ORDER CERTIFYING QUESTIONS TO THE IOWA SUPREME COURT
TABLE OF CONTENTS
I. INTRODUCTION AND BACKGROUND ...................................956
A. Factual Background.................................................957
1. The parties and their relation to each other........................957
2. The facts surrounding Hagen’s ñring..............................957
B. Procedural Background..............................................959
II. LEGAL ANALYSIS......................................................960
B. Certification Analysis ......................................... 961
1. Whether legal issue is unsettled...................................961
a. Question 1: Whether Iowa law recognizes Protected Conduct 3, 4, or 5 as protected activities that can support claims for wrongful discharge in violation of public policy.....961
i. Iowa’s standards for recognizing protected activities.....961
ii. Protected Conduct 3: A doctor reporting nurses’ ' malpractice to the hospital where the malpractice occurred ................................962
iii. Protected Conduct 4: A doctor disclosing to a patient’s family that the patient was a victim of medical malpractice.................................965
iv. Protected Conduct 5: A doctor consulting with an attorney about whether that doctor had a legal duty to report another doctor’s medical malpractice to the Iowa Board of Medicine ............965
b. Question 2: Whether contractual employees can bring claims for wrongful discharge in violation of Iowa public policy.....................................................965
c. Question 3: Whether the lack of an “overriding business justification” is an independent element of a claim for wrongful discharge in violation of public policy...............969
2. Availability of legal resources..............................<......972
3. Court’s familiarity with state law...................... 976
4. Time demands on comparative court dockets..............'.........977
5. Frequency legal issue is likely to reoccur ..........................977
6. Age of litigation and prejudice from certification ...................977
7. Whether there is a split in authority................................978
a. Question I;, Whether other courts recognize Protected Conduct 3, 4, or 5 as protected activities that can support claims for wrongful discharge in violation of public policy.....978
i.Protected Conduct 3: A doctor reporting nurse s’ malpractice to the hospital where the malpractice occurred.............................................978
ii. Protected Conduct 4: A doctor disclosing to a patient’s family that the patient was a victim of medical malpractice...............................1.984
iii. Protected Conduct 5: A doctor consulting with an attorney about whether that doctor had a legal duty to report another doctor’s medical malpractice to a state board of medicine...............987
b. Question 2: Whether contractual employees can bring claims for wrongful discharge in violation of public policy.....989
c. Question 3: Whether the lack of an “overriding business justification” is an independent element of a claim for wrongful discharge in violation of public policy...............992
III. CONCLUSION..........................................................992
This is an order certifying questions to the Iowa Supreme Court following a jury trial in which a jury found Defendants liable for wrongfully discharging the Plaintiff in violation of Iowa public policy. On June 6, 2013, I sua sponte ordered the parties in this case to provide supplemental briefs on the following issue, among others: “Whether the Court should certify to the Iowa Supreme Court the question of whether Iowa law recognizes the public policy exceptions on which the jury found
I raised this matter sua sponte because this case turns on a number of unresolved questions of Iowa law. The answers to these questions are critical to resolving the Defendants’ post-trial motion for judgment as a matter of law (docket no. 119), which is currently pending before me. Because this case raises issues of first impression under Iowa law that should, under the circumstances, be decided by the Iowa Supreme Court, I conclude that I should certify the following questions to the Iowa Supreme Court:
Question 1
Does Iowa law recognize any of the following conduct as protected conduct on which a doctor-employee can base a claim for wrongful discharge in violation of Iowa public policy?:
(a) A doctor reporting, stating an intention to report, or stating that he might report, to a hospital, conduct of nurses that the doctor believed may have involved wrongful acts or omissions;
(b) A doctor disclosing to a patient or a patient’s family that the patient may have been the victim of negligent care or malpractice; or
(c)A doctor consulting with an attorney, stating an intention to consult with an attorney, or stating that he might consult with an attorney, about whether another doctor or nurses had committed wrongful acts or omissions that the doctor should report to the Iowa Board of Medicine or a hospital.
Question 2
Does Iowa law allow a contractual employee to bring a claim for wrongful discharge in violation of Iowa public policy, or is the tort available only to at-will employees?
Question 3
Under Iowa law, is an employer’s lack of an “overriding business justification” for firing an employee an independent element of a wrongful discharge claim, or is that element implicit in the element requiring that an employee’s protected activity be the determining factor in the employer’s decision to fire the employee?
Whether I grant the Defendants’ post-trial motion for judgment as a matter of law or motion for a new trial will depend, in part, on the answers to these questions.
I. INTRODUCTION AND BACKGROUND
“A certification order shall set forth ... a statement of facts relevant to the questions certified, showing fully the nature of the controversy in which the questions arose.” Iowa Code § 684A.3. Unless I note otherwise, the following facts are presented “in the light most favorable to the jury verdict, assuming all conflicts in the evidence were resolved in [the Plaintiffs] favor, and giving Plaintiff[ ] the benefit of all reasonable inferences that may be drawn from the evidence.... ” Craig Out
A. Factual Background
In this case, Dr. Edward Hagen (Hagen) sued his former employer, Siouxland Obstetrics & Gynecology, P.C. (Siouxland), and his former partners, Dr. Paul Eastman (Eastman), Dr. Tauhni Hunt (Hunt), and Dr. Angela Aldrich (Aldrich) (collectively “the Siouxland Defendants”) for wrongful discharge in violation of Iowa public policy. In particular, Hagen claims that the Siouxland Defendants ousted him from their medical practice bécause Hagen reported, or threatened to report, to St. Luke’s hospital and a patient, that Eastman and two nurses committed medical malpractice causing an unborn baby’s death. Hagen also claims that the Sioux-land Defendants ousted him for consulting with attorneys about whether Eastman and the nurses had committed malpractice, and whether Hagen should report Eastman to the Iowa Board of Medicine or St. Luke’s.
1. The parties and their relation to each other
Siouxland, an Iowa professional corporation, is located in Sioux City, Iowa, and provides obstetric and gynecologic services to patients. Siouxland expanded into the area of cosmetic surgery and related services, including the development of The Rejuvenation Centre, which provided client services such as Botox treatment, Juviderm treatment, hair removal, liposuction, massage therapy, and weight loss consultation. Siouxland was formed and organized by three physicians, including Hagen’s father, in 1975. At the -time of Hagen’s firing, in November 2009, the doctors with an interest in Siouxland were Hagen, Eastman, Hunt, and Aldrich.
Hagen is a doctor of obstetrics and gynecology, presently licensed to practice medicine in Iowa, South Dakota, and Wisconsin. On January 1, 1993, Hagen entered into an employment agreement with Siouxland. Hagen has been an equity owner, president, and director at Sioux-land. At the time he was fired, Hagen was the president of Siouxland.
When the doctors joined Siouxland, they agreed not to “engage in the practice of medicine except as an employee of the CORPORATION unless otherwise authorized by the Board of Directors.” The employment agreement states all income generated “for services as a doctor and all activities relating thereto, such as lecturing, writing articles and consulting work, shall belong to the CORPORATION....” A doctor could be terminated by delivering a written notice of cancellation at least 90 days prior to the effective date of cancellation or “discharged by the CORPORATION in the event of embezzlement or other theft; willful contravention of professional ethics; substantial and willful violation of any other terms or conditions of this employment agreement, all subject to determination by the Board of Directors of the CORPORATION.”
2. The facts surrounding Hagen’s firing
Hagen’s claims in this case arise out of an incident that began at St. Luke’s hospital in Sioux City, Iowa, on Thursday, November 5, 2009. On that day, Selvin and Maria Maeda, who were husband and wife, were at St. Luke’s because Maria Maeda was dealing with complications related to her pregnancy. She was 34 weeks pregnant and she was suffering from infections related to a prior liver transplant. Eastman was Maria’s consulting physician and had met her during a prior examination, bub he was nob ab bhe hospital with Maria on the 5th. In fact, Maria had been admitted to the hospital at around 1:00 pm and
After speaking with Eastman for about 30 minutes, Hagen went to St. Luke’s. Hagen arrived at the hospital at 5:30 pm. He immediately went to see Maria, who was under general anesthesia, and performed an ultrasound, which confirmed that her baby was dead. Hagen began asking two labor and delivery nurses— Peggy Mace and Holly Duerksen — how long the baby had been dead. They could not tell him. Hagen became very upset and asked the nurses: “How the fuck can this happen- at St. Luke’s that [nurses] watch a baby die on the monitor, suffocate, and do nothing?” Hagen went on to say to the nurses: “You killed this baby. You watched this baby die on the monitor. I mean, you guys did nothing.” Hagen noted that the nurses had missed the fact that Maria’s baby was dead because they had mistaken Maria’s elevated heart rate for her baby’s and presumed the baby was still alive.
After realizing that Maria’s baby was dead, Hagen determined that he needed to perform a C-section to deliver the dead baby. Before doing so, Hagen called Eastman on the telephone. At trial, Ha-gen testified that the conversation went as follows: “And I told [Eastman] we got a problem here. We’ve got a mother here that’s had no care. The nurses screwed up. You didn’t come see her, and this baby is dead, and now I’ve gotta do a C-section on a mother and deliver a dead baby.” Eastman offered to help do the C-section, but Hagen declined, telling Eastman: “I don’t need help doing a C-section. I can do that. I needed your help three hours earlier, but I don’t need it now.”
Before performing the C-section, Hagen spoke with Selvin, Maria’s husband. They talked for over an hour in the doctor’s lounge. During their conversation, Hagen told Selvin that “things could have been done better” and that Hagen thought “the nurses missed something here.” Hagen then performed the surgery to remove Maria’s baby.
The next day, Hagen went to one of the hospital’s administrators, Dr. Hildebrand (Hildebrand), to report himself for using the F-word to the nurses, and to report the nurses and Eastman for their failure to properly care for Maria. After making these reports to the hospital, Hagen consulted with three different attorneys about various issues, including how Hagen should document what had happened the night before and what Hagen should do personally in response to the incident. During one of these conversations, one of the attorneys reminded Hagen that he had a duty to report malpractice to the Iowa Board of Medicine. Later that day, Ha-gen told Eastman 'that “these attorneys are telling me I have to report you to the Iowa state medical board.” Hagen also had a conversation with Hunt and Aldrich in which he told them- that Hagen had reported the nurses and Eastman to the hospital, and that Hagen had spoken with attorneys who told him that he might have to turn Eastman in to the Iowa Board of Medicine.
Hagen spent the next two days, Saturday and Sunday, in Lincoln, Nebraska, with his children and then returned to Sioux City. The following Monday night, November 9, 2009, Hagen received a 10-
The following Monday, while Hagen was out of town at his cabin in Wisconsin, Hagen received a call from Siouxland’s corporate attorney, who told Hagen he needed to be in a meeting at 7:00 pm because he was being fired. Hagen drove back to Sioux City to make the meeting, which was held at Siouxland’s attorney’s law firm. At the meeting, Siouxland’s attorney told Hagen that the partners at Siouxland had decided to fire him. Following his firing, Hagen sued the Sioux-land Defendants, claiming a number of causes of action including wrongful discharge in violation of Iowa’s public policy.
B. Procedural Background
On April 19, 2013, the parties went to trial on Count IV of Hagen’s Complaint: Retaliatory Discharge in Violation of Public Policy.
At the trial’s conclusion, the jury found the Siouxland Defendants liable for wrongfully discharging Hagen in violation of Iowa’s public policy. The verdict form provided five options of protected conduct that the jury could find to support their conclusion that the Siouxland Defendants wrongfully discharged Hagen. The verdict form read, in pertinent part:
If you found in favor of Dr. Hagen in Step 1, which one or more of the following kinds of conduct do you find were determining factor(s) in Siouxland’s decision to terminate Dr. Hagen?
_ Dr. Hagen reporting, stating an intention to report, or stating that he might report to the Iowa Board of Medicine conduct of Dr. Eastman that Dr. Hagen believed may have involved wrongful acts, omissions, negligence, or malpractice [Protected Conduct 1]
_ Dr. Hagen reporting, stating an intention to report, or stating that he might report to a hospital conduct of Dr. Eastman that Dr. Hagen believed may have involved wrongful acts, omissions, negligence, or malpractice [Protected Conduct 2]
X Dr. Hagen reporting, stating an intention to report, or stating that he might report to a hospital conduct of nurses that Dr. Hagen believed may have involved wrongful acts or omissions [Protected Conduct 3]
X Dr. Hagen disclosing to a patient or a patient’s family that the patient mayhave been the victim of negligent care or malpractice [Protected Conduct 4]
X Dr. Hagen consulting with an attorney, stating an intention to consult with an attorney, or stating that he might consult with an attorney about whether Dr. Eastman or nurses had committed wrongful acts or omissions that Dr. Ha-gen should report to the Iowa Board of Medicine or a hospital [Protected Conduct 5]
(Docket no. 113). The jury marked the last three options — ie., Protected Conduct 3, 4, and 5 — in support of the verdict in favor of Hagen, and awarded Hagen $1, 051, 814 for past lost earnings. The jury awarded Hagen no damages for future lost earnings, and it awarded no punitive damages. The Clerk entered judgment for Hagen in the amount of $1,051,814 on May 2, 2013.
Following the verdict, the Siouxland Defendants moved for judgment as a matter of law, or alternatively a new trial. In their post-trial motion, the Siouxland Defendants argue, among other things, that none of the protected activities on which the jury based its verdict are actionable under Iowa law, and that Hagen failed to prove he was an at-will employee and therefore cannot maintain a claim for wrongful discharge in violation of Iowa public policy.
II. LEGAL ANALYSIS
A. Authorization and Standards for Certification of Questions
Both Iowa law and this court’s Local Rules permit me, on the motion of a party or sua sponte, to certify a question of state law to the Iowa Supreme Court. Iowa’s certification statute provides:
The supreme court may answer questions of law certified to it by the supreme court of the United States, a court of appeals of the United States, a United States district court or the highest appellate court or the intermediate appellate court of another state, when requested by the certifying court, if there are involved in a proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the appellate courts of this state.
Iowa Code § 684A.1. Local Rule 83 of the Northern District of Iowa provides:
When a question of state law may be determinative of a cause pending in this court and it appears there may be no controlling precedent in the decisions of the appellate courts of the state, any party may file a motion to certify the question to the highest appellate court of the state. The court may, on such motion or on its own motion, certify the question to the appropriate state court.
N.D. Ia. L.R. 83.
The United States Supreme Court has recognized that:
Certification procedure ... allows a federal court faced with a novel state-law question to put the question directly to the State’s highest court, reducing the delay, cutting the cost, and increasing the assurance of gaining an authoritative response.
Arizonans for Official English v. Arizona,
Whether a federal district court should certify a question of state law to the state’s highest court is a matter “committed to the discretion of the district court.” Allstate Ins. Co. v. Steele,
I previously articulated the following factors to be considered in determining whether to certify a question to a state’s highest court:
(1) the extent to which the legal issue under consideration has been left unsettled by the state courts; (2) the availability of legal resources which would aid the court in coming to a conclusion on the legal issue; (3) the court’s familiarity with the pertinent state law; (4) the time demands on the court’s docket and the docket of the state supreme court; (5) the frequency that the legal issue in question is likely to recur; and (6) the age of the current litigation and the possible prejudice to the litigants which may result from certification.
Leiberkneckt v. Bridgestone/Firestone, Inc.,
B. Certification Analysis
1. Whether legal issue is unsettled
The initial certification factor considers whether the issue is “unsettled” by state courts. See Leiberkneckt,
a. Question 1: Whether Iowa law recognizes Protected Conduct 3, 4, or 5 as protected activities that can support claims for wrongful discharge in violation of public policy
i. Iowa’s standards for recognizing protected activities
Iowa law recognizes a “public-policy exception to the at-will employment doctrine[,]” which “limits an employer’s discretion to discharge an at-will employee when the discharge would undermine a clearly defined and well-recognized public policy of the state.” Berry v. Liberty
Not every “socially desirable conduct” an employee might engage in is actionable under Iowa’s public policy exception. Jasper,
This case involved three purportedly protected activities — Protected Conduct 3, 4, and 5 — that the Iowa courts have yet to explicitly recognize. Based on the discussion below, I would find that Iowa’s public policy exception protects employees, like Hagen, who engage in these activities. But because the Iowa courts have not addressed these activities directly, I find that certifying these questions to the Iowa Supreme Court is appropriate.
ii. Protected Conduct 3: A doctor reporting nurses’ malpractice to the hospital where the malpractice occurred
In this case, the jury found that Protected Conduct 3 was a determining factor in the Siouxland Defendants’ decision to fire Hagen. Specifically, the jury found that the Siouxland Defendants fired Hagen for “reporting, stating an intention to report, or stating that he might report to [St. Luke’s] hospital conduct of nurses that Dr. Hagen believed may have involved wrongful acts or omissions” (docket no. 113). The Iowa courts have not yet addressed whether a doctor stating his or her intention to report nurses’ malpractice to a hospital constitutes protected conduct.
Though the issue remains undecided, Iowa’s comprehensive statutory and regulatory schemes governing medical professionals demonstrate a strong public policy interest in protecting doctors and nurses who openly report malpractice. To start, Iowa law requires that all doctors and nurses be licensed by state licensing boards before they practice medicine or nursing. Iowa Code § 147.2. These state licensing boards — the board of medicine and the board of nursing — must establish rules for revoking and suspending licenses of doctors and nurses who engage in harm
Additionally, the text of these licensing laws demonstrates that the regulations imposed on doctors and nurses are designed to protect the public, not just individual patients. See, e.g., id. § 272C.10(3) (requiring revocation or suspension where a doctor or nurse “engag[ed] in unethical conduct or practice harmful or detrimental to the public”); id. § 147.55(3) (same). In fact, if a doctor or nurse fails to live up to certain standards in Iowa’s licensing laws, “actual injury to a patient need not be established” before a board can discipline that doctor or nurse. Id. § 148.6(2)(g) (doctors); id. § 152.10(2)(g) (nurses); id. § 147.55(3) (noting that “[pjroof of actual injury need not be established” before disciplining both doctors and nurses who “[kjnowingly mak[e] misleading, deceptive, untrue, or fraudulent representations in the practice of a profession or engagfe] in unethical conduct or practiced] harmful or detrimental to the public”).
And Iowa’s licensing laws are designed to regulate not only how a doctor or nurse treats a patient, but also how a doctor or nurse responds to other medical professionals who fail to conform to Iowa’s licensing standards. Iowa’s statutes and administrative regulations impose a duty on doctors and nurses, in certain circumstances, to report other doctors or nurses who fail to meet the standards of care required of medical professionals. Under Iowa law, “[a] licensee has a continuing duty to report to the licensing board by whom the person is licensed those acts or omissions specified by rule of the board pursuant to section 272C.4, subsection 6, when committed by another person licensed by the same licensing board.” Id. § 272C.9(2). The Iowa Administrative Code further discusses a licensed doctor’s mandatory reporting duties, and provides: “A report shall be filed with the board when a licensee has knowledge as defined in this rule that another person licensed by the board may have engaged in reportable conduct.” Iowa Admin. Code r. 653-22.2(2). The Administrative Code defines “reportable conduct” as
wrongful acts or omissions that are grounds for license revocation or suspension under these rules or that otherwise constitute negligence, careless acts or omissions that demonstrate a licensee’s inability to practice medicine competently, safely, or within the bounds of medical ethics, pursuant to Iowa Code sections 272C.3(2) and 272C.4(6) and 653 — Chapter 23.
Taken together, Iowa’s statutes and regulations governing the conduct of medical professionals express commonsense public policy values: People want to ensure that their doctors and nurses — who have immense control over people’s lives and health — are not only highly competent, but also highly accountable. These values benefit the public just as much as they benefit individual patients. After all, “[e]veryone will, • at some point, consume health-care ... services.” Nat’l Fed’n of Indep. Bus. v. Sebelius, — U.S.-,
Hagen’s open intention to report nurses who committed malpractice to St. Luke’s hospital was consistent, with the spirit of Iowa’s public policy favoring disclosure. True, Iowa’s mandatory reporting laws require only that licensees report malpractice to their board, rather than to a hospital. But the public policy benefit underlying Iowa’s mandatory reporting requirements — the open disclosure of medical mistakes — is equally served when a doctor reports malpractice to authorities at a hospital where the malpractice happened. It would be strange to protect a doctor from being fired for discharging his or her mandatory duty to report malpractice to the board of medicine, but leave that same doctor exposed to termination for reporting that same malpractice to a different medical authority, like a hospital’s management.
In Jasper v. H. Nizam, Inc.,
Like the regulations at issue in Jasper, Iowa’s mandatory reporting and licensing regulations for medical professionals protect the health, safety, and welfare of patients. In particular, these regulations were designed, in part, to protect against
iii. Protected Conduct 4: A doctor disclosing to a patient’s family that the patient was a victim of medical malpractice
In addition to Protected Conduct 3, the jury found that Protected Conduct 4 was a determining factor in the Siouxland Defendants’ decision to fire Hagen. Specifically, the jury found that the Siouxland Defendants fired Hagen for “disclosing to a patient or a patient’s family that the patient may have been the victim of negligent care or malpractice” (docket no. 113). Like Protected Conduct 3, the Iowa courts have not yet directly addressed whether Iowa law recognizes Protected Conduct 4 as protected activity that can support a wrongful discharge claim. But, again, I would find that Iowa’s public policy protects a doctor who engages in this activity. The public policy goals of competence and open disclosure in Iowa’s licensing laws equally favor protecting doctors who openly disclose another’s malpractice to the very people victimized by the malpractice — the patients. Because I discussed the applicability and goals of Iowa’s licensing laws above, I will not repeat that rationale here.
Aside from the statutory policy goals favoring disclosure, Iowa law provides additional support for protecting doctors who disclose malpractice to patients. Under Iowa law, “[t]he close relationship of trust and confidence between patient and physician gives rise to duties of disclosure .... ” Koppes v. Pearson,
iv. Protected Conduct 5: A doctor consulting with an attorney about whether that doctor had a legal duty to report another doctor’s medical malpractice to the Iowa Board of Medicine
Finally, the jury found that Protected Conduct 5 was a determining factor in the Siouxland Defendants’ decision to fire Ha-gen. Specifically, the jury found that the Siouxland Defendants fired Hagen for
consulting with an attorney, stating an intention to consult with an attorney, or stating that he might consult with an attorney about whether Dr. Eastman or nurses had committed wrongful acts or omissions that Dr. Hagen should report to the Iowa Board of Medicine or a hospital.
(Docket no. 113). No Iowa court has ever directly addressed whether consulting with an attorney about whether a doctor has a legal obligation to report another doctor or nurses to the Iowa Board of Medicine con
Based on Iowa’s public policy principles, I held nearly two decades ago that Iowa’s public policy protected an employee who was fired after threatening to consult an attorney about a dispute the employee was having with her employer. Thompto v. Cobom’s Inc.,
First, I noted in Thompto that Iowa’s legislature has vested the Iowa Supreme Court with the authority to regulate many aspects of the legal profession, including granting and revoking law licenses, disciplining attorneys, and adopting rules regulating Iowa lawyers. See Iowa Code § 602.10101 (“The power to admit persons to practice as attorneys and counselors in the courts of this state, or any of them, is vested exclusively in the supreme court which shall adopt and promulgate rules to carry out the intent and purpose of this article.”); id. § 602.10121 (granting the court the power to revoke and suspend law licenses); Thompto,
[ljawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship with and function in our legal system. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct.
Id. (quoting Code of Professional Responsibility, Preamble). The Code also stated “that every person in our society should have ready access to the independent professional services of a lawyer of integrity and competence.” Id. (quoting Code of Professional Responsibility, EC 1-1). To promote this ideal, the Code provided that
[t]he need of members of the public for legal services is met only if they recognize their legal problems, appreciate the importance of seeking legal assistance, and are able to obtain the services of acceptable legal counsel. Hence, important functions of the legal profession are to educate laypersons to recognize their problems, to facilitate the process of intelligent selection of lawyers, and to assist in making legal services fully available.
Id. at 1119-20 (quoting Code of Professional Responsibility, EC 2-1). Based on these rules, I concluded that “the Code of Professional Responsibility embodies a strong public policy favoring access of persons to professional legal services for the purposes of recognizing legal problems.” Id. at 1120 (footnote omitted).
Then, in 2005, the Iowa Supreme Court adopted a new (though highly similar) set of professional rules — the Iowa Rules of Professional Conduct — which govern Iowa lawyers today. Ia. Ct. R. Ch. 32; see also Iowa Supreme Court Attorney Disciplin
Second, I noted in Thompto that, “[p]ractically speaking, attorneys are the key to obtaining relief from violations of individual and group rights in employment and many other contexts.”
Based on these observations, I held that an employer violates Iowa’s public policy when it deters employees from consulting with an attorney about their legal rights:
In light of the clear articulations of public policy favoring consultation with attorneys in order to determine whether a person has a legal problem, public policy favoring the availability of competent legal advice, public policy placing on lawyers a duty to counsel only actions that are legal and just, and public policy favoring compensation of legal counsel for individuals who endeavor to vindicate civil rights, the court concludes that acts that impede an individual from seeking legal advice would be injurious to the public, or against the public good, would not be right and just, and could potentially have a deleterious effect on what affects the citizens of the State collectively. Such conduct would therefore be in violation of public policy.
Id. at 1121 (internal quotation marks omitted); accord Chapman v. Adia Servs., Inc.,
In the nearly two decades since I decided Thompto, the Iowa Supreme Court has never explicitly recognized a public policy protecting an employee’s right to consult an attorney, nor has the Iowa Supreme Court rejected such a public policy. The Iowa Supreme Court has, however, held in Ballalatak v. All Iowa Agriculture Associ
The principles outlined in Thompto apply with even greater force to this case. In Thompto, I held that Iowa’s public policy protected an employee who threatened to consult an attorney about her employer’s decision to deny her husband cancer insurance coverage, which is merely a permissible reason to consult an attorney. Id. at 1107-08. In other words, Iowa law did not require the plaintiff in Thompto to take any action. By contrast, this case involves a doctor’s mandatory duty to report malpractice under Iowa law. As discussed above, the Iowa Administrative Code mandates that doctors report other doctors’ negligence to the Iowa Board of Medicine. See Iowa Admin. Code r. 653-22.2(2) (imposing a duty to report); id. r. 653-22.2(1) (defining reportable conduct to include “wrongful acts or omissions”). “Failure to report a wrongful act or omission in accordance with this rule within the required 30-day period shall constitute a basis for disciplinary action against the licensee who failed to report.” Id. r. 653-22.2(2)(e). Based on these mandatory reporting regulations, Hagen had a duty to report Eastman’s negligence. If he did not, he exposed himself to discipline. Following Thompto’s reasoning, if Hagen would have been protected in consulting an attorney to bring a permissible cause of action, he must have at least as much protection in consulting an attorney to meet a mandatory, legal duty.
In addition to Thompto, the Iowa Supreme Court’s holding in Jasper provides support for protecting an employee who tells his or her employer that he is consulting with an attorney regarding a mandatory legal obligation. Under Jasper, “the tort of wrongful discharge not only protects the reporting of an activity violative of public policy, but also protects the refusal by an employee to engage in activity that is violative of public policy.”
If Iowa law protects complying with, or stating an intention to comply with, certain administrative regulations, it follows that Iowa law also protects any reasonable steps an employee takes to determine how to comply with those regulations, which may include consulting with an attorney.
Iowa’s mandatory reporting regulation for doctors benefits the public at large, and allowing employers to fire doctors who attempt to comply with this regulation by contacting an attorney would obstruct that benefit. Thus, if I were deciding this issue, I would find that Hagen informing the Siouxland Defendants that he had consulted with an attorney about reporting Eastman’s negligence is protected conduct under Iowa law.
b. Question 2: Whether contractual employees can bring claims for wrongful discharge in violation of Iowa public policy
Like the “protected conduct” issues discussed above, Iowa law similarly leaves open the question of whether a contractual employee can sue for wrongful discharge, or if this claim is only available to at-will employees. While “Iowa courts have consistently held that ‘an at-will employee has a cause of action for wrongful discharge when the reasons for the discharge violate a clearly defined and well-recognized public policy,’ ” no Iowa court has ever expressly limited wrongful discharge claims to at-will employees, as opposed to contractual employees. Berry,
At least one court has interpreted Iowa law to support extending the wrongful discharge tort to contractual employees. In Vails v. United Community Health Center, Inc., No. C11-4048-LTS,
Seven years after Conaway, the Iowa Supreme Court confronted a similar case in Sanford v. Meadow Gold Dairies, Inc.,
While the court in Vails relied on these early Iowa cases describing the wrongful discharge claim, more recent decisions further support the conclusion that wrongful discharge claims are not limited to at-will employees. For example, in Jasper, the Iowa Supreme Court noted that “[w]e have used public policy to constrain legal principles in many areas of the law, especially contracts.”
Moreover, Iowa courts have long recognized that public policy considerations can
In addition to the Iowa Supreme Court’s language, the purpose behind the wrongful discharge tort is best served by applying the tort to both contractual and at-will employees. Iowa’s wrongful discharge claim enforces “the communal conscience and common sense of our state in matters of public health, safety, morals, and general welfare.” Jasper,
Still, in their post-trial brief, the Sioux-land Defendants argue — without citation to any authority — that a contractual “employee does not need the protections of the public policy exception ... [because] he has already negotiated the terms for termination in the Employment Agreement” (docket no. 119-1, at 23). Their argument seems to be that, when an employee negotiates an employment contract, the protections embodied in Iowa’s public policy suddenly no longer apply to that employee because the employee has separately bargained for protection in an employment agreement. Stated differently, their argument is that an employee with contractual protections no longer needs public policy protections.
But the Siouxland Defendants’ argument incorrectly assumes that, by bargaining for particular employment protections, an employee implicitly relinquishes all other employment protections not explicitly stated in the employment agreement. An employee may explicitly relinquish some legal protections by entering into an employment contract. See, e.g., H Penn Plaza LLC v. Pyett,
Additionally, even if a contractual employee has bargained for contractual remedies for wrongful termination,
I recognize that there are at least two federal district courts that have suggested that Iowa’s wrongful discharge tort is limited to at-will employees. See Gries v. ARAL Sec., Inc.,' No. 06-ÓV-33-LRR,
Simply put, the fact that an employee has an employment contract should not make it any easier for an employer to fire the employee for reasons that the public policy of Iowa deem reprehensible. Thus, I would find that both contractual and at-will employees can sue for wrongful discharge in violation of Iowa’s public policy. But, again, because Iowa law is undecided on this issue, I find that it would be more appropriate to certify the issue to the Iowa Supreme Court.
c. Question 3: Whether the lack of an “overriding business justifícation” is an independent element of a claim for wrongful discharge in violation of public policy
Iowa law appears to be unsettled as to how a jury should be instructed on the elements of a wrongful discharge claim. In particular, it is unclear under Iowa law whether an employer’s lack of an overriding business justification for firing an employee is an independent element of a wrongful discharge claim, or if that element is implicit in the requirement that an employee’s protected conduct be the determining factor in an employer’s decision to fire the employee. In instructing the jury
One, Dr. Hagen was employed by Siouxland.
Two, Dr. Hagen engaged in conduct protected by public policy.
Three, Siouxland discharged Dr. Ha-gen from his employment.
Four, Dr. Hagen’s conduct protected by public policy was the determining factor in Siouxland’s decision to discharge him.
A determining factor
need not be the main reason behind the decision, but
must be the reason that tips the scales decisively one way or the other
Siouxland must have known of the protected activity before it made the decision to discharge Dr. Hagen.
A short time between Dr. Hagen engaging in the protected activity and his discharge
is not enough, by itself, to find that the protected activity was the determining factor in the discharge, but may be suspicious, in light of other evidence that the discharge was for engaging in protected activity
You should consider whether or not there are other legitimate reasons or motives for the discharge.
If the defendants offer other reasons for the discharge, you must determine whether those other reasons are merely pretexts for a discharge for engaging in protected activity
You may find that a reason is a pretext if it was not the real reason, but is a reason given to hide a discharge for engaging in protected activity
If the reasons offered by Siouxland are legitimate and not pretexts, you must determine whether any protected conduct by Dr. Hagen was nevertheless the determining factor in his discharge
Five, the wrongful discharge caused injury to Dr. Hagen.
(Docket no. 110, at 9-11).
These instructions appear to be consistent with Iowa’s model civil jury instructions, which similarly omit any reference to an overriding business justification. Iowa’s model instructions list the following elements as comprising a wrongful discharge claim:
1. (Plaintiff) was an employee of (defendant).
2. (Defendant) discharged (plaintiff) from employment.
3. (Plaintiff's (describe act protected by public policy, i.e., filing of worker’s compensation claim, etc.) was the determining factor in (defendant’s decision to discharge (plaintiff).
4. The discharge was a cause of damage to (plaintiff).
5. The nature and extent of the damage.
Iowa Civil Jury Instruction 3100.1 (updated March 2012).
Despite the language in the model instructions, the Siouxland Defendants argue that Jury Instruction No. 5 does not accurately reflect the elements of an Iowa wrongful discharge claim. Specifically, the Siouxland Defendants claim that I should
elements [of a wrongful discharge claim] are: (1) existence of a clearly defined public policy that protects employee activity; (2) the public policy would be jeopardized by the discharge from employment; (3) the employee engaged in the protected activity, and this conduct was the reason for the employee’s discharge; and (4) there was no overriding business justification for the termination.
Id. (citing Lloyd v. Drake Univ.,
Based on the elements in Jasper, the Siouxland Defendants argue that the instructions in this case allowed the jury to find for Hagen without ever considering whether the Siouxland Defendants had an overriding business justification for firing him. I omitted any reference to an overriding business justification because I found that the business justification elément was implicit in the determining factor instruction. Specifically, Instruction No. 5 required the jury to find that Ha-gen’s protected activity was the “determining factor” in the Siouxland Defendants’ decision to fire him. The instructions defined a determining factor as “the reason that tips the scales decisively one way or the other.” Thus, in order to find the Siouxland. Defendants liable, the jury had to conclude that, out of all the potential reasons for firing Hagen, the reason that ultimately tipped the scale was Hagen’s protected activity.
In my view, the instructions did not prevent the jury from considering other, potentially legitimate reasons for firing Hagen. I instructed the jury to “consider whether or not there are other legitimate reasons or motives for the discharge.” If the Siouxland Defendants proffered legitimate reasons for firing Hagen, I instructed the jury to (1) determine if those proffered reasons were real (i.e., not pretextual) and (2) if they were real, to resolve whether those reasons were the determining factors in firing Hagen, or if Hagen’s protected activity was nevertheless still the determining factor. Under these instructions, if the Siouxland Defendants had a legitimate business justification for firing Hagen, the jury could have considered that and found in favor of the Siouxland Defendants, assuming that the business justification was not pretextual and was the reason that ultimately persuaded the Siouxland Defendants to fire Hagen. Thus, while the instructions did not use the phrase “overriding business justification,” they provided ample room for the jury to consider such justifications.
The instructions did not, however, allow the jury to find for the Siouxland Defendants based on the mere possibility that the Siouxland Defendants could have fired Hagen for a legitimate business reason. Nothing in Iowa law supports the proposition that merely having an alternative business reason for firing an employee can insulate an employer from a wrongful discharge claim where the evidence shows
Still, the Siouxland Defendants argue that treating the overriding business justification element together with the causation element — Jasper’s element 3 — renders the business justification element superfluous. Posed differently: Why would the court in Jasper list the overriding business justification element separately if it was supposed to be implicit in the causation element? This apparent tension may arise from the fact that Iowa’s four-element wrongful discharge test derives from a similar four-element test that applies a different causation element than Jasper. Following Jasper’s citation trail, Jasper relies on Fitzgerald, which in turn cites two non-Iowa cases— Gardner v. Loomis Armored, Inc.,
1. That a clear public policy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in the common law (the clarity element).
2. That dismissing employees under circumstances like those involved in the plaintiffs dismissal would jeopardize the public policy (the jeopardy element).
3. The plaintiffs dismissal was motivated by conduct related to the public policy (the causation element).
4. The employer lacked overriding legitimate business justification for the dismissal (the overriding justification element).
Perritt, 58 U. Cin.L.Rev. at 398-99. Upon first glance, these elements appear the same as those in Jasper.
But the language in element 3 — the causation element — transformed somewhere between Perritt and Jasper. Perritt’s test — at least the one quoted above — requires only that a “plaintiffs dismissal was motivated by conduct related to the public policy,” whereas Jasper’s test requires that a plaintiffs protected “conduct was the reason for the [plaintiffs] discharge.” In fact, despite the fact that all of the cases mentioned above ostensibly derive from the same author, they phrase the causation element differently. See Gardner,
Listing a separate business justification element makes more sense where the attendant causation element requires only that a “plaintiffs dismissal was motivated by conduct” violating public policy. If an employer was motivated by both legitimate and illegitimate reasons in firing an employee, a causation element requiring only that illegitimate reasons motivated the employer would allow a jury to find for the employee even if the employer’s legitimate reasons were the determining factors in the firing decision. In that case, the overriding business justification element clarifies the causation element to ensure that the employer can escape liability based on the overriding business reasons. Listing a separate business justification element makes less sense where the attendant causation element requires that the illegitimate reason is the reason — interpreted to mean the , determinative reason — that an employee was fired. In that case, as in this one, the business justification element appears- to be implicit in the causation element.
While I would find that the overriding business justification element is implicit in Instruction No. 5’s causation element, I recognize that Iowa law does not clearly resolve the issue. Thus, I find that, because this issue is unsettled under Iowa law, the first certification factor weighs in favor of certifying Question 3 to the Iowa Supreme Court.
2. Availability of legal resources
The second factor to consider before certification is the availability of legal resources which would aid the court in coming to a conclusion on the legal issue. See Leiberkneckt,
3. Court’s familiarity with state law
The third factor concerns my familiarity - with pertinent state law. See Leiberkneckt, 980 F.Supp. at 310; see also Erickson-Puttmann,
4. Time demands on comparative court dockets
The fourth factor addresses the relative docket load of the courts. See Leiberkneckt,
5. Frequency legal issue is likely to reoccur
The fifth factor concerns the frequency that the legal issue in question is likely to reoccur. See Leiberkneckt,
6.Age of litigation and prejudice from certification
The sixth factor concerns the age of the current litigation and the possible prejudice to the litigants which may result from certification. See Leiberkneckt,
There are also countervailing concerns here: There is a risk that the parties in the case could be prejudiced if I do not
Additionally, no matter which way I rule on the parties’ post-trial motions, this case is likely to be appealed, and thus delayed. Given the inevitability of delay, the question becomes: Which court should decide the issues presented in this case, the Iowa Supreme Court or the Eighth Circuit Court of Appeals? While the Eighth Circuit Court of Appeals could appropriately decide a number of issues raised in the post-trial motions — like the Siouxland Defendants’ evidentiary objections — the questions of first impression under Iowa law presented in this order are more appropriate for the Iowa Supreme Court.
Given the relatively minor delay caused by certification, the prejudice that may result without certification, the inevitability of delay, and the fact that this case involves questions of first impression most appropriately resolved by the Iowa Supreme Court, I find that this factor weighs slightly in favor of certification.
7. Whether there is a split in authority
Finally, the seventh factor requires me to consider “whether there is any split of authority among those jurisdictions that have considered the issues presented in similar or analogous circumstances.” Leiberkneckt,
a. Question 1: Whether other courts recognize Protected Conduct 3, 4, or 5 as protected activities that can support claims for wrongful discharge in violation of public policy
i. Protected Conduct 3: A doctor reporting nurses’ malpractice to the hospital where the malpractice occurred
Iowa courts have not yet decided whether a doctor stating an intention to report nurses’ malpractice to a hospital — ie., Protected Conduct 3 — constitutes protected activity supporting a wrongful discharge claim. Very few cases from other jurisdictions address this issue, even indirectly. To further complicate matters, Protected Conduct 3 involves two unusual wrinkles: (1) Hagen threatened to report nurses’ malpractice when Iowa’s mandatory reporting laws required only that he report doctors’ malpractice, see Iowa Code § 272C.9(2) (requiring licensee to report misconduct “committed by another person licensed by the same licensing board”); and (2) Hagen threatened to report the nurses to St. Luke’s hospital when Iowa’s mandatory reporting law required only that licensees report malpractice to their board, which in this case would be the Board of Medicine, see id. Despite these wrinkles, cases from other jurisdictions provide guidance as to whether Protected Conduct 3 is protected activity for the purpose of maintaining a wrongful discharge claim.
A number of other jurisdictions would likely find that Hagen’s open intention to report other medical professionals’ mal
this type of allegation is clearly related to the fundamental public policy favoring the effective protection of the lives of citizens. This is particularly so in situations like those involved in this case, where the physician’s duties arise from instances where the patients are unconscious at the time of the alleged wrongdoing and are especially vulnerable to risk of harm or death resulting from neglect by the attending anesthesiologist.
Id. at 975 (emphasis added). Thus, the court held that “a reasonable jury could conclude that [the plaintiffs] termination was motivated by a desire to punish him for airing [his partners’] dirty laundry, so to speak, to the hospital administration instead of handling it quietly among the members of the group.” Id. at 975-76. The court held so without relying on, or even referencing, any statute requiring the plaintiff to report his colleagues’ misconduct.
The circumstances in Taimoorazy are strikingly similar to this case. While Taimoorazy involved a doctor complaining about other doctors, rather than nurses, both the plaintiff in Taimoorazy and Ha-gen reported (or threatened to report) to a hospital medical malpractice committed against vulnerable patients. And both were allegedly fired for going to (or threatening to go to) a hospital with their reports, rather than to any board of medicine. The court’s holding in Taimoorazy suggests that a doctor’s decision to report malpractice enforces the “public policy favoring the effective protection of the lives of citizens,” which, in Taimoorazy, was independent of any statutory reporting obligation. Id. at 975. Thus, under Taimoorazy, it is irrelevant that Hagen had no statutory obligation to report nurses or to report to a hospital; the fact that he threatened to inform a hospital of malpractice committed against vulnerable patients was sufficient to invoke public policy protections.
Similarly, in Shores v. Senior Manor Nursing Center, Inc.,
Nursing Home Care Reform Act expressly prohibits the discharge of an employee who reports abuse or neglect to the Department, but does not expressly prohibit the discharge of an employee who reports only to the facility administrator, and that consequently the legislature intended to recognize a cause of action for retaliatory discharge for employees who report to the Department but not for employees who report only to the facility administrator.
Id.,
[i]f a person under no duty to report violations of the law possesses a cause of action for retaliatory discharge when he is discharged for reporting a violation, surely a person who does have such a duty [like the plaintiff] must also possess a cause of action when discharged in retaliation for complying with this duty.
Id.,
Shores illustrates two points applicable to this case. First, reporting patient neglect may be protected by public policy “even when there is no statutory duty to report an apparent violation of the law.” Id.,
The Siouxland Defendants argue in their Reply brief that the standards in Iowa’s licensing laws do not “relate in any way to the conduct at issue in this case except at the very highest levels of generality,” and therefore these laws cannot form the basis for a wrongful discharge claim (docket no. 133, at 1-2). As is discussed below, a number of cases support this argument. But other cases suggest that licensing statutes that broadly prescribe the “minimum standards” of competency for medical licensees can support a wrongful discharge claim. For instance, in Deerman v. Beverly California Corp.,
Based on these broad standards, the nurse claimed that she was “fulfilling her responsibilities as a practicing nurse” by telling her patient’s family to see another physician, and therefore her firing violated public policy. Id. The court in Deerman agreed, holding that “[t]he NPA and attendant administrative regulations ... evidence a clear public policy in North Carolina to protect public safety and health by maintaining minimum standards of nursing care.” Id. at 807. The court also noted that the NPA’s “broad language” did not prevent it from supporting a wrongful discharge claim: “While the language of the NPA and attendant regulations is broad and frequently expressed with a definitional bias, we are not persuaded by defendant’s contention that neither the statutes nor regulations issued thereunder impose any requirements or express any prohibitions relevant to plaintiffs cause herein.” Id. at 808 (internal quotation marks omitted). In short, the court “conclude[d] that the allegations of plaintiffs complaint, taken as true and liberally construed, support her contention that the statements which led to her termination were proffered in fulfillment of her ‘teaching and counseling’ obligations as a licensed nurse.” Id. at 809; see also Kirk v. Mercy Hosp. TriCnty.,
Still, other jurisdictions apply stricter limits to wrongful discharge claims. In fact, some courts refuse to extend public policy protections to reports of patient abuse if those reports are not made to'the correct entity as defined by statute. For example, in Boyd v. Ohio Dept, of Mental Health, No. 10AP-906,
Pursuant to R.C. 5101.61(B), “[a]ny person having reasonable cause to believe that an adult has suffered abuse, neglect, or exploitation may report, or cause reports to be made of such belief!,] to the [county] department” of job and family services. R.C. 5101.61(E) prohibits an employer from “discharging], demoting], transfer[ring], preparing] a negative work performance evaluation, or reducing] benefits, pay, or work privileges, or taking] any other action detrimental to an employee or in any way retaliating] against an employee as a result of the employee’s having filed a report under this section.”
Id. at *8 (alterations in original). “Based on R.C. 5101.61, [the court] conclude[d] [that] the General Assembly has set forth a clear public policy which forbids an employer from discharging an employee for reporting adult abuse, neglect, or exploitation to the county department of job and family services.” Id. at *9 (emphasis added). But the officer never reported neglect to the county department, only to his supervisor. Id.
Because the officer had not reported to the entity required by statute, he argued that the court should “expand the protection afforded by R.C. 5101.61(E) to employees who report adult abuse, neglect, or exploitation to any person with the authority to proceed on the issues of neglect and abuse.” Id. (internal quotations omitted and emphasis added). But the court “decline[d] to broaden the scope of the public policy instituted by the General Assembly,” because doing so “would, in effect, create new public policy.” Id. Thus, because the officer reported neglect to his supervisor, rather than to the court department, public policy did not protect his report. Id.; see also Diberardinis-Mason v. Super Fresh,
that the Board of Pharmacy may revoke or suspend the license of a pharmacist who has “acted in such a manner as to present an immediate and clear danger to the public health or safety” or is “guilty of incompetence, gross negligence or other malpractice, or the departure from, or failure to conform to, the standards of acceptable and prevailing pharmacy practice.”
Id. (quoting 68 Pa. Stat. Ann. §§ 390-5(a)(ll)-(12)). But the court noted that “the alleged sources of public policy are, in fact, general guidelines for pharmacists’ conduct” and that “[i]t is not at all apparent from the face of the statute that [the pharmacist] had an affirmative duty to report suspicious behavior to the authorities----” Id. at 630 (emphasis added). “Thus, while her desire to ferret out illegal activity may be laudable,” the court held that the Pharmacy Act “[would] not form the basis of a wrongful discharge claim.” Id. (footnote omitted); see also Thompson v. Mem’l Hosp. at Easton, Maryland, Inc.,
Finally, a number of courts hold that statutes, and other professional regulations, articulating general standards for medical licensees’ conduct are not sufficiently specific to embody an actionable public policy exception. See Thompson,
Because courts in other jurisdictions are spilt as to how broadly (or narrowly) medical licensing and reporting statutes should be construed to support (or reject) a public policy underlying a wrongful discharge claim, I find that the seventh certification factor weighs in favor of certifying the issue of whether Protected Conduct 3 is a protected activity under Iowa law.
ii. Protected Conduct 4: A doctor disclosing to a patient’s family that the patient was a victim of medical malpractice
There appear to be very few cases discussing whether Protected Conduct 4 — a doctor disclosing to a patient’s family that the patient was a victim of medical malpractice — constitutes protected activity. But two cases.in particular suggest that public policy protects a doctor who discloses this information to a patient or the patient’s family. First, in Deerman — introduced above — a plaintiff nurse claimed she was wrongfully fired for advising a patient’s family that they should “reconsider [their] choice of physicians” because “appropriate treatment had not been provided for [the patient] buy her physician.”
The nurse relied on a number of broad provisions of “the Nursing Practice Act (NPA), N.C.G.S. §§ 90-171.19 [through] 90-171.47 (1993), and the administrative regulations promulgated thereunder.” Id. at 807 (footnote omitted). Those provisions included the following:
G.S. § 90-171.19 expressly provides:
The General Assembly of North Carolina finds that mandatory licensure of all who engage in the practice of nursing is necessary to ensure minimum standards of competency and to provide the public safe nursing care.
(emphasis added). Further, G.S. § 90- ■ 171.21 creates a “Board of Nursing” (the Board) charged, inter alia, with setting minimum standards for educational programs preparing persons for licensure under the Act, and with licensing qualified applicants, G.S. § 90 — 171.23(b)(6), (8). In addition, the Board oversees disciplinary action under the NPA, “causing] the prosecution of all persons violating [provisions of the Act],” G.S. § 90-171.23(b)(7), and is authorized to revoke or suspend the license of a registered nurse or applicant who:
(4) Engages in conduct that endangers the public health;
(5) Is unfit or incompetent to practice nursing by reason of deliberate or negligent acts or omissions regardless of whether actual injury to the patient is established; [or]
(7) Has violated any provision of [the NPA],
N.C.G.S. § 90-171.37 (Supp.1995).
Id. The nurse also cited several statutory and regulatory provisions defining the practice of “nursing”:
Plaintiff specifically references G.S. § 90-171.20(4) which defines “Nursing” as:
a dynamic discipline which includes the earing, counseling, teaching, referring and implementing of prescribed treatment in the prevention and management of illness....
Plaintiff also points to G.S. § 90-171.20(7) which provides:
The “practice of nursing by a registered nurse” consists of ... a. Assessing the patient’s physical and mental health, including the patient’s reaction to illnesses and treatment regimens; [and]
g. Providing teaching and counseling about the patient’s health care.... Lastly, plaintiff cites administrative regulations concerning teaching and counseling about the patient’s health care. In pertinent portion, these regulations provide:
(h) Teaching and Counseling clients is the responsibility of the registered nurse, consistent with G.S. 90-171.20(7)g.
(1) teaching and counseling consist of providing accurate and consistent' information, demonstrations and guidance to clients, their families or significant others regarding the-client’s health status and health care for the purpose of:
(A) increasing knowledge;
(B) assisting the client to reach an optimum level of health functioning and participation in self care; and
(C) promoting the client’s ability to make informed decisions.
(2) teaching and counseling include, but are not limited to:
(A) assessing the client’s needs and abilities;
(B) adapting teaching content and methods to the identified needs and abilities of the client(s);
(C) evaluating effectiveness of teaching and counseling; and
(D) making referrals to appropriate resources.
N.C. Admin. Code Tit. 21, r. 36.0224(h) (Dec. 1994) (emphasis added).
Id. at 807-08 (footnote omitted and emphasis in original). Based on these relatively general provisions, the court in Deerman held that “[t]he NPA and attendant administrative regulations thus evidence a clear public policy in North Carolina to protect public safety and health by maintaining minimum standards of nursing care.” Id. at 807. Because the state “intended by law to require of licensed nurses a measure of ‘teaching and counseling,’ so as to ‘ensure minimum standards of competency and to provide the public safe nursing care,’ ” the court' held that the nurse had a valid claim -for wrongful discharge: “We therefore conclude that the allegations of plaintiffs complaint. .’:, support her contention that the statements [to the patient’s family] which led to her termination were proffered -in fulfillment of her ‘teaching and counseling’ obligations as a li
Second, in Kirk v. Mercy Hospital TriCounty, a plaintiff nurse sued a hospital for wrongful discharge for firing her, in part, because she “had offered to obtain [a patient’s] medical records for [the patient’s] family” after the patient died from, what the nurse considered to be, a lack of proper care from the doctor.
That Act and the regulations reveal a clear mandate of public policy. The purpose is to train and license a person to engage in the safe and competent practice of nursing. By definition, a professional registered nurse applies her specialized skills to (1) the prevention of illness to her patient, (2) care and counsel of ill persons, (3) administration of prescribed treatment and medication, and (4) assisting in the delivery of a health care plan. Such duties reflect the public policy of this state that registered nurses licensed in this state have an obligation to faithfully serve the best interests of their patients.
Id. at 622 (internal citations omitted). Despite the hospital’s arguments that the nurse’s purported public policy was “vague and ambiguous,” the court noted that the nurse “could clearly risk discipline and prosecution by the State Board of Nursing if she ignored improper treatment of a patient under her care.” Id. Thus, the court held that “the NPA and regulations thereunder sets forth a clear mandate of public policy that [nurses] not ‘stay out’ of a dying patient’s improper treatment.” Id.
While the plaintiffs in both Deerman and Kirk were nurses, rather than doctors, both cases held that a medical professional stated a cognizable claim for wrongful discharge based on allegations that they were fired for giving (or offering to give) to a patient (or a patient’s family) information that may have revealed that the patients were victims of malpractice. Importantly, neither case involved a statute explicitly requiring nurses to divulge to patients information adverse to their employer’s interests. Rather, the courts in Deerman and Kirk implied public policy protections from general statutes discussing broad standards of care for medical professionals. If this same public policy implication exists under Iowa law, it would suggest that Hagen was protected in his decision to inform the Maedas family that Maria Maedas was the victim of medical malpractice.
Other courts are less willing to recognize a public policy exception for hospital employees who alert patients to potential malpractice claims. For example, in Strodtbeck v. Lake Hospital System, Inc., No. 2010-L-053,
Again, it appears that some courts would extend public policy protections to medical employees who alert patients and their families to shortcomings in the patient’s care, while other courts would not. This split in authority weighs in favor of certifying the issue of whether Iowa law recognizes Protected Conduct 4.
iii. Protected Conduct 5: A doctor consulting with an attorney about whether that doctor had a legal duty to report another doctor’s medical malpractice to a state board of medicine
Like Protected Conduct 3 and 4, other courts are similarly split on whether Protected Conduct 5 — an employee consulting an attorney about an issue regarding'his or her employer — constitutes protected activity. Some courts recognize strong public policy protections for employees who consult with attorneys. For example, Ohio courts have followed Thompto’s lead and have recognized that public policy prohibits employers from firing employees who consult attorneys. In Chapman v. Adia Services, Inc., the Ohio Court of Appeals “found persuasive the reasoning ... in Thompto ....” 688 N:E.2d at 610 (citing Simonelli v. Anderson Concrete Co., 99 Ohio App;3d 254,
First, Section 16, Article I of the Ohio Constitution provides: “All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law * * The framers of the Ohio Constitution inserted that provision, and we believe that they meant what they wrote. A remedy would be illusory if citizens could lose their jobs for seeking it.
In addition, the Ohio Constitution gave the Ohio Supreme Court the authority to adopt the CPR in 1970. The CPR contains two provisions which help to convince us that encouraging individuals to consult an attorney is a clear public policy in Ohio. EC 1-1 states that “every person in our society should have ready access to the independent professional services of a lawyer of integrity and competence.” EC 2-1 states:
“The need of members of the public for legal services is met only if they recognize their legal problems, appreciate the importance of seeking legal assistance, and are able to obtain the services of acceptable legal counsel. Hence, important functions of the legal profession are to educate laymen to recognize their legal problems, to - facilitate the process of intelligent selection of lawyers, and to assist in making legal services fully available.”
We refuse to engraft upon the CPR the caveat “however, if a claim is against the potential client’s employer, the attorney must advise the client that she might lose her livelihood simply for consulting the attorney.”
The third identifiable source of public policy that encourages employees to consult an attorney about possible claims that would affect their employer’s business interests is the common law. The United States Supreme Court has concluded that, in order for a private citizen to obtain redress, the claimant must be able to obtain adequate legal representation. [Riverside v. Rivera, 477 U.S. 561 ,106 S.Ct. 2686 ,91 L.Ed.2d 466 (1986) ]. Although the court’s focus was on an individual obtaining counsel to file claims under the Civil Rights Act, the rationale is applicable to all claims. Consulting with an attorney is the first step toward gaining access to the courts.
Id. The court even recognized that these factors had “exact parallels” to the factors relied on in Thompto. Id. at 610. Based on these factors, the court in Chapman recognized that “Ohio public policy encourages individuals to consult an attorney regarding a possible claim,” and also noted “that the public policy would be jeopardized if an employee were dismissed for consulting an attorney.” Id. at 609-10 (citation omitted); see also Simonelli
On the other hand, a number of courts have held that employees have no public policy right to contact an attorney, either because such a right would require employers to retain employees who were acting adversely to the employer, or because an employee’s general right to access the courts was not interpreted to restrict private employers. See Douglas v. Rucci No. CV 96015323IS,
Again, this split in authority weighs in favor of certifying the issue of whether Iowa law recognizes Protected Conduct 5.
b. Question 2: Whether contractual employees can bring claims for wrongful discharge in violation of public policy
There is also a split in authorities as to whether contractual employees can sué for wrongful discharge in violation of public policy. A number of jurisdictions allow both at-will and contractual employees to sue their employers for wrongful discharge in violation of public policy. Most recently, in Keveney v. Missouri Military Academy,
Second, the- court in Keveney noted that “[w]hen an employer’s actions violate not only the employment contract but also clear and substantial public policy, the ‘employer is liable for two breaches, one in contract and one in tort.’ ”
[T]here is no reason to afford a tort remedy to at-will employees but to limit union members to contractual remedies under their collective-bargaining agreements. Generally, if a union employee’s grievance goes to arbitration and the arbitrator does not find just cause for the employee’s discharge, the remedy will be simply job reinstatement and full back pay. If there is no possibility that an employer can be liable in punitive damages, not only has the employee been afforded an incomplete remedy, but there is no available sanction against a violator of an important public policy of this State. It would be unreasonable to immunize from punitive damages an employer who unjustly discharges a union employee, while allowing the imposition of punitive damages against an employer who unfairly terminates a nonunion employee. The public policy against retaliatory discharges applies with equal force in both situations.
Midgett v. Sackett-Chicago, Inc.,
Finally, the court in Keveney held that “[a]llowing an at-will employee to pursue an action for wrongful discharge ‘illogically grants at will employees greater protection from these tortious terminations due to an erroneous presumption that the contractual employee does not need such protection.’ ” Id. (quoting Smith v. Bates Technical Coll,
In addition to the Missouri, Illinois, and Washington supreme courts, a number of other courts have extended the wrongful discharge tort to contractual employees. For example, the California Supreme Court has noted that allowing contractual employees to sue for wrongful discharge serves the tort’s purpose by protecting the public’s interests, not just the employee’s:
What is vindicated through the [wrongful discharge in violation of public policy] cause of action is not the terms or promises arising out of the particular employment relationship involved, but rather the public interest in not permitting employers to impose as a condition of employment a requirement that an employee act in a manner contrary to fundamental public policy.
Foley v. Interactive Data Corp.,
The right to be free from wrongful termination is independent of any contractual agreement between [an employee and employer]. Because this is true, wereject the argument that the tort cause of action for -wrongful discharge in contravention of public policy, established in Thompson v. St. Regis Paper Co. [ 102 Wash.2d 219 ,685 P.2d 1081 (1984) ],- applies only to at-will employees.
The wrongful discharge tort emerged as an exception to the at-will employment doctrine, and arguably was aimed at providing added job security, similar to that already held by for-cause employees. Although the cause of action continues to be analytically framed as an exception to the at-will employment doctrine, Washington case law does not explicitly declare that the tort is available only to at-will employees. We focus on the public policy aspect of the wrongful discharge tort in holding that the cause of action does not depend on the contractual status of the employment relationship. We agree with the conclusion that “[a] primary purpose behind giving employees a right to sue for discharges in violation of public policy is to protect the vital state interests embodied in such policies.”
Providing at-will employees a greater remedy than that available to for-cause employees for an employer’s violation of public policy is illogical and based on an unjustified distinction.
We hold that the tort of wrongful discharge in contravention of public policy is available to for-cause employees like Wilson. Therefore, we must next consider whether Wilson may bring the common law cause of action notwithstanding the existence of other remedies available to him.
Wilson v. City of Monroe,
Still, a number of other jurisdictions limit claims for wrongful discharge in violation of public policy to at-will employees. Most of these jurisdictions simply rely on blanket statements that public policy exceptions only apply to at-will employees, without examining the rationale behind claims for wrongful discharge in violation of public policy. See, e.g., Oklahoma Dep’t of Pub. Safety v. McCrady,
While I find more persuasive the cases holding that both contractual and at-will employees can sue for wrongful discharge, I recognize that other jurisdictions are split on the issue. Because other jurisdictions are split, I find that the seventh factor in the certification analysis weighs in favor of certification,
c. Question 3: Whether the lack of an “overriding business justifícation” is an independent element of a claim for wrongful discharge in violation of public policy
Finally, the law in other jurisdictions matters less in resolving Question 3 because other jurisdictions apply very different elements to wrongful discharge claims. Question 3 deals with how Iowa’s wrongful discharge elements should be applied, even if those elements differ from those used by courts in other states. Thus, whether other jurisdictions are split on the application of the overriding business justification element seems less important given that many other states do not recognize such an element. Question 3 relates to how Iowa juries should be instructed under Iowa law.
Still, I note that other jurisdictions are split in the sense that they apply varying elements to wrongful discharge claims. Some jurisdictions recognize the overriding business justification element. See Swears v. R.M. Roach & Sons, Inc.,
Because Question 3 relates to Iowa’s application of its existing law, rather than the potential adoption of new law, I find that the final certification factor is of less importance in my decision to certify Question 3 to the Iowa Supreme Court. For Question 3, the lack of clarity under Iowa law is alone sufficient to justify certification. See Part II.B.l.c (noting that Question 3 is unsettled under Iowa law).
III. CONCLUSION
Having considered the authorizations to do so under both this district’s local rules and an Iowa authorizing statute, and the various pertinent factors regarding the propriety of certification, I find that most of the factors weigh in favor of certification. Given the number of unsettled questions of Iowa law, their importance to a more thorough understanding of public policy exceptions in Iowa employment law for both employers and employees, the likelihood that these questions will recur, the special expertise of the Iowa Supreme Court Justices, the simple truth that seven brilliant minds with often differing perspectives are far superior to one modest one, and at bottom, the fact that it is far better for the Iowa Supreme Court to decide what Iowa law is than for federal judges to engage in educated guessing, I find that certification is far and away the best path towards a just result in this case and in future cases. Therefore, I find certification is appropriate in this case, even postjudgment. I hereby certify the questions stated earlier to the Iowa Supreme Court. The Clerk shall forward this order to the Iowa Supreme Court under official seal as required under Iowa Code § 684A.4.
IT IS SO ORDERED.
Notes
. In his complaint, Hagen pleaded thirteen counts against some, or all, of the Siouxland Defendants: fraudulent misrepresentation, conspiracy to defraud, forgery, retaliatory discharge in violation of public policy, negligence, breach of fiduciary duty, breach of contract, promissory estoppel, unjust enrichment, tortious interference with business relationships, tortious interference with prospective business advantage, intentional infliction of emotional distress, and punitive damages. All of these claims survived summary judgment, but Hagen voluntarily declined to pursue all but his wrongful discharge claim.