Martin v. Gonzaga University, ___ Wn.App.__, 402 P. 3d 294 (2017)

Plaintiff alleged he was terminated from employment in violation of a clear mandate of public policy.? The Plaintiff claimed that the was terminated for complaining about a safety violation in the school gymnasium. The employer claimed it was motivated by insubordination and not the alleged protected activity. The case was dismissed by summary judgment.

The Court of Appeals issued three separate opinions. No judge signed the opinion of any other judge. Judge Fearing wrote the lead opinion and applied the Henry Perritt four part test for wrongful discharge: (1) the existence of a clear public policy (the clarity element), (2) discouraging the conduct in which the employee engaged would jeopardize the public policy (the jeopardy element), (3) the public-policy-linked conduct caused the dismissal (the causation element), and (4) the employer must not be able to offer an overriding justification for the dismissal (the absence of justification element). Judge Fearing found that Plaintiff satisfied the first three elements of the Perritt test but that Plaintiff had the burden of proving the absence of an overriding justification, which he failed to prove.

Judge Pennell concurred on the wrongful discharge claim but on the grounds that Plaintiff failed to prove that retaliation was a substantial factor in the University?s decision. Judge Korsmo also concurred that Plaintiff failed to establish causation for the wrongful discharge claim

WELA filed an ACM in favor of review.? WELA argued that the Perritt formulation doesn?t apply when one of the four traditional categories of wrongful discharge is alleged, and that the overriding justification element, which is only applicable to the Perritt formulation, was misconstrued by the Court of Appeals.

Jeff Needle and Mike Subit wrote an ACM for WELA.? Read WELA’s Amicus brief HERE.

Washington State Supreme Court

Brief filed January 28, 2018