f t I 1 FILED SEPT. 25,2014 In the Office of the Clerk of Court 1 WA State Court of Appeals, Division III J
I I I IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CHARLES ROSE, DIVISION THREE
) No. 30545-7-111 t ) l Appellant, ) I ~ ) i v. ) ) ANDERSON HAY AND GRAIN ) PUBLISHED OPINION COMPANY, ) ) Respondent. )
BROWN, A.C.J. - Charles Rose sued his former employer, Anderson Hay and
Grain Company (AHG), in Kittitas County Superior Court for his alleged wrongful
discharge in violation of public policy after a similar suit was dismissed in federal court
because he had failed to timely exhaust his federal administrative remedies. The state
court dismissed his action, reasoning his federal administrative remedies would have
been adequate to vindicate the public policy had he timely filed his administrative
complaint. Mr. Rose appealed and this court affirmed. Our Supreme Court remanded
the matter back to this court for reconsideration in light of that court's recent opinion in
Piel v. City of Federal Way, 177 Wn.2d 604,306 P.3d 879 (2013). See Rose v.
Anderson Hay and Grain Co., 180 Wn.2d 1001,327 P.3d 613 (2014). On
reconsideration, we again affirm the trial court. I
I
i i
,}
1 No. 30545-7-111 Rose v. Anderson Hay & Grain Co. 1 I
I FACTS
Mr. Rose worked as a commercial truck driver for AHG from March 2006 through .~ November 2009. He alleges AHG terminated him for refusing to complete his shift,
I .1 I which he claims would have forced him to exceed the maximum allowed hours-of
service under federal regulations and would have further required him to violate federal
regulations by falsifying time sheets.
On March 3, 2010, Mr. Rose sued in federal court, arguing his termination from
AHG violated the Commercial Motor Vehicle Safety Act (CMVSA) (49 U.S.C. ch. 311).
AHG requested dismissal based on 49 U.S.C. § 31105(b), which provides that the
Secretary of Labor (secretary) has exclusive jurisdiction over initial complaints under the
CMVSA. On August 6,2010, the federal court dismissed Mr. Rose's complaint based
on lack of jurisdiction. The dismissal came three months after the expiration of the time
limit for filing for administrative relief. Mr. Rose did not pursue a federal appeal.
In September 2010, Mr. Rose sued in state court alleging wrongful termination in
violation of public policy arising from alleged violations of 49 U.S.C. § 31105. Based
partly on Korslund v. DynCorp Tri-Cities Services, 156 Wn.2d 168, 183, 125 P.3d 119
(2005), AHG requested summary judgment dismissal of Mr. Rose's claim, arguing he
failed to satisfy the jeopardy element necessary to maintain a public policy claim. AHG
further argued the CMVSA provides comprehensive remedies that serve to protect the
specific public policy identified by Mr. Rose and even included punitive damages. Thus,
No. 30545-7-111 Rose v. Anderson Hay & Grain Co.
an adequate alternative means of promoting the public policy existed, which, as a
matter of law, foreclosed Mr. Rose's public policy cause of action.
The trial court agreed and on April 18, 2011, the court granted AHG's motion for
summary judgment and entered judgment dismissing Mr. Rose's complaint. The trial
court partly reasoned that had Mr. Rose timely pursued his federal administrative
remedies, they would have been adequate to vindicate the public policy, and concluded:
"The remedies available under 49 U.S.C. § 31105{b) are adequate to protect public
policy on which Mr. Rose relies as a matter of law." Clerk's Papers (CP) at 116. This
court affirmed, holding "the trial court correctly dismissed Mr. Rose's claim of wrongful
termination in violation of public policy in light of federal statutes protecting truck drivers
who refuse to violate safety regulations." Rose v. Anderson Hay & Grain Co., 168 Wn.
App. 474, 478, 276 P.3d 382 (2012), remanded, 180Wn.2d 1001,327 P.3d 613 (2014).
The Supreme Court remanded the matter to this court for reconsideration in light of Piel.
ANALYSIS
The issue is whether the trial court erred in summarily dismissing Mr. Rose's
wrongful termination in violation of public policy action. He contends he presented a
viable tort claim for wrongful termination in violation of public policy because the
administrative remedies are inadequate.
We review summary judgment orders de novo, performing the same inquiry as
the superior court. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853,860,93 P.3d
108 (2004). The superior court properly grants summary judgment when no genuine
issue of material fact remains and the moving party is entitled to judgment as a matter
of law. Morin v. Harrell, 161 Wn.2d 226, 230, 164 P.3d 495 (2007) (citing CR 56(c)).
In a summary judgment motion, the burden is on the moving party to
demonstrate that summary judgment is proper. Atherton Condo. Apartment-Owners
Assoc. Bd. of Dirs. v. Blume Dev. Co., 115Wn.2d 506, 516, 799 P.2d 250 (1990). We
consider all the facts submitted and the reasonable inferences from them in the light
most favorable to the nonmoving party. Id. And we resolve any doubts about the
existence of a genuine issue of material fact against the party moving for summary
judgment. Id. "Summary judgment is appropriate only if, from all the evidence,
reasonable persons could reach but one conclusion." Lilly v. Lynch, 88 Wn. App. 306,
312,945 P.2d 727 (1997).
To establish a common law claim of wrongful discharge in violation of public
policy, the plaintiff must prove there exists a clear public policy (clarity element),
discouraging the conduct in which the employee engaged would jeopardize the public
policy ueopardy element), and the policy-linked conduct caused the dismissal
(causation element). Korslund, 156 Wn.2d at 178. At issue here is the jeopardy
element. In order to establish the jeopardy element, the plaintiff must show that other
means of promoting the public policy are inadequate. Cudney v. ALSCO, Inc., 172
Wn.2d 524,530,259 P.3d 244 (2011). Protecting the public is the policy that must be
promoted, not protecting the employee's individual interests. Id. at 538. In other words,
I J
No. 30545-7-111
Rose v. Anderson Hay & Grain Co.
the test of whether a tort claim for wrongful termination in violation of public policy is
viable is if means, other than a civil lawsuit, are inadequate to promote the public policy.
Free access — add to your briefcase to read the full text and ask questions with AI
f t I 1 FILED SEPT. 25,2014 In the Office of the Clerk of Court 1 WA State Court of Appeals, Division III J
I I I IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CHARLES ROSE, DIVISION THREE
) No. 30545-7-111 t ) l Appellant, ) I ~ ) i v. ) ) ANDERSON HAY AND GRAIN ) PUBLISHED OPINION COMPANY, ) ) Respondent. )
BROWN, A.C.J. - Charles Rose sued his former employer, Anderson Hay and
Grain Company (AHG), in Kittitas County Superior Court for his alleged wrongful
discharge in violation of public policy after a similar suit was dismissed in federal court
because he had failed to timely exhaust his federal administrative remedies. The state
court dismissed his action, reasoning his federal administrative remedies would have
been adequate to vindicate the public policy had he timely filed his administrative
complaint. Mr. Rose appealed and this court affirmed. Our Supreme Court remanded
the matter back to this court for reconsideration in light of that court's recent opinion in
Piel v. City of Federal Way, 177 Wn.2d 604,306 P.3d 879 (2013). See Rose v.
Anderson Hay and Grain Co., 180 Wn.2d 1001,327 P.3d 613 (2014). On
reconsideration, we again affirm the trial court. I
I
i i
,}
1 No. 30545-7-111 Rose v. Anderson Hay & Grain Co. 1 I
I FACTS
Mr. Rose worked as a commercial truck driver for AHG from March 2006 through .~ November 2009. He alleges AHG terminated him for refusing to complete his shift,
I .1 I which he claims would have forced him to exceed the maximum allowed hours-of
service under federal regulations and would have further required him to violate federal
regulations by falsifying time sheets.
On March 3, 2010, Mr. Rose sued in federal court, arguing his termination from
AHG violated the Commercial Motor Vehicle Safety Act (CMVSA) (49 U.S.C. ch. 311).
AHG requested dismissal based on 49 U.S.C. § 31105(b), which provides that the
Secretary of Labor (secretary) has exclusive jurisdiction over initial complaints under the
CMVSA. On August 6,2010, the federal court dismissed Mr. Rose's complaint based
on lack of jurisdiction. The dismissal came three months after the expiration of the time
limit for filing for administrative relief. Mr. Rose did not pursue a federal appeal.
In September 2010, Mr. Rose sued in state court alleging wrongful termination in
violation of public policy arising from alleged violations of 49 U.S.C. § 31105. Based
partly on Korslund v. DynCorp Tri-Cities Services, 156 Wn.2d 168, 183, 125 P.3d 119
(2005), AHG requested summary judgment dismissal of Mr. Rose's claim, arguing he
failed to satisfy the jeopardy element necessary to maintain a public policy claim. AHG
further argued the CMVSA provides comprehensive remedies that serve to protect the
specific public policy identified by Mr. Rose and even included punitive damages. Thus,
No. 30545-7-111 Rose v. Anderson Hay & Grain Co.
an adequate alternative means of promoting the public policy existed, which, as a
matter of law, foreclosed Mr. Rose's public policy cause of action.
The trial court agreed and on April 18, 2011, the court granted AHG's motion for
summary judgment and entered judgment dismissing Mr. Rose's complaint. The trial
court partly reasoned that had Mr. Rose timely pursued his federal administrative
remedies, they would have been adequate to vindicate the public policy, and concluded:
"The remedies available under 49 U.S.C. § 31105{b) are adequate to protect public
policy on which Mr. Rose relies as a matter of law." Clerk's Papers (CP) at 116. This
court affirmed, holding "the trial court correctly dismissed Mr. Rose's claim of wrongful
termination in violation of public policy in light of federal statutes protecting truck drivers
who refuse to violate safety regulations." Rose v. Anderson Hay & Grain Co., 168 Wn.
App. 474, 478, 276 P.3d 382 (2012), remanded, 180Wn.2d 1001,327 P.3d 613 (2014).
The Supreme Court remanded the matter to this court for reconsideration in light of Piel.
ANALYSIS
The issue is whether the trial court erred in summarily dismissing Mr. Rose's
wrongful termination in violation of public policy action. He contends he presented a
viable tort claim for wrongful termination in violation of public policy because the
administrative remedies are inadequate.
We review summary judgment orders de novo, performing the same inquiry as
the superior court. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853,860,93 P.3d
108 (2004). The superior court properly grants summary judgment when no genuine
issue of material fact remains and the moving party is entitled to judgment as a matter
of law. Morin v. Harrell, 161 Wn.2d 226, 230, 164 P.3d 495 (2007) (citing CR 56(c)).
In a summary judgment motion, the burden is on the moving party to
demonstrate that summary judgment is proper. Atherton Condo. Apartment-Owners
Assoc. Bd. of Dirs. v. Blume Dev. Co., 115Wn.2d 506, 516, 799 P.2d 250 (1990). We
consider all the facts submitted and the reasonable inferences from them in the light
most favorable to the nonmoving party. Id. And we resolve any doubts about the
existence of a genuine issue of material fact against the party moving for summary
judgment. Id. "Summary judgment is appropriate only if, from all the evidence,
reasonable persons could reach but one conclusion." Lilly v. Lynch, 88 Wn. App. 306,
312,945 P.2d 727 (1997).
To establish a common law claim of wrongful discharge in violation of public
policy, the plaintiff must prove there exists a clear public policy (clarity element),
discouraging the conduct in which the employee engaged would jeopardize the public
policy ueopardy element), and the policy-linked conduct caused the dismissal
(causation element). Korslund, 156 Wn.2d at 178. At issue here is the jeopardy
element. In order to establish the jeopardy element, the plaintiff must show that other
means of promoting the public policy are inadequate. Cudney v. ALSCO, Inc., 172
Wn.2d 524,530,259 P.3d 244 (2011). Protecting the public is the policy that must be
promoted, not protecting the employee's individual interests. Id. at 538. In other words,
I J
No. 30545-7-111
Rose v. Anderson Hay & Grain Co.
the test of whether a tort claim for wrongful termination in violation of public policy is
viable is if means, other than a civil lawsuit, are inadequate to promote the public policy.
The federal CMVSA prohibits an employer from discharging an employee who
refuses to operate a vehicle in violation of federal regulations or standards related to
commercial vehicle safety. 49 U.S.C. § 31105(a)(1)(8). An employee alleging
discharge in violation of this statute can file a complaint with the secretary no later than
180 days after the alleged violation occurred. 49 U.S.C. § 31105(b)(1). If the secretary
determines that an employer violated the statute, the secretary can take affirmative
action to abate the violation, reinstate the employee to the former position with the same
pay and terms, and require the employer to pay compensatory damages, including back
pay with interest and compensation for special damages sustained by the wrongful
termination, including litigation costs, expert witness fees, and reasonable attorney fees.
49 U.S.C. § 31105(b)(3)(A). 8y its terms nothing in the statute preempts or diminishes
any other safeguards against discrimination, demotion, discharge, suspension, threats,
harassment, reprimand, retaliation, or any other manner of discrimination provided by
federal or state law. 49 U.S.C. § 311 05{f). The Supreme Court cases of KorsJund,
Cudney, and PieJ are instructive.
The plaintiffs in KorsJund claimed they were wrongfully terminated for reporting
safety violations, mismanagement, and fraud at the Hanford Nuclear Reservation. The
court held that because the federal Energy Reorganization Act (ERA), provided an
administrative process for adjudicating whistleblower claims and provided for
reinstatement, back pay, and other compensatory damages, an adequate remedy
I I I existed that protected the public interest. Korslund, 156 Wn.2d at 182-83.
In Cudney, the plaintiff claimed he was discharged after reporting that his
I « I supervisor was drinking on the job and had driven a company vehicle while intoxicated.
The court held the Washington Industrial Safety and Health Act (WISHA) provided a
I I sufficient administrative remedy, and that state laws on driving while intoxicated also
adequately protected the public. Cudney, 172 Wn.2d at 527.
But, in Piel, the court held the administrative remedies available through the
Public Employment Relations Commission (PERC) under chapter 41.56 RCW were
inadequate, on their own, to fully vindicate public policy when a public employer
discharges a public employee for asserting collective bargaining rights.
Unlike Korslund and Cudney, Piel involved a prior case holding PERC remedies
failed to fully address the broader public interests involved because it protected
personal contractual rights solely. 177 Wn.2d at 616-17 (quoting Smith v. Bates
Technical Coli., 139 Wn.2d 793,805,809,991 P.2d 1135 (2000». And unlike Korslund
and Cudney, Piel involved a statute declaring PERC remedies supplement others and
must be liberally construed to accomplish their purpose. Id. at 617 (quoting RCW
41.56.905). In those circumstances, the Piel court recognized a private common law
tort remedy as necessary to fully vindicate public policy. Id. The Piel decision analyzed
a single issue, "[a]re the remedies available to a public employee under chapter 41.56
RCW adequate as a matter of law, such that the employee may not assert a tort claim
6 No. 30545-7-111 Rose v. Anderson Hay & Grain Co.
for wrongful discharge in violation of public policy?" 177 Wn.2d at 609. The Piel court
found that the "limited statutory remedies under chapter 41.56 RCW do not foreclose
more complete tort remedies for wrongful discharge." Id. at 616.
The Piel court specifically reasoned its decision "does not require retreat from
[Korslund or Cudney]." 177 Wn.2d at 616. The Piel court noted that the administrative
schemes at issue in Korslund and Cudney were not previously found to be inadequate
to protect public policy and, unlike PERC, did not include a provision stating that the
'''provisions of this chapter are intended to be additional to other remedies and shall be
liberally construed.'" Id. at 617 (quoting RCW 41.56.905). The Piel court recognized
that Korslund found the ERA to have "comprehensive remedies," including back pay,
compensatory damages, and attorney and expert witness fees. Id. at 613 (citing
Korslund, 156 Wn.2d at 182). The ERA also contains a provision, similar to the
CMVSA, that the ERA was not intended to affect "any right otherwise available to an
employee under Federal or State law"; there is no similar safeguard for common law
claims. 42 U.S.C. § 5851(h). Pie/further recognized that Cudney found the remedies
available under WISHA to be "more comprehensive than the ERA and . .. more than
adequate." Id. (citing Cudney, 172 Wn.2d at 533). Accordingly, if a statutory scheme
has language and remedies analogous to those at issue in Korslund or Cudney, the
scheme is distinguished from Piel and has comprehensive remedies to protect the
public interest.
In contrast, this court recently affirmed a trial court's denial of a defendant's
request to dismiss a wrongful termination in violation of public policy claim, finding the
plaintiffs case was '''the most compelling case for protection' under a public policy tort"
because Mr. Becker would be personally responsible if he committed the crime that his
employer requested. Becker v. Comty. Health Systems, Inc., 2014 WL 3973083 at *9
(quoting Janie F. Schulman & Nancy M. Modesitt, WHISTLEBLOWING: THE LAw OF
RETALIATORY DISCHARGE ch. 5.11.A.1, at 101 (2d ed. 2004). There, the employer ordered
its chief financial officer, Gregg Becker, to submit false information to the U.S. Securities
and Exchange Commission of a $4 million operating loss in 2012 while Mr. Becker
projected a $12 million operating loss. Becker, 2014 WL 3973083 at *1. He resigned.
Id. This court held that the jeopardy element of Mr. Becker's wrongful discharge claim
was satisfied because there was no other means for promoting the public policy of
honesty in corporate financial reporting. Id. at *10.
Here, the CMVSA "undisputedly" protects the public interest of "highway safety."
Int'I Bhd. of Teamsters v. Pena, 17 F.3d 1478, 1483 (D.C. 1994). The CMVSA further
prohibits an employer from discharging an employee who refuses to operate a vehicle in
violation of federal regulations or standards related to commercial vehicle safety.
Further, if it is determined an employer violated the statute, the Secretary of Labor can
take affirmative action to abate the violation, reinstate the employee to the former
position with the same pay and terms, and require the employer to pay compensatory
damages, including back pay with interest and compensation for special damages
I ) No. 30545-7-111 1 Rose v. Anderson Hay & Grain Co.
j sustained by the wrongful termination, including litigation costs, expert witness fees, and
reasonable attorney fees. 49 U.S.C. § 311 05{b){3)(A). By its terms, nothing in the
statute preempts or diminishes any other safeguards against discrimination, demotion,
discharge, suspension, threats, harassment, reprimand, retaliation, or any other manner i I l of discrimination provided by federal or state law. 49 U.S.C. § 31105{f).
Similar to the statute at issue in Korslund, the remedies that could have been
available here under the CMVSA include reinstatement, compensatory damages, back
pay with interest, litigation costs, witness fees, and attorney fees. 49 U.S.C. §
31105(b)(3){A). The CMVSA provides for punitive damages, making its remedies more
comprehensive than the ERA. 49 U.S.C. § 31105(b)(3){C); see Cudney, 172 Wn.2d at
532 (WISHA remedies more comprehensive than the "guidepost" remedies of ERA and,
therefore, more than adequately protect the public policy of protection of workers who
report safety violations). Accordingly, the remedies available under the CMVSA more
than adequately protect the public interest in commercial motor vehicle safety. Without
satisfying the jeopardy element, the trial court correctly dismissed Mr. Rose's claim of
wrongful termination in violation of public policy.
Affirmed.
Brown, A.C.J.
WE CONCUR:
Lawrence-Berrey, J.