Law Life: Washington Supreme Court rules worker fired for reporting boss's drunkenness can't sue

By Pat Murphy

The Daily Record Newswire

You'd think that keeping drunk drivers off the road would be a public policy that a state court would recognize as triggering an at-will employee's right to sue.

Earlier this month, however, the Washington Supreme Court decided that drunk driving was adequately addressed by other state laws, so an employee who claims that he was fired for turning his boss in for problem drinking cannot pursue a wrongful discharge claim.

That decision came in a lawsuit brought by Matthew Cudney against ALSCO, Inc., a worldwide commercial textile company. In April 2004, ALSCO hired Cudney to be the service manager of its Spokane branch.

While working at ALSCO, Cudney claims that he made numerous complaints to his supervisor about the alcohol use of John Bartich, the Spokane branch's general manager.

According to Cudney, on June 10, 2008, Bartich showed up for work in an intoxicated state. Cudney claims that he saw Bartich drive away in a company vehicle while apparently under the influence.

Cudney reported his observations to the assistant general manager and to the company's human resources manager. Two months later, on August 5, 2008, ALSCO terminated Cudney.

Cudney sued ALSCO for wrongful discharge. As an at-will employee, he needed to show that his firing contravened some public policy of the state. Cudney hitched his claim to the theory that he was terminated in retaliation for reporting his manager's alleged drunken driving.

Cudney filed his lawsuit in Washington state court, but ALSCO removed the case to federal court.

The issue that landed in the federal court's lap was whether Washington law recognized a public policy claim under the facts alleged by Cudney.

The federal court punted, certifying to the Washington Supreme Court the question of whether the state's drunk driving and workplace safety laws adequately protected the public, thereby precluding a separate claim for wrongful discharge in violation of public policy.

Earlier this month, the Washington Supreme Court decided that other state laws adequately promoted the public policies purportedly at issue in Cudney's lawsuit.

"[W]e do not find that the robust statutory remedies available in [the Washington Industrial Safety and Health Act] are inadequate to protect the underlying public policies of worker safety and protection of workers from retaliation for raising safety concerns," the court said.

Likewise, the court concluded that a common-law remedy was unnecessary with respect to a DUI report to an employment supervisor with no law enforcement capability.

"Under a strict adequacy analysis, Cudney simply cannot show that having law enforcement do its job and enforce DUI laws is an inadequate means of promoting the public policy. ...

"[W]e must remember that it is the public policy that must be promoted, not Cudney's individual interests. 'The other means of promoting the public policy need not be available to a particular individual so long as the other means are adequate to safeguard the public policy.' Cudney has not shown that the current DUI laws are an inadequate means of promoting the public policy, so his claim fails," the court said. (Cudney v. ALSCO)

With all due respect to the majority, Justice Debra L. Stephens got it right in her dissent.

"Both [the Washington Industrial Safety and Health Act] and Washington's DUI laws provide avenues to promote the important public policies they reflect. The statutory remedies, however, do not as a matter of law foreclose the possibility of a common law tort claim by a wrongfully terminated employee," Stephens wrote.

Published: Tue, Sep 13, 2011


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