Piel v. City of Federal Way, 177 Wn.2d 604 (2013) (view Court’s opinion)

The plaintiff in this case was a Lieutenant for the Federal Way Police Department.? He claimed he was harassed and ultimately terminated because of his role in the creation of a union and in filing grievances against his employer.? He alleged wrongful termination in violation of the public policy expressed in the Public Employees’ Collective Bargaining Act, RCW 41.56.? The trial court granted summary judgment, and the Supreme Court took the case on direct review.

The case was briefed before Cudney v. ALSCO, but argued and decided afterward.? In its 5-4 decision reversing summary judgment, the Court set out “to better explain our jeopardy analysis and harmonize our recent decisions” in Cudney and Korslund v. DynCorp Tri-Cities Services, Inc.

The court first reaffirmed its holding in Smith v. Bates Technical College that a union member could bring a common law wrongful termination claim based on the public policies expressed in RCW 41.56 notwithstanding the administrative remedies available.? The Court rejected the employer’s argument that because Smith did not directly address the jeopardy element per se, Smith was inconsistent with Korslund and Cudney.? The court explained that, although Smith did not “walk through the four-part Perritt test” used for analyzing the jeopardy prong, it concluded that the tort was necessary to advance public policy, not just the plaintiff’s own interests, and found the administrative remedies available through PERC inadequate.

The Court concluded that an overbroad reading of Korslund and Cudney would fail to account for a “long line of precedent allowing wrongful discharge tort claims to exist alongside sometimes comprehensive administrative remedies.”? The court pointed to cases in which it had held employees could be collaterally estopped from seeking tort remedies after losing on the same claims in an administrative forum.? The issue would not have even arisen if a tort action were legally unavailable in any event.

It distinguished Cudney and Korslund by observing that neither involved administrative remedies that had already been deemed inadequate, as the PERC scheme had in Smith, and noted that the PERC statute specifically preserves other sources of relief.

Justice Jim Johnson dissented, arguing that Smith did not address the adequacy of PERC remedies to protect the public interest and that based on Cudney and Korslund, those remedies are clearly adequate for that purpose.? Justice Madsen concurred with the dissent and argued that Smith did not address jeopardy and therefore is not authoritative on the question.

WELA filed an amicus curiae brief and argued that the Court should follow Smith, distinguish between public policies whose purpose is to protect employees from those which protect only the public at large, and conclude that PERC remedies were not adequate to protect employees who exercise their rights to organize and present grievances to their employers.

View WELA’s brief