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                                                                                 FILED
                                                                              SEPT. 25,2014
                                                                      In the Office of the Clerk of Court
1                                                                    WA State Court of Appeals, Division III
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                IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


     CHARLES ROSE, 	
                                   DIVISION THREE

                                                    )         No. 30545-7-111
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l	                        Appellant,                )
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                                                    )
     ANDERSON HAY AND GRAIN                         )         PUBLISHED OPINION
     COMPANY,                                       )
                                                    )
                          Respondent.               )

            BROWN, A.C.J. - Charles Rose sued his former employer, Anderson Hay and

     Grain Company (AHG), in Kittitas County Superior Court for his alleged wrongful

     discharge in violation of public policy after a similar suit was dismissed in federal court

     because he had failed to timely exhaust his federal administrative remedies. The state

     court dismissed his action, reasoning his federal administrative remedies would have

     been adequate to vindicate the public policy had he timely filed his administrative

     complaint. Mr. Rose appealed and this court affirmed. Our Supreme Court remanded

     the matter back to this court for reconsideration in light of that court's recent opinion in

     Piel v. City of Federal Way, 177 Wn.2d 604,306 P.3d 879 (2013). See Rose v.

     Anderson Hay and Grain Co., 180 Wn.2d 1001,327 P.3d 613 (2014). On

     reconsideration, we again affirm the trial court.
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      No. 30545-7-111
      Rose v. Anderson Hay & Grain Co.
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                                                 FACTS

             Mr. Rose worked as a commercial truck driver for AHG from March 2006 through
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      November 2009. He alleges AHG terminated him for refusing to complete his shift,



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      which he claims would have forced him to exceed the maximum allowed hours-of­

      service under federal regulations and would have further required him to violate federal

      regulations by falsifying time sheets.

             On March 3, 2010, Mr. Rose sued in federal court, arguing his termination from

      AHG violated the Commercial Motor Vehicle Safety Act (CMVSA) (49 U.S.C. ch. 311).

      AHG requested dismissal based on 49 U.S.C. § 31105(b), which provides that the

      Secretary of Labor (secretary) has exclusive jurisdiction over initial complaints under the

      CMVSA. On August 6,2010, the federal court dismissed Mr. Rose's complaint based

      on lack of jurisdiction. The dismissal came three months after the expiration of the time

      limit for filing for administrative relief. Mr. Rose did not pursue a federal appeal.

             In September 2010, Mr. Rose sued in state court alleging wrongful termination in

      violation of public policy arising from alleged violations of 49 U.S.C. § 31105. Based

      partly on Korslund v. DynCorp Tri-Cities Services, 156 Wn.2d 168, 183, 125 P.3d 119

      (2005), AHG requested summary judgment dismissal of Mr. Rose's claim, arguing he

      failed to satisfy the jeopardy element necessary to maintain a public policy claim. AHG

      further argued the CMVSA provides comprehensive remedies that serve to protect the

      specific public policy identified by Mr. Rose and even included punitive damages. Thus,




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an adequate alternative means of promoting the public policy existed, which, as a

matter of law, foreclosed Mr. Rose's public policy cause of action.

       The trial court agreed and on April 18, 2011, the court granted AHG's motion for

summary judgment and entered judgment dismissing Mr. Rose's complaint. The trial

court partly reasoned that had Mr. Rose timely pursued his federal administrative

remedies, they would have been adequate to vindicate the public policy, and concluded:

"The remedies available under 49 U.S.C. § 31105{b) are adequate to protect public

policy on which Mr. Rose relies as a matter of law." Clerk's Papers (CP) at 116. This

court affirmed, holding "the trial court correctly dismissed Mr. Rose's claim of wrongful

termination in violation of public policy in light of federal statutes protecting truck drivers

who refuse to violate safety regulations." Rose v. Anderson Hay & Grain Co., 168 Wn.

App. 474, 478, 276 P.3d 382 (2012), remanded, 180Wn.2d 1001,327 P.3d 613 (2014).

The Supreme Court remanded the matter to this court for reconsideration in light of Piel.

                                         ANALYSIS

       The issue is whether the trial court erred in summarily dismissing Mr. Rose's

wrongful termination in violation of public policy action. He contends he presented a

viable tort claim for wrongful termination in violation of public policy because the

administrative remedies are inadequate.

       We review summary judgment orders de novo, performing the same inquiry as

the superior court. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853,860,93 P.3d

108 (2004). The superior court properly grants summary judgment when no genuine



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issue of material fact remains and the moving party is entitled to judgment as a matter

of law. Morin v. Harrell, 161 Wn.2d 226, 230, 164 P.3d 495 (2007) (citing CR 56(c)).

       In a summary judgment motion, the burden is on the moving party to

demonstrate that summary judgment is proper. Atherton Condo. Apartment-Owners

Assoc. Bd. of Dirs. v. Blume Dev. Co., 115Wn.2d 506, 516, 799 P.2d 250 (1990). We

consider all the facts submitted and the reasonable inferences from them in the light

most favorable to the nonmoving party. Id. And we resolve any doubts about the

existence of a genuine issue of material fact against the party moving for summary

judgment. Id. "Summary judgment is appropriate only if, from all the evidence,

reasonable persons could reach but one conclusion." Lilly v. Lynch, 88 Wn. App. 306,

312,945 P.2d 727 (1997).

       To establish a common law claim of wrongful discharge in violation of public

policy, the plaintiff must prove there exists a clear public policy (clarity element),

discouraging the conduct in which the employee engaged would jeopardize the public

policy ueopardy element), and the policy-linked conduct caused the dismissal

(causation element). Korslund, 156 Wn.2d at 178. At issue here is the jeopardy

element. In order to establish the jeopardy element, the plaintiff must show that other

means of promoting the public policy are inadequate. Cudney v. ALSCO, Inc., 172

Wn.2d 524,530,259 P.3d 244 (2011). Protecting the public is the policy that must be

promoted, not protecting the employee's individual interests. Id. at 538. In other words,




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    Rose v. Anderson Hay & Grain Co. 



    the test of whether a tort claim for wrongful termination in violation of public policy is

    viable is if means, other than a civil lawsuit, are inadequate to promote the public policy.

           The federal CMVSA prohibits an employer from discharging an employee who

    refuses to operate a vehicle in violation of federal regulations or standards related to

    commercial vehicle safety. 49 U.S.C. § 31105(a)(1)(8). An employee alleging

    discharge in violation of this statute can file a complaint with the secretary no later than

    180 days after the alleged violation occurred. 49 U.S.C. § 31105(b)(1). If the secretary

    determines that an employer violated the statute, the secretary can take affirmative

    action to abate the violation, reinstate the employee to the former position with the same

    pay and terms, and require the employer to pay compensatory damages, including back

    pay with interest and compensation for special damages sustained by the wrongful

    termination, including litigation costs, expert witness fees, and reasonable attorney fees.

    49 U.S.C. § 31105(b)(3)(A). 8y its terms nothing in the statute preempts or diminishes

    any other safeguards against discrimination, demotion, discharge, suspension, threats,

    harassment, reprimand, retaliation, or any other manner of discrimination provided by

    federal or state law. 49 U.S.C. § 311 05{f). The Supreme Court cases of KorsJund,

    Cudney, and PieJ are instructive.

           The plaintiffs in KorsJund claimed they were wrongfully terminated for reporting

    safety violations, mismanagement, and fraud at the Hanford Nuclear Reservation. The

    court held that because the federal Energy Reorganization Act (ERA), provided an

    administrative process for adjudicating whistleblower claims and provided for



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    Rose v. Anderson Hay & Grain Co. 



    reinstatement, back pay, and other compensatory damages, an adequate remedy

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    existed that protected the public interest. Korslund, 156 Wn.2d at 182-83.

           In Cudney, the plaintiff claimed he was discharged after reporting that his


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    supervisor was drinking on the job and had driven a company vehicle while intoxicated.

    The court held the Washington Industrial Safety and Health Act (WISHA) provided a

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    sufficient administrative remedy, and that state laws on driving while intoxicated also

    adequately protected the public. Cudney, 172 Wn.2d at 527.

           But, in Piel, the court held the administrative remedies available through the

    Public Employment Relations Commission (PERC) under chapter 41.56 RCW were

    inadequate, on their own, to fully vindicate public policy when a public employer

    discharges a public employee for asserting collective bargaining rights.

           Unlike Korslund and Cudney, Piel involved a prior case holding PERC remedies

    failed to fully address the broader public interests involved because it protected

    personal contractual rights solely. 177 Wn.2d at 616-17 (quoting Smith v. Bates

    Technical Coli., 139 Wn.2d 793,805,809,991 P.2d 1135 (2000». And unlike Korslund

    and Cudney, Piel involved a statute declaring PERC remedies supplement others and

    must be liberally construed to accomplish their purpose. Id. at 617 (quoting RCW

    41.56.905). In those circumstances, the Piel court recognized a private common law

    tort remedy as necessary to fully vindicate public policy. Id. The Piel decision analyzed

    a single issue, "[a]re the remedies available to a public employee under chapter 41.56

    RCW adequate as a matter of law, such that the employee may not assert a tort claim



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for wrongful discharge in violation of public policy?" 177 Wn.2d at 609. The Piel court

found that the "limited statutory remedies under chapter 41.56 RCW do not foreclose

more complete tort remedies for wrongful discharge." Id. at 616.

       The Piel court specifically reasoned its decision "does not require retreat from

[Korslund or Cudney]." 177 Wn.2d at 616. The Piel court noted that the administrative

schemes at issue in Korslund and Cudney were not previously found to be inadequate

to protect public policy and, unlike PERC, did not include a provision stating that the

'''provisions of this chapter are intended to be additional to other remedies and shall be

liberally construed.'" Id. at 617 (quoting RCW 41.56.905). The Piel court recognized

that Korslund found the ERA to have "comprehensive remedies," including back pay,

compensatory damages, and attorney and expert witness fees. Id. at 613 (citing

Korslund, 156 Wn.2d at 182). The ERA also contains a provision, similar to the

CMVSA, that the ERA was not intended to affect "any right otherwise available to an

employee under Federal or State law"; there is no similar safeguard for common law

claims. 42 U.S.C. § 5851(h). Pie/further recognized that Cudney found the remedies

available under WISHA to be "more comprehensive than the ERA and . .. more than

adequate." Id. (citing Cudney, 172 Wn.2d at 533). Accordingly, if a statutory scheme

has language and remedies analogous to those at issue in Korslund or Cudney, the

scheme is distinguished from Piel and has comprehensive remedies to protect the

public interest.




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       In contrast, this court recently affirmed a trial court's denial of a defendant's

request to dismiss a wrongful termination in violation of public policy claim, finding the

plaintiffs case was '''the most compelling case for protection' under a public policy tort"

because Mr. Becker would be personally responsible if he committed the crime that his

employer requested. Becker v. Comty. Health Systems, Inc., 2014 WL 3973083 at *9

(quoting Janie F. Schulman & Nancy M. Modesitt, WHISTLEBLOWING: THE LAw OF

RETALIATORY DISCHARGE ch. 5.11.A.1, at 101 (2d ed. 2004). There, the employer ordered

its chief financial officer, Gregg Becker, to submit false information to the U.S. Securities

and Exchange Commission of a $4 million operating loss in 2012 while Mr. Becker

projected a $12 million operating loss. Becker, 2014 WL 3973083 at *1. He resigned.

Id. This court held that the jeopardy element of Mr. Becker's wrongful discharge claim

was satisfied because there was no other means for promoting the public policy of

honesty in corporate financial reporting. Id. at *10.

       Here, the CMVSA "undisputedly" protects the public interest of "highway safety."

Int'I Bhd. of Teamsters v. Pena, 17 F.3d 1478, 1483 (D.C. 1994). The CMVSA further

prohibits an employer from discharging an employee who refuses to operate a vehicle in

violation of federal regulations or standards related to commercial vehicle safety.

Further, if it is determined an employer violated the statute, the Secretary of Labor can

take affirmative action to abate the violation, reinstate the employee to the former

position with the same pay and terms, and require the employer to pay compensatory

damages, including back pay with interest and compensation for special damages



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j       sustained by the wrongful termination, including litigation costs, expert witness fees, and

        reasonable attorney fees. 49 U.S.C. § 311 05{b){3)(A). By its terms, nothing in the

        statute preempts or diminishes any other safeguards against discrimination, demotion,

        discharge, suspension, threats, harassment, reprimand, retaliation, or any other manner
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l       of discrimination provided by federal or state law. 49 U.S.C. § 31105{f).

               Similar to the statute at issue in Korslund, the remedies that could have been

        available here under the CMVSA include reinstatement, compensatory damages, back

        pay with interest, litigation costs, witness fees, and attorney fees. 49 U.S.C. §

        31105(b)(3){A). The CMVSA provides for punitive damages, making its remedies more

        comprehensive than the ERA. 49 U.S.C. § 31105(b)(3){C); see Cudney, 172 Wn.2d at

        532 (WISHA remedies more comprehensive than the "guidepost" remedies of ERA and,

        therefore, more than adequately protect the public policy of protection of workers who

        report safety violations). Accordingly, the remedies available under the CMVSA more

        than adequately protect the public interest in commercial motor vehicle safety. Without

        satisfying the jeopardy element, the trial court correctly dismissed Mr. Rose's claim of

        wrongful termination in violation of public policy.




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       Affirmed.




                                            Brown, A.C.J.

WE CONCUR:




                                            Lawrence-Berrey, J.




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