On Dec. 31, 2008, the D.C. Court of Appeals issued a decision that addresses an issue of first impression in D.C. – may an employee with an employment contract or otherwise protected through a union CBA from at-will employment nonetheless state a claim for wrongful termination in violation of public policy? MWELA, through Jonathan Gould, submitted an amicus brief on the employee’s behalf. Although the D.C. Court of Appeals remands for further determination of whether the union grievance procedure should have been used by two of the three plaintiffs, it appears that the court did adopt plaintiffs’ and MWELA’s reasoning that a CBA is not a per se bar to this common-law claim.
Some excerpts follow:
http://www.dcappeals.gov/dccourts/appeals/pdf/05-CV-778+.PDF
KATHIE BYRD and LISHA QUARLES, APPELLANTS, v. VOCA CORPORATION OF WASHINGTON, D.C., APPELLEE.
MICHELLE MONROE, APPELLANT, v. VOCA CORPORATION OF WASHINGTON, D.C., APPELLEE.
Appeals from the Superior Court of the District of Columbia
(CA-4412-04)
(CA-713-04)
(Hon. Frederick H. Weisberg, Trial Judge)
(Argued June 22, 2006 Decided December 31, 2008)
Leslie D. Alderman III
, with whom T. Cary Devorsetz and Sundeep Hora were on the brief, for appellants.Steven Sarfatti
for appellees.Jonathan L. Gould
filed a brief amicus curiae for the Metropolitan Washington Employment Lawyers Association in support of appellants.Before FISHER, Associate Judge, and WAGNER and SCHWELB,* Senior Judges.
WAGNER, Senior Judge: Appellants, Kathie Byrd, Lisha Quarles, and Michelle Monroe, sued their former employer, appellee, VOCA Corporation of Washington, D.C., for wrongful termination of employment based on public policy grounds. The trial court granted appellee summary judgment, having concluded that appellants’ remedy for wrongful discharge was preempted by § 301 (a) of the National Labor Relations Act of 1947 (NLRA), 29 U.S.C. § 185 (a) (2001). The trial court also dismissed appellants’ cases on the separate ground of failure to exhaust administrative remedies. Appellants argue that the trial court erred in its rulings because: (1) their causes of action are independent of the applicable collective bargaining agreement, and therefore, not preempted by § 301 (a) of the NLRA; and (2) exhaustion of administrative remedies is not required because their claims involve rights independent of the contractual rights protected by the collective bargaining agreement. We affirm the trial court’s dismissal of appellant Monroe’s claim on preemption grounds. We remand the cases of appellants Byrd and Quarles for further proceedings consistent with this opinion.
Factual and Procedural Background
Appellants were employed by VOCA in separate group homes for developmentally disabled individuals in the District. They were members of Service Employees International Union (the Union) which had a collective bargaining agreement (CBA) with VOCA governing the terms of their employment. Under the terms of the CBA, Union members could be disciplined or terminated only for "just cause" and "commensurate with the offense." The CBA also established a procedure for arbitration of grievances and terminations contested by the Union on an employee’s behalf.
Each of the appellants complained to their supervisors about deficiencies in the conditions of the respective group homes where they worked. In addition, appellants Byrd and Quarles complained to members of the Council of the District of Columbia and officials in the Mayor’s office. Shortly thereafter, appellants were terminated from their employment. The Union initiated arbitration proceedings on appellants’ behalf, but appellants elected not to pursue arbitration. Each of them filed a complaint in the trial court alleging wrongful termination of employment.
The trial court granted VOCA’s motion for summary judgment, holding that the appellants’ claims were "inextricably bound up in the collective bargaining agreement between [their] union and [their] employer and that [the] local law wrongful termination claim is therefore preempted by § 301 (a) of the National Labor Relations Act of 1947, 29 U.S.C. § 185 (a) [NLRA]." . . .
B. Preemption Analysis
Appellants argue that their state law claims are not preempted by § 301 because their wrongful termination causes of action are independent of the collective bargaining agreement. Appellee responds that the pre-emptive effect of § 301 of the NLRA precludes the action. However, preliminarily, appellee argues that appellants have no viable state law claim against which the primacy of national labor laws can be analyzed. Appellee contends that the cause of action that appellants seek to assert, wrongful discharge in violation of public policy, is based upon a narrow exception to the at-will employment doctrine which is not applicable to employees, like appellants, whose job tenure is protected by contract.
. . . As appellee points out, this jurisdiction has never recognized the availability of a cause of action for wrongful discharge in violation of public policy for non-at-will employees. It contends that this court should not expand the doctrine to include employees whose rights are protected by contract and enforceable in grievance and arbitration proceedings. Further, appellee argues that this court has refrained from pronouncing alterations to common law rules until a clear national consensus has developed, which has not occurred here. Appellants argue that a cause of action for wrongful termination in violation of public policy should not be limited to at-will employees. They contend that such a limitation would frustrate the purpose of the "public policy tort."
Some courts have held that a claim for wrongful discharge in violation of public policy is available to non-at-will employees, while others have held the contrary. [collecting cases] . . .
Maryland has recognized a cause of action for abusive discharge in favor of at-will employees as well as those who work under a contract. See Ewing, supra note 9, 537 A.2d at 1175. In Ewing, Maryland’s highest court had to decide whether a "cause of action exists under Maryland law for abusive discharge of an employee whose rights are protected by contract," and whether "the pre-emptive effect of § 301 of the Labor Management Relations Act foreclosed the bringing of the action, or in the alternative, its successful prosecution." Id. at 1174. Just as in this jurisdiction, the Maryland Court of Appeals had recognized previously only the applicability of the tort to "an at will" employee when the motivation for the discharge contravenes some clear mandate of public policy." Id. (quoting Adler v. Am. Standard Corp., 291 Md. 31, 47, 432 A.2d 464, 473 (1981)). With respect to the viability of such a claim for contract workers, the Maryland court held that "[a] cause of action for abusive discharge is available to contractual employees as well as to at will employees." Id. at 1179. The court reasoned that recognition of the tort action for all employees "will foster the State’s interest in deterring particularly reprehensible conduct." Id. at 1175. The court cautioned that the action "is applicable only where the discharge contravenes some clear mandate of public policy." Id. The Maryland court’s reasoning is persuasive. Denying contract workers the public policy wrongful discharge remedy tends to "ignore[ ] the fundamental distinction between tort and contract actions." Smith, supra note 9, 991 P.2d at 1141. The duty giving rise to the tort remedy is not derived from the covenants of contract, but rather from the employer’s obligation to conduct its affairs in conformity with fundamental public policy. See id. (citing Koehrer v. Superior Court, 181 Cal. App.3d 1145, 1165, 226 Cal. Rptr. 820, 825 (1986)) (quoting WILLIAM L. PROSSER, THE LAW OF TORTS 613 (4th ed. 1971)). Recognition of the cause of action will, as the Maryland court observed, "foster the State’s interest in deterring particularly reprehensible conduct." Ewing, 537 A.2d at 1175. We have held that a cause of action for wrongful discharge is available to at-will employees under the Adams-Carl line of cases, consistent with its strict requirements. Specifically, a plaintiff must show that the employer-defendant acted in contravention of an "identifiable policy that has been ‘officially declared’ in a statute or municipal regulation, or in the Constitution . . . . " Fingerhut, supra, 738 A.2d at 806 (quoting Carl, ain supra note 1, 702 A.2d at 164). "[T]here must be a close fit between the policy thus declared and the conduct at issue in the allegedly wrongful termination." Id. at 803 n.7 (quoting the majority in Carl, supra note 1, 702 A.2d at 164). . . .
Exhaustion of Administrative Remedies
The trial court ruled that appellants’ claims must be dismissed for the separate and independent reason of failure to exhaust the grievance and arbitration remedies under the CBA. Appellants argue that the grievance policy in their CBA does not apply to disputes for wrongful and retaliatory termination in violation of public policy. They contend that the plain language of the CBA imposes the grievance/arbitration process only on those disputes that arise out of the agreement and that their independent public policy tort claims do not. Similarly, amicus argues that arbitration clauses in CBAs generally do not preclude an employee from pursuing an action for wrongful termination. Amicus contends that, absent an individual arbitration agreement as opposed to a CBA, an employee cannot be held to have bargained away his rights to sue.
. . . Appellants rely upon a case where the Maryland Court of Appeals specifically addressed the question: "Do the strictures of federal preemption require that we impose an exhaustion requirement in the context of a state tort action for abusive discharge?" See Finch v. Holladay-Tyler Printing, Inc., 322 Md. 197, 586 A.2d 1275, 1278 (1991). In Finch, the court interpreted Lingle, supra, to mean that an employee need not resort to arbitration "when there is no need to construe the CBA or when the issue of whether or not the CBA was violated is irrelevant to the abusive discharge action." Id. at 1279. More recently, the Maryland Court of Appeals clarified the Finch holding, stating it "interpret[s] Finch as standing for the proposition that the exhaustion of remedies under a collective bargaining agreement is not required when the issues raised by the plaintiff’s wrongful discharge claim are not dependent upon an interpretation of the collective bargaining agreement." Gazunis v. Foster, 400 Md. 541, 929 A.2d 531, 544 (Md. 2007).
Similarly, virtually all federal circuits have held that an employee covered by a CBA has a right to sue to vindicate certain statutory rights or rights independent of the CBA without having to resort first to the collectively bargained grievance-arbitration procedures. [collecting cases] . . .
Addressing analogous issues, state courts have also held that exhaustion of contract arbitration remedies in a collective bargaining agreement is not required before an aggrieved party seeks redress in court for alleged violations of independent rights created by statute or based on violation of public policy. [collecting cases]
. . . We see no reason in principle why the common law claim at issue here could not be subject to arbitration, just as a statutory claim may be. The issue is whether the employees have in fact agreed to arbitrate that claim. Gilmer and Klieforth are distinguishable from our case because they involved agreements to arbitrate signed by the individual employee and enforceable under the Federal Arbitration Act or its District of Columbia counterpart. There is no similar agreement to arbitrate signed by the individual employees in this case, and courts currently are divided on whether a broadly-worded arbitration clause in a CBA waives an employee’s right to a judicial forum for a claim that does not arise out of the CBA. Compare Pryner, supra, 109 F.3d at 363-65 ("the union cannot consent for the employee by signing a collective bargaining agreement that consigns the enforcement of statutory rights to the union-controlled grievance and arbitration machinery created by the agreement") with Aleman v. Chugach Support Servs., Inc., 485 F.3d 206, 215 (4th Cir. 2007) (union-negotiated collective bargaining agreements that require the arbitration of statutory discrimination claims are valid and binding on unionized employees). The Supreme Court recently heard argument in a case which may resolve the issue. 14 Penn Plaza LLC v. Pyett, No. 07-581 (argued Dec. 1, 2008). We need not await that ruling, however. We will assume, without deciding, that an arbitration clause in a collective bargaining agreement that waived the right to a judicial forum for an independent claim would be enforceable.
In a case cited by amicus in support of its position, the Supreme Court held that a general arbitration clause in a CBA did not require the employee to use the arbitration procedure before seeking redress in court for an alleged violation of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq. Wright v. Universal Maritime Serv. Corp., 525 U.S. 70, 72, 82 (1998). The Supreme Court held that absent a "clear and unmistakable waiver of the covered employees’ rights to a judicial forum for federal claims of employment discrimination," which was not present, the employee could assert his claims in court without resorting to arbitration. Id. at 82. . . .
. . .To the extent that appellants can show that they are asserting rights that do not arise under the CBA, but rather ones that are distinctly separate and independent of it, their CBA does not by its terms restrict their right to a judicial forum. See, e.g., Finch, supra, 586 A.2d at 1278; Smith, supra note 9, 991 P.2d at 1143; Conaway, supra, 431 N.W.2d at 800. In its brief alternative ruling dismissing on the grounds of failure to exhaust grievance and arbitration remedies, the trial court did not focus on whether the claims asserted arise under the CBA or are independent of it and the significance of that distinction to its disposition. With respect to appellants Byrd and Quarles, whose claims must be remanded for further consideration under the preemption analysis, we cannot determine on the present record whether they are asserting claims that are, in fact, independent of the CBA. Therefore, upon remand, the trial court should make the necessary determination and consider, in light of the principles enunciated in this opinion, whether Byrd and Quarles must exhaust administrative remedies before proceeding. . . .
[Alan Kabat, Bernabei & Wachtel, PLLC]
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