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