Ivy v. Army Times Publishing Co.

FERREN, and GAL Judges, and Associate relationships variety wide Judge LAGHER, Retired.** Associate before the court.7 not now question to the inevitably brings me This ORDER majority precedential effect

of what have. I conclude it opinion may PER CURIAM. majority of this division of none. The on for on consideration This cause came alter the rule that authority has no court banc, rehearing for en appellant’s petition stays proof begins and with the burden of the court majority appearing it as that plaintiff in an action such before peti- granting in favor has not voted Ryan, D.C.App., A. P. v. 285 A.2d us. M. tion, it is the division has (1971). majority authority purporting appellant’s petition a rule no fashion ORDERED that employment relationships hereby denied. rehearing control other en banc Thus, inescapable practices. conclusion majority opinion does re- that while FERREN, whom Judge, Associate with in a disposes it of it manner KELLY,

solve this NEWMAN, Judge Asso- Chief as to it a patently which is so flawed leave dissenting: Judge, join, ciate floating true future mean- derelict without whether presents question This case sea. jurisprudential While employee an actionable an states opinion may problems well cause future requires who him an am confident that litigation type, of this I proceeding administrative in an judges trial perceptive and then brought against employer, its appropriately with both shortcom- deal truth testifying fires him in retaliation precedential limitations. ings and its fully against employer’s interests. opinion and unрublished memorandum of this held that

judgment, a division claim. I dis did petition of this because sent from the denial im presents “exceptional 40(c). requires R. portance.” D.C.App. consideration, division of en banc for the presumably considered itself court * IVY, Appellant, C. Sherman holding previous decisions bound employment contract of any party to an it for may terminаte indefinite duration COMPANY ARMY TIMES PUBLISHING Res Taylor Greenway reason. See Joseph Varga, Appellees. taurant, A.2d 211 D.C.Mun.App., 173 No. 79-278. Ernst, D.C.Mun.App., Pfeffer (1951). A.2d Appeals. Court of law years For it has been the March retali- may not jurisdiction that a landlord reports KELLY, by evicting a tenant at will Judge, ate NEWMAN, Chief Before housing in the tenant’s HARRIS,* violations NEBEKER,* MACK* code KERN, * vein, majority’s suggestion merits division. Denotes similar In a 18) op. (slip could have ** becoming resigned Judge Gallagher 225- bound was an active mem- Associate limitation, thereby become enti- have voted to hour on the date the court ber deny the court publication. payment petition and unused all accrued but retired before tled type leave, particularly of dic- attenuated is a * being contrаry (It me as also strikes Ryan, D.C.App., tum. See M.A.P. public policy.) apartment. Habib, appellee Army Edwards by U.S. Times a former em- App.D.C. 126, 397 F.2d 687 cert. de supervised who ployee by had been appel- nied, 89 S.Ct. 21 L.Ed.2d U.S. Prior testimony, lant. to his which was at least important is as Times, required by appellee Army appel- this court legality to consider the retalia lant company’s аttorney ‍​​​​‌‌​‌‌‌‌​‌​​​​​‌‌​‌‌​​​​​​​​​​​​​​‌​​‌​​​‌​​​‍warned the by firing tion at will employee testimony support his would the com- truthfully, testifies compulsion, under against plaint Army Times. In response, against employer. his or her attorney appellant told to “the you way right.” think is

Petitioner’s has counsel filed a forceful petition, marshalling body a substantial Following testimony, appellant his authority for our consideration. I sеt subjected to have to frequent claims been forth below as the best of demonstrat- attacks, telephone over the verbal both - importance of the issue the en banc person, appellee Varga, in by and his court declines to consider. Times, supervisor Army by Henry and Belber, the Executive Vice-President PETITION FOR REHEARING EN BANC Army Times. appel- In November The question рresented by petition this Varga lee called allegedly appellant a whether the appellant, Ivy, Sherman C. “fucking “stupid” during idiot” and stated a sounding viable cause of action meeting Army annual of the Times sales tort, contract, in alternatively either in requested by appellant staff. Leave was against employer, appellee Army his former precipitously cancelled several times after Times Publishing Army where Times Wage Hearing. Hour Board Ac- Ivy position Mr. from his of at cording appellant, this abuse caused employment solely Ivy because tes- Mr. taking pounds him to lose 30 and to start tified truthfully, adversely Army albeit tranquilizers. Appellant was dismissed Times’ a proceeding interests in before the by Varga appellеe Appel- in March Wage District of Board. lant contends that this dismissal and the panel On December a Court this subjected abuse which he was were in negative. question answered that by appellees the nature of retaliation by Because the reached result testimony against Army his Times at the clearly contrary to modern trend of the Wage hearing. and Hour Board law, practical of the because the effect facts, Ivy Based those Mr. filed suit in encourage commis- decision is Superior District of Court of the Colum- agen- perjury sion of before administrative bia; alia, inter complaint alleged, Columbia, cies of the we submit because his dismissal in contravention was exception- that this case raises a of the District of Columbia’s de- importance meaning al of D.C. within favor of clared truthful App. 40(c) Rule which should be resolved testimony in quasi-judicial administrative en banc. proceedings, Army gave Times’ conduct rise panel, Opinion The in its Memorandum to a cause of action for (hereinafter Judgment p. cited as or, sounding alternatively, in con- tort Opinion”), underly- “Panel summarized the purposes summary judg- For tract.1 ing facts as follows: (which granted, ment and thus motion go appeal), Army pertinent perforce purposes facts this case back 1976, when appellant to October testified Times conceded that it dismissed Mr. Wage testimony at a Board retaliation hearing solely of the and Hour for his December, hearing Columbia. The and Hour Board. District of the trial concerning complaint brought affirmed court’s Army Ivy’s alleged complaint Both tion of emotional distress. claims were Varga’s rejected panel, neither Times’ and actions claim is re- were defamato- ry they petition. and that inflic- newed constituted intentional may re ap- even terminable at will granting summary judgment order ground com- pellees for a when their sort to the courts “not plaint did in violation some statutori dismissals are Opin- Panel granted.2 relief could policy.4 ly ion, p. 3. is Petermann point case on landmark outset, has Ivy the Mr. acknowl From Teamsters, Brotherhood v. of International rule in the District edged general that the 184, (1959). In 344 P.2d 174 25 Cal.App.2d absence of an is that in the of Columbia Petermann, emplоyer instructed an the period, for a fixed an contract legisla- testify falsely will employee may be terminated at employee employee fired hearing tive and then indeed, for no for reason or perjury; to commit when he refused v. g., Taylor Green See, all. e. reason at conduct employer’s court held that Restaurant, (D.C. A.2d 173 211 declared abridgеd state’s 1961). contended, Mun.App. IvyMr. complete testi- encouraging truthful however, has come that the time for an abuse of mony and constituted therefore that modify of Columbia to rule The rights.5 employer’s contractual body agreeing persuasive with of schol 3 Petermann were arly opinion principles to the that enunciated effect (1974); Security, Weyand, 335 both court and the 26 Stan.L.Rev. 2. Because the trial Ivy’s wrongful discharge Rights, Employee concluded theory Mr. Present Status of Individual failed to which relief 171 on Labor N.Y.U.22D Annual Conference (1970); granted, Ivy’s well-pleaded Summers, could be Mr. factual Individual Protection cf. allegations support Statute, must Against Unjust Dismissal: Time for a purposes petition, taken as true for though of this even (1976). Seе the various 62 Va.L.Rev. 481 also pursuant the claim dismissed to a Salisbury, in A. Westin & S. materials collected summary judgment motion for of a instead Eds., Rights Corporation: A in the Individual See, 12(b)(6). Super.Ct.Civ.R. motion under e. Rights (1980). Employee Reader on 41, Conley Gibson, 99, g., v. 78 2 355 U.S. S.Ct. (1957). L.Ed.2d 80 course, conceptually theory, of is not 4. The long accepted have unlike by which been others Blades, subject 3. The seminal is artiсle See, Dolphin g., Park Mon this Court. e. Employment At vs. Individual Will Freedom: Associates, (D.C.App.1975), 314 roe Limiting Employer Exercise of On Abusive Habib, U.S.App.D.C. following Edwards v. 130 Power, (1967). 67 1404 .Colum.L.Rev. 1016, denied, 397 U.S. F.2d cert. 393 scholarly most recent examination the issue (1969) (while Note, Employees 21 560 land Protecting Against 89 S.Ct. L.Ed.2d At Will may any legal Wrongful Duty Discharge: tenant at for To lord evict a Terminate all, Only Faith, (1980) In evict Good 93 Harv.L.Rev. reason or reason at he for no 18.16 (hereinafter "Protecting Peck, At Em cited as Will for violate reasons which ployees’’). Unjust Discharges See public policy). Employment: Necessary Change in the From Law, A Comment, (1979). 40 Kel Ohio St.L.J. 1 Ivy argued present to the In the Mr. Motorola, say for Inc.: Tort Action Retaliato eventually go case should ry Discharge Upon Compen Filing Workmen’s that, trial, reasonably jury infer as could Claim, sation 12 Marshall J.Prac. Proc. John & Petermann, Army suggest Times meant to Note, (1979); Non-Statutory Ac 659 Cause of Ivy expected company his testimo- Employer’s an “At tion for Termination of an ny support position its Employment Relationship: A Will’’ Possible Board, regardless of under- Hour standing to the Imbalance in the Em Solution Economic he was to of the truth of the matters Relationship, ployer-Employee 24 N.Y.L.Sch.L. Times, course, vigor- Army about. Comment, (1979); Pri Rev. 743 event, ously argument. disputed that Employer Sector At Who “Blows the vate Will point in order to need not be addressed Upon A Action Based Det Whistle”: Cause of presented by petition, resolve the Policy, 1977 Wisc.L.Rev. erminants Public refusing was fired for for whether Note, 777; A Action Law for Common perjury whether was fired commit telling he Hastings Abusively Discharged Employee, 26 is, view, in our a distinction the truth Note, Remedy (1975); 1435 the Dis L.J. purposes of determin- without a difference charge Employees Who Refuse Professional he has stated a claim whether Illegal Propos Acts: A to Perform Unethical or See, granted. v. Inter- relief Petermann can be Ethics, 28 Vand.L.Rev. al in Aid Professional Teamsters, supra. national Brotherhood Note, Rights Implied Job 28 Contract 834

recently Tamney reaffirmed in v. Atlantic breach of contract is available to an at will Co., Richfield 27 Cal.Rptr. employee Cal.3d 164 who is dismissed for bad faith 610 P.2d 1330 where the reasons court which violate a declared public poli- See, made it cy. clear that a tort as well ‍​​​​‌‌​‌‌‌‌​‌​​​​​‌‌​‌‌​​​​​​​​​​​​​​‌​​‌​​​‌​​​‍g., as a con e. Fortune v. National Cash Co., tract remedy Register abusively available to the 364 N.E.2d 1251 (Mass.1977); Co., Monge v. employee: Beebe Rubber employ N.H. “[w]hen discharge er’s 316 A.2d 549 employee Pstragowski of an See also violates fun v. Metropolitan damental Life principles Insurance policy, the dis F.2d (1st charged 1977); Cir. Foley Community may maintain a tort Oil ac Co., 64 (D.N.H.1974); F.R.D. tion and Zimmer damages recover traditionally Management Corp., Wells Id., F.Supp. available in such actions.” 164 Cal. (S.D.N.Y.1972).6 Rptr. at 840. For holding other cases that a tort action is available to an employ at will Nevertheless, in the face of that substan- ee whose important dismissal violates an tial body scholarly commentary and deci- see, policy, g., e. Pierce v. Ortho supporting sional law7 recognition Corp., 58, Pharmaceutical 84 N.J. 417 A.2d either a tort or contract cause of action for (1980); 505 Lally Copygraphics, v. 173 N.J. an at will employee who is Super. 162, 413 (App.Div.1980); A.2d 960 contravention of some declared poli- Co., Perks v. Firestone Tire & Rubber 611 cy, in this case saw to dispose fit (3d 1979); F.2d 1363 Cir. Kelsay v. Motoro Ivy’s wrongful discharge claim in a la, Inc., 172, 559, 74 Ill.2d 23 Ill.Dec. 384 single terse paragraph: (1979); N.E.2d 353 Harless v. First National Appellant seeks to damages recover Bank, 246 (W.Va.1978); S.E.2d 270 Brown arising from his alleg dismissal which he Lines, 597, v. Transcom 284 Or. 588 P.2d es was in retaliation testimony (1978); Detroit, 1087 Trombelta v. Toledo & employer Wage his Co., 489, Ironton Mich.App. R.R. 81 265 hearing. juris Board While some (1978); N.W.2d 385 Kroger, Sventko v. 69 recognized dictions have a cause of action 644,245 Mich.App. (1976); N.W.2d 151 Nees tort, see, for wrongful discharge g., e. Hocks, 210, (1975); v. 272 Or. 536 P.2d 512 Frampton Co., v. Central Indiana Gas 260 Frampton ‍​​​​‌‌​‌‌‌‌​‌​​​​​‌‌​‌‌​​​​​​​​​​​​​​‌​​‌​​​‌​​​‍Co., v. Central Indiana Gas 260 249, (1973); Ind. 297 N.E.2d 425 Peter 249, (1973); Ind. 297 N.E.2d 425 Montalvo mann v. International Brotherhood of Zamora, 74,86 7 Cal.App.3d Cal.Rptr. 401 Teamsters, 184, Cal.App.2d 174 344 P.2d (1970); Glenn v. Clearman’s Golden Cock (1959), see, [sic], g., 25 and in contrast e. Inn, 793, 192 Cal.App.2d Cal.Rptr. 13 760 Register Co., Fortune v. National Cash (1961); McNulty Borden, Inc., 474 (Mass.1977); 364 Monge N.E.2d 1251 F.Supp. (E.D.Pa.1979); 1111 O’Sullivan Co., Beebe Rubber 114 N.H. Mallon, N.J.Super. 160 390 A.2d 149 549 jurisdiction allows an em (1978); Williams, Inc., Reuther v. Fowler & ployment contract of indefinite duration Pa.Super. 28, 255 386 A.2d 119 Oth any to be terminated for reason at the er courts have held that an action for party. Taylor wish of either v. Green employer present 6. Still other courts have found an cause of action on the facts. Conse- quently, important liable for intentional infliction of emotional dis it is all the more for this See, wrongful discharge. g., thorough tress in cases of e. Court to undertake a analysis informed Bank, supra; wrongful discharge theory Harless v. First National Contrer as an Corp., as v. Crown independent liability. Zellerbach 88 Wash.2d ground of (1977); Agis 565 P.2d 1173 v. Howard Johnson Co., (Mass. 1976); & N.E.2d 315 Alcorn v. revealed, 7. So far as our research has Engineering Anbro Rptr. 2 Cal.3d 86 Cal. jurisdictions various which have considered the (1970). However, 468 P.2d 216 as a question presented by past this case in the matter, practical theory liabili decade, only two—Alabama Florida —have ty largely jurisdiction ‍​​​​‌‌​‌‌‌‌​‌​​​​​‌‌​‌‌​​​​​​​​​​​​​​‌​​‌​​​‌​​​‍by foreclosed in this declined to Covington, this Court’s decision in Waldon v. here, Opinion cause of action. With the Panel 1980); (D.C.App. 415 A.2d 1070 see also the the District of the third. Columbia becomes Opinion rejecting Panel in this such a panel was ... be ... Restaurant, D.C.Mun.App., 173 A.2d Ernst, D.C.Mun. argument Pfeffer v. persuaded by appellees’ (1951). There is no App., A.2d of the terminable necessary modification oral contract appellant’s evidence that by legislative will rule should achievеd period; was for it could therefore a fixed decision. enactment instead appellees have been terminated at will agree with that If the did indeed incurring liability. ap without Even mistaken, was argument, we think that pellant's dismissal in retaliation for succinctly largely the reasons stated testimony before the and Hour his supra at Employees, At Will Board, allegation wrongful dis (footnotes omitted): charge does not need not be public law solutions Such granted event. relief could be employ for at exclusive did Consequently, trial court not err legitimate herit possess ees. Courts granting appellees’ motion for summa de age common law innovation that judgment wrongful ry on issue velops to accommodate principles new Opinion, discharge. p. 3.] [Panel values, are changing therefore Those five sentences constituted the short job forum for the creation of appropriate sum total of the discussion of security rights. courts have con Because discharge claim. wrongful experience employ with similar siderable immediately feature most noticeable рroblems, they possess ment relations suf summary of rejection of the wrongful expertise to resolve dis ficient discharge Ivy’s wrongful theory is that the Thus, charge disputes. courts need not Pane] result, Opinion merely announced a to effect doc legislative await initiative unaccompanied any by supporting reasons. change in at will trinal the say, panel, To as did the “[e]ven created the at area. Courts themselves appellant’s in dismissal was retaliation rule; entirely appro will it is therefore testimony before the the priate they now take lead Board, his of allegation wrongful discharge reign emp it. The of “caveat modifying does not which relief granted event,” brought through judi tor” end simply could be to an development state a bald conclusion which in no cial of innovation the explains why Ivy’s complaint did not same of products liability law. The kind granted.8 ^[******] which relief could be innovation beware.” modify ^[9] rule the of “let the most helpful way public poli- is consistent with 8. latter conduct cy. [Omitted] [Id., 245 N.W.2d at 154.] supra, Kroger, 9. See Sventko v. where the Accordingly, Sventko court concluded: court, recognizing legislative a tort cause of action of Discouraging of the fulfillment discharged employees wrongfully are e., policy underlying policy the work- [i. filing compensation retaliation for workmen’s compensation use of statute] men’s claims, argument judiciary rejected disposal powerful weapon at the of most employer, a cause action should not such employment, is ob- tеrmination not, have, legislature but did because the provide could viously against our state. remedy * * * such a in the workmen’s tolerate such con- This Court cannot compensation statute itself: [Id., at 153-154.] duct. legislature make here, had seen fit to Similarly rec- this Court to asks consistently crime for an dis- solely ognize em- for those a cause action qualify charge employees they under ployees in contravention who are provisions the act to evade the of the in order policy; obvi- some ously, Legislature [Citation act. statute.] only such a would be available retaliatory discharges of the has not made dismissals violate whose those subject type alleged in this case already legis- public policy created some certainly no indi- criminal sanction. This is lature. part Legislature cation on the Or perhaps panel was concerned about

the possibility that acceptance Mr. Ivy’s TOWLES, Appellant, A. Duane wrongful discharge open claim would proverbial “floodgates” and inundate the STATES, Appellee. UNITED courts of the District of Columbia with sim- No. 12982. Again, ilar suits. answer short to that misplaced concern is stated in At of Appeals. District of Will Employees, supra (footnotes Argued Oct. omitted): Decided March objection

One judicial is that [recogni tion ‍​​​​‌‌​‌‌‌‌​‌​​​​​‌‌​‌‌​​​​​​​​​​​​​​‌​​‌​​​‌​​​‍cause of lead litigation to a flood of

action]

that will crush already overburdened Yet

dockets. it is not clear that this will

result from scrutiny increased First,

discharges. expanded liability may

deter abusive retaliatory future dis

charges, limiting thus the number of po Second,

tential development claims.

of clear standards of what constitutes an

unjust discharge encourage out-of-

court settlement of the claims that do any event,

arise. fear of a small in litigation hardly

crease in a valid rea discharge denying son for wrongfully relief to

empl oyees.[10]

But whatever the actual reasons for the

panel’s holding, patent we think it

importance of requires the issue a more thoughtful analysis

extensive and than that

which appears Opinion.. in the Panel ..

MACK, J., concurring while fully statement,

the foregoing grant would

rehearing en banc. only simply pub-

10. To which we would that we reasons which violate add any large policy. do not believe that number of District lic employers of Columbia fire their

Case Details

Case Name: Ivy v. Army Times Publishing Co.

Court Name: District of Columbia Court of Appeals

Date Published: Mar 10, 1981

Citation: 428 A.2d 831

Docket Number: 79-278

Court Abbreviation: D.C.