WPI 330.51 Employment Discrimination—Wrongful Termination in Violation of Public Policy—Burden ...

Use this instruction when the plaintiff alleges a termination in violation of one of the four categories of wrongful discharge in violation of public policy listed in the first paragraph of the instruction.

This instruction sets out the issues a jury must decide for a claim of wrongful termination in violation of public policy. See Comment below regarding the employer's “overriding justification” defense.

For a claim of constructive discharge in violation of public policy, the jury should also be instructed on the four elements of a constructive discharge claim in WPI 330.52 (Employment Discrimination—Constructive Discharge—Burden of Proof). Peiffer v. Pro-Cut Concrete Cutting and Breaking Inc., 6 Wn.App.2d 803, 830, 431 P.3d 1018 (2018).

This instruction is based on Becker v. Community Health Systems, 184 Wn.2d 252, 359 P.3d 746 (2015), Rose v. Anderson Hay & Grain Co., 184 Wn.2d 268, 358 P.3d 1159 (2015), and Rickman v. Premera Blue Cross, 184 Wn.2d 300, 358 P.3d 1153 (2015). The three decisions effectively overruled Cudney v. ALSCO, Inc., 172 Wn.2d 524, 259 P.3d 244 (2011), which had required a plaintiff to prove that bringing a tort action was strictly necessary to vindicate the public policy at issue. Rickman, 184 Wn.2d at 310.

The “substantial factor” test applies to the causation element of a claim for wrongful termination in violation of public policy. Rickman, 184 Wn.2d at 314. See also RCW Chapter 49.60; WPI 330.01 (Employment Discrimination—General—Disparate Treatment—Burden of Proof); WPI 330.01.01 (Employment Discrimination—General—Disparate Treatment—Burden of Proof—Substantial Factor).

To support a claim, the termination may be direct, by an employer, or it may be constructive, when the employee believes it necessary to resign. Korslund v. DynCorp Tri-Cities Servs. Inc., 156 Wn.2d 168, 177 n.1, 125 P.3d 119 (2005).

In Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 936, 913 P.2d 377 (1996), the Court adopted a four-part framework based on a treatise written by Henry Perritt known as “the Perritt framework.” It has clarified that “the Perritt framework should not be applied to a claim that falls within one of the four categories of wrongful discharge in violation of a public policy.” Martin v. Gonzaga Univ., 191 Wn.2d 712, 723–24, 425 P.3d 837 (2018) (quoting Becker v. Cmty. Health Sys. Inc., 184 Wn.2d 252, 258-59, 359 P.3d 746 (2015)). The four categories are listed in the first paragraph of this jury instruction.

In cases that do not fall within one of the four categories of wrongful discharge listed in the first paragraph of the instruction, and the employee relies on the Perritt framework to establish liability, the employer may assert an “overriding justification defense” to the wrongful discharge claim. In such cases, “[i]f ‘the employer has an overriding reason for terminating the employee despite the employee's public-policy-linked conduct,’ then it cannot be held liable.” Martin, 191 Wn.2d at 728 (quoting Gardner, 128 Wn.2d at 947). “Once a plaintiff presents a prima facie case of wrongful discharge in violation of public policy, the burden of proof shifts to the employer to show the termination was justified by an overriding consideration.” Martin, 191 Wn.2d at 728 (quoting Rickman, 184 Wn.2d at 314). The Supreme Court has not addressed the jury’s role in making this determination.

The version of WPI 330.51 published in the 2017–2018 Supplement to 6A Washington Practice, Washington Pattern Jury Instructions: Civil (6th ed.) included the following paragraph:

In Martin v. Gonzaga University, 200 Wn.App. 332, 402 P.3d 294 (2017), affirmed on other grounds, 191 Wn.2d 712, 425 P.2d 837 (2018), Judge Fearing suggested that the sufficiency of an employer's justification for termination is a question of law for the trial court and not for a jury to decide. Martin, 200 Wn.App. at 369. The Washington Supreme Court has yet to decide that issue.

Until the Supreme Court clarifies this issue, if the trial court determines that the jury should decide whether the employer has met its burden of proving that it had an overriding justification for terminating the plaintiff, an appropriate instruction will need to be drafted.