Opinion
No. 24651-5-III.
May 2, 2006.
Appeal from a judgment of the Superior Court for Spokane County, No. 03-2-08467-5, Salvatore F. Cozza, J., entered March 28, 2005.
Counsel for Appellant(s), Shaunna H. Gutina, Staeheli Gutina, 301 W Indiana Ave, Spokane, WA 99205-4700.
Gregory George Staeheli, Staeheli Gutina, 301 W Indiana Ave, Spokane, WA 99205-4700.
Counsel for Respondent(s), Holly Ann Vance, Washington Attorney Generals Office, 1116 W Riverside Ave, Spokane, WA 99201-1106.
Affirmed by unpublished opinion per Kato, J., concurred in by Schultheis, A.C.J., and Thompson, J. Pro Tem.
Barbara Leon appeals the trial court's dismissal of her lawsuit against the Department of Social and Health Services (Department) for wrongful termination in violation of public policy. She contends she has a claim for wrongful termination based on her transfer or demotion to another nursing position within the Department. We affirm.
In November 2000, Ms. Leon began working as a nurse consultant institutional in the Department's Residential Care Services Division in Spokane. She was responsible for inspecting nursing homes and writing citations for violations of state and federal regulations. Her salary was $5,356 per month.
On November 18, 2002, the Department notified Ms. Leon that her position would be terminated because of a reduction in force (RIF) for lack of work and funding. The Department informed Ms. Leon that under RIF procedures, she had the option of continued employment and provided her with a list of four nurse consultant institutional positions located in other counties. The Department asked Ms. Leon to bid on the positions in order of preference. It also informed her that she could continue employment with the Department if she transferred or took a voluntary demotion.
On November 19, Ms. Leon told the Department she wanted to explore other job opportunities within it. She asked the Department to conduct a search for all eligible job positions for which she was qualified. On November 20, Ms. Leon tentatively accepted a nurse consultant institutional position in Yakima, but informed the Department she also wanted to consider any informal job options.
On December 2, Ms. Leon advised the Department her first choice job option was a registered nurse position at Eastern State Hospital. The Department offered her the job and confirmed in a letter she had `accepted a sub-agency demotion in lieu of RIF to a Registered Nurse 3 within the Department of Social and Health Services, Mental Health Division, Eastern State Hospital.' Clerk's Papers at 302. Ms. Leon's salary in this position was $5,222 per month — $134 less per month than what she had been previously earning.
On December 4, Ms. Leon began working as a registered nurse. On December 20, she appealed the Department's RIF decision to the Personnel Appeals Board. Ms. Leon claimed the decision did not result from a lack of work and funding, but because of her complaints that management had changed or deleted her citations for nursing home safety violations. Ms. Leon, however, eventually withdrew her appeal and the Board dismissed the matter.
On January 3, 2003, Ms. Leon resigned from her registered nurse position effective January 5, after accepting a job as an instructor with the Intercollegiate College of Nursing and Spokane Community College. Ms. Leon claimed she resigned because she learned during orientation the job required her to physically subdue violent patients, which she was unable to do because of her age and two bulging disks in her back.
On December 29, 2003, Ms. Leon sued the Department, claiming she was wrongfully terminated from her nurse consultant institutional position in violation of public policy. The court dismissed Ms. Leon's lawsuit on summary judgment by finding that an employee who accepts a demotion cannot pursue a claim for wrongful termination. The court also found no claim for relief for employer actions short of termination. This appeal follows.
Ms. Leon contends the court erred in granting summary judgment dismissal. We review orders of summary judgment de novo by engaging in the same inquiry as the trial court. Burbo v. Harley C. Douglass, Inc., 125 Wn. App. 684, 691-92, 106 P.3d 258, review denied, 155 Wn.2d 1026 (2005). Summary judgment is appropriate when there are no disputed material facts and the moving party is entitled to judgment as a matter of law. DeWater v. State, 130 Wn.2d 128, 133, 921 P.2d 1059 (1996). The court should consider the evidence and the reasonable inferences from it in a light most favorable to the nonmoving party. Id. The nonmoving party, however, cannot rely on mere allegations to defeat a summary judgment motion. Baldwin v. Sisters of Providence in Wash., Inc., 112 Wn.2d 127, 132, 769 P.2d 298 (1989). When reasonable minds could reach but one conclusion from the admissible facts in evidence, summary judgment should be granted. LaMon v. Butler, 112 Wn.2d 193, 199, 770 P.2d 1027, cert. denied, 493 U.S. 814 (1989).
Under common law, an employer in Washington could discharge an employee with or without cause, absent an agreement to the contrary. Roberts v. Atl. Richfield Co., 88 Wn.2d 887, 891, 568 P.2d 764 (1977). But in Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 685 P.2d 1081 (1984), our Supreme Court first recognized an exception to this general terminable at will rule, holding that a cause of action for the tort of wrongful discharge will lie when `the discharge of [an] employee contravenes a clear mandate of public policy.' Id. at 232.
What qualifies as a clear mandate of public policy is a legal question. Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 937, 913 P.2d 377 (1996). The contravention of a clear mandate of public policy occurs in four situations: "(1) where employees are fired for refusing to commit an illegal act; (2) where employees are fired for performing a public duty or obligation . . .; (3) where employees are fired for exercising a legal right or privilege . . .; and (4) where employees are fired in retaliation for reporting employer misconduct, i.e., whistleblowing." Reninger v. Dep't of Corr., 134 Wn.2d 437, 447, 951 P.2d 782 (1998) (quoting Gardner, 128 Wn.2d at 936). The touchstone of these exceptions is whether the employee's termination would contravene some public, rather than a purely private, interest. Id. The Gardner court identified four elements to a claim for wrongful discharge in violation of public policy. The plaintiff must prove (1) the existence of a clear public policy; (2) that discouraging the conduct in which a plaintiff engaged would jeopardize the public policy; (3) that the public-policy-linked conduct caused the dismissal; and (4) that no overriding justification for the dismissal existed. Gardner, 128 Wn.2d at 941.
The wrongful discharge exception, however, is construed narrowly. White v. State, 131 Wn.2d 1, 19-20, 929 P.2d 396 (1997). In White, our Supreme Court declined to extend the cause of action for wrongful discharge to include claims alleging wrongful transfer in the public employment setting. Id. at 19. The court noted other jurisdictions were divided with respect to the recognition of such claims and no jurisdiction had considered a tort claim based on a job transfer not resulting in a loss of pay, rank, job classification, or benefits. Id. The court observed that `recognizing a cause of action for wrongful disciplinary action less than discharge has the potential to expand and to generate frivolous claims.' Id. Based on this concern, the court refused to extend the public policy tort to situations not resulting in discharge. Id. at 20. The court observed that by recognizing a cause of action for employer actions short of an actual discharge, it would be opening a floodgate to frivolous litigation and substantially interfering with an employer's discretion to make personnel decisions. Id. at 19 (citing White v. State, 78 Wn. App. 824, 839-40, 898 P.2d 331 (1995)). It further noted that "the courts are ill-equipped to act as super personnel agencies." Id. at 19-20 (quoting White, 78 Wn. App. at 840).
Ms. Leon argues she was targeted for the RIF and she was discharged by the Department. But when she was notified her position as a nurse consultant institutional would be terminated for lack of work and funding, the Department offered Ms. Leon the option of continued employment. She eventually accepted a position within the Department as a registered nurse. Ms. Leon was not discharged by the Department. White, 131 Wn.2d at 19-20. Her acceptance of a job in a lower salary range was a sub-agency demotion. See id. at 19.
Ms. Leon nonetheless argues her acceptance of the registered nurse position did not constitute a transfer or demotion under White because she never performed work at Eastern State Hospital. She was only paid to attend orientation, where she learned her job duties required her to take down mentally ill patients. But whether Ms. Leon had actually started performing her actual duties as a registered nurse has no significance here. The fact that she accepted the lower-paying registered nurse position in lieu of termination and was actually paid and employed in that capacity is sufficient to find she was transferred or demoted. `The tort of wrongful discharge in violation of public policy clearly applies only in a situation where an employee has been discharged.' Roberts v. Dudley, 140 Wn.2d 58, 76, 993 P.2d 901 (2000). Because Ms. Leon was not discharged and no claim for wrongful transfer or demotion has been recognized in this state, her claim for wrongful discharge in violation of public policy was properly dismissed on summary judgment.
Because this issue is dispositive, we need not address the others raised in this appeal.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, A.C.J. and THOMPSON, J. Pro Tem, concur.