Robert L. ADAMS, Appellant, v. GEORGE W. COCHRAN & COMPANY, INC., Appellee.
No. 89-374.
District of Columbia Court of Appeals.
Argued Oct. 30, 1990. Decided Sept. 17, 1991.
597 A.2d 28
Furthermore, the prosecutor‘s questions to Ms. Watts about her impending trial implied that appellant was also awaiting trial on the prior charges. This also effectively disposes of the government‘s suggestion that appellant was not prejudiced by the evidence of his prior arrest since jurors know that not all people who are arrested are guilty; a pending trial would indicate that the prosecutor thought there was evidence to show appellant‘s guilt beyond a reasonable doubt. The government cites no support for its suggestion, which is contrary to the premise underlying Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964), and the limitation on the admissibility of bad act evidence. Sherer v. United States, 470 A.2d 732, 738 (D.C.1983) (citations omitted), cert. denied, 469 U.S. 931, 105 S.Ct. 325, 83 L.Ed.2d 262 (1984); see Porter v. United States, 561 A.2d 994, 996-97 (D.C.1989). As to the argument that appellant had already been impeached with a prior weapons offense, the judge immediately gave a cautionary instruction, defense counsel brought out on redirect that appellant had not denied having the gun, sеe note 4, supra, and that conviction plainly did not bear the same relationship to the charged offense as the prior drug arrest at the same location.
Accordingly, because the error in admitting evidence of appellant‘s prior arrest was not harmless, we reverse and remand for a new trial.
H. Vincent McKnight, Washington, D.C., for appellant.
Before TERRY and FARRELL, Associate Judges, and NEWMAN, Senior Judge.*
TERRY, Associate Judge:
Appellant Adams sued George W. Cochran & Company (“Cochran“), his former employer, for wrongful discharge after Cochran had fired him for refusing to drive a truck that lacked a required inspection sticker. Adams sought lost wages and damages for emotional distress. When Cochran moved for summary judgment, the court granted the motion in part, ruling, without further explanation, that Adams could not recover any damages for emotional distress. Adams then filed two successive motions for leave to amend his complaint in order to add a claim for punitive damages. Both motions were denied. The case later went to trial, and the jury returned a verdict in favor of Adams, awarding him $7094.00 in lost wages. On this appeal Adams challenges the three pre-trial orders: the onе granting Cochran summary judgment on the issue of liability for emotional distress and the two denying Adams leave to amend his complaint. We affirm the latter two orders, but we conclude that the court erred in granting Cochran summary judgment on the issue of emotional damages. We therefore reverse and remand for a new trial on that issue.
I. FACTS
Cochran fired Adams from his job as a delivery truck driver. Adams thereafter filed this action, alleging that Cochran had wrongfully discharged him after he had refused to drive a truck that did not have an inspection sticker on its windshield. Adams alleged that Cochran‘s actiоns vio-
Cochran answered the complaint and then moved for summary judgment on the ground that Adams was an at-will employee and therefore not entitled to damages, either for wrongful discharge or for emotional distress. Cochran argued that Adams had not alleged any breach of an employment contract and that District of Columbia law does not recognize the tort of wrongful discharge of an at-will employee. It also cоntended that Adams was not entitled to damages for emotional distress, either as an element of his claim for wrongful discharge or as a separate cause of action. The court denied Cochran‘s motion for summary judgment on the claim of wrongful discharge,2 but granted it with respect to Adams’ request for damages for emotional distress. The court‘s order, however, did not specify whether Adams was barred from recovering such damages for emotional distress as an element of wrongful discharge or as a separate cause of action, or both.
Adams then filеd a motion, pursuant to Super.Ct.Civ.R. 15, for leave to amend his complaint by adding a claim for punitive damages. That motion was denied on the ground that the proposed amendment sought damages for emotional distress, which was precluded by the court‘s earlier order. A second motion to amend the complaint for the same purpose was denied without opinion.
At trial Cochran defended against Adams’ claim by introducing evidence that Adams was fired because he had become a difficult employee and had refused to take delivery runs on prior oсcasions without good reason. The case went to the jury, however, on the theory that Adams had been discharged solely for his refusal to violate District of Columbia law by driving a truck that lacked an inspection sticker. The court also instructed the jury that it could not award any more than Adams’ lost wages, which the evidence showed was $7094.00. The jury returned a verdict in favor of Adams in that amount.
II. WRONGFUL DISCHARGE
A. The law in the District of Columbia
It has long been settled in the District of Columbia that an employer may discharge an at-will employee at any time and for any reason, or for no reason at all. Wemhoff v. Investors Management Corp., 528 A.2d 1205, 1208 n. 3 (D.C.1987); Taylor v. Greenway Restaurant, Inc., 173 A.2d 211 (D.C.1961); Pfeffer v. Ernst, 82 A.2d 763, 764 (D.C.1951) (citing cases). It is undisputed that Adams’ employment with Cochran was at-will. Adams asks us to recognize a public policy exception to this at-will doctrine and to hold, for the first time, that an employer engages in tortious conduct when it fires an at-will employee for that employee‘s refusal to break the law at the employer‘s direction.
“Public policy” exceptions to the general rule have been urged upon this court before, but thus far we have not recognized any such exceptions. See Ivy v. Army Times Publishing Co., 428 A.2d 831 (D.C.1981). As published, Ivy was not a decision on the merits but merely an order denying a petition for rehеaring en banc in a case which had been decided by an unpublished Memorandum Opinion and Judgment. Four judges dissented from the denial of rehearing en banc, maintaining that this court should address the legality of terminating an at-will employee in violation of a “statutorily declared public policy.”3
* Judge Newman was an Associate Judge of the court at the time of argument. He was commissioned as a Senior Judge on March 11, 1991.
More recently we revisited the issue in Sorrells v. Garfinckel‘s, Brooks Brothers, Miller & Rhoads, Inc., 565 A.2d 285 (D.C.1989). The plaintiff in that case was an at-will employee who, after being fired, sued her former employer for wrongful discharge, alleging that her discharge had been contrary to District of Columbia public policy. The trial court granted the employer summary judgment on the issue of wrongful discharge. The plaintiff appealed to this court, arguing inter alia that her discharge violated the policy behind the
Cochran argues that the public policy issue raised by Adams is not properly before this court and is, in any event, irrelevant. It maintains that the sole issue on appeal is the correctness of the award of damages, and that in order to resolve that issue, we need not decide whether to recognize an exception to the rule that a fired at-will employee may not sue his or her employer for wrongful discharge. Cochran is mistaken. Adams is seeking, inter alia, a reversal of the trial court‘s ruling that he was not entitled to recover damages for emotional distress, but he concedes that he suffered no physical injury as a result of his discharge. Nevertheless, District of Columbia law allows “a plaintiff [to] recover damages for mental suffering unaccompanied by physical injury as part of his recovery for an intentional tort.” Parker v. Stein, 557 A.2d 1319, 1322 (D.C.1989) (citations omitted). A reversal of the trial court‘s order denying Adams recovery for emotionаl distress would thus be an implied holding that wrongful discharge for refusing to violate the law is an intentional tort, i.e., a recognition that there is a public policy exception to the well-established at-will doctrine. We must therefore address the issue directly, for we cannot decide whether Adams is entitled to damages for emotional distress without first deciding whether he has a cause of action and, if so, whether that cause of action sounds in tort or in contract.
B. The law in other jurisdictions
The leading case on the public policy exception to the at-will employment doctrine is Petermаnn v. International Brotherhood of Teamsters Local 396, 174 Cal.App.2d 184, 344 P.2d 25 (1959). In that case the plaintiff, an at-will employee of the defendant, a labor union, was subpoenaed to testify before a legislative committee about certain activities of that union. An officer of the union, acting as its agent, directed the plaintiff to testify falsely under oath at the hearings. After the plaintiff testified truthfully, the union fired him. The plaintiff then sued the union for wrongful discharge. The trial court granted the union‘s motion for summary judgment, but on appeal that judgment was reversed. The appellate court held that the right to discharge an at-will employee may be limited by considerations of public policy. The court noted that the concept of public policy was a vague one, not subject to precise definition, but concluded that the state had a declared public policy against perjury because perjury was a crime under
The threat of criminal prosecution would, in many cases, be a sufficient deterrent upon both the employer and employee, the former from soliciting and the latter from committing perjury. However, in order to more fully effectuate the state‘s declared policy against perjury, the civil law, too, must deny the employer his generally unlimited right to discharge an employee whose employment is [at will], when the reason for the discharge is the employee‘s refusal to commit perjury. . . . To hold that one‘s continued employment could be made contingent upon his commission of a felonious act at the instance of his employer would be to encourage criminal conduct upon the part of both the employee and employer and would serve to contaminate the honest administration of public affairs. This is patently contrary to the public welfare.
Id. at 189, 344 P.2d at 27. The court concluded that the plaintiff had stated a cause of action for wrongful discharge.5
It seems to be universally accepted that an employer‘s discharge of an employee for the employee‘s refusal to violate a statute is a wrongful discharge in violation of public policy. See, e.g., Wagenseller v. Scottsdale Memorial Hospital, 147 Ariz. 370, 710 P.2d 1025 (1985) (en banc); Tameny v. Atlantic Richfield Co., supra note 5; Girgenti v. Cali-Con, Inc., 15 Conn.App. 130, 544 A.2d 655 (1988); Phipps v. Clark Oil & Refining Corp., 408 N.W.2d 569 (Minn. 1987); Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex.1985); Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 335 N.W.2d 834 (1983). These and other cases have made clear that an employer cannot be allowed to require his or her emplоyees to break the law as a condition of continued employment. As the court noted in Petermann, to permit further employment to be conditioned upon the employee‘s commission of an illegal act would “encourage criminal conduct upon the part of both the employee and employer and . . . is patently contrary to the public welfare.” Petermann, supra, 174 Cal.App.2d at 189, 344 P.2d at 27.
Most courts that have addressed the issue have concluded that an action for wrongful discharge in violation of public policy is an action in tort, rather than in contract. See, e.g., Tameny v. Atlantic Richfield Co., supra note 5, 27 Cal.3d at 175, 610 P.2d at 1335; Parnar v. Americana Hotels, Inc., 65 Haw. 370, 380, 652 P.2d 625, 631 (1982) (employer liable in tort for wrongfully discharging employee who cooperated with Department of Justice investigation); Girgenti v. Cali-Con, Inc., supra, 15 Conn.App. at 137, 544 A.2d at 659; Palmateer v. International Harvester Co., 85 Ill.2d 124, 132, 52 Ill.Dec. 13, 17, 421 N.E.2d 876, 880 (1981) (wrongful discharge to terminate employee for reporting crimes of co-workers to law enforcement officials); Phipps v. Clark Oil & Refining Corp., supra, 408 N.W.2d at 571. Liability is grounded in the principle that the employer may not retaliate against an employee by discharging that employee for refusing to break the law. See W. PROSSER & W. KEETON, THE LAW OF TORTS § 130, at 1027-1028 (5th ed. 1984) (hereafter PROSSER). The employer engages in tortious conduct by affirmatively forcing the employee to choose between breaking the law and keeping his job. See Winters v. Houston Chronicle Publishing Co., 795 S.W.2d 723, 724 (Tex.1990), aff‘g 781 S.W.2d 408 (Tex.Ct.App.1989). The wrongful discharge of an at-will employee in violation of public policy is thus an intentional tort. See PROSSER, supra, § 130, at 1029 (most wrongful discharge cases “appear to be grounded in intent rather than in negligence“).6
C. The result in the instant case
In this case the jury found that Cochran discharged Adams for his refusal to violate a municipal regulation that prohibits the operation of a vehicle without a valid inspection sticker. Unlike the plaintiff in Sorrells, Adams can point to
We find particularly helpful the opinion of the Supreme Court of Texas in Sabine Pilot Service, supra. The plaintiff in that case, a deckhand on a boat owned by Sabine, alleged that he had been fired for refusing to pump the bilges of that boat into coastal waters, an action which would have violated federal law. The trial court granted summary judgment for the employer, but the intermediate appellate court reversed and remanded for trial. The Supreme Court of Texas affirmed that ruling, holding that public policy “require[d] a very narrow exception” to the at-will dоctrine established in Texas law for almost a century. The court was careful to point out how narrow the exception was, saying that it would permit a fired at-will employee to sue for wrongful discharge only if the firing was “for the sole reason that the employee refused to perform an illegal act.” 687 S.W.2d at 735. In the trial of such a case, moreover, it would be “the plaintiff‘s burden to prove by a preponderance of the evidence that his discharge was for no reason other than his refusal to perform an illegal act.” Id. The Texas courts again addrеssed the scope of the exception in Winters v. Houston Chronicle
We are persuaded that the Texas rule strikes the best balance between the sound and long-estаblished at-will doctrine and the need to recognize and, when necessary, to enforce an identifiable public policy. Accordingly, we adopt the Texas rule and apply it to this case. Appellant Adams was forced to choose between violating the regulation and keeping his job—the very choice which, under Sabine Pilot Service and Winters, he should not have been required to make. Even though the criminal liability facing him was not very great, it was nonetheless unacceptable and unlawful for his employer to compel him to choose between breaking the law and keeping his job. We therefore hold, following the two Texas cases, that there is a very narrow exception to the at-will doctrine under which a discharged at-will employee may sue his or her former employer for wrongful discharge when the sole reason for the discharge is the employee‘s refusal to violate the law, as expressed in a statute or municipal regulation. The burden of proving by a preponderance of the evidence that this was the sole reason shall be on the fired employee.
We also follow the majority rule and hold thаt this cause of action sounds in tort, and that the tort is intentional. See PROSSER, supra, § 130, at 1029. Because the goal of the exception is to further an officially declared public policy, the law should allow for the full range of remedies to discourage employers from such conduct. See Sterling Drug, Inc. v. Oxford, supra note 6, 294 Ark. at 253, 743 S.W.2d at 388 (Purtle, J., dissenting from majority‘s conclusion that cause of action for wrongful discharge sounds in contract, and that damages are therefore limited to lost wages); Tameny v. Atlantic Richfield Co., supra note 5, 27 Cal.3d at 175, 610 P.2d at 1335 (“an employer‘s obligation to refrain from discharging an employee who refuses to commit a criminal act doеs not depend upon any express or implied [contract], but rather reflects a duty imposed by law upon all employers in order to implement the fundamental public policies embodied in the state‘s penal statutes“). Those remedies should include compensatory damages not only for lost wages and other financial benefits, such as health insurance and retirement payments, but also for any emotional distress or mental anguish that the employee may suffer as a result of the wrongful discharge. Smith v. Atlas Off-Shore Boat Service, Inc., supra, 653 F.2d at 1064.
III. EMOTIONAL DISTRESS
Adams alleged in his complaint that he suffered “humiliation, mentаl anguish and emotional distress” and asked for, inter alia, damages of $200,000. The complaint, however, did not make clear whether Adams was seeking damages for the separate tort of intentional infliction of emotional distress or was merely including this allegation as part of his claim for damages for wrongful discharge. The trial court, in its order granting Cochran‘s motion for summary judgment “with respect to damages for emotional distress,” similarly did not state whether it was ruling on the emotional distress matter as a separate claim or as an element of damages under the wrongful discharge claim. We must therefore determine whether the evidence would support recovery under either of these two theories.9
But that does not end our discussion. Having recognized a limited public policy exception to the rule that an at-will employee may not sue his or her former employer in tort for wrongful discharge, we have held in part II-C, supra, that the damages for such a tort may include compensation for any emotional distress or mental anguish resulting from the discharge. Smith v. Atlas Off-Shore Boat Service, Inc., supra, 653 F.2d at 1064. Adams must therefore be given an opportunity to prove whether he suffered such emotional distress, as he alleged in his complaint and rеiterated, in compliance with Super.Ct.Civ.R. 12-I(k), in his opposition to Cochran‘s motion for summary judgment. The trial court‘s grant of summary judgment on this aspect of his claim prevented him from introducing any evidence of his emotional distress at trial. That judgment must therefore be reversed and this case remanded for further proceedings on this issue.
IV. PUNITIVE DAMAGES
We turn finally to the trial court‘s two orders denying Adams leave to amend his complaint by adding a claim for punitive damages. Although
Adams filed his first motion for leave to amend the complaint more than two years after the complaint was filed, and more than one year after discovery had closed and pretrial proceedings had been concluded. The motion was based on deposition testimony taken more than a year earlier. Moreover, the motion, if granted, would have required additional discovery and, in аll likelihood, a delay in the trial. In these circumstances we cannot say that the court abused its discretion in denying the first motion. Since the second motion, filed four months later, offered nothing new, there was a fortiori no abuse of discretion in its denial. Gordon v. Raven Systems & Research, Inc., 462 A.2d 10, 13-14 (D.C.1983).10
claim of intentional infliction of emotional distress.” In order to avoid any uncertainty on the point, we will so “infer” and rule accordingly.
We affirm the trial court‘s denial of Adams’ two motions for leave to amend his complaint by adding a claim for punitive damages. We also affirm the judgment awarding Adams $7094.00 in back pay, since Cochran does not challenge that award and has not filed a cross-appeal. We reverse the trial court‘s order granting Cochran partial summary judgment on the issue of emotional distress and remand the case for a new trial on that issue or for other proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded for further proceedings.
NEWMAN, Senior Judge, concurring:
It is long past the time when the public policy exception to the employment at will doctrine should have been recognized by this court. See Ivy v. Army Times Publishing Co., 428 A.2d 831 (D.C.1981) (Ferren, J., joined by Newman, then C.J., and Kelly, J., dissenting from the denial of the Petition for Rehearing En Banc). I applaud the court for finally doing so. However, I regret that the court has chosen to adopt the most narrow possible exception (“the sole cause“) following the Supreme Court of Texas in Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex.1985). Respectfully, I note that the terse opinion of the majority in Sabine contains no discussion of the possible alternative tests, cites no authority, and relies solely on ipse dixit. There is no dearth of authority, either judicial or from commentators, pointing to a more realistic exception. See, e.g., authorities cited in Smith v. Atlas Off-Shore Boat Service, Inc., 653 F.2d 1057 (5th Cir.1981). Like the court in Smith, I would require that the employee prove “thе employer‘s decision was motivated in substantial part” by the employee‘s refusal to break the law. Smith, supra, 653 F.2d at 1063. See also Edwards v. Habib, 130 U.S.App.D.C. 126, 397 F.2d 687 (1968), cert. denied, 393 U.S. 1016, 89 S.Ct. 618, 21 L.Ed.2d 560 (1969) (retaliatory evictions); Donohoe & Drury, Inc. v. Crowther, 108 Daily Wash.L.Rptr. 2405, 2410-11 (D.C.Super.Ct. Dec. 24, 1980) (Schwelb, J.) (to prevail in an action for retaliatory eviction, the tenant need not show the landlord‘s “sole purpose” was to retaliate; rather, the tenant must show that retaliation was a “significant factor” in the landlord‘s decision to evict).
Notes
The courts in two other states also allow at-will employees to bring wrongful discharge actions in contract. Although loosely based on “public policy,” these courts’ decisions are also based on covenants that the law implies in all contracts. Massachusetts implies a covenant of good faith and fair dealing in all employment contracts, including at-will employment relationships. Fortune v. National Cash Register Co., 373 Mass. 96, 364 N.E.2d 1251 (1977). In New Hampshire the courts impose a duty on the employer not to discharge an employee in “bad faith or malice.” Monge v. Beebe Rubber Co., 114 N.H. 130, 131, 316 A.2d 549, 551 (1974).