Statutory Remedy Guts Jeopardy Element of Wrongful Discharge Claim; Technical Quit Not Required for Constructive Discharge; Handbook Claim Viable for Union Employees
Three plaintiffs, employed by a Hanford defense contractor challenged retaliatory conduct, including transfers and demotions, after reporting safety violations and other work-place problems. The plaintiffs alleged wrongful termination in violation of public policy and Thompson handbook claims dismissed by the trial court on summary judgment. ?The appellate court affirmed dismissal of?? two?? plaintiffs??? wrongful?? discharge?? claims because one is still employed by the company and the other is on long term disability, for which only ?active?employees are eligible.? The court held it was constrained by precedent not to recognize a tort of wrongful retaliation.? The third plaintiff, Korslund, went on unpaid medical leave and received unemployment for quitting with good cause. ?Agreeing with the appellate court, the Supreme Court announced that ?an employee who is forced to permanently leave work for medical reasons may have been constructively discharged? but ?where the employee continues to receive employment benefits and is still considered to be an active employee, or where his or her ability to return to work is protected in some other way, that employee has not been constructively discharged. The leave must be, in other words, comparable to termination of employment.? The Supreme Court reversed on the wrongful discharge claim, however, holding as a matter of law? the? Recognizing? the? Energy? Reorganization Act (?ERA?), 42 U.S.C. ? 5851(a)(1)(A), through its? anti-retaliation? provisions? precluded? the Plaintiff? from ?satisfying ?the ?jeopardy ?element: ?We conclude that the remedies available under the ERA are adequate to protect the public policy on? which? the? plaintiffs? rely.??? In? doing? so,? the Court disregarded Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46 (1991), which held an employee may bring a public policy tort where the source of public policy is a statute that is not the mandatory? nor? exclusive? mechanism? for? relief. The Court declined to revisit whether a claim for wrongful retaliation (short of discharge) exists and whether the trial court erred in failing to apply Virginia law (where one defendant?s parent company resides) which allows for punitive damages. Affirming the Court of Appeal?s holding that the trial court erred in dismissing the handbook claims, the Supreme Court declared:? ?Discharge of the employee is not a prerequisite to bringing a Thompson specific treatment claim? and ?The fact that an employee is covered by a collective bargaining? agreement? does? not? always,? as? a matter of law, bar the employee from bringing a claim of breach of promise of specific treatment in specific situations.?? And, the Court rejected DynCorp?s? argument? that? ?Korslund?s? signing the [employment] application stating that his employment was at will precludes his justifiable reliance on promises in employee policy manuals as a matter of law? concluding ?It would be inconsistent with Thompson? to find ?the employer is thereafter free to make whatever promises?? it?? wishes?? to?? make?? without?? any obligation to carry them out.?? Holding the employer?s policies require reporting ethical misconduct?? and?? promises?? to?? take?? corrective action against retaliation, the Court remanded finding the plaintiffs raised questions of fact whether DynCorp made specific promises in specific situations? justifiably relied on by the Plaintiffs.? Justice Chambers dissented in part stating he would remand because the jeopardy element is a factual determination undeveloped by the trial court and ?It is antithetical to any remedy grounded in public policy to require an employee to suffer great economic consequences and forgo needed medical, disability, and other benefits the offending employer is already obligated to provide before seeking redress from wrongful discharge.?? Korslund v. Dyncorp Tri- Cities, Inc., No. 75662-7 (majority by Madsen; concurrence in part/dissent in part by Chambers).