In Piel v. City of Federal Way, the Court 5-4 ruled that the remedies made available by the Public Employee Relations Commission (PERC) under RCW 41.56 did not foreclose the jeopardy element of the public policy tort. ?The Court distinguished and harmonized its prior holdings in?? Cudney v. ALSCO,? Inc.,? 172? Wn.2d?? ?524,? 259? P.3d? 244 (2011), and Korslund v. DynCorp Tri-Cities Services, ?Inc., ?156 ?Wn.2d ?168, ?125? P.3d ?119 (2005), with Smith v. Bates Technical College, 139 Wn.2d 793, 991 P.2d 1135 (2000).

Justice Stephens wrote for the majority which included Justices Charles Johnson, Chambers, and Gonzalez, and Pro Tem Justice Seinfeld (because Justice Wiggins was recused).? ?Justice James Johnson ?filed ?a ?dissenting ?opinion ?joined?? by Justices? ?Fairhurst? ?and? ?Owens.? ?Chief?? Justice Madsen filed a separate opinion concurring in dissent.???? All ?four ?dissenters ?had ?been ?in ?the majority in Cudney, along with Justice Charles Johnson.

In Piel, the Plaintiff was a law enforcement officer employed by the City of Federal Way.?? He was designated to manage the formation of a union of lieutenants.?? ?Shortly thereafter, he began to experience retaliation, including a reduction in his duties and targeting his unit for internal investigations.?? After the union was certified, he received poor evaluations, was demoted, and was later terminated.?? After filing a grievance, he was reinstated ?14 ?months ?later.?? ?After ?returning? to work, Piel allegedly expressed violent feelings against members of the Department. An investigation followed, and Piel was terminated for being untruthful about the things he allegedly said.

Piel filed suit alleging wrongful discharge in violation of a clear mandate of public policy; that he was fired for engaging in protected union- organizing.? ?The trial court granted summary judgment,?? and?? Plaintiff?? was? ?granted?? direct review,? ?which? ?was? ?stayed? ?pending?? a? ?final decision in Cudney.

The Court in Piel recognized that in Smith, the Court had allowed a Plaintiff?s public employee’s claim to go forward notwithstanding her failure to? ?pursue? ?administrative? ?remedies??? through PERC.?? The Court recognized a key holding of Smith was that the public policy claim could not be foreclosed ?simply because her administrative and contractual remedies may partially compensate her wrongful discharge.? ?The Court rejected ?the? employer?s ?argument ?that ?Smith failed to address the jeopardy element, while Korslund and Cudney did.?? ?The point of this discussion in Smith was to highlight the importance of having a tort remedy apart from the PERC remedy in order to advance public policy,? not ?the ?plaintiff’s ?personal compensation.???? Relying upon Smith, Korslund and Cudney, the Court held ?[t]he adequacy of available remedies is the heart of jeopardy analysis in cases involving statutes that provide administrative schemes.?

The Court ruled that a decision which failed to recognize the viability of the tort in cases despite the? existence? of ?statutory remedies ?would ?call into question a long line of cases, including: Thompson v. St. Regis? Paper Co., 102 Wn.2d 219, ?685 ?P.2d ?1081 ?(1984); ?Ellis ?v. ?City? of Seattle, 142 Wn.2d 450, 13 P.3d 1065 (2000); Roberts v. Dudley, 140 Wn.2d 58, 993 P.2d 901 (2000); and Bennett v. Hardy, 113 Wn.2d 912, 784 P.2d 1258 (1990). ??An overbroad reading of Korslund and Cudney would fail to account for this long line of precedent allowing wrongful discharge ?tort ?claims ?to ?exist? alongside sometimes comprehensive administrative remedies. Importantly, neither case purported to overrule ?anything.??? ??Each ?public ?policy ?tort claim must be evaluated in light of its particular context.?

Justice Madsen argued that neither Smith nor any of the other authorities relied upon by the majority addressed the jeopardy element with regard to whether the alternative sources adequately protect public policy. ?True to her prior decisions, Justice Madsen would have ruled that the remedies made available? to ?the? employee ?are? irrelevant ?if ?the source of public policy provides a means to protect public policy: ?When there are adequate means to protect the public policy regardless of whether an employer is exposed to the wrongful discharge tort claim, then a tort action should not be recognized since the public policy is not jeopardized by the employment action.?

Justice James Johnson would have relied upon the very restrictive language in Cudney; that Plaintiff must ?show that other means of promoting the public policy are inadequate and that the actions the plaintiff took were the ‘only available adequate means’ to promote the public policy.???? ?Justice Johnson otherwise agrees with Justice Madsen.

Piel v. City of Federal Way, ???????Wn.2d ???????, ?_ ??? ?P.3d ??????(6/27/13).