D.C. Circuit, wrongful discharge decision
The D.C. Circuit issued an opinion today in an employment whistleblower case. The district court had dismissed the plaintiff's wrongful discharge in violation of public policy claim and intentional infliction of emotional distress (IIED) claim under Rule 12(b)(6), but the D.C. Circuit reinstated the latter claim. The plaintiff reported what he believed to be violations of Nuclear Regulatory Commission regulations in the workplace. The employer then conducted what he alleged was a trumped-up internal investigation, upon which the employer (Washington Hospital Center) made false reports to the NRC in an attempt to get the NRC to investigate the plaintiff, not the employer! The district court dismissed both claims. While the D.C. Circuit reinstated the IIED claim, on the grounds that a false report to the government is far more severe than an false report in an internal investigation (the situation that the court, in Kerrigan v. Britches of Georgetown (D.C. 1997) held insufficient for an IIED claim), the D.C. Circuit upheld the dismissal of the wrongful discharge claim on the grounds that the nuclear whistleblower statute, 42 U.S.C. 5851, provides an exclusive remedy. The court said that since the D.C. Court of Appeals, in Nolting v. National Capital Group, Inc., 621 A.2d 1387 (D.C. 1993), held that the wrongful discharge claim was not available where there was a statutory remedy, the plaintiff here was limited to a Section 5851 claim, and could not bring a common-law claim. I am not certain that the D.C. Circuit reached the right result, since the Supreme Court had held that the nuclear whistleblower statute does not pre-empt an employee's state common-law wrongful discharge claim. English v. General Electric Co., 496 U.S. 72 (1992). I do not know whether this Supreme Court decision was argued by the plaintiff in this D.C. Circuit appeal, although it seems on point. (It seems that the plaintiff here was unable to comply with the tight filing deadlines for a Section 5851 claim, since he lost his USA work visa and had to leave the country, hence the need to try the common law claim). Some excerpts follow: No. 06-7161 FADY KASSEM, APPELLANT v. WASHINGTON HOSPITAL CENTER, APPELLEE Appeal from the United States District Court for the District of Columbia (No. 05cv02352) Brian W. Shaughnessy argued the cause and filed the briefs for appellant. Keith J. Harrison argued the cause for appellee. With him on the brief was Daniel M. Creekman. Before: ROGERS, GARLAND, and KAVANAUGH, Circuit Judges. Opinion for the Court filed by Circuit Judge GARLAND. . . . Kassem, however, refused to cooperate with the investigation. "Recognizing that he himself as well as the Washington Hospital Center had a duty to inform the NRC accurately of the violations, [Kassem] declined to participate in [WHC's] cover-up of its regulatory infractions." Id. The "consequence[] of his refusal [was] the termination of his employment," id., which took place on August 15, 2003, id. ¶ 26. Ten days later, on August 25, WHC "made false statements about [Kassem] to the NRC with the intent of inducing the NRC to initiate disciplinary action against" him. Id. ¶ 48. In early January 2005, the NRC completed its own investigation and hearing. The Commission dismissed the charges against Kassem for insufficient evidence and initiated proceedings against WHC. Id. ¶ 27. . . . Like the D.C. statute at issue in Nolting, ERA § 5851 provides a "specific and significant remedy for the party aggrieved by its violation." Nolting, 621 A.2d at 1390. Although Kassem insists that "he was not required" to pursue the § 5851 remedy, Appellant's Br. 13, Nolting holds that a plaintiff cannot "eschew the administrative remedy and instead obtain recovery against the employer on a tort theory of wrongful discharge under the narrow 'public policy' exception to the employment-at-will doctrine." Nolting, 621 A.2d at 1387. Finally, Kassem asserts that the remedy provided by § 5851 cannot displace his wrongful discharge claim because it contains a "nonpreemption" provision. That provision states that § 5851 "may not be construed to expand, diminish, or otherwise affect any right otherwise available to an employee under Federal or State law to redress the employee's discharge. . . ." 42 U.S.C. § 5851(h). But the deficiency in Kassem's wrongful discharge claim is not that § 5851 preempts it, but that the District's own common law extinguishes it when the statute giving rise to the public policy at issue contains an alternative remedy -- as § 5851 does here. The district court was therefore correct in dismissing Kassem's wrongful discharge claim. [IIED claim] In granting WHC's motion to dismiss Kassem's IIED claim, the district court relied upon the D.C. Court of Appeals' decision in Kerrigan v. Britches of Georgetowne, Inc., 705 A.2d 624 (D.C. 1997). In Kerrigan, the plaintiff alleged that his employer "targeted him for a sexual harassment investigation, manufactured evidence against him in order to establish a false claim of sexual harassment, leaked information from the investigation to other employees, and unjustifiably demoted him to the position of store manager in order to promote a woman to his position." 705 A.2d at 628. Finding that the employer's actions fell within the category of "employer-employee conflicts [that] do not . . . rise to the level of outrageous conduct," the Court of Appeals held the plaintiff's allegations insufficient to state a claim of IIED. Id. (alteration in original) (internal quotation marks omitted). But Kerrigan does not decide this case. Kerrigan did not involve a false report to government authorities. Rather, all of the allegations involved acts that took place within the workplace and that had no consequence other than an adverse employment action (the plaintiff's demotion). Kassem, by contrast, does not merely plead intra-workplace mistreatment. He further alleges that, after WHC fired him from his position, it intentionally filed a false charge against him with the NRC -- a charge that could have prevented him from working as a nuclear technologist and subjected him to criminal penalties. See Compl. ¶¶ 48, 50; see also 10 C.F.R. § 30.64 (providing that violations of § 30 are subject to criminal penalties). WHC did so knowing that the charge was false, and with the intention of "avoid[ing] NRC regulatory action against" the hospital itself. Compl. ¶ 51. There is nothing in Kerrigan that limits the applicability of Carter in such circumstances. Accordingly, Kassem's complaint cannot be dismissed at the pleading stage. Alan Kabat (Bernabei & Wachtel, PLLC)
