Washington v. Guest Services, Inc.

respects, judgment tence. In all other

appealed from is

Affirmed. WASHINGTON, Appellant,

Tracie SERVICES, INC., Appellee.

GUEST

No. 96-CV-997. Appeals.

District of Columbia Court of April 1,

Argued Sept.

Decided DC, Ifill, Wаshington, appel- Washington’s employment Septem- A. Palmer for on of Ms. year. of that lant. ber 9 allegedly The circumstances which led to Foreman, Stephen B. with whom Jennifer Washington’s discharge are Ms. described Pitarresi, DC, Washington, R. was opposition an filed in affidavit which she brief, appellee. summary judg- Guest Services’ motion ment, Washington’s pretrial and also Ms. RUIZ, Before Associate SCHWELB and Briefly, Washington deposition. Ms. claims KING, Judges, Judge, Associate 8, 1994, prepar- September that on she was Retired.* ing a meal for the residents the home worker, Martin, Tyrica began SCHWELB, a fellow Judge: when Associate spraying steel cleaner the area stainless appeal presents important This two cooking. Washington was Ms. where Ms. questions regarding of our that “[t]he stated her affidavit Hosp., recent decision Carl v. Children’s if it into spray poisonous cоmes con- banc) (D.C.1997) (en (Carl II), the food unwhole- tact with food it renders expanded in which we in some measure the consumption.” for human some and unfit circumstances under which “at will” em an I I asserted that “where stood could feel She ployee against recover or her his em spray I spray me and could see the ployer wrongful discharge. in an action for entering preparing.” I was the food Specifically, we must decide especially to have been claimed 1. whether the standard articulated in potential contamination of concerned about applies retroactively to cases in many of the residents of the food because complaining employee which the was dis- Friendship in ill health. Terrace were (the charged prior September Washington, According “[t]he law to Ms. decided); and, date on which Carl was requires prepare I nor serve food not so, protected from ... appropriately unless it is whether, 2. under Tracie Wash- Therefore, in an effort to contamination.” ington’s allegation sworn that she was dis- law, Washington obey [Ms. “told charged in attempting retaliation for me stop spraying. To this was Martin] compliance by employee ensure a fellow emergency.” health with District of Columbia health and food described The events that followed were regulations entry preclude was sufficient to by Washington in her affidavit: summary judgment against her. I manager 12. heard what told the questions We answer both in the affirmative. employee me into his office and and called employee told me that when he tells I. authority something, do I do not have to do it. He employee to tell the not THE FACTS employеe spray, he stated that told plaintiff’s A. The account employee to telling the and that me stop spraying was insubordina- September Tracie tion. employed dietary as a aide and cook at manager that the explained I Friendship Home in Terrace Retirement entering into the food and spray was Washington, northwest D.C. home employee spraying next elderly approximately housed two hundred being which was cooked. food residents, dining room and kitchen and its Services, me of manager 14. The accused insubor- operated by Inc. This go home. I went involuntary dination. He told me to arises from the termination * Retired, September Judge Judge, Judge King court at Associate was an Associate changed argument. His status the time of Rather, contaminating food. home and when I returned to work the about others prepаre or serve obligation her was not to day I next was fired for insubordination. put did [Guest Services] unfit food. 15. The I was fired for insubordination disobeying that choice obli- her telling employee spray to not was for job. price keeping her gation for as I into and around and near the food was only filed preparing. July 26, Washington This was act of insub- her Ms. On I or ordination was told that I committed of appeal. notice I that was aware of. appeal. C. filed Washington and Guest Services Ms. B. The lawsuit. 8,May initial in this court on their briefs 13, 1996, February Washington On Ms. respectively. them 1997 and June Inc., Services, complaint against filed a Guest submissions, ques- attorneys debated alleging wrongful. that discharge her was Washington’s allegations, if Ms. tion whether Washington Ms. claimed that her co-worker’s credited, brought within the her situation cleaning in spraying conduct the food with doctrine. Adams to at-will applicable fluid contravened District of Co- for submission with- The case was scheduled regulations,1 lumbia health and food and that argument oral on November 1997. out (Ms. Guest Services had dismissed her Wash- Septem- pending thus appeal still health, ington) protesting safety, “for and 23, 1997, banc issued when the en court ber part food code violations the defen- II. its decision Carl dant.” 18, 1997, recognizing that On December 17, 1996, On June Guest Services filed a potential II added new dimension Carl had judgment. summary motion for Guest Ser- Washington’s appeal, division is- to argued

vices at- that Ms. was an Washington v. an interim order. Guest sued employee2 allegations, that her will and even (D.C.1997) Servs., Inc., (per true,3 bring only if did not her within the curiam) I). (Washington We held Wash- public policy exception employ- to the at-will judge properly I ington that the trial had recognized ment that had doctrine been summary motion granted Guest Services’ George at the time. See Adams prior judgment as it existed to under (D.C.1991) Co., W. Cochran & to II. further directed counsel sub- Carl We (holding employee that an at-will not be whether the law as mit their views to law). to discharged for refusal violate the applies to the enunciated 23, 1996, July judge granted On the trial so, and, entry of sum- appeal if whether judg- summary motion for Services’ judgment favor re- mary Guest Services’ ment. He held Having appropriate.4 considered the mained oral sub- supplemental written and legal obligation prevent parties’ had no food missions, the trial although being complain we now hold from contaminated or See, (1990) ("No supra, 702 per- § e.g., for no all.” 23 DCMR 2101.1 or reason J., (Terry, concurring). process dispense, prepare, ... at 162 [or] son ... shall appropriately protected it from food unless be aerosol_”); § that, fact, 2200.2 deleterious 23 DCMR Wash- Guest Services asserted (1990) ("No person or be allowed shall work Ser- ington's allegations not true. Guest trial, person any capacity that, does go ... [w]hen work in case were to vices claimed practices.”); hygienic work 23 DCMR use that Ms. the evidence show (1990) ("All screamed, shouted, be § food and drink shall 3010.1 fired "because she unadulterated....”); swore, Supervisor [and] wholesome Johnson cussed and when cf. her, (1996) (“No person § shall D.C.Code 22-3416 her come his office to talk asked into rudeness, sell, sold, vulgarity any for sale food cause offer was fired for her and she use.”). hyster- when she became or unfit for refusal to clock out which is unwholesome and ical, history.” as well as for her work doctrine, employment the "at-will” 2. Under positions counsel to state their applicable 4. We also asked of an statute or absence may discharge should be remanded employer as to whether case policy exception, “an reason, light any Carl II. the trial court in employee time at-will judge’s correctly that, reflected the case had stated in Linkletter as a matter of decided, law at the time the motion was constitutional required was neither basis for ruling superseded by his has been retrospectively prohibit- a decision nor Carl II. Linkletter, doing According ed from so. weigh must ... the merits and demer-

II. by looking its in each history question, purpose of the rule in RETROACTIVITY effect, retrospective oper- whether We first consider the whether the ation will further operation. or retard its modification of the adopted at-will doctrine 1731; Id. at see also by the en applies bane court in Linkletter). (quoting 389 A.2d at 788 plaintiff cases which the Mendes, conformity In with the “broad 23, 1997. September We hold that it guiding principles of Linkletterthe does. adopted four-point analytical framework for whether, extent, determining and to what A. Mendes v. Johnson. overruling prior precedent should be rule, general operate As a statutes applied retroactively. This framework in- prospectively, judicial while ap decisions are cluded plied retroactively. United States v. Securi (1) parties the extent of the reliance of the Bank, ty 70, 79, Indus. U.S. S.Ct. (including degree old rule of (1982). When, 74 L.Ed.2d 235 as in Carl justifiable hardship reliance and which II, a decision of this court articulates a new might litigants result to the as a result of law, rule of duty “it is our its (2) retrospective application); avoidance of holding equitable to this case unless consid altering property rights; vested contract require erations a different result.” Tenants (3) plaintiffs the desire to reward who seek 2301 E St. N.W. v. District law; (4) just changes to initiate Comm’n, Rental Hous. burdening the fear of the administration of (D.C.1990) (citing United States v. The justice by disturbing decisions reached un- (1 Cranch) Peggy, 103, 110, Schooner 5 U.S. precedent. der the overruled (1801)). cases, L.Ed. 49 In such we must criteria, Analyzing 389 A.2d at 789. these presumptively apply the law as exists at the court held in that the new decision, Mendes rule the time though of our even given only “partial should be retroactive ef- judge’s disposition trial was correct at the Id, fect, i.e., parties apply to the instant [it] will ruling. time of his prospective application.” as well as Id. at leading The District of Columbia case ad dressing judi the circumstances under which cially-crafted changes in the common law áre Harper. B. Beam and retroactively applied to be is Mendes v. twenty Mendes v. was decided Johnson Johnson, (D.C.1978) (en banc). years ago. intervening years, In the court, overruling In the en banc Supreme previous Court has discarded precedent, held that a tenant not very approach approach retroactivity —the except be evicted from his or her leasehold on which its decision in this court based process, lawful and that a landlord who Mendes. self-help physical dispos uses effect the Walker, ‍‌‌​‌‌​​​​​​​​​​​‌‌​​​​​​​​‌​​‌​‌‌‌​​‌​​‌‌‌‌​​​​​‍principal session of the tenant is liable in tort In Linkletter v. based, wrongful Turning authority upon eviction. Id. at 783-87. which Mendes was explicitly the new rule announced overruled. v. Ken whether See Griffith 314, 322-23, applied retroactively, tucky, the court should be 479 U.S. 107 S.Ct. adopted (holding “newly the court then- L.Ed.2d 649 Court’s that all jurisprudence, retroactively applied current as articulated Link declared” rules must be Walker, to all criminal re pending letter eases on direct (1965). view). explained 14 L.Ed.2d The Court Court Griffith civil and crim- making a broad non-criminal cases. both rules law “on task cases, one, permit scarcely “the legislative basis” is a that the nature inal we can judicial adjudication spring” ac- requires [to] substantive law shift particular equities [indi- adopt cording to “the new rules in context actual reliance specific parties’] Id. vidual claims” of cases. 107 S.Ct. 708. from a retroac- ap on an old rule and of harm The Court also concluded that “selective Beam, rule. plication principle tive new new rules violates similarly (opinion 2439] treating [parties] [111 at 543 S.Ct. situated J.). Souter, retroactivity approach to same.” Id. at S.Ct. 708. Our Court has [t]he the admonition that heeds Griffith, appli Since the rule of retroactive authority in civil no more constitutional explicitly cation has been extended to civil disregard than in criminal cases Distilling cases. James B. Beam Co. similarly to treat situated law or current Georgia, 501 U.S. S.Ct. litigants differently.5 (1991), majority L.Ed.2d 481 of Justices stated that “the federal Court also agreed rule that a of federal once an applicable particular to a ease does turn parties to nounced and actually litigants [the] relied whether controversy, given must full they an old rule how would suffer from by adjudicating all effect courts federal law. a at application retroactive of one.” Id. new 540, (opinion at 111 2439 See id. S.Ct. of (citation and internal 95 n. 113 2510 J.); S.Ct. Souter, (opin 2439 id. S.Ct. omitted). quotation marks White, J.); of ion id. at S.Ct. 2439 548-49, Marshall, J.); (opinion of id. at Ryan. M.A.P. v. C. J.). Scalia, (opinion Harper of In S.Ct. juris is in our rule fundamental Taxation, Virginia Dep’t 509 U.S. of “no prudence that division of this court will 2510, 125 (1993), L.Ed.2d 74 the S.Ct. court.” prior a decision of this overrule on expanded Court Beam as follows: (D.C.1971) Ryan, 285 A.2d M.A.P. v. applies this a When Court rule of federal omitted). (footnote Overruling prece our it, parties law to the that rule the before is only by be court en dents can effected controlling interpretation of federal Johnson, itself an en banc. Id. Mendes v. given and must full retroactive effect in be decision, binding presumptively banc thus all still direct as on review and us. on events, regardless to all of whether such believe, M.A.P. predate postdate our announce “We do not events follow, us Ryan, supra, obliges rule. This inflexi ment of the rule extends Grif bly, ruling philosophical basis has against application ’s ban “selective of whose fith U.S., substantially by new rules.” 479 at 323 been undermined subse S.Ct. [107 Supreme Frendak quent norms of con Court decisions.” Mindful the “basic 708]. States, 379 n. 27 adjudication” our v. stitutional that animated United (D.C.1979). Arguably, Harper in Beam and retroactivity the criminal con view of id., 708], “substantially our reli text, undermined” we now have [107 at 322 S.Ct. ance, Mendes, Supreme the Court’s in on prohibit temporal the erection selective issues, retroactivity approach as in former to the of federal law barriers the other appear transactions.... On concerns intermediate 5. The Court’s constitutional hand, jurispru- dogma substantially may at odds with its earlier it hold to the ancient be Ry.N. Co. Oil and dence. In Great v. Sunburst by had a Platonic or the law declared courts its Co., 358, 364-65, declaration, the before act ideal existence Ref. (1932), stated: L.Ed. 360 declaration will be which event the discredited no been, constitution has We the federal think and the recon- viewed if it had never defining subject. A state voice beginning. as law from thе sidered declaration precedent may make limits adherence Oil, Mendes, supra, relying on Sunburst In principle between the of for- choice for itself adopt itself free rules court deemed whatever operation that of backward. and relation ward subject retroactivity. 389 A.2d it chose court, highest may say It that decisions of at 788. overruled, though are law nonetheless later Indeed, Linkletter. articulated We stated Mendes that “[t]he we think it degree if Beam probable Harper, court, litigants and not the reliance before the Linkletter, and in large, had reflected some eases jurisprudence legitimacy Court’s played rule has this court major given analysis would have role in courts’ Mendes its decision in full of the retroac tivity issue.” 389 A.2d at 789. The court effect'. thus (by focused both on reliance fact Nevertheless, lightly “[t]his will not сourt) parties before the and on the deem one of its implic decisions to have been public, including potential litigants, other itly stripped overruled and prece thus of its rely previous rule.7 The reliance States, Lee v. United authority.” dential is, course, inquiry directed to Guest Ser (D.C.1995). two-judge As a expectations vices’ reasonable at the time of three-judge panel, of a espe arewe dismissal, and not to coun cially reluctant step, although take such a subsequent during sel’s formulations it well be desirable for the en banc court litigation. course of revisit Mendes in light arguably super case, present Guest Services’ own vening developments during past two any to the trial submission court belies no- event, decades. think it unneces tion that sary to decide whether Mendes has survived actual reliance on law as reflected in because, Harper Beam has, even if it Adams, supra.8 represented Guest Services standards, the Mendes then under reason to the court that Ms. was termi- construed, ably Carl must our rudeness, conduct, hysterical nated for retroactively applied case.6 insubordination. If these were the actual Washington’s discharge, reasons for Ms. then D. The Mendes factors. “public policy” exception no to the at-will We now consider each of the Mendes fac- implicated, undisputed doctrine was for it is tors, they in the order that were enumerated that Guest Services would have had the by the that case. Washington fire grounds to Ms. on the stated (1) Reliance. II even under standards.9 I, Washington 6. In at least two cases decided after Beam and In our order in we asked counsel Harper, this court has cited and followed the to state their as whether a views remand retroactivity analysis necessary appropriate Court's as articu Hairston, trial court was in con- lated in those decisions. White See nection with the determination whether Carl II 471, (D.C.1997); Sprint appeal. applies 698 A.2d 473 n. 4 Com (D.C. Guest Services did not 106, remand, Kelly, request request munications Co. v. 642 A.2d 117 and thus made no for 1994), denied, 916, 294, opportunity actually cert. an to demonstrate that it (1995). White, however, prior making 130 L.Ed.2d 208 relied on law in fire any Washington. also focused on the lack of “reliance inter Ms. law, by any party est” on the old an irrelevant Harper analy consideration under the and Beam course, theoretically possible, It is that Guest Sprint presented sis. Communications a federal Services, adhering while to its own view of the question, Harper constitutional and Beam and facts, believed, could nevertheless have binding were therefore on the court. There was law, prior Washington's basis of trary that Ms. con- discussion, Sprint no munications, either in White or in Com facts, though version of the untrue accord- interplay Harper between and Services, support Guest would not claim Mendes, judicial pass and the mind did not wrongful Any termination. such theoretical presented. those cases on the issue here possibility presuppose, Cf. that at Club, District v. Sierra 670 A.2d discharge Washing- the time the decision to Ms. (D.C.1996). question whether Mendes’ made, ton was Guest Services knew that Ms. retroactivity analysis remains viable after Beam Washington story. would fabricate a false More- Harper therefore remains an one. over, Guest Services could not have relied on the legal inadequacy Washington's allegedly of Ms. Harper, 7. See also 509 U.S. at 95 & n. fabricated version unless it was able to deter- mine, dismissal, (characterizing 113 S.Ct. 2510 one un- in advance of Ms. being litigants just story any whether ‘‘ac- what that der the law as false would be. rule.)” added) event, tually (Emphasis relied on an old Guest Services has not claimed that it omitted). (citation quotation pursuant improbable acted and internal marks such an scenario. (citations internal (Emphasis original) aspect We turn next the other omitted).10 Indeed, ju inquiry, namely, employers quotation reliance whether marks relied, general public wrongful rea- was un risprudence or could termination relied, sonably proposition that have when Ms. certain in represented, continue to Services, Adams and would and remains Guest terminated represent, policy the sole years, as today. fluid In recent somewhat employment ques- at-will doctrine. The “emerging developed the the courts have tion, it, pre-Carl is as we see whether the policy excep the public basis for doctrinal ingrained in deeply standard was so Lorenz, tion,” Corp. v. Marietta Martin that it would be unreasonable to (Colo.1992), doctrine at-will P.2d retroactively employers who even as erosion.” “undergoing considerable has been have failed to demonstrate reliance fact on Buenette, 742 P.2d 106 N.M. Boudar v. prior case law. banc). (en (1987) paraphrase the To California, if one “[e]ven that, time Services contends at the breaking new and unex [Carl II] views as 'discharged, attorney concede, pected point we do ground, client, properly have or her could advised his indisputably so in an unsettled area.” that, did certainty, with reasonable the facts Corp., be, Radio 48 Cal.3d Newman v. Emerson Washington alleged as Ms. them to time, Cal.Rptr. P.2d then no client had reason liability (1989).11 wrongful discharge. fear But case which retroactive By the time Guest Services always sought, the defendant’s conduct would exception to Washington, “public policy” applicable previously under have been lawful widely applied doctrine had the at-will been Indeed, Mendes, precedent. the landlord conduct jurisdictions categories in other damages though,

was held liable for even similar to which noted, reasonably “might have the court he generally engaged. have See claims to assumed, the basis of § Wrongful ‍‌‌​‌‌​​​​​​​​​​​‌‌​​​​​​​​‌​​‌​‌‌‌​​‌​​‌‌‌‌​​​​​‍Discharge Am.Jur.2d permissible.” his su- conduct was generally (explaining that “the courts pra, at 793. employ- categories protected protect three prior This is not a case in which the state (1) statutory right exercising a ee conduct: provide of law so as to the was clear Guest (2) refusing engage in obligation; or civil with reasonable assurance that Services (3) illegal activity; reporting criminal [and] Washington discharge give of Ms. not would agencies”). supervisors or outside conduct to liability. rise to As a of the en banc II, recognized in 702 A.2d court Carl was not insulated The District of Columbia years before In two from this trend. appeal, this giving rise to the events not in could not and did hold Adams [w]e “public policy agreed consider court had recognized by court exception that [the banc, subsequent- had exception” case en but only public policy case] in that was the Gray, supra the venture. See ly aborted sim- exception, that was because reasonably therefore fore- note 10. It was presented. ply not opinion Gray are discussed Carl two the division en 10. Prior our banc decision infra page 1077-78. position that of divisions this court had taken exception represented sole Adams respect, differs from 11. In this jurisdiction employment at-will doctrine. to the self-help a non- right use to evict Mendes. Wash., Gray A.2d Bank See Citizens exist; not or does paying tenant either exists vacated, (D.C.), opinion id. at Mendes, prior ground. middle there is no banc, rehearing en denial on reinstated retained. either had overruled doctrine (D.C.1992); Greenpeace, Thigpen v. area, exception” “public policy In the 1995). (D.C. Inc., Thigpen But hand, employees protection has ad- other dis stages, course after Ms. so that the was decided incremental vanced in and more not re somewhat fluid charged, could have has been and Guest Services law predict. difficult to problems inherent relianсe it. The lied on seeable that en might banc court impair. application look at take care not to again.12 the issue Finally, appeal deprive to this will not Court’s decisions in Harper, Beam and con- any legally cognizable Services of vested conjunction sidered in with Mendes and the right. virtually holdings unanimous of the courts of (3) plaintiffs Rewards who seek to jurisdictions other wrongful termination change the law. cases, II.E, infra, see Part arguably gave employers warning any expansion fair that bring of Ms. did not this action policy exception change which this to effect a the law. On the con- might elect maintained, to undertake could trary, well receive her counsel has erroneous- application. ly view, in our prevail she is entitled to under the in effect our decision summarize, To Guest Services has demon- II. Mendes’ “reward” factor does actually strated neither that relied on weigh favor of retroactive that, had, law nor if it hypothetical such Washington. II to Ms. reliance would have been reasonable. In our view, therefore, the first Mendes factor tilts burdening Fear the administration in Ms. favor. justice changes with retroactive in the law. (2)Avoidance altering vested contract In connection with the fourth fac- Mendes property rights. tor, Guest Services asserts full “[a] ret- conjunction factor, “In with the reliance change open roactive floodgates courts weigh probable also effect of a law litigation wrongful discharge.” based on We change property on the vested or contract persuasive. do not find this contention rights parties.” supra, 389 “floodgates” If going A.2d at 790. Guest Services has cited no area, wrongful surely termination this would authority, none, and we know of happened have as a result of the Carl II proposition that it had a “vested” itself, ruling and not on account of a discharge Washington.13 As we have applying retroactively Carl II to the limited demonstrated in our discussion of Mendes’ potential litigants number of whose claims prong,” “reliance Guest Services’ assertion three-year are not barred statute of dismissal of Ms. 12-301(7)-(8) §§ limitations. See D.C.Code by readily lawful was cast in doubt discerna- (1995). uncertainty ble as to the future course of a developing area of the law. event, litigation argu “the flood nothing ment is more that an unarticulated subjective

Guest Services have had a mythological fear of the Pandora’s box....” expectation that no further Note, Protecting Employees Against At-Will applicable at-will doctrine wоuld become Wrongful Discharge: Duty to Termi expecta- Guest Services’ conduct. Such Faith, Only plausi- tion even a nate in Good 93 Haev.L.Rev. have stemmed from (1980) 1816, n. predictive (quoting Geary ble of 1842 146 assessment how the law 171, develop Corp., would the District of Columbia. United States Steel 456 Pa. 319 however, 174, (Roberts, J., Plausibility enough, is not to Create A.2d dissenti ng)).14 emphatically the kind of vested that a court should Our en bane court re- 10, Mendes, Gray, supra pointed applica note 602 A.2d at 1099 court out in Cf. J., (Schwelb, (“Our concurring) progressive capi- Kelly Adjustment tion in new of the rule there behind”). ought adopted tal not to be left "would have rendered unenforceable a Mendes, judgments.” mass of final 389 A.2d at case, present appeal 792 n. 25. In the the Kelly Adjustment Boyd, In Co. v. 342 A.2d decided, pending still at the time Carl II was (D.C. 1975), authority by 362-63 sole cited Kelly Adjustment applica (other II), the rationale of has no Guest Services on this issue than Carl tion. this court held that its earlier decision invalidat process-serving practices certain of collection agencies retroactively applied Geary, would not be 14. In also stated that an judgment, "thorny cases which had been reduced to re increased case load and the inevitable gardless they appeal. problems proof justi- of whether were on As the of ... do not in themselves law); Corp., supra, 823 Marietta jeeted an Martin identical contention Williams (D.C.1990) (en Colorado); Baker, 1062, 1067-68 (Supreme Court P.2d at 110-14 banc). many years Newman, Cal.Rptr. said it well 772 P.2d Dean Prosser California); ago: (Supreme 1062-72 Court at Int’l, Inc., remedy 776 P.2d It is the business the law McGehee v. Florafax it, (Okl.1989) wrongs ex- of Okla (Supreme that deserve even Court 853-54 a pense litigation”; homa); Corp., of a and it is “flоod v. Chase Instruments Barnes (Tenn. incompetence pitiful confession 1986 Term. Lexis 1986WL justice deny part of court of relief Tomlin App.1986); but Bimbo v. Burdette cf. ground give the that it will courts F.Supp. 1039-40 Hosp., 644 Mem. too much work to do. (D.N.J.1986). de Most of these cases were Prosser, Harper, but Intentional Mental cided before Beam Infliction of Tort, Suffering: A ap New 37 Mich.L.Rev. held that retroactive courts nevertheless Page Keeton, (1989);15 also see W. appropriate under the plication was Prosser § Torts, at 56 jurisprudence, as reflected and Keeton on the Law of Court’s (5th ed.1984) elaborating (paraphrasing and Linkletter, supra, and Chevron Oil Co. v. discussion). on Prosser’s earlier Huson, 30 L.Ed.2d (1971). agree following gave with the We also consider issue, compa analysis but question ap on different ation whether retroactive facts, plication requirе of Okla of its decision would rable relitigation already of cases decided under homa: Nothing law. 389 n. 25. hardship and undue would be Unfairness opinion, contemplates ap discharged employees imposed upon plication of the new Carl II standard Burk merely prospective application judgment which have come final Appellant deprived be decision.16 appeals which all have been exhausted. direct employer’s for his an actionable tort claim See, e.g., & Dowell v. State Farm Fire Cas. expression of a clear alleged violation (4th Cir.1993) Co., Ins. F.2d

Auto. perjury statute. public policy found in (after exhausted, final appeals have been contrast, [Statutory omitted.] citation judgment reopened not be on basis of will inequity no will from the retroactive result law). change in decisional Thеre is no evi Employers application Burk. accused of appeals dence that substantial number of public policy violating expressions of clear pending potentially present now justifiably relied on said to have cannot be whether Carl is to be retroactive doctrine. employment-at-will ly, category and the handful of cases significantly courts. action sub- appellees would not burden our Nor will forced, at stantially by being harmed jurisdictions. E. Decisions in other trial, appel- new evidence that by poor discharge motivated lant’s dispositive no District of Although there is his re- employee performance rather than juris- precedent, case law in other sign false claims affidavits. fusal to small overwhelmingly supports our conclu- dictions “good-faith reliance” on Appellees’ claim expanding recognizing sion decisions cannot employment-at-will doctrine exception at-will doc- public policy to the See, fixing for an justify alleged tortious retroactively applied. trine should Cos., commit a crime. No employee’s refusal to F.2d e.g., & Bernstein Aetna Life requir- from (9th Cir.1988) injustice” result “manifest will (applying Arizona 363-64 Inc., n. 12 461 S.E.2d legal plaintiff 194 W.Va. fy denying a forum to (1995). justiciable at 179. claim.” 319 A.2d quoted and been assessment has 15. Prosser’s (Okl.1989) Corp., 770 P.2d v. K-Mart 16. Burk adopted ‍‌‌​‌‌​​​​​​​​​​​‌‌​​​​​​​​‌​​‌​‌‌‌​​‌​​‌‌‌‌​​​​​‍by on numerous occasions. the courts (articulating public policy a limited See, Brodsky, e.g., 436 Pa. Niederman doctrine). employment the at-will Tannery. (1970); Rite Aid of W.Va., ing appellees against appellant’s policy doctrine, defend exception to the at-will claim. that it was therefore actionable. A McGehee, supra, 776 P.2d at 854. conclude that the Carl II decision should be and the authorities in other After considering all of the Mendes factors ^[*] to Ms. * * ^{[*] [*]} in this case. jurisdictions, ^[*] public ring). anchored” could be complaint of the en banc court held that Ms. Carl’s A.2d at 163-64 & n. 6 policy “solidly granted in, stated a Section because it fell within a claim 1-224. based” (Terry, Carl on, which relief J., or concur- “firmly supra, disposition Our Carl mandates rever- III. sal of the summary judgment present in the case. The regulations health and food which THE APPLICATION OF CARL TO we have cited footnote are ex- THE PRESENT RECORD pressions public policy proscribing, of a clear We now turn to the whether the health, public in the prepara- interest of granting order summary judgment in favor tion, service or sale of adulterated or contam- of Guest can Services continue to stand if we inated imperils food. Conduct en subsequent banc court’s safety elderly health and of the residents of a in Carl II. We cоnclude that it cannot. home, who, retirement group, partic- as a are alleged Linda complaint ularly her practice vulnerable the kind of here Hospital Children’s discharged alleged, had her obviously contrary public from position alia, because, her as a policy jurisdiction, nurse inter of this and Guest Services she had testified before the Council of the seriously-argued contrary. has not opposition District of Columbia in to tort oath, alleged, has under legislation. reform The trial court dismissed that she attempting for complaint ground her allega- that her (and, persuade her ultimately, fellow worker bring tions were insufficient to her case with- employer) officially her violate public what was then the sole declared public policy protesting declared and for an policy exception doctrine, to the at-will as alleged practice. unsafe and unlawful To articulated Adams. A division permit employee to be fired for sueh Hosp., affirmed. Carl v. Children’s purposes actions would undermine the (Carl I). (D.C.1995) A.2d 286 The full court regulations food and health and would frus granted petition rehearing Carl’s en public policy regula trate the of which these banc. expression. tions are an If a cook who at support wrongful of her claim tempts prevent termi- the contamination of the nation, placed principal Ms. Carl her preparing job reliance food that she is can lose her (1992). “insubordination,” § 1-224 1-224 similarly D.C.Code Section then situated “corruptly employees makes it a criminal likely offense or are to be coerced into si force, lence, by any threatening threat of safety or letter and the of the food will be communication, case, compromised. Indeed, [to] to influ- endeavorf] ence, impede any intervention, supervisor’s intimidate or witness in if it occurred . claims, any proceeding pending before the Coun- Ms had the immediate allege cil-” potential consequence permitting Tyrica Ms. Carl did not that Chil- Hospital spray dren’s had threatened her had Martin to continue to the residents’ proscriptions poisonous § otherwise 1- cleaning violated food with a fluid.17 The relationship nor did she claim that the statute creat- between Ms. dis Rather, private right charge applicable public policy ed a of action. and the testify- argued palpable that her termination for thus closer in time more than in II. before Council contravened not, fact, pre- allegedly sprayed 17. We cannot foresee what еvidence will be was tainted or that trial, date sented at but Guest has to was removed from the meals to be served to Services Friendship made no claim that the food which Ms. Martin residents of Terrace. ordinarily be, course, judicial Washing spectively while decisions that Ms. It retroactively. States v. United allegations trial. are ton’s will not be sustained at Bank, Security Indus. 459 U.S. summary On Guest motion for Services’ (1982). Here, 74 L.Ed.2d 235 S.Ct. judgment, we view the record to Carl majority give retroactive effect would light Washington, most favorable Ms. court, wearing its banc II —where en affidavit and we must treat her sworn hat, rule of law estab legislative enacted a See, testimony e.g., deposition true. Graff obli lishing rights and new substantive Malawer, (D.C.1991).18 v. 592 A.2d if it a public large gations for the If the occurred as —as events judicial ruling a more with garden-variety alleged, impartial has fact then trier of Sеe, e.g., v. applicability. Nimetz narrow Washing reasonably could conclude that Ms. (D.C.1991) (dealing Cappadona, 596 A.2d 603 protected ton for conduct was requir of new rule retroactive effect a with exception public policy employment a in a ing party request special a verdict doctrine, and her at-will termination preserve certain issues civil case in order to wrongful. therefore appeal). flies face of Mendes This (en (D.C.1978) Johnson, A.2d 781 v. IV. banc), leading case in the District of application of on the retroactive CONCLUSION creating holdings this new causes of court reasons, judgment of foregoing For the heavily on we relied action. re- the trial court is reversed. The ease is Railway Sunburst Oil Co. v. Great Northern proceedings manded for further consistent Co., Refining 287 U.S. S.Ct. & opinion. with this (1932) (“Sunburst”), in which the L.Ed. 360 general the three Suрreme Court articulated So ordered. application approaches to retroactive (total retroactivity, partial of law new rule KING, Retired, Judge, Associate applica retroactivity, purely prospective dissenting: tion), deciding test for and the four-factor I disagree majority’s (extent adopt approaches which of these give this retroactive court’s rule, alteration of vested reliance on the old Hosp., 702 A.2d decision Carl v. Children’s rights, property reward for initi contract or banc) (“Carl II”). (D.C.1997) (en Be ating just changes in the and burden on Washington’s fir the circumstances of cause by the courts from decisions disturbed not entitle her to relief under did rule). Mendes, supra, new v. narrow established Adams were fur principles The set out Sunburst (D.C. Co., George W. Cochran & in Chev ther refined 1991), discharge her came threе because Huson, 97, 92 S.Ct. v. 404 U.S. ron Oil Co. decided, be years II was before Carl (1971) (“Chevron"). 30 L.Ed.2d juris of this long-standing caselaw cause analysis, Under a Sunburst/Chevron/Mendes applica would not allow ‍‌‌​‌‌​​​​​​​​​​​‌‌​​​​​​​​‌​​‌​‌‌‌​​‌​​‌‌‌‌​​​​​‍retroactive diction flexible, case-by-case ap takes case, I tion II to of Carl proach to judgment summary grant affirm the court-made rule law. application of new Services, Therefore, I Inc. favor of majority principally relies James dissent. Georgia, Distilling B. Beam Co. 2439, 115 L.Ed.2d 481 correctly general states the S.Ct. Taxation, Virginia Dep’t Harper operate pro- legislative enactments rule that her, ap- no she had time opinion suggest Nothing most favorable is intended countermand, supervisor to him to intervene. proach ask her employees have the with, already being when contaminated noncompliance The food promote those orders Martin, directly and the spoke to Ms. they disagree. she superiors with which their to have been case, however, she claims policy under which asserted acting there had been emergency could be vindicated situation. with an that she was faced delay. light further Viewing Washington’s account 1082 86, 2510, court, only by Beam/Harper

509 U.S. 113 125 L.Ed.2d 74 the en not S.Ct. banc (1993) (“Beam/Harper”), Supreme by the the court. I unpersuaded where a division of am Court created a new rule of automatic retro majority’s suggestion may the that M.AP. application active in all still cases apply philosophical not here because the ba Harper, supra, i.e., Mendes, review. 509 direct U.S. at prior ruling, sis for the has been 97, 113 S.Ct. 2510. In those substantially each of by subsequent undermined Su addressing the Court was the retro- preme decisions. v. Court See Frendak activity prior rulings interpret States, (D.C. of one of its 364, 408 United A.2d 379 n. 27 1979). federal constitutional above, law. Court I have the As observed emphasized, rule set forth the principally upon Mendes court relied the Beam/Harper binding cases, was not state recog which we have Sunburst line and that ... courts “state courts limit opinions post-dating nized as authoritative the retroactive own inter Moreover, their Beam.2 we have 100, pretations of state law....” Id. at 113 on at four since Mendes rule least occasions 2510.1 S.Ct. Beam/Harper, Beam decided.3 In rejected analysis of Sun Court Harper purports ap- Neither Beam nor retroactivity determinations burst/Chevron ply Therefore, I circumstances here. rulings, for federal constitutional but obligated am satisfied that this not division is formally cases. Court did not overrule those the Beam/Harper to follow retro- automatic suggest principles that the Nor did the activity rule in cases involving non-federal were unsound underlying Sunburst/Chevron District, particularly through where the retroactivity anal purposes state court courts, has its created new common law Therefore, we ysis. I am satisfied that re as an rights exercise of as a powers by holding main in Mendes. bound creating rights, When “state.” such as we did we should be free to deter- majority’s Finally, disagree I also with degree, any, mine of the retroactive First, application of the Mendes factors. Surely, application of the new rule. we are exclusively, parties in this case relied both best able to determine a new rule the effect justifiably, on the rule established parties have appearing be- application of Adams.4 Retroactive court, weighing fore the factors consid- expecta- the reliance and would undermine short, flexible, ered Mendes. the more French, parties. supra note tions of the See case-by-case analysis of Sunburst/Chevron 3, rule (holding 658 at 1031-32 that new A.2d appropriate than purposes more for these applied purely prospectively, primarily be- retroactivity Beam/Harper. automatic rule of factor). Second, cause of reliance because concerning right previous disagree majority’s I also with the intima employee was employer fire an at-will holding Ryan, v. tion that our in M.A.P. 285 310, (D.C.1971), generally clear-cut and understood A.2d 312 not necessari does Agency require workplace, see Nickens v. Labor ly apply it to laid down in rule (D.C.1991), Washington, my can 600 A.2d 813 Mendes. view the Mendes rule be Metro. holding application of II would have replaced non-binding courts, appellate 1. As other state this court 3. See Chase v. Columbia Alcoholic District of (D.C. holdings Bd., always follow the the Su- does 1270 669 A.2d Beverage Control example, apply preme Court. do not Breeden, 1995); For we 665 Woodner Co. v. Jonathan principles. Murphy federal mootness Compare (D.C. 1995); n. 6 A.2d French v. District Hunt, 71 L.Ed.2d A.2d Adjustment, Zoning Bd. (1982), with McClain v. United States, (D.C.1995); Sanders, Sanders v. (D.C.1992). A.2d (D.C.1992). See, e.g., Robinson v. Internal Med. Indeed, Washington argue rule did not that the 1994) (D.C. Assocs., (opinion 647 A.2d in her until J.); of Carl II should King, Virginia First Sav. Bank Bar ordered, submitted, Bank, S.A., (D.C. the case was after n. 19 clays 1992); parties the issue. brief Simpson v. District Columbia Office of (D.C.1991); Rights, Ni Human metz, supra, 596 A.2d at 608. significant effect vested contract Third, rights. property Washington did not law,” just changes in

seek to “initiate

Mendes, supra, 789; A.2d at that was the Carl,

course taken Carl’s efforts were by applying rule in her

rewarded the new expect bur Finally,

case. we would that the

den on our courts would increase were effect, given outcome retroactive seemingly resolved cases thrown into still-pending delayed pleadings, expanded discovery, and

amended sum, being

new or motions filed. revised

each of the factors the Sun burst/Chev retroactivity analysis operates

ron/Mendes

against giving effect to Therefore,

except for I would Carl herself. ‍‌‌​‌‌​​​​​​​​​​​‌‌​​​​​​​​‌​​‌​‌‌‌​​‌​​‌‌‌‌​​​​​‍rule forth II to the set

facts case.

Troy JAMES, Appellant, P. STATES, Appellee.

UNITED 94-CF-1555,

Nos. 96-CO-1792. Appeals.

District of Columbia Court of

Argued Feb. 8,Oct.

Decided

Case Details

Case Name: Washington v. Guest Services, Inc.

Court Name: District of Columbia Court of Appeals

Date Published: Sep 17, 1998

Citation: 718 A.2d 1071

Docket Number: 96-CV-997

Court Abbreviation: D.C.