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WPI330.51Wrongful Termination in Violation of Public Policy—Burden of Proof

6A WAPRAC WPI 330.51Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.51 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
July 2019 Update
Washington State Supreme Court Committee on Jury Instructions
Part XVI. Employment
Chapter 330. Employment Discrimination
WPI 330.51 Wrongful Termination in Violation of Public Policy—Burden of Proof
To recover on [his] [her] claim of wrongful termination in violation of public policy,(name of plaintiff)has the burden of proving that a substantial factor motivating the employer to terminate [his] [her] employment was [his] [her] [refusing to commit an unlawful act] [performing a public duty] [exercising a legal right or privilege] [reporting what [he] [she] reasonably believed to be employer misconduct].
If you find from your consideration of all of the evidence that(name of plaintiff)has not met this burden, then you must find for the defendant(name of employer)[on this claim].
If you find from your consideration of all of the evidence that(name of plaintiff)has met this burden, then you must find for plaintiff(name of plaintiff)[on this claim].
NOTE ON USE
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.
COMMENT
This instruction has been revised for this edition.
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 v. Premera Blue Cross, 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 v. Premera Blue Cross, 184 Wn.2d at 314. See also RCW Chapter 49.60, WPI 330.01 (Employment Discrimination—Disparate Treatment—Burden of Proof), and WPI 330.01.01 (Employment Discrimination—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 Services, 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, 843 (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 v. Gonzaga Univ., 191 Wn.2d at 728 (quoting Gardner v. Loomis Armored, Inc., 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 v. Gonzaga Univ., 191 Wn.2d at 728 (quoting Rickman v. Premera Blue Cross, 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:
[If you find from your consideration of all of the evidence that (name of plaintiff) has met this burden, then you must determine whether (name of employer) has met its burden of proving that it had an overriding justification for terminating (name of plaintiff). If you find that (name of employer) has met its burden of proving it had an overriding justification for its actions, then you must find for (name of employer). If (name of employer) has not met this burden, then you must find for (name of plaintiff) [on this claim].]
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 v. Gonzaga University, 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.
[Current as of March 2019.]
End of Document