanisms, and penalties all have to be inadequate to protect the public of drunk driving." 

After recognizing the formal law enforcement mechanism to protect the public against drunk driving, the majority found that reporting the issue to his employer was a "roundabout" remedy "that is highly unlikely" to protect the public from the immediate problem of a drunk driver on the roads."  The majority appears to have ruled, quoting Hubbard, that the remedies made available to the employee are irrelevant as long as the alternative source of public policy is otherwise an adequate means:  "The other means of promoting the public policy need not be available to a particular individual so long as the other means are adequate to safeguard the public policy." 

In dissent, Justice Stephens recognized that Washington law relied heavily for its development upon a leading treatise.  Henry H. Perritt Jr., Workplace Torts: Rights and Liabilities.  Relying upon Garnder v. Loomis and the Perritt treatise, Justice Stephens stated that the jeopardy analysis is in the disjunctive; i.e., that conduct furthers public policy either because the policy directly promotes the conduct or because the conduct is necessary to effective enforcement of the policy.  (Emphasis original).  A report of drunk driving satisfied the test. 

Justice Stephens cites numerous cases where the Court has recognized wrongful discharge claims premised upon state workplace protection laws, including WISHA.   Citing Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 821 P.2d 18 (1991)(recognizing claim for retaliation for filing workers' compensation claim and disapproving contrary WISHA case); Ellis v. City of Seattle, 142 Wn.2d 450, 13 P.3d 1065 (2000) (recognizing claim for retaliation for making WISHA complaint); Wilson v. City of Monroe, 88 Wn. App. 113, 943 P.2d 1134 (1997) (same; holding RCW 49.17.160 does not provide adequate, exclusive remedy); Roberts v. Dudley, 140 Wn.2d 58, 993 P.2d 901 (2000) (recognizing claim under RCW 49.12.200 and Washington's Law Against Discrimination (WLAD), chapter 49.60 RCW); Bennett v. Hardy, 113 Wn.2d 912, 784 P.2d 1258 (1990) (recognizing claim under WLAD).  According to Justice Stephens, the majority did not overrule any of these cases.           

Justice Stephens found Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 821 P.2d 18 (1991) and Ellis v. City of Seattle, 142 Wn.2d 450, 13P.3d 1065 (2000) controlling, and the majority's effort to distinguish them unpersuasive.  Again relying upon Professor Perritt, the dissent recognized that that "public policy tort cases involving employee reports of employer misconduct to outside agencies present relatively strong arguments on the jeopardy element, because of the likelihood that agencies charged with public policy enforcement depend on such reports." Citing Perritt, supra § 3.34, at 117. 

The dissent also relied upon the amicus brief filed by the Attorney General which expressly disclaimed that the WISHA remedies were an adequate alternative means to vindicate public policy.  Moreover, when it conducts an investigation L&I controls the litigation, and does not represent the complainant, and does not plead compensatory damages, including damages for emotional distress or front pay.  Justice Stephens found the "most striking feature" of the administrative scheme is its 30 day statute of limitations, which the Court in other contexts has found to be unconscionable.  Citing Adler v. Fred Lind Manor, 153 Wn.2d 331, 356-57, 103 P.3d 773 (2004) (citing federal cases recognizing that a 30-day filing period was unconscionably short and holding that the 180-day filing deadline at issue was unconscionable).

The Plaintiff has filed a Motion to Reconsider.  WELA filed an Amicus Curiae Memorandum with Professor Henry H. Perritt, Jr. in support of reconsideration.  The Court purported to apply Professor Perritt's test in deciding the case. The Motion for Reconsideration was denied.

View Majority Opinion: Cudney v. ALSCO

View Dissent: Cudney v. ALSCO

View WELA's Amicus Brief in support of reconsideration

Roe v. Teletech Customer Care Mgmt. LLC, 171 Wn.2d 736 (2011) (view WELA's brief)

This case involved the termination from employment of an authorized medical marijuana patient, Jane Roe, from her job as a customer service representative, due to a failed drug test. There was no allegation that Roe either used or was under the influence of marijuana while at work. Roe alleged that Washington's Medical Marijuana Initiative created an implied cause of action or, alternatively, that her termination was in violation of a clear mandate of public policy.

The Washington Supreme Court issued an 8-1 ruling against Roe, holding that Washington's medical marijuana initiative does not provide a private cause of action, either express or implied, for wrongful discharge based on medical marijuana use and also that there is no clear public policy that supports a wrongful discharge claim in violation of such a policy. Justice Wiggins wrote for the Majority. Justice Chambers dissented.

WELA filed an amicus brief which focused on the public policy claim, and argued that there existed a clear mandate of public policy. WELA further argued that the overriding justification element of that tort: 1) was an affirmative defense, 2) was an issue of law of the court; 3) did not apply for generalized workplace policies; and 4) applied only where causation was admitted. The Court did not reach WELA's arguments concerning the overriding justification element. 

View Court's Opinion: Roe v. Teletech

Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 230 P.3d 583 (2010) (view WELA's brief)

In Salas the Plaintiff was long time resident of the United States without a legal immigration status.  He was injured while working and brought suit against the Defendant, which was hired to erect scaffolding at the work site.  The trial court acknowledged the prejudicial effect of disclosing illegal immigration status to the jury, but nevertheless ruled that the Plaintiff's immigration status was relevant and admissible on the issue of front pay.  The jury found that the Defendant was negligent but that the Defendant's conduct was not the proximate cause of the injury, and verdict was entered in favor of the Defendant.  The Plaintiff appealed.

The State Supreme Court ruled that evidence of illegal immigration status is relevant to the issue of front pay.  Relying upon ER 403, however, the Court ruled that "the probative value of a plaintiff's undocumented status, by itself, is substantially outweighed by the danger of unfair prejudice."  The case was remanded for a new trial.

View Court's Opinion: Salas v. Hi-Tech Erectors

Hochberg v. Lincare, Inc., Ninth Circuit Court of Appeals No. 08-35410 (view WELA's brief)

Ms. Hochberg was demoted and eventually terminated after disclosing she was pregnant. She sued Lincare for pregnancy discrimination under state and federal law, and the district court in Spokane dismissed her claims on summary judgment. WELA argued that the trial court misapplied the burden-shifting analysis applied at summary judgment to discrimination claims. The Ninth Circuit affirmed in an unpublished decision stating that there was insufficient evidence to support the claim.

Briggs v. Nova Services Inc, Supreme Court No. 79615-7 (view WELA's brief)

Plaintiffs Briggs, Robertson, Johnson, Nunn, Smith, and Bader worked for Nova Services in jobs titled "manager."  Plaintiffs Zeller, Clark, Castillo and Bruck worked for Nova in positions that were non-managerial. Nova's policy prohibited them from communicating with its Board of Directors.  Briggs, Robertson, Johnson, Nunn, Smith, and Bader complained in a letter to the Board that the actions of Nova's Director, Linda Brennan, had negatively affected them.  They complained, inter alia, that Brennan refused their suggestion to add staff to reduce their work load, awarded sick leave arbitrarily, unfairly tracked working hours, and had misclassified some workers in order to not pay them overtime compensation.  The letter expressed concern that Brennan's failure to plan for an anticipated loss of Nova's major funding source jeopardized Nova's existence and the workers' jobs, and complained that Brennan prevented communication with the Board. 

The Board ultimately supported Brennan, who fired Briggs and Robertson for what she termed "insubordination."  Plaintiff Bader then gave Brennan two weeks notice, stating that she had promised to stay or go with the others.  Brennan asked Bader if she would "refrain from collaborative efforts against her" during that time and, when Bader stated she would not, Brennan terminated her employment that day.

Bader and the remaining workers responded with another letter, complaining of retaliation.  The workers stated that unless the Board responded the next day with a plan of action concerning their demands, they would basically strike.  The Board did not respond, the workers walked out, and Nova treated the walk-out as a group resignation.

The employees filed a complaint against Nova on September 17, 2004, alleging wrongful termination in violation of public policy, unlawful retaliation-wrongful discharge, negligent infliction of emotional distress, intentional infliction of emotional distress/outrage, and negligent supervision/retention.  Summary judgment was granted for the Defendant, and the employees appealed.  The Court of Appeals affirmed and the Supreme Court granted review.

In support of their claim for wrongful discharge, the employees relied on the so called Norris-LaGuardia Act, RCW 49.32.020, as a source of public policy, and Bravo v. Dolsen Cos., 125 Wn.2d 745, 758, 888 P.2d 147 (1995).  The statute recognizes that non-union employees have a right to engage in concerted activities related to the "terms and conditions of employment," "collective bargaining" or for "other mutual aid or protections."  RCW 49.32.020.  

Writing for a plurality of three, Justice James Johnson gave a narrow interpretation to the statute.  He ruled that "[t]he Managers were not complaining about wages and hours or supervisor harassment, nor were they requesting better benefits, more breaks, or easier work rules. These complaints simply are not about terms and conditions of employment."  Because the statute was not violated, there was no claim for wrongful discharge.  Moreover, Justice Johnson ruled that the terminated employees were not terminated, "they voluntarily left and promised they would not return unless the Board fired director Brennan."  Justice Johnson was joined by Justices Alexander and Sanders.

Justice Charles Johnson, writing only for himself, filed a concurring opinion and agreed that the employees' activities were not concerted activities under the terms of the statute.  He also agreed that this was fatal to a claim of wrongful discharge.  He stated, however, that the claim under RCW 49.32.020 and the public policy wrongful discharge claim must be treated separately.

Justice Madsen, writing only for herself, filed a concurring opinion.  She argued that the public policy of protecting employees' right to engage in concerted activities was raised for the first time in Plaintiffs' appellate brief, and was therefore waived.  But see Ellis v. City of Seattle, 142 Wn.2d 450, 459 n3 (2000) (disagreeing with the Court of Appeals' decision not to consider the Seattle Fire Code because it wasn't raised in the trial court - "The Court of Appeals' approach seems misguided. A fire code provision is not evidence; it is law").  In the alternative, Justice Madsen's argued that Plaintiffs failed to establish that the jeopardy prong of the claim was satisfied, because they did not establish that there was no adequate alternative means to protect the public policy.

Justice Owens wrote a dissenting opinion, in which Justices Chambers, Stephens and Fairhurst joined.

Significantly, there is no majority for the proposition that the employees failed to engage in concerted activities within the meaning of RCW 49.32.020.  This case appears to have little, if any, precedential authority.  

View Courts Opinion: Briggs v. Nova Services 

Brundridge v. Fluor Federal Serv., 164 Wn.2d 432, 191 P.3d 879 (2008) (view WELA's brief)

In Brundridge v. Fluor, the employee pipe fitters brought a claim for wrongful discharge in violation of a clear mandate of public policy alleging retaliation and relying upon the Energy Reorganization Act (ERA), 42 U.S.C. § 5851.  The jury heard more than a month of testimony and found Fluor liable for wrongful discharge of all 11 employees.  The jury awarded the plaintiffs a total of $4,802,600 in back pay, front pay, and emotional distress damages. 

 Four months after the jury verdict the State Supreme Court decided Korslund v. Dnycorp, 156 Wn.2d 168, 125 P.3d 119 (2005), and ruled that the ERA was an adequate alternative means for vindicating public policy, foreclosing the "jeopardy" element required for a claim of wrongful discharge.  Fluor filed a CR 60 motion for relief from judgment, arguing that the Court's decision in Korslund v. DynCorp, was controlling.  Plaintiffs argued that the issue was waived and there was not an intervening change in the law.  The motion was denied, the Defendant appealed, and the Court of Appeals certified the case to the State Supreme Court.

 The Supreme Court ruled that the court's holding in Korslund was not a change in the law for purposes of waiver because the conclusion reached in Korslund was an open question at the time of the waiver.  The Court further ruled "it is possible that the ERA remedies, though adequate as a matter of law in Korslund, would not adequately protect the proffered public policy in this case. The pipe fitters also could have presented factual evidence that, for example, they took specific actions to protect public policy that were not covered by the ERA remedies. Fluor's waiver was not inconsequential to the pipe fitters' case."

View Court's Opinion: Brundridge v. Fluor Federal Serv.

Moore v. King County Fire Protection Services, 9th Circuit Court of Appeals, Case No. 06-35948 (view WELA's brief)

In Moore v. King County, the Court considered, inter alia, whether the new definition of disability under the WLAD applied retroactively.  The Ninth Circuit certified the question to the Washington State Supreme Court.  The Ninth Circuit withdrew the certification after the Supreme Court decided Hale v. Wellipinit, 165 Wn.2d 494, 198 P.3d 1021 (2009), where the Supreme Court ruled in favor of retroactivity.  Thereafter, the Ninth Circuit remanded in light of the Supreme Court's ruling in Hale.

View Court's Opinion: Moore v. King County Fire Protection Services

Hale v. Wellpinit School District No. 49, Supreme Court No. 80771-0 (view WELA's brief)

This case was the final chapter in the saga of McClarty v. Totem Electric, 157 Wn.2d 214, 137 P.3d 844 (2006). In that case, although no party had suggested it, the Washington State Supreme Court chose to import into Washington law the definition of "disability" used under the Americans with Disability Act, rejecting prior case law. 

In the next legislative session, the Washington State Legislature passed remedial legislation. The new legislation restored the broad definition of "disability" that had previously applied under the Washington Law Against Discrimination.  The new legislation provides that it would apply to all causes of action that arose before the Supreme Court's McClarty decision, July 6, 2006, and to all causes of action occurring on or after the effective date of the act, July 22, 2007. 

In Hale v. Wellpinit, the Court accepted review to determine whether the retroactive provision of the remedial statute violates the constitutional doctrine of separation of powers. WELA argued that a clear expression of legislative intent that a statute applies retroactively is constitutional so long as it does not operate to set a side a final judicial judgment. Therefore, the retroactive provision of the remedial legislation does not violate separation of powers.  On January 15, 2009, the Court agreed and upheld the retroactivity provision in the statute.  Accordingly, the Court's decision in McClarty applies only to cases that arose between July 6, 2006, and July 21, 2007.

View Court's Opinion: Hale v. Wellpinit School District

Danny v. Laidlaw, Supreme Court No. 78421-3 (view WELA's brief)

Ramona Danny was forced to take two weeks off work due to domestic violence against her and her children. She was demoted upon her return to work. When she filed a complaint of retaliation with the Washington State Human Rights Commission, Danny was fired. The United States District Court certified to the Washington Supreme Court the question of whether Plaintiff's termination was a violation of Washington's public policy. WELA argued that a clear mandate of public policy prohibits an employer from discharging an at-will employee because she experienced domestic violence and used employer benefits and civil and criminal remedies to protect herself. The Supreme Court agreed that there is a clear mandate of public policy to protect victims of domestic violence and hold abusers accountable, and remanded to the district court to determine whether that policy was violated in Ms. Danny's case. 

View Court's Opinion: Danny v. Laidlaw

Hegwine v. Longview Fibre, Supreme Court No. 78728-0 (view WELA's brief)

Plaintiff was offered a job as an order checker at Longview Fibre, but was fired after the employer learned she was pregnant. WELA argued before the Supreme Court that the case was correctly decided by the Court of Appeals under the Pregnancy Discrimination Act, and that any analysis of the case under disability discrimination law would be incorrect and inconsistent with the requirements of the Pregnancy Discrimination Act. The Supreme Court agreed, confirming that Longview Fibre's refusal to employ a pregnant woman was sex discrimination and ruling that pregnancy is not a disability subject to a reasonable accommodation analysis under disability law. 

View Court's Opinion: Hegwine v. Longview

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