Opinion
No. 60966-1-I.
November 17, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-2-27351-6, Steven C. Gonzalez, J., entered November 16, 2007.
Affirmed by unpublished opinion per Leach, J., concurred in by Agid and Becker, JJ.
In this case, we address whether a plaintiff may bring an action for wrongful discharge in violation of public policy when that public policy is adequately protected by other means. Marianne Blumhoff sued the Tukwila School District under a tort theory of wrongful constructive discharge in violation of public policy based on two public policies: (1) protecting disabled students' rights under federal and state special education laws and regulations and (2) protecting state employees who engage in whistleblowing from retaliation at work. Because these public policies are adequately protected by other means, Blumhoff cannot establish the jeopardy element of her claim. Therefore, we affirm the dismissal of her claim.
Background
The Tukwila School District hired Marianne Blumhoff as a school psychologist in 1985. Blumhoff's duties included conducting education evaluations of students for qualification and placement in the District's special education program, maintaining records relating to the special education program, and assisting in the development and management of special education practices and procedures. She was employed under a succession of one-year continuing contracts in accordance with chapter 28A.405 RCW. Her employment was governed by a collective bargaining agreement between the District and Tukwila Education Association, the union representing the District's certificated employees. The collective bargaining agreement provided that Blumhoff could only be disciplined or discharged for just cause.
For several years, Blumhoff carried out her responsibilities effectively and received several positive evaluations. In 1999, she began to observe conduct by the District that she considered unlawful, which she brought to the attention of District administrators, the District's Board of Directors (Board), and auditors with the Office of the Superintendent of Public Instruction (OSPI). For reporting this conduct, Blumhoff claims she experienced retaliation from 2000 until her resignation in August 2003.
During the 1999-2000 school year, Blumhoff observed that several students at Showalter Middle School were not receiving the education and services she believed to be required by their Individual Education Plans (IEPs). She decided that the District was failing to comply with the Individuals with Disabilities Education Act of 1997, which guarantees special education students a right to a free appropriate public education (FAPE). She brought her concerns to the attention of Showalter's principal, Cinda Morris, and the District superintendent, Michael Silver. In January 2000, Blumhoff submitted a report outlining her concerns to researchers hired by the Board to evaluate the special education program at Showalter. She also volunteered to serve on a task force to improve the program. The task force ultimately recommended hiring a special education coordinator to assist the director of special education. Because Blumhoff believed that this remedy was insufficient to address the problems at Showalter, she prepared a written statement delineating her concerns, which she read aloud to members of the task force and the Board.
In 2000, Blumhoff openly disagreed with her supervisor, Sue Lerner, director of special education, regarding a student whom Lerner wished to recommend for alternative school placement. Blumhoff believed that such a placement would be illegal. She supported the parent's position that the student should not change schools rather than complying with Lerner's request that she present the alternative school placement to the parent in a positive light. Blumhoff received an unsatisfactory evaluation in June 2000. She claims that Lerner gave her an unsatisfactory evaluation in retaliation for refusing to support the alternative school placement. However, the evaluation reported that Blumhoff did not work cooperatively with others, failed to maintain her workload, led parents to believe that she alone was competent and other teachers and staff were incompetent, and that staff and administrators had complained about communication difficulties with Blumhoff.
The following school year, 2000-2001, Blumhoff continued to identify deficiencies in the special education program, which she presented to the superintendent and the Board. She complained to the administration that she was experiencing retaliation. When Blumhoff was ill later that year, the District did not provide a substitute for her as it had in the past, so she had to work overtime in order to keep up with her workload. She believes the refusal to provide a substitute was in retaliation for her continued complaints about program deficiencies. In May 2001, she received a satisfactory evaluation but disagreed with its contents in a letter to Lerner. She filed a grievance under the collective bargaining agreement, complaining that Lerner did not respond to her letter and requesting that any reference to her illness be removed from the evaluation. The District agreed to strike the reference to illness and arranged for Blumhoff to meet with her new evaluator, Ken Heikkila, who had replaced Lerner as director, regarding her concerns.
In November 2001, the District was audited by OSPI. Although Blumhoff was not invited to interview with the auditors, she arranged to meet with them and hand-delivered to them a letter outlining alleged unlawful practices at Showalter. The final audit report revealed "substantial findings," indicating serious or significant areas of noncompliance identified during the review.
Because the report identified several of the same items identified in her letter, Blumhoff believes that her letter was instrumental in leading OSPI to discover these violations. After she submitted this letter, union officials informed Blumhoff of her right to file a formal citizen complaint with OSPI. She declined to do so. Blumhoff claims that, after the OSPI report, Heikkila retaliated against her by altering her student evaluation files in order to allege that she had falsified records and by giving her an unsatisfactory evaluation for the 2001-2002 school year.
At the end of the 2001-2002 school year, Blumhoff sent a two-page letter to the Board summarizing her concerns and outlining abuses by Heikkila against her and against special education students. The Board directed the District superintendent, Dr. Michael Silver, to investigate the allegations raised in the letter. In a letter to Blumhoff on July 12, 2002, Silver informed her that her allegations of improper government actions and retaliation triggered Policy 4114, the District's whistleblower protection policy. The letter explained that Policy 4114 required a written report from Blumhoff describing the factual basis for her allegations of improper governmental action. Silver's letter outlined specific additional information needed to support the allegations and requested that she respond by July 26, 2002. Because Blumhoff was on vacation until August 26, she was unable to respond within Silver's timeline. She responded on August 26, 2002, informing Silver that she would review files and provide him with the requested information, but stating that she did not believe she could do so promptly. Blumhoff claims she was unable to access the files because she was too busy during work hours and the files were not accessible outside of work hours.
Silver never received the requested written report from Blumhoff. Therefore, on October 29, 2002, Silver wrote to her, directing her to appear in his office on November 13, 2002, at 3:00 p.m., to verbally present any supporting information she had. At the meeting, Blumhoff did not present any supporting information. Instead, she withdrew her complaint and informed Sliver that she would address her concerns through other channels. She now claims that she withdrew her complaint because she felt intimidated by the request to appear in front of Silver and because Silver had, in a previous e-mail, threatened to sue her for libel and slander if she could not prove her allegations were true.
In January 2003, Blumhoff received another unsatisfactory evaluation. This evaluation stated that Blumhoff had failed to complete her required work within the legal timelines and engaged in unsatisfactory communications with her coworkers. After this evaluation, Blumhoff was placed on probationary status. However, she successfully raised her performance to satisfactory, her probationary status was removed on May 2, 2003, and her employment contract was renewed for the 2003-2004 school year.
Blumhoff claims that when she attempted to return to work the following school year, on August 19th and 20th, she was not provided with an appropriate work space or equipment. But District records indicate that she did not report to work on any required or optional work days during the 2003-2004 school year.
Blumhoff resigned from her position on August 28, 2003, and filed this lawsuit for wrongful constructive discharge in violation of public policy on August 28, 2006. The superior court granted summary judgment in favor of the District.
Discussion
The issue in this case is whether the District is entitled to judgment as a matter of law because Blumhoff cannot establish the jeopardy element of wrongful discharge in violation of public policy. We review orders granting summary judgment de novo, engaging in the same inquiry as the trial court. Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. We construe the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Summary judgment is proper if reasonable persons could reach but one conclusion.
Korslund v. DynCorp Tri-Cities Servs., Inc., 156 Wn.2d 168, 177, 125 P.3d 119 (2005).
CR 56(c); Korslund, 156 Wn.2d at 177.
Korslund, 156 Wn.2d at 177.
Korslund, 156 Wn.2d at 177.
A. The Tort of Wrongful Discharge in Violation of Public Policy
Our Supreme Court has recognized that a claim for wrongful discharge in violation of public policy may arise when an employer discharges an employee for reasons that contravene a clear mandate of public policy. This cause of action was initially recognized in Washington as an exception to the terminable-at-will doctrine and has since been extended to employees who are dischargeable only for cause, including those who may be covered by a collective bargaining agreement. In an action for wrongful discharge, the discharge may be either express or constructive.
Korslund, 156 Wn.2d at 178 (citing Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 936, 913 P.2d 377 (1996)).
Korslund, 156 Wn.2d at 178.
Snyder v. Med. Serv. Corp., 145 Wn.2d 233, 238, 35 P.3d 1158 (2001).
To establish a cause of action for wrongful discharge in violation of public policy, the plaintiff must prove (1) the existence of a clear public policy (the "clarity" element); (2) that discouraging the conduct in which the employee engaged would jeopardize the public policy (the "jeopardy" element); and (3) that the public-policy-linked conduct caused the dismissal (the "causation" element). Finally, (4) the employer must not be able to offer an overriding justification for the dismissal (the absence of justification element). The only element at issue here is the jeopardy element.
Korslund, 156 Wn.2d at 178.
Korslund, 156 Wn.2d at 178 (citing Hubbard v. Spokane County, 146 Wn.2d 699, 707, 50 P.3d 602 (2002)).
B. The Jeopardy Element
In order to establish jeopardy, Blumhoff must show that she "'engaged in particular conduct, and the conduct directly relates to the public policy, or was necessary for the effective enforcement of the public policy.'" In other words, she must prove that discouraging the conduct in which she has engaged would jeopardize the public policy. She also "must show that other means of promoting the public policy are inadequate."
Korslund, 156 Wn.2d at 181 (quoting Hubbard, 146 Wn.2d at 713).
Korslund, 156 Wn.2d at 181 (citing Ellis v. City of Seattle, 142 Wn.2d 450, 460, 13 P.3d 1065 (2000)).
Korslund, 156 Wn.2d at 181-82 (citing Hubbard, 146 Wn.2d at 713).
Blumhoff argues that she does not have to prove that other means of enforcing the public policy are inadequate because her conduct directly relates to the public policies asserted. She argues that she is only required to show that her conduct either "'directly relates to the public policy'" or "'was necessary for the effective enforcement of the public policy,'" and that if her conduct "directly relates" then she is not required to demonstrate that other means of protecting it were inadequate. This interpretation of the jeopardy element is contrary to binding Supreme Court precedent, which holds that a plaintiff does not satisfy the jeopardy element if other remedies are adequate to protect the public policy at stake.
See Korslund, 156 Wn.2d at 181 (quoting Hubbard, 146 Wn.2d at 713).
See Brundridge v. Fluor Fed. Servs., Inc., ___ Wn.2d. ___, 191 P.3d 879, 886-87 (2008) (citing Korslund, 156 Wn.2d at 183).
This rule is best illustrated by Korslund v. DynCorp Tri-Cities Services, Inc. There, the plaintiffs' claims for wrongful discharge in violation of public policy failed as a matter of law because other adequate remedies protected the public policy on which their claims were based. The public policy plaintiffs sought to advance was contained in the federal Energy Reorganization Act (ERA), 42 U.S.C. § 5851(a)(1)(A), encouraging and protecting their right to report waste and fraud in nuclear industry operations without fear of retaliation. The court held that the plaintiffs did not establish jeopardy because the ERA provides comprehensive remedies that serve to protect the specific public policy identified by the plaintiffs, including an administrative process for adjudicating employee complaints; provisions for ordering the violator to abate the violation; reinstatement of the complainant to his or her former position with the same compensation and terms and conditions of employment; back pay; compensatory damages; and attorney and expert witness fees.
156 Wn.2d 168, 125 P.3d 119 (2005).
Korslund, 156 Wn.2d at 183.
Korslund, 156 Wn.2d at 181.
Korslund, 156 Wn.2d at 182.
Blumhoff argues that summary judgment is improper because arguable issues of material fact remain regarding (1) whether existing procedures adequately protect the public policies she asserts and (2) whether she complied with those procedures.
The question whether existing procedures adequately protect the public policies asserted by Blumhoff is not a question of fact in this case. As our Supreme Court has held,
[w]hile the question whether the jeopardy element is satisfied generally involves a question of fact, the question whether adequate alternative means for promoting the public policy exist may present a question of law, i.e., where the inquiry is limited to examining existing laws to determine whether they provide adequate alternative means of promoting the public policy.
Korslund, 156 Wn.2d at 182 (citing Hubbard, 146 Wn.2d at 715-17).
ost recently in Brundridge v. Fluor Services, Inc., the Court again noted that "Hubbard had also demonstrated that while the 'jeopardy' element may contain factual inquiries, the court may rule on the adequacy of an alternative means as a matter of law if the procedures are undisputed." Despite Blumhoff's Korslund, 156 Wn.2d at 182. argument to the contrary, the undisputed facts show that she did not use the existing procedures for reporting retaliation or improper governmental action. Thus, under no view of the facts in this case could a trier of fact conclude that these procedures failed to protect the public policies she asserts. The procedures at issue are undisputed ones contained in state and federal regulations, the District's written policy, and the collective bargaining agreement. Therefore, the issue of whether those procedures are sufficient to protect the public policies asserted by Blumhoff is a question of law. C. Adequacy of Alternative Means
___ Wn.2d ___, 191 P.3d 879 (2008).
Brundridge, 191 P.3d at 887 (citing Hubbard, 146 Wn.2d at 717-18).
Finally, we address whether the public policies asserted here are adequately protected by other means, making it unnecessary to recognize a tort for wrongful discharge in violation of public policy. Blumhoff bases her claim on two public policies: (1) protecting disabled students' rights under federal and state special education laws and regulations and (2) protecting state employees who engage in whistleblowing from suffering retaliation at work. We hold that existing laws and regulations adequately protect these public policies.
1. Rights of Students with Disabilities
State and federal laws and regulations establish a clear public policy of protecting the rights of students with disabilities. The available administrative remedies for the protection and enforcement of these rights are comprehensive and provide multiple layers of protection.
See generally 20 U.S.C. §§ 1400-1487; 29 U.S.C. § 794; ch. 28A.155 RCW; 34 C.F.R. § 104; former 34 C.F.R. § 300 (2003); former ch. 392-172 WAC (2000). For purposes of this opinion, we cite federal and state administrative rules in effect at the time Blumhoff terminated her employment. Although these rules were amended during Blumhoff's employment and have again been amended and/or recodified since her termination, these changes do not affect our analysis because the rules protected the public policy throughout the relevant time frame. Similarly, recent amendments to the state and federal statutes cited here do not affect our analysis.
Former ch. 392-172 WAC (2005), repealed by WSR 07-14-078, later promulgation, ch. 392-172A WAC.
Disabled students' rights are safeguarded by requiring schools to involve the parents of a disabled student in their child's education. For example, schools must give a parent of a child eligible for special education an opportunity to inspect and review their child's education records and to participate in any meetings related to a student's IEP, placement decisions, or provision of FAPE to the child. A school district must maintain procedural safeguards consistent with federal regulations and provide a copy of these safeguards to parents. A parent who wishes to challenge a proposal or refusal of a school district regarding identification, evaluation, educational placement, or provision of FAPE to the student may initiate a due process hearing and, if prevailing, may be awarded attorney fees and costs. Provisions for mediation are available as an optional alternative to a formal due process hearing at the consent and agreement of both parties.
Former WAC 392-172-408.
Former WAC 392-172-105,-15700,-15705.
Former WAC 392-172-300,-307. See also former 34 C.F.R. 300.500 .517.
Former WAC 392-172-350 through-364.
Former WAC 392-172-310 through-317. See also former 34 C.F.R. § 300.506.
In addition to the parental involvement and complaint procedures, the WAC provides a citizen complaint process for alleging that a school has violated a federal statute or regulation or a state regulation regarding students with disabilities. Any individual or organization may file a citizen complaint with OSPI. OSPI notifies the school district, which must investigate the complaint and provide a written response to OSPI within 20 calendar days. OSPI may conduct an independent on-site evaluation, and the complainant will be provided an opportunity to submit additional information, either orally or in writing. OSPI will make an independent determination and issue a written decision addressing each allegation in the complaint including findings of fact, conclusions, and the reasonable corrective measures deemed necessary to correct any violation. If compliance is not achieved, OSPI will initiate fund withholding or other appropriate sanctions. Blumhoff did not file a citizen complaint.
Former WAC 392-172-324 through-348. See also former 34 C.F.R. § 300.151-.153.
Former WAC 392-172-330.
Former WAC 392-172-338(1)-(4).
Former WAC 392-172-338(5).
Former WAC 392-172-338(6)-(7).
Former WAC 392-172-338(8).
The administrative remedies for enforcing the rights of students with disabilities are comprehensive. Specifically, the concerns Blumhoff raises — the provision of FAPE, the IEP, and placement decisions — are extensively protected through the parental involvement provisions. In addition, anyone who believes that a school district has violated the law can file a citizen complaint with OSPI. We hold that as a matter of law, these existing remedies adequately protect the public policy of safeguarding disabled students' rights. Therefore, it is unnecessary to recognize a separate tort for wrongful discharge in violation of public policy.
2. Whistleblower Protection
Washington law provides an administrative process for adjudicating whistleblower complaints. Local governments are required to establish policies and procedures for reporting improper governmental action and for protecting employees who provide information in good faith from retaliation. The law provides for a hearing before an independent administrative law judge, who may grant relief including reinstatement, back pay, injunctive relief, and attorney fees and costs. The administrative law judge may also impose a civil penalty of up to $3,000 personally upon the retaliator and recommend that the person found to have retaliated be suspended with or without pay or dismissed. These protections are similar to the whistleblower protections that our Supreme Court held were adequate to safeguard the public policy of protecting whistleblowers in Korslund.
RCW42.41.030-.040.
RCW 42.41.040(5)-(7).
If Blumhoff believed that the local whistleblower protection policy could not protect her, she was entitled to initiate proceedings under the provisions in chapter 42.41 RCW, which are designed to protect local government employees from retaliation for whistleblowing. These statutory procedures provide for an independent hearing wholly outside the influence of District employees such as Superintendent Silver. As a matter of law, the existing procedures under chapter 42.41 RCW adequately protect local government employees from whistleblower retaliation.
In addition to the whistleblower protection under chapter 42.41 RCW, Blumhoff's employment was further safeguarded by a collective bargaining agreement and statutes governing public employees. Under the collective bargaining agreement, the District could not discipline or discharge her without just cause. Under the collective bargaining agreement, an employee may initiate grievance procedures if the employer violates the collective bargaining agreement. Blumhoff successfully used the grievance process to resolve grievances on two occasions before her resignation. She also had a statutory right to reemployment each school year, absent a determination of sufficient cause for discharge or nonrenewal. An employee who receives a notice of probable cause for discharge or adverse effect in contract status is entitled to a hearing. These additional protections further weaken the argument that existing means inadequately protected the public policies asserted here.
Ch. 28A.405 RCW.
RCW28A.405.210, .300.
RCW28A.405.310.
Blumhoff also argues that the available protections for whistleblowers and for disabled students are inadequate because emotional damages are not available to her. However, our Supreme Court has said that "[t]he 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." Moreover, "the tort of wrongful discharge is not designed to protect an employee's purely private interest in his or her continued employment; rather, the tort operates to vindicate the public interest in prohibiting employers from acting in a manner contrary to fundamental public policy." The question here, as it was in Korslund, is "whether other means of protecting the public policy are adequate so that recognition of a tort claim in these circumstances is unnecessary to protect the public policy."
Hubbard, 146 Wn.2d at 717.
Smith v. Bates Technical Coll., 139 Wn.2d 793, 801, 991 P.2d 1135 (2000).
Korslund, 156 Wn. 2d at 183 (emphasis added).
Conclusion
We hold that, as a matter of law, existing laws and regulations adequately protect both the rights of disabled students and the rights of District employees who report improper governmental action. Therefore, we decline to recognize a separate tort of wrongful discharge in violation of public policy under these circumstances.
Affirmed.