Lead Opinion
This аppeal presents two important questions regarding the application of our recent decision in Carl v. Children’s Hosp.,
1. whether the standard articulated in Carl II applies retroactively to cases in which the complaining employee was discharged prior to September 23, 1997 (the date on which Carl II was decided); and, if so,
2. whether, under Carl II, Tracie Washington’s sworn allegation that she was discharged in retaliation for attempting to ensure compliance by a fellow employee with District of Columbia health and food regulations was sufficient to preclude entry of summary judgment against her.
We answer both questions in the affirmative.
I.
THE FACTS
A. The plaintiff’s account
In September 1994, Tracie Washington was emplоyed as a dietary aide and cook at the Friendship Terrace Retirement Home in northwest Washington, D.C. The home housed approximately two hundred elderly residents, and its dining room and kitchen were operated by Guest Services, Inc. This case arises from the involuntary termination of Ms. Washington’s employment on September 9 of that year.
The circumstances which allegedly led to Ms. Washington’s discharge are described in an affidavit which she filed in opposition to Guest Services’ motion for summary judgment, and also in Ms. Washington’s pretrial deposition. Briefly, Ms. Washington claims that on September 8, 1994, she was preparing a meal for the residents of the home when a fellow worker, Tyrica Martin, began spraying stainless steel cleaner in the area where Ms. Washington was cooking. Ms. Washington stated in her affidavit that “[t]he spray is poisonous and if it comes into contact with food it renders the food unwholesome and unfit for human consumption.” She asserted that “where I stood I could feel the spray on me and I could see the spray entering the food I was preparing.” Ms. Washington claimed to have been especially concerned about potential contamination of the food because many of the residents of Friendship Terrace were in ill health.
According to Ms. Washington, “[t]he law requires that I not prepare nor serve food unless it is appropriately protected from ... contamination.” Therefore, in an effort to obey the law, Ms. Washington “told to [Ms. Martin] to stop spraying. To me this was a health emergency.”
The evеnts that followed were described by Ms. Washington in her affidavit:
12. The manager heard what I told the employee and called me into his office and told me that when he tells an employee to do something, I do not have the authority to tell the employee not to do it. He stated that he told the employee to spray, and that by me telling the employee to stop spraying that this was insubordination.
13. I explained to the manager that the spray was entering into the food and that the employee was spraying next to open food which was being cooked.
14. The manager accused me of insubordination. He told me to go home. I wenthome and when I returned to work the next day I was fired for insubordination. 15. The insubordination I was fired for was for telling the employee to nоt spray into and around and near the food I was preparing. This was the only act of insubordination I was told that I committed or that I was aware of.
B. The lawsuit.
On February 13, 1996, Ms. Washington filed a complaint against Guest Services, Inc., alleging that her discharge was wrongful. Ms. Washington claimed that her co-worker’s conduct in spraying the food with cleaning fluid contravened applicable District of Columbia health and food regulations,
On June 17, 1996, Guest Services filed a motion for summary judgment. Guest Services argued that Ms. Washington was an at-will employee
On July 23, 1996, the trial judge granted Guest Services’ motion for summary judgment. He held that Ms. Washington
had no legal obligation to prevent food from being contaminated or to complain about others contaminating food. Rather, her obligation was not to prepare or serve unfit food. [Guest Services] did not put her to the choice of disobeying that obligation as the price for keeping her job.
On July 26, 1996, Ms. Washington filed her notice of appeal.
C. The appeal.
Ms. Washington and Guest Services filed their initial briefs in this court on May 8, 1997 and June 3, 1997 respectively. In them submissions, the attorneys debated the question whether Ms. Washington’s allegations, if credited, brought her situation within the Adams exception to the at-will doctrine. The case was scheduled for submission without oral argument on November 4, 1997. The appeal was thus still pending on September 23, 1997, when the en banc court issued its decision in Carl II.
On December 18, 1997, recognizing that Carl II had added a potential new dimension to Ms. Washington’s appeal, this division issued an interim order. Washington v. Guest Servs., Inc.,
II.
RETROACTIVITY
We first consider the question whether the modification of the at-will doctrine adopted by the en bane court in Carl II applies to cases in which the plaintiff was discharged prior to September 23, 1997. We hold that it does.
A. Mendes v. Johnson.
As a general rule, statutes operate prospectively, while judicial decisions are applied retroactively. United States v. Security Indus. Bank,
The leading District of Columbia case addressing the circumstances under which judicially-crafted changes in the common law áre to be retroactively applied is Mendes v. Johnson,
we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.
Id. at 629,
In Mendes, in conformity with the “broad guiding principles of Linkletterthe court adopted a four-point analytical framework for determining whether, and to what extent, a decision overruling prior precedent should be applied retroactively. This framework included
(1) the extent of the reliance of the parties on the old rule (including the degree of justifiable reliance and the hardship which might result to the litigants as a result of retrospective application); (2) avoidance of altering vested contract or property rights; (3) the desire to reward plaintiffs who seek to initiate just changes in the law; and (4) the fear of burdening the administration of justice by disturbing decisions reached under the overruled precedent.
B. Beam and Harper.
Mendes v. Johnson was decided twenty years ago. In the intervening years, the Supreme Court has discarded its previous approach to retroactivity — the very approach on which this court based its decision in Mendes.
In 1987, Linkletter v. Walker, the principal authority upon which Mendes was based, was explicitly overruled. See Griffith v. Kentucky,
Since Griffith, the rule of retroactive application has been explicitly extended to civil cases. In James B. Beam Distilling Co. v. Georgia,
When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule. This rule extends Griffith ’s ban against “selective application of new rules.”479 U.S., at 323 [107 S.Ct. 708 ]. Mindful of the “basic norms of constitutional adjudication” that animated our view of retroactivity in the criminal context, id., at 322 [107 S.Ct. 708 ], we now prohibit the erection of selective temporal barriers to the application of federal law in non-criminal cases. In both civil and criminal cases, we can scarcely permit “the substantive law [to] shift and spring” according to “the particular equities of [individual parties’] claims” of actual reliance on an old rule and of harm from a retroactive application of the new rule. Beam, supra, at 543 [111 S.Ct. 2439 ] (opinion of Souter, J.). Our approach to retroactivity heeds the admonition that [t]he Court has no more constitutional authority in civil cases than in criminal cases to disregard current law or to treat similarly situated litigants differently.5
The Court also stated that “the federal law applicable to a particular ease does not turn on whether [the] litigants actually relied on an old rule or how they would suffer from retroactive application of a new one.” Id. at 95 n. 9,
C. M.A.P. v. Ryan.
The rule is fundamental in our jurisprudence that “no division of this court will overrule a prior decision of this court.” M.A.P. v. Ryan,
“We do not believe, however, that M.A.P. v. Ryan, supra, obliges us to follow, inflexibly, a ruling whose philosophical basis has been substantially undermined by subsequent Supreme Court decisions.” Frendak v. United States,
Nevertheless, “[t]his court will not lightly deem one of its decisions to have been implicitly overruled and thus stripped of its precedential authority.” Lee v. United States,
D. The Mendes factors.
We now consider each of the Mendes factors, in the order that they were enumerated by the court in that case.
(1) Reliance.
We stated in Mendes that “[t]he degree of the reliance by the litigants before the court, and in some eases by the public at large, on the legitimacy of the prior rule has played a major role in courts’ analysis of the retroactivity issue.”
In the present case, Guest Services’ own submission to the trial court belies any notion that it discharged Ms. Washington in actual reliance on prior law as reflected in Adams, supra.
Guest Services contends that, at the time Ms. Washington was 'discharged, an attorney could properly have advised his or her client, with reasonable certainty, that, if the facts were as Ms. Washington alleged them to be, then at that time, the client had no reason to fear liability for wrongful discharge. But in any case in which retroactive application is sought, the defendant’s conduct would always have been lawful under previously applicable precedent. Indeed, in Mendes, the landlord was held liable for damages even though, as the court noted, he reasonably “might have assumed, on the basis of prior case law, that his conduct was permissible.” Mendes, supra,
This is not a case in which the prior state of the law was so clear as to provide Guest Services with reasonable assurance that its discharge of Ms. Washington would not give rise to liability. As a majority of the en banc court recognized in Carl II, supra,
[w]e could not and did not hold in Adams that [the exception recognized by the court in that case] was the only public policy exception, because that question was simply not presented.
(Emphasis in original) (citations and internal quotation marks omitted).
By the time Guest Services discharged Ms. Washington, the “public policy” exception to the at-will doctrine had been widely applied in other jurisdictions to categories of conduct similar to that in which Ms. Washington claims to have engaged. See generally 82 Am.Jur.2d Wrongful Discharge § 15, at 688 (1992) (explaining that “the courts generally protect three categories of protected employee conduct: (1) exercising a statutory right or civil obligation; (2) refusing to engage in illegal activity; [and] (3) reporting criminal conduct to supervisors or outside agencies”).
The District of Columbia was not insulated from this trend. In 1992, two years before the events giving rise to this appeal, this court had agreed to consider a “public policy exception” case en banc, but had subsequently aborted the venture. See Gray, supra note 10. It was therefore reasonably fore
To summarize, Guest Services has demonstrated neither that it actually relied on prior law nor that, if it had, such hypothetical reliance would have been reasonable. In our view, therefore, the first Mendes factor tilts in Ms. Washington’s favor.
(2)Avoidance of altering vested contract or property rights.
“In conjunction with the reliance factor, courts also weigh the probable effect of a law change on the vested property or contract rights of the parties.” Mendes, supra,
Guest Services may have had a subjective expectation that no further exception to the at-will doctrine would become applicable to Guest Services’ conduct. Such an expectation may even have stemmed from a plausible predictive assessment of how the law would develop in the District of Columbia. Plausibility is not enough, however, to Create the kind of vested right that a court should take care not to impair. The application of Carl II to this appeal will not deprive Guest Services of any legally cognizable vested right.
(3) Rewards to plaintiffs who seek to change the law.
Ms. Washington did not bring this action to effect a change in the law. On the contrary, her counsel has maintained, erroneously in our view, that she is entitled to prevail under the law in effect prior to our decision in Carl II. Mendes’ “reward” factor does not weigh in favor of retroactive application of Carl II to Ms. Washington.
(4) Fear of burdening the administration of justice with retroactive changes in the law.
In connection with the fourth Mendes factor, Guest Services asserts that “[a] full retroactive change would open the floodgates of litigation based on wrongful discharge.” We do not find this contention persuasive.
If “floodgates” were going to open in the wrongful termination area, this would surely have happened as a result of the Carl II decision itself, and not on account of a ruling applying Carl II retroactively to the limited number of potential litigants whose claims are not barred by the three-year statute of limitations. See D.C.Code §§ 12-301(7)-(8) (1995).
In any event, “the flood of litigation argument is nothing more that an unarticulated fear of the mythological Pandora’s box....” Note, Protecting At-Will Employees Against Wrongful Discharge: The Duty to Terminate Only in Good Faith, 93 Haev.L.Rev. 1816, 1842 n. 146 (1980) (quoting Geary v. United States Steel Corp.,
It is the business of the law to remedy wrongs that deserve it, even at the expense of a “flood of litigation”; and it is a pitiful confession of incompetence on the part of any court of justice to deny relief upon the ground that it will give the courts too much work to do.
Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Mich.L.Rev. 874 (1989);
In Mendes, the court also gave consideration to the question whether retroactive application of its decision would require the relitigation of cases already decided under prior law.
E. Decisions in other jurisdictions.
Although there is no dispositive District of Columbia precedent, case law in other jurisdictions overwhelmingly supports our conclusion that decisions recognizing or expanding the public policy exception to the at-will doctrine should be retroactively applied. See, e.g., Bernstein v. Aetna Life & Cos.,
Unfairness and undue hardship would be imposed upon discharged employees by a merely prospective application of the Burk decision.16 Appellant would be deprived of an actionable tort claim for his employer’s alleged violation of a clear expression of public policy found in the perjury statute. [Statutory citation omitted.] In contrast, no inequity will result from the retroactive application of Burk. Employers accused of violating clear expressions of public policy cannot be said to have justifiably relied on the employment-at-will doctrine.
Nor will appellees in this action be substantially harmed by being forced, at a new trial, to present evidence that appellant’s discharge was motivated by poor employee performance rather than his refusal to sign false small claims affidavits. Appellees’ claim of “good-faith reliance” on the employment-at-will doctrine cannot justify its alleged tortious fixing for an employee’s refusal to commit a crime. No “manifest injustice” will result from requiring appellees to defend against appellant’s claim.
McGehee, supra,
* * * * * *
After considering all of the Mendes factors and the authorities in other jurisdictions, we conclude that the Carl II decision should be applied to Ms. Washington in this case.
III.
THE APPLICATION OF CARL II TO THE PRESENT RECORD
We now turn to the question whether the order granting summary judgment in favor of Guest Services can continue to stand if we apply the en banc court’s subsequent decision in Carl II. We conclude that it cannot.
Linda Carl alleged in her complaint that Children’s Hospital had discharged her from her position as a nurse because, inter alia, she had testified before the Council of the District of Columbia in opposition to tort reform legislation. The trial court dismissed her complaint on the ground that her allegations were insufficient to bring her case within what was then the sole declared public policy exception to the at-will doctrine, as articulated in Adams. A division of this court affirmed. Carl v. Children’s Hosp.,
In support of her claim of wrongful termination, Ms. Carl placed her principal reliance on D.C.Code § 1-224 (1992). Section 1-224 makes it a criminal offense “corruptly or by threat of force, or by any threatening letter or communication, [to] endeavorf] to influence, intimidate or impede any witness in any proceeding pending before the Council-” Ms. Carl did not allege that Children’s Hospital had threatened her or had otherwise violated the proscriptions of § 1-224, nor did she claim that the stаtute created a private right of action. Rather, Ms. Carl argued that her termination for testifying before the Council contravened a public policy exception to the at-will doctrine, and that it was therefore actionable. A majority of the en banc court held that Ms. Carl’s complaint stated a claim upon which relief could be granted because it fell within a public policy “solidly based” on, or “firmly anchored” in, Section 1-224. Carl II, supra,
Our disposition of Carl II mandates reversal of the summary judgment in the present case. The health and food regulations which we have cited in footnote 1, supra, are expressions of a clear public policy proscribing, in the interest of public health, the preparation, service or sale of adulterated or contaminated food. Conduct that imperils the health and safety of the elderly residents of a retirement home, who, as a group, are particularly vulnerable to the kind of practice here alleged, is obviously contrary to the public policy of this jurisdiction, and Guest Services has not seriously-argued the contrary.
Ms. Washington has alleged, under oath, that she was discharged for attempting to persuade her fellow worker (and, ultimately, her employer) not to violate this officially declared public policy and for protesting an alleged unsafe and unlawful practice. To permit an employee to be fired for sueh actions would undermine the purposes of the food and health regulations and would frustrate the public policy of which these regulations are аn expression. If a cook who attempts to prevent the contamination of the food that she is preparing can lose her job for “insubordination,” then similarly situated employees are likely to be coerced into silence, and the safety of the food will be compromised. Indeed, in the present case, the supervisor’s intervention, if it occurred as Ms. Washington claims, had the immediate potential consequence of permitting Tyrica Martin to continue to spray the residents’ food with a poisonous cleaning fluid.
IV.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is reversed. The ease is remanded for further proceedings consistent with this opinion.
So ordered.
Notes
. See, e.g., 23 DCMR § 2101.1 (1990) ("No person shall dispense, ... prepare, [or] process ... food unless it be appropriately protected from deleterious aerosol_”); 23 DCMR § 2200.2 (1990) ("No person shаll work or be allowed to work in any capacity ... [w]hen the person does not use hygienic work practices.”); 23 DCMR § 3010.1 (1990) ("All food and drink shall be wholesome [and] unadulterated....”); cf. D.C.Code § 22-3416 (1996) (“No person shall sell, or cause to be sold, or offer for sale any food which is unwholesome or unfit for use.”).
. Under the "at-will” employment doctrine, in the absence of an applicable statute or public policy exception, “an employer may discharge an at-will employee at any time and for any reason, or for no reason at all.” Carl II, supra,
. Guest Services asserted that, in fact, Ms. Washington's allegations were not true. Guest Services claimed that, if the case were to go to trial, the evidence would show that Ms. Washington was fired "because she screamed, shouted, cussed and swore, when Supervisor Johnson asked her to come into his office to talk with her, and that she was fired for her rudeness, vulgarity and refusal to clock out when she became hysterical, as well as for her prior work history.”
. We also asked counsel to state their positions as to whether the case should be remanded to the trial court in light of Carl II.
. The Court’s constitutional concerns appear to be substantially at odds with its earlier jurisprudence. In Great N. Ry. Co. v. Sunburst Oil and Ref. Co.,
We think the federal constitution has no voice upon the subject. A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law nonetheless for intermediate transactions.... On the other hand, it may hold to the ancient dogma that the law declared by its courts had a Platonic or ideal existence before the act of declaration, in which event the discredited declaration will be viewed as if it had never been, and the reconsidered declaration as law from the beginning.
In Mendes, supra, relying on Sunburst Oil, this court deemed itself free to adopt whatever rules it chose on the subject of retroactivity.
. In at least two cases decided after Beam and Harper, this court has cited and followed the Supreme Court's retroactivity analysis as articulated in those decisions. See White v. Hairston, 698 A.2d 471, 473 n. 4 (D.C.1997); Sprint Communications Co. v. Kelly,
. See also Harper, supra,
. In our order in Washington I, we asked counsel to state their views as whether a remand to the trial court was necessary or appropriate in connection with the determination whether Carl II applies to this appeal. Guest Services did not request a remand, and thus made no request for an opportunity to demonstrate that it actually relied on prior law in making its decision to fire Ms. Washington.
. It is theoretically possible, of course, that Guest Services, while adhering to its own view of the facts, could nevertheless have believed, on the basis of prior law, that Ms. Washington's contrary version of the facts, though untrue according to Guest Services, would not support a claim for wrongful termination. Any such theoretical possibility would presuppose, however, that at the time the decision to discharge Ms. Washington was made, Guest Services knew that Ms. Washington would fabricate a false story. Moreover, Guest Services could not have relied on the legal inadequacy of Ms. Washington's allegedly fabricated version unless it was able to determine, in advance of Ms. Washington’s dismissal, just what that false story would be. In any event, Guest Services has not claimed that it acted pursuant to such an improbable scenario.
. Prior to our en banc decision in Carl II, two divisions of this court had taken the position that Adams represented the sole exception in this jurisdiction to the employment at-will doctrine. See Gray v. Citizens Bank of Wash.,
. In this respect, the present case differs from Mendes. The right to use self-help to evict a nonpaying tenant either exists or does not exist; there is no middle ground. In Mendes, prior doctrine had to be either overruled or retained. In the “public policy exception” area, on the other hand, protection for employees has advanced in incremental stages, so that the course of the law has been somewhat fluid and more difficult to predict.
. Cf. Gray, supra note 10,
. In Kelly Adjustment Co. v. Boyd,
. In Geary, the majority also stated that an increased case load and the inevitable "thorny problems of proof ... do not in themselves justi
. Prosser’s assessment has been quoted and adopted by the courts on numerous occasions. See, e.g., Niederman v. Brodsky, 436 Pa. 401,
. Burk v. K-Mart Corp.,
. We сannot foresee what evidence will be presented at trial, but Guest Services has to date made no claim that the food which Ms. Martin allegedly sprayed was not, in fact, tainted or that it was removed from the meals to be served to residents of Friendship Terrace.
. Nothing in this opinion is intended to suggest that employees have the right to countermand, or to promote noncompliance with, those orders of their superiors with which they disagree. In the present case, however, Ms. Washington asserted that she was faced with an emergency situation. Viewing Ms. Washington’s account in the light most favorable to her, she had no time to approach her supervisor to ask him to intervene. The food was already being contaminated when she spoke directly to Ms. Mаrtin, and the public policy under which she claims to have been acting could not be vindicated if there had been further delay.
Dissenting Opinion
Retired, dissenting:
I disagree with the majority’s decision to give retroactive application to this court’s decision in Carl v. Children’s Hosp.,
The majority correctly states the general rule that legislative enactments operate prospectively while judicial decisions ordinarily are applied retroactively. United States v. Security Indus. Bank,
The majority principally relies upon James B. Beam Distilling Co. v. Georgia,
Neither Beam nor Harper purports to apply to the circumstances here. Therefore, I am satisfied that this division is not obligated to follow the Beam/Harper automatic retro-activity rule in cases involving non-federal law, particularly where the District, through its courts, has created new common law rights as an exercise of its powers as a “state.” When creating such rights, as we did in Carl II, we should be free to determine the degree, if any, of the retroactive application of the new rule. Surely, we are best able to determine the effect a new rule would have upon the parties appearing before this court, weighing the factors considered in Mendes. In short, the more flexible, case-by-case analysis of Sunburst/Chevron is more appropriate for these purposes than the automatic retroactivity rule of Beam/Harper.
I also disagree with the majority’s intimation that our holding in M.A.P. v. Ryan,
Beam/Harper only by the en banc court, not a division of the court. I am unpersuaded by the majority’s suggestion that M.AP. may not apply here because the philosophical basis for the prior ruling, i.e., Mendes, has been substantially undermined by subsequent Supreme Court decisions. See Frendak v. United States,
Finally, I also disagree with the majority’s application of the Mendes factors. First, both parties in this case relied exclusively, and justifiably, on the rule established in Adams.
. As with other state appellate courts, this court does not always follow the holdings of the Supreme Court. For example, we do not apply federal mootness principles. Compare Murphy v. Hunt,
. See, e.g., Robinson v. Washington Internal Med. Assocs.,
. See Chase v. District of Columbia Alcoholic Beverage Control Bd.,
. Indeed, Washington did not argue that the rule of Carl II should apply in her case until we ordered, after the case was submitted, that the parties brief the issue.