Johnson v. Vail, et al

Filing 22

ORDER granting 19 Defendants' Motion for Partial Summary Judgment (Motion to Dismiss); dismissing with prejudice the public policy wrongful discharge claim only. Signed by Judge Ronald B. Leighton.(DN)

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HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CHALMERS C. JOHNSON,
Plaintiff,

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CASE NO. 3:12-cv-05847-RBL
ORDER GRANTING
DEFENDANTS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT

v.
DAVID B. VAIL, et al.,

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[DKT. #19]

Defendants.

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I.

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BACKGROUND

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THIS MATTER is before the Court on Defendants’ Motion to Dismiss1 Plaintiff’s

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common law wrongful termination in violation of public policy claim [Dkt. #19]. Plaintiff

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Chalmers Johnson worked as an attorney at Defendant Vail’s law firm for about a year before he
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was fired in September 2009. He was apparently an hourly employee. Almost three years later,
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Johnson sued. He claims that he was subjected to a sexually hostile workplace environment, that

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the firm’s overtime payment policies violated Federal labor laws, and that he was fired in

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retaliation for complaining about these and other things. Johnson also claims that he was

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Vail erroneously moves to dismiss under Fed. R. Civ. P. 50(a)—Judgment as a Matter
of Law in a Jury Trial. The Court will construe the Motion as one for partial Summary Judgment,
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seeking judgment as a matter of law.
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ORDER- 1

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wrongfully terminated in violation of public policy. Vail moves for summary judgment on

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Johnson’s “public policy” claim, arguing that it is not available if existing statutory protections

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are adequate. Because existing statutes do protect the public policies that Johnson seeks to
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enforce, the public policy claim is not available to Johnson as a matter of law. Vail’s Motion for
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Partial Summary Judgment is GRANTED and Johnson’s public policy claim is DISMISSED
with prejudice.

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A.

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Chalmers Johnson began working for Vail’s law firm in July 2008. Johnson soon came to

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Factual Summary

believe that he was being subjected to a sexually hostile work environment and that the firm’s
overtime pay policy was unlawful. Johnson does not provide details about workplace

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harassment, but briefly describes a “comp time” policy that he claims violated his right to
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overtime pay under the FLSA. Indeed, he claims that he is entitled to some 900 hours of unpaid

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overtime, accrued during the 14 months he worked as an attorney there. Johnson claims he filed

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formal grievances through the firm’s written complaint policy, which Vail denies. Johnson’s

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brief (yet contentious) tenure ended when Vail fired him on September 25, 2009. Johnson claims

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that Vail fired him because, among other reasons, Vail (correctly) anticipated that Johnson was

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going to sue the firm. Vail disputes that Johnson’s termination was retaliatory.
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Nearly three years later, as the limitations period was about to expire, Johnson sought and
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received from the EEOC a Right to Sue letter, and he filed his Complaint in September, 2012.

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Johnson amended the complaint in December, and the operative complaint asserts four causes of

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action: (1) retaliation in violation of the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et

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seq.; (2) retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,

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et seq.; (3) violation of RCW 49.48.010, Washington’s overtime law; and (4) the termination in

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violation of public policy tort claim.
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ORDER- 2

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Vail moves for Partial Summary Judgment on the public policy claim. Vail argues that
that claim is only viable when a plaintiff’s rights are not adequately protected under existing law.

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As Vail points out, Johnson concedes that his rights are protected under the three statutes that
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form the bulk of his complaint. Johnson responds that the public policy cause of action is
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nevertheless available to him because he may not prevail on his statutory claims, and he has the

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right to plead inconsistent claims in the alternative. Johnson argues that Vail’s motion is

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premature because it is impossible to know whether a statute protects his rights until after his

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other claims are dealt with on the merits.

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II.

DISCUSSION

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Summary judgment is appropriate when, viewing the facts in the light most favorable to
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the nonmoving party, there is no genuine issue of material fact which would preclude summary
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judgment as a matter of law. Once the moving party has satisfied its burden, it is entitled to

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summary judgment if the non-moving party fails to present, by affidavits, depositions, answers to

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interrogatories, or admissions on file, “specific facts showing that there is a genuine issue for

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trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “The mere existence of a scintilla of

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evidence in support of the non-moving party’s position is not sufficient.” Triton Energy Corp. v.

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Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). Factual disputes whose resolution would not
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affect the outcome of the suit are irrelevant to the consideration of a motion for summary

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judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other words, “summary

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judgment should be granted where the nonmoving party fails to offer evidence from which a

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reasonable [fact finder] could return a [decision] in its favor.” Triton Energy, 68 F.3d at 1220.

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Wrongful termination in violation of public policy is an intentional tort. Havens v. C & D

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Plastics, Inc., 124 Wn.2d 158, 177, 876 P.2d 435 (1994); Cagle v. Burns & Roe, Inc., 106 Wn.2d
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ORDER- 3

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911, 726 P.2d 434 (1986). To prevail, the complaining employee “must prove (1) the existence

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of a clear public policy (clarity element); (2) that discouraging the conduct in which [he or she]

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engaged would jeopardize the public policy (jeopardy element); and (3) that the public-policy4

linked conduct caused the dismissal (causation element).” Hubbard v. Spokane County, 146
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Wn.2d 699, 707, 50 P.3d 602 (2002) (emphasis in original). Courts apply a “strict adequacy”

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standard: the public policy tort is precluded unless it is the only available means to protect the

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public policy. Cudney v. ALSCO, Inc., 172 Wn.2d 524, 530, 259 P.3d 244 (2011). The Court

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may determine strict adequacy as a matter of law if “the inquiry is limited to examining existing

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laws to determine whether they provide adequate alternative means of promoting the public

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policy.” Korslund v. DynCorp Tri–Cities Servs., Inc., 156 Wn.2d 168, 182, 125 P.3d 119 (2005).
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If existing laws promote the policy, there is no need for the public policy tort and the jeopardy
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element is moot.
In support of his public policy claim, Johnson states: “It is a clear mandate of public

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policy by the State of Washington, [sic] and by the federal government that employers should

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properly and timely pay overtime wages to hourly workers who have earned them.” Amended

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Complaint at 6, Dkt. #4. He then claims that Vail’s alleged violations of overtime wage law, and

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firing him for complaining about them, are contrary to that public policy. Johnson is correct: the
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clarity of the policy is made evident by the existence of both federal and state statutes that set out

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specific overtime pay rules. The FLSA expressly requires overtime pay and imposes penalties on

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employers violating the rules. It provides a minimum overtime pay rate of one-and-a-half times

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the normal rate (29 U.S.C. § 207) and allows employees to sue violators (29 U.S.C. § 216).

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Retaliation against an employee for seeking to enforce these rights is likewise specifically

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prohibited by both the FLSA and Title VII. See 29 U.S.C. § 215(a)(3); 42 U.S.C.A. § 2000e-3.
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ORDER- 4

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And Washington law provides identical protection for workers not covered by the FLSA. See

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RCW 49.46.130; RCW 49.46.100.

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While Johnson is correct that the state and federal statutes are a clear legislative
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expression of public policy, this fact undercuts his argument. The FLSA, Title VII, and
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RCW 49.48.010 provide more-than-adequate protection of the exact public policies Johnson

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seeks to vindicate; namely, the right to overtime pay and the right to be free from retaliatory

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firing. The FLSA alone creates the right to overtime payment, prohibits retaliation, and provides

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for penalties and a cause of action if an employer violates its provisions.

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Johnson’s argument that his public policy claim must be preserved until his statutory

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claims are litigated is misguided. Public policy claims may only be brought in Washington if
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existing statutes do not adequately protect the allegedly violated public policies. The availability
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of the public policy claim turns on adequacy of statutory protection, not entitlement to relief. No

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fewer than three statutes protect an hourly worker’s right to overtime pay and prohibit retaliatory

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firing. Johnson’s public policy claim fails as a matter of law, and Vail’s Motion for Partial

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Summary Judgment is GRANTED.

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III.

CONCLUSION

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Existing statutes comprehensively protect employees from overtime wage violations and
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retaliatory firing. Johnson may seek relief under any or all of them (and in fact has). Vail is

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therefore entitled to judgment as a matter of law on Johnson’s public policy claim. Vail’s Motion

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//

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ORDER- 5

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for Partial Summary Judgment is GRANTED and the public policy wrongful discharge claim is

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DISMISSED with prejudice.

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IT IS SO ORDERED.
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Dated this 10th day of February, 2014.
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A

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RONALD B. LEIGHTON
UNITED STATES DISTRICT JUDGE

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ORDER- 6