Farnam v. Crista Ministries

807 P.2d 830, 116 Wash. 2d 659

• Court: Washington Supreme Court
• Decided: May 15, 1991
• Docket: 55820-5
• Status: Published

Opinions

Durham, J.

Nancy Farnam brought a civil action ágainst 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.

I

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 nasal-gastric 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 Wn.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.

II

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.¹ 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.

Generally, where an employment contract is indefinite in duration, either the employer or employee may terminate the contract at will. Roberts v. ARCO, 88 Wn.2d 887, 894, 568 P.2d 764 (1977), cited in Dicomes v. State, 113 Wn.2d 612, 617, 782 P.2d 1002 (1989). In Thompson v. St. Regis Paper Co., 102 Wn.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.

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 § 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 non-accidental 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 reiquirements 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.)

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.²

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

Given CRISTA's undisputed compliance with the procedural requirements of the NDA, CRISTA's good faith belief that NG tube removal was permitted under the NDA, and Farnam's own statements that she believed such removal was permitted, it does not appear that CRISTA's actions rose to the level of wrongdoing that would support a tort of wrongful discharge in violation of public policy. This conclusion is supported by the absence of a finding of abuse or formal action by the Department of Social and Health Services. Indeed, when Hall met with Crandall to review CRISTA's policies on removal of life-sustaining procedures, no mention was made that the removal of the NG tubes might constitute abuse requiring state intervention or formal action.

Farnam's personal statement to the ad hoc committee also raises questions about her motive. To state a cause of action, Farnam must have been seeking to "further the public good, and not merely private or proprietary interests". Dicomes, at 620. Conduct that may be praiseworthy from a subjective standpoint or may remotely benefit the public will not support a claim for wrongful discharge. Dicomes, at 624. While the sincerity of Farnam's belief is not questioned, her concern appears to be directed at urging Christian health care providers to adopt her view rather than furthering the public good.

As stated above, in addition to examining the degree of alleged employer wrongdoing, this court must also consider "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 § 7.02 (1989)). Here, while Farnam voiced her objections to CRISTA and the long-term care ombudsman, she also went to the media with her objections, thereby turning the issue of the withdrawal of the two patients' NG tubes into a public controversy. She did this, despite having acknowledged that she believed that CRISTA acted within the law.

In sum, CRISTA's actions do not rise to a level of wrongdoing constituting a violation of a clear mandate of public policy. Because Farnam has not stated a cause of action, we need not decide if CRISTA constructively discharged her.

The Religious Exemption of RCW 49.60.030

On cross appeal, Farnam assigns error to the trial court's conclusion that because CRISTA is a religious organization, it is exempt from Washington's antidiscrimination laws.³ Based on this conclusion, the trial court granted CRISTA's motion for a judgment n.o.v. on Farnam's religious discrimination by harassment claim. If the exemption is held to apply, Farnam further argues that CRISTA is estopped from asserting the exemption as a defense and that the exemption violates article 1, section 11 and article 1, section 12 of the Washington Constitution. Our analysis begins with a review of the relevant statutes and the application of the exemption to the present case. Farnam's constitutional claims are then addressed.

RCW 49.60, which is known as the "law against discrimination", is "an exercise of the police power of the state for the protection of the public welfare, health, and peace of the people of this state, and in fulfillment of the provisions of the Constitution of this state concerning civil rights." RCW 49.60.010. The chapter creates a state agency to eliminate and prevent discrimination in a number of areas, including employment. RCW 49.60.010. The provisions of RCW 49.60 "shall be construed liberally for the accomplishment of the purposes thereof." RCW 49.60.020.⁴ Under RCW 49.60.040, "employer" is defined as "any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons, and does not include any religious or sectarian organization not organized for private profit". Thus, if CRISTA is a nonprofit, religious organization, it is exempt from the provisions of this chapter.

Farnam does not argue directly that CRISTA is not an exempt religious organization. Rather, she contends that the exemption does not apply in the present action because it does not extend to CRISTA's subdivisions, such as the nursing home, unless that subdivision also serves a religious purpose. Under Farnam's reasoning, a separate inquiry must be made to determine if a facility run by a religious organization is itself exempt, regardless of the status of the umbrella organization. Farnam relies on two Washington cases, Yakima First Baptist Homes, Inc. v. Gray, 82 Wn.2d 295, 510 P.2d 243 (1973) and Hazen v. Catholic Credit Union, 37 Wn. App. 502, 681 P.2d 856, review denied, 102 Wn.2d 1003 (1984) to assert that the statute requires facilities run by religious organizations to meet a separate "purpose" test. Farnam's reliance on these cases is misplaced.

The exemption at issue in Gray was a property tax exemption, which was to be "construed strictly against the claim of exemption." Gray, at 299. The exemption provides:

Property owned by nonsectarian organizations or associations, organized and conducted primarily and chiefly for religious purposes and not for profit, which shall he used, or to the extent solely used, for the religious purposes of such associations, or for the educational, benevolent, protective, or social departments growing out of, or related to, the religious work of such associations [.]

(Italics ours.) Gray, at 301. Thus, the use to which a specific piece of property is put determines whether or not the exemption applies to that piece of property, even if the property is owned by a religious organization. RCW 49.60-.040 contains no such use or purpose restriction applicable to facilities run by religious organizations. Gray is of limited assistance here.

Hazen is the only Washington case to have directly addressed the circumstances under which an organization ! would be religious for purposes of the exemption of RCW 49.60. There, the court held that a Catholic Credit Union was not a religious or sectarian organization and was subject to RCW 49.60 as a matter of law. In so holding, the court noted that while the credit union "was founded in the 1950's in connection with a popular trend in the Roman Catholic Church to financially aid members" and all of the incorporators were Catholic laymen, its purpose, as set forth in its bylaws, was to promote thrift and create a source of credit. Hazen, at 503-04. Membership was not limited to Catholics, but was open to all parishioners and all employees of Catholic institutions, employees of the credit union, and family members of members in good standing. Moreover, the credit union had no organizational, structural, financial ties to the Roman Catholic Church and loans made to parishes were made on the same terms as to individuals. The credit union did not report to, or receive input from, the Diocese of Yakima. Members of the board of directors were selected based on their financial, business and management skills, not religious qualifications. Hazen, at 504. No member of the Catholic clergy had ever served as a director and if one were to serve, the selection would be based on that clergy's business and financial skills, not his religious contribution. Hazen, at 504. Similarly, employees were hired on the basis of their ability, not their religious affiliation. The court also noted that the credit union did not provide religious counseling, with the only prayers taking place at the opening and closing of meetings. The court stated that the credit union advertised itself as a financial institution and operated as any other credit union organized under Washington law. Hazen, at 505.

Because the statute does not define religious or sectarian organization, the court construed those terms according to their ordinary meaning and stated that it " [did] not believe promoting thrift and providing a source of credit are manifestations of devotion to a superior being in a religious sense." Hazen, at 506. The court went on to cite Gray's holding that care of the aged is not a religious purpose within the tax exemption provided to organizations conducted for religious purposes. Hazen, at 506. By making reference to Gray, Hazen appears to have unnecessarily incorporated Gray's discussion of specific purpose under the tax statute into the exemption of RCW 49.60.

With the exception of this unnecessary reference to Gray, Hazen does not support Farnam's position. Indeed, Hazen is readily distinguishable in that the court was not called upon to determine if a subdivision of a religious organization comes within the exemption. Hazen's inquiry was limited to the credit union itself. There is nothing in Hazen that requires this court to make a separate determination of the nursing home's status as a religious organization based on an independent religious purpose.

In addition to Gray and Hazen, Farnam relies on Equal Empl. Opportunity Comm'n v. Townley Eng'g & Mfg. Co., 859 F.2d 610 (9th Cir. 1988), cert. denied, 489 U.S. 1077 (1989) to argue that, regardless of CRISTA's status, the nursing home must have a religious purpose for the exemption to apply.⁵ As Farnam points out, because RCW 49.60 substantially parallels the federal law against discrimination, Title 7 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,6 Washington courts have looked to the interpretation of the federal law in construing RCW 49.60. Selberg v. United Pac. Ins. Co., 45 Wn. App. 469, 726 P.2d 468, review denied, 107 Wn.2d 1017 (1986); Hollingsworth v. Washington Mut. Sav. Bank, 37 Wn. App. 386, 390, 681 P.2d 845 (citing Davis v. Department of Labor & Indus., 94 Wn.2d 119, 125, 615 P.2d 1279 (1980)), review denied, 103 Wn.2d 1007 (1984). However, federal law does not support Farnam's position. Under federal law, all of CRISTA's activities, including the nursing home, clearly would fall within the religious organization exemption.

In Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 97 L. Ed. 2d 273, 107 S. Ct. 2862 (1987), the Supreme Court held that applying the exemption of section 702 of Title 7, 42 U.S.C. § 2000e-1 to a religious organization's secular activities did not violate the Establishment Clause of the first amendment to the United States Constitution. Amos, at 330. The Supreme Court noted that the District Court had "considered and rejected the possibility that § 702 could be construed to exempt a religious organization only with respect to employment involving religious activities." Amos, at 332 n.8. The Court cited with approval the District Court's conclusion that such a construction was not consistent with the legislative history of the exemption, which prior to 1972 had exempted only the religious activities of religious organizations, but had been amended in 1972 to extend the exemption to all activities of religious organizations. Amos, at 332 n.9. Because the federal religious exemption, unlike RCW 49.60.030, expressly extends to all activities of a religious organization, reference to federal law in this case is less than helpful.

In sum, neither the language of RCW 49.60 nor the case law cited by Farnam requires this court to make a separate determination of the nursing home's status as a religious organization based on an independent religious purposes. Our inquiry is properly limited to CRISTA's status as a religious organization. Hazen's consideration of the entire factual context of the case, including the stated purpose of the credit union, is instructive in this regard.

In its articles of incorporation, CRISTA's purpose is, in part:

To engage in, foster, encourage, promote, and propagate evangelical churches and missions, and Christian and charitable interests . . . [and to] use every method such as radio, telephone, pictures, literature, and the spoken word, et cetera, that the people of the World may hear the Gospel and accept Christ as their own personal saviour.

CRISTA's bylaws state, in part: Both the bylaws and CRISTA's Staff Information Manual contain a Statement of Faith. The Staff Information Manual also provides, in part:

CRISTA MINISTRIES has been created and exists as a Christian organization for the purpose of ministering as "Christianity-In-Action." CRISTA shall seek and provide opportunities to demonstrate Christ's love by maintaining and operating a non-profit organization which actively provides appropriate avenues of Christian service to accomplish that mission. CRISTA MINISTRIES shall be enabled by a gathering of Christian people from all walks of life for this purpose, working together to change lives by doing Christ's work in today's world.

CRISTA Ministries ... is a professionally staffed, nonprofit organization engaged in a growing ministry of diverse Christian, humanitarian and community services designed to meet the needs of the whole person . . . physical, intellectual and spiritual.

The Mission Statement for the nursing staff provides, in part:

We, as Christian nurses are accountable to God and responsive to Him for the contribution we make to the development of the nursing profession, to the care of residents and to the support of their families. We offer ourselves to the Lord so that His love may flow through us as we exercise our ministry to His honor and glory.

All CRISTA employees must sign a doctrinal statement and adhere to CRISTA's Statement of Faith. CRISTA begins most days with devotions and prayers. CRISTA's schools offer on-campus Bible classes, the Senior Community has vesper services, and there are two chaplains on staff. CRISTA's brochures express Christian values. While CRISTA is interdenominational, and not affiliated with a particular church, Farnam concedes that such affiliation is not required by the statute, but is rather one of the factors to be considered.

The facts before us readily support the conclusion that CRISTA is a religious organization within the exemption of RCW 49.60.040. Accordingly, we affirm the trial court's granting of CRISTA's motion for judgment n.o.v. on Farnam's religious discrimination by harassment claim.

Farnam also argues that, even if CRISTA is a religious organization, it is equitably estopped from asserting the religious organization exemption defense under RCW 49.60. However, the doctrine of estoppel does not apply.

Estoppel has three elements:

(1) an admission, statement, or act inconsistent with the claim afterwards asserted, (2) action by the other party on the faith of such admission, statement, or act, and (3) injury to such other party resulting from allowing the first party to contradict or repudiate such admission, statement, or act.

Saunders v. Lloyd's of London, 113 Wn.2d 330, 340, 779 P.2d 249 (1989) (quoting McDaniels v. Carlson, 108 Wn.2d 299, 308, 738 P.2d 254 (1987)). Estoppel focuses on the justified reliance of the person asserting it. Saunders, at 340.

It is undisputed that CRISTA at all times held itself out to Farnam as a religious organization and never represented to her that it would not assert the exemption. Furthermore, it is clear from the personal statement Farman submitted to the ad hoc committee that she believed that CRISTA was a Christian organization. Therefore, the doctrine of estoppel does not apply.

Farnam next argues that the exemption for religious organizations contained in RCW 49.60 is unconstitutional under article 1, section 11 (freedom of belief) and article 1, section 12 (privileges and immunities) of the Washington Constitution. She has expressly declined to bring any federal constitutional challenges. For the reasons discussed below, we decline to reach Farnam's state constitutional claims.

Farnam argues that the religious exemption violates the absolute freedom of conscience and religious belief guaranteed by article 1, section 11 by allowing employers to discriminate on the basis of religion. However, while she raises her claims under the Washington Constitution, the cases she cites in support of her argument, State v. Meacham, 93 Wn.2d 735, 612 P.2d 795 (1980) and Backlund v. Board of Comm'rs of King Cy. Hosp. Dist. 2, 106 Wn.2d 632, 724 P.2d 981 (1986), were decided under the First Amendment to the federal constitution. Significantly, in Backlund, this court declined to decide the issue under the Washington Constitution because "[t]he parties [did not argue] persuasively for a different application of the provisions of the First Amendment and Const. art. 1, § 11 (amend. 34) of the state constitution . . .". Backlund, at 639 n.3. While Backlund went on to apply a First Amendment analysis, it would not be appropriate to do so in this case because Farnam has expressly declined to raise a First Amendment challenge. Thus, this court is faced with deciding an issue under our constitution without benefit of citation to appropriate supporting authority. This we decline to do. Accord, Spokane v. Taxpayers of Spokane, 111 Wn.2d 91, 96, 758 P.2d 480 (1988) (constitutional issues not adequately briefed will not be considered by this court).⁷

Farnam also asserts that the exemption of RCW 49.60 violates the privileges and immunities clause, article 1, section 12 of the Washington Constitution, because it creates two classes of workers—those who work in secular nursing homes and those who work in religious nursing homes— with protection against discrimination only available to the former.

Farnam relies on Duranceau v. Tacoma, 27 Wn. App. 777, 620 P.2d 533 (1980), to argue that strict scrutiny must be applied to the exemption because the right to private employment is a fundamental right. However, in Duranceau, the court stated that " [t]he right to hold specific private employment free from unreasonable government interference is a fundamental right". (Italics ours.) Duranceau, at 780. In that case, the City of Tacoma interfered with Duranceau's right to work by denying him access to a city-controlled road. Here, there is no governmental interference. Thus, Duranceau is inapposite.

Because Duranceau forms the basis of Farnam's argument, it would be inappropriate to decide this issue on the briefing before , us. Therefore, we decline to reach the issue of the constitutionality of the exemption under article 1, section 12. However, it is worth noting that a similar challenge to the federal exemption was specifically rejected under the equal protection clause of the Fourteenth Amendment. In American Networks, Inc. v. Utilities & Transp. Comm'n, 113 Wn.2d 59, 77, 776 P.2d 950 (1989), this court stated:

The privileges and immunities clause of the Washington State Constitution (article 1, section 12) and the equal protection clause of the Fourteenth Amendment are substantially identical and have been considered by this court as one issue.

In Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 97 L. Ed. 2d 273, 107 S. Ct. 2862 (1987), the Court held that the federal counterpart to Washington's religious exemption does not violate the equal protection clause of the Fourteenth Amendment because it was rationally related to the legitimate governmental purpose of alleviating significant governmental interference with the exercise of religion. Amos, at 339. Further, the Court stated that there was no merit to the argument that strict scrutiny was required because the exemption was drawn on religious grounds. While laws discriminating among religions are subject to strict scrutiny, laws affording a uniform benefit to all religions need only satisfy the rational relationship test. Amos, at 339.

Ill

In sum, we hold that Farnam has not stated a cause of action for wrongful discharge in violation of public policy. We also hold that CRISTA is a religious organization within the exemption of RCW 49.60.030 and is not estopped from asserting the exemption as a defense. Accordingly, we reverse the trial court's dismissal of CRISTA's motion for judgment n.o.v. as to the wrongful discharge in violation of public policy claim, and we reverse the award of attorney fees based thereon. We affirm the trial court's dismissal of Farnam's religious discrimination by harassment claim.⁸

Utter, Brachtenbach, Dolliver, Andersen, and Guy, JJ., and Callow, J. Pro Tern., concur.

1 A motion for judgment n.o.v. should not be granted unless, after viewing the evidence in the light most favorable to the party against whom the motion is made, the court can say, as a matter of law, that there is neither evidence nor reasonable inference therefrom sufficient to sustain the verdict. The evidence must be of a character "'which would convince an unprejudiced, thinking mind of the truth of the fact to which the evidence is directed.' A verdict cannot be founded on mere theory or speculation." Brashear v. Puget Sound Power & Light Co., 100 Wn.2d 204, 208-09, 667 P.2d 78 (1983) (quoting Hojem v. Kelly, 93 Wn.2d 143, 145, 606 P.2d 275 (1980)).

2 RCW 70.122.020(4) provides: "'Life-sustaining procedure' means any medical or surgical procedure or intervention which utilizes mechanical or other artificial means to sustain, restore, or supplant a vital function, which, when applied to a qualified patient, would serve only to artificially prolong the moment of death and where, in the judgment of the attending physician, death is imminent whether or not such procedures are utilized. 'Life-sustaining procedure' shall not include the administration of medication or the performance of any medical procedure deemed necessary to alleviate pain."

Instruction 16 stated, in part: "Washington state law neither expressly or impliedly approved or disapproved the removal of food and water from patients under circumstances referred to in this case."

3 CRISTA contends that Farnam's cross appeal should be dismissed as untimely. RAP 5.2(f) requires parties to file cross appeals within "14 days after service by the trial court clerk of the notice filed by [CRISTA]." Farnam states that she received notice from the clerk of court on January 11, 1989. This assertion is supported by the copy of CRISTA's notice of appeal mailed to this court by the King County Court Clerk, which was received on January 10, 1989. Farnam filed her cross appeal on January 24, 1989. Thus, the cross appeal was timely.

4 Because the statutory protections against discrimination are to be liberally construed, exceptions should be narrowly confined. Phillips v. Seattle, 111 Wn.2d 903, 908, 766 P.2d 1099 (1989). However, the religious exemption has been a part of this statute since it was enacted. RCWA 49.60.040, Historical Note, at 268. Furthermore, the religious exemption has never been amended, although the section in which it is contained has been amended many times. (Amendments to the section were made in 1957, 1961, 1969, 1973, 1979, and 1985.) Also, the Legislature has twice declined to narrow or delete the exemption. See Senate Bill 2482, 45th Legislature (1977) and Senate Bill 4623, 48th Legislature (1984).

5 In Townley, as in Hazen, the court was not called upon to determine if a facility run by a religious organization fell within the exemption. Thus, Townley is distinguishable. In its brief, amici on behalf of the American Civil Liberties Union of Washington Foundation also relies on Gray, Hazen, and Townley to argue that the nursing home must have a religious purpose for the religious exemption to apply in this case.

6 The parallel to RCW 49.60.040 is found at 42 U.S.C. § 2000e-1, which states that the provisions of that act "shall not apply to ... a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities."

7 In connection with her article 1, section 11 argument, Farnam uses the words "constitutionally overbroad". However, she does so in the context of whether or not the exemption is the least restrictive alternative available to achieve the State's interest in avoiding governmental intrusion into the running of religious organizations. She does not make a separate argument that the exemption is constitutionally overbroad. Nor does she cite any authority to support such an argument.

Farnam also contends that the trial court erred in rejecting her claim that CRISTA had violated her constitutional guaranty of freedom of belief under article 1, section 11. However, we do not reach this issue because she did not seek to overturn the jury verdict for CRISTA on the issue of religious discrimination. The jury entered a verdict for Farnam based on a finding of religious discrimination by harassment. In response to the question, "Did plaintiff prove, by a preponderance of the evidence, religious discrimination, and did defendant not carry its burden of proof regarding reasonable accommodations as defined in instruction No. 10?", the jury answered, "No". Furthermore, she did not assign error to the trial court's finding, made in connection with Farnam's motion for reconsideration, that "Crista's actions did not violate the Washington State Constitution because Mrs. Farnam was constructively discharged for her actions, not for her beliefs."

8 CRISTA also assigns error to certain jury instructions, to the trial court's ruling admitting evidence of CRISTA's offer of severance pay to Farnam, and to the trial court's award of attorney fees to Farnam. Because we hold for CRISTA on both claims, we do not reach these issues. For the same reason, we do not reach Farnam's assignment of error to the trial court's denial of fees under RCW 49.48-.030 as not timely pleaded.