        'U

      IN CLERKS OPPICE
8UPR9E COURT,amiE OF URSHM8T0N
                                                 This opinion was filed for record
    DATE SEP I 3 2018 i
^OAAhAAAM >                                    ati       Ama—    on          1X5218f
       CHieFJUSTice



                                                       SUSAN L; CARLSON
                                                     SUPREME COURT CLERK




             IN THE SUPREME COURT OF THE STATE OF WASHINGTON


 DAVID MARTIN,

                   Petitioner,                                No. 95269-8




 GONZAGA UNIVERSITY,
                                                     Filed     SEP 1 3 ?niB
                   Respondent,

         and


 CHRIS STANDIFORD,et ux..

                   Defendants.



         OWENS,J. — Gonzaga University discharged David Martin, the plaintiff in

 this case. Martin sued Gonzaga, alleging that he was wrongfully discharged

 because of his whistle-blowing, and asserting a private claim under RCW

 49.12.250 for an alleged violation ofthat statute's requirement that Gonzaga

 provide him with his complete personnel file. Gonzaga successfully moved for

 summary judgment on both claims. The Court of Appeals affirmed the dismissal
Martin v, Gonzaga University
No. 95269-8



of the wrongful discharge claim but remanded the personnel file claim for further

findings of fact.

       The main issue on appeal to this court is whether the Court of Appeals

applied the correct test to Martin's whistle-blower claim. We find that the Court of

Appeals applied the incorrect standard, one reserved for wrongful discharge claims

that do not fit into the four recognized categories of wrongful discharge claims,

rather than the standard used for wrongful discharge claims based on whistle-

blowing, one of the recognized categories of claims. However, we affirm the

Court of Appeals' ultimate holding that Gonzaga is entitled to summary judgment

on the wrongful termination claim. We further find that Martin's statutory claim

regarding his personnel file is not yet justiciable and thus reverse the Court of

Appeals' holding on that claim. The trial court correctly held that Gonzaga is

entitled to summary judgment on both claims.

                     PROCEDURAL AND FACTUAL HISTORY


       This action stems from Martin's employment at Gonzaga University's Rudolf

Fitness Center. Gonzaga University opened the Rudolf Fitness Center in 2003. The

fitness center is a part of the athletic department at the university. Until 2012, there

was no padding on the walls in the fitness center's basketball field house. The

university began discussing whether padding should be installed in 2004. In 2004,

Chris Standiford, senior associate athletics director, directed Jose Hernandez, assistant
Martin v. Gonzaga University
No. 95269-8



athletics director, to work with a risk manager in determining whether the pads were

necessary. The university declined to install the padding. In 2007, another study was

conducted, and Hernandez recommended to the administration that pads be installed.

Several students had been injured jfrom accidental impact with the bare concrete walls.

       Gonzaga University hired Martin in 2008 to work as an assistant director ofthe

fitness center. Martin was an at-will employee and was not subject to a written

contract for a definite term of employment. Martin received benefits, including a

tuition benefit, which he used to enroll in Gonzaga University's master's degree

program for sports administration. Martin was supervised by Hernandez, who

reported to assistant athletic director Joel Morgan, who reported to Standiford, who

reported to athletic director Mike Roth.

       Martin's April 2011 job evaluation rated him below average for interpersonal

skills, problem solving, professional development, and leadership responsibilities.

Hernandez deemed Martin's overall performance below the quality and standard that

Martin was capable of, noting that his "inconsistent performance kept him from

meeting the basic job requirements." Clerk's Papers(CP)at 128. The evaluation

went on to say that "[tjhroughout the academic year, at times [Martin] displayed great

work ethics and at other times he would not. This up and down behavior and conduct

was a surprise and is uncharacteristic of him." Id. After the evaluation, Hernandez

asked Martin how Hernandez could improve his own performance and how the fitness
Martin v. Gonzaga University
No. 95269-8



center eould improve. Martin proposed starting a new swimming program and

expressed dissatisfaction with the fitness center staffs lack ofteamwork and

resistance to change. He did not mention safety at the basketball courts. Hernandez

counseled Martin on his resistance to following protocol and improving his

communication with colleagues to be less abrasive and insensitive.

       As a part of his master's degree program, Martin Avrote a proposal to improve

the fitness center, which he alleges included a swimming program as a way to

generate funds for wall padding at the basketball court. There is no copy ofthe

proposal in the record, and no one other than Martin has testified to verify its eontents.

Martin gave the proposal to Hernandez and asked if he could submit it to Standiford,

who oversaw the budget. According to Martin, Hernandez granted him permission.

Hernandez denied that he gave Martin permission. On February 29, 2012, Martin sent

Standiford his proposal in an e-mail and requested a meeting to discuss it with him.

The e-mail was titled "Future Pool Proposal" and did not mention student safety

concerns resulting from the lack of protective padding in the basketball court. CP at

115. Standiford responded by explaining that "[i]t is more organizationally

appropriate for you to provide Jose [Hernandez] with the proposal for consideration.

If you have already done this, and Jose [Hernandez] supports the proposal, I would

suggest he meet with Joel[Morgan]for further consideration and deliberation." CP at

114. Martin replied.
Martin v. Gonzaga University
No. 95269-8



      In the politest possible way . .. according to our organizational layout in
      the Policies and Procedures Manual, pg. 6,there is no such line of
      communication or organization hierarchy established for the RFC
      [Rudolf Fitness Center] staff to follow. I have Jose's consent in this
      matter and I understand that you are an extremely busy individual, I
      wouldn't be asking for your time if I didn't plan on using it to the fullest.
      Imagine this as a "golden ticket" idea. Something that I don't want
      others corrupting or taking credit for. I would ask that you please meet
      with me and hear my thoughts on this matter. If it needs to wait until
      after you return, then so be it, but I have worked hard on this and would
      appreciate your audience, and your audience alone.

Id. The e-mail gave Standiford concern that Martin was trying to generate income for

himself in violation ofthe university's mission, and so he contacted Hernandez and

Morgan and asked them to contact human resources for advice on how to proceed.

      Hernandez scheduled a meeting with Martin and Morgan for the next day,

March 1, to express disappointment that Martin had disobeyed Standiford's direction

and to deliver a letter of expectations to Martin. After Hernandez informed Martin of

the meeting, Martin said,'"You cannot make me go.'" CP at 121. Hernandez told

him to attend; otherwise, his employment standing would worsen. At the meeting,

Martin argued with and interrupted Hernandez. Hernandez told Martin he would

receive a letter of expectations and his performance would be evaluated over the

following two weeks. Morgan told Martin to provide him with his proposal, and

Martin refused. Martin asked to leave the meeting and left. Id. Martin then found

another associate director ofthe fitness center. Shelly Radtke, and yelled at her that

she needed to give him permission to leave work. Martin persuaded Andrew Main, an
Martin v. Gonzaga University
No. 95269-8



assistant director, to cover his shift but did not ask permission from Hernandez to

leave work early. Main told Hernandez and Morgan that Martin told him,"Joel

[Morgan] is upset I went over his head and Jose [Hernandez] is a push over." CP at

216. Morgan and Heather Murray,from human resources, agreed that Martin should

be placed on administrative leave for his actions during and after the meeting. The

next day, March 2, Hernandez notified Martin of this decision and told him the terms

of his leave prohibited him from eontacting anyone at the university except human

resources staff and Hernandez.


       On March 5, Martin called the exeeutive assistant to the university's president

and requested a meeting with President Thayne McCulloh to present a proposal. The

executive assistant told Martin to follow the ehain of command within the athleties

department. The next day, Martin sent President McCulloh his proposal in an e-mail.

The e-mail does not mention safety concerns related to the lack of padding in the

basketball courts. On March 6, the president's executive assistant responded by e-

mail, reiterating that Martin must follow the chain of command to submit the

proposal. She then forwarded the e-mail exchange to Roth, who forwarded it to

Murray and Standiford. On March 7, a student sustained a concussion and needed

stitches after running into one ofthe bare concrete walls in the fitness center's

basketball court. On March 8, Gonzaga University terminated Martin's employment,

citing his failure to correct past performance issues identified in his April 2011
Martin v. Gonzaga University
No. 95269-8



performance review and insubordination. According to Martin, at the meeting

wherein he was fired, Standiford told him one reason for his termination was the

belief that Martin gave information about student injuries resulting from the lack of

padding to the Gonzaga University student newspaper. Martin had submitted an

ineomplete article from the student newspaper, which quotes Hernandez and Martin,

reporting on the laek of wall padding and student injuries. Standiford denied firing

Martin because of his complaints about the lack of padding on the basketball court

walls.


         On March 30, Martin sent a six-page letter to President McCulloh and athletics

director Roth. In the letter, he complained that during his employment, he saw "a lack

of responsiveness to safety issues at the Rudolf Fitness Center." CP at 102. He

claimed that insubordination was a pretext for his termination and that he was really

terminated for expressing concern about the university's failure to respond to safety

issues at the fitness center. He claimed that Morgan wrongfully accused him of

leaking information to the Gonzaga Bulletin. He wrote of several safety concerns,

though none involved the center's basketball courts. Later in 2012, Gonzaga

University installed padding on the walls in the basketball court. In the years leading

up to the padding installation, other university employees within the athletic

department had advoeated to install the wall padding and were not terminated for

doing so.


                                            7
Martin v. Gonzaga University
No. 95269-8



       After Martin's termination, Gonzaga University provided him with a copy of

his personnel file. Martin acknowledged receipt of his personnel file, which included

11 documents, and asked if there were any additional documents in his personnel file

that he should be aware of. There is no response in the record. Gonzaga University

has explained that it maintains two types of files on employees: a personnel file and

an employee relations file.

       Martin brought a common law claim for wrongful discharge against Gonzaga

University, alleging that the university terminated his employment in violation of

public policy for raising concerns about the lack of wall padding for the basketball

court. He also brought a statutory claim under ROW 49.12.250, alleging that the

university did not provide him with his complete personnel file after his termination.

The trial court granted summary judgment to Gonzaga University and dismissed both

claims. Martin appealed, and the Court of Appeals, in a split opinion, affirmed the

trial court's summary judgment dismissal ofthe wrongful termination claim, vacated

the dismissal ofthe personnel file claim, and remanded for further proceedings.

Martin v. Gonzaga Univ., 200 Wn. App. 332, 375, 402 P.3d 294(2017). Judge

Pennell concurred in affirming the dismissal ofthe wrongful termination claim but

stated that the ground for summary judgment was causation. Id. at 375-77. Judge

Korsmo dissented with the reversal on the personnel file claim because he believed
Martin v. Gonzaga University
No. 95269-8



that the claim was notjusticiable as Martin had no cause of action from the statutes

and had not pursued administrative relief. Id. at 377-79.

       Martin petitioned for review on three issues:(1)the Court of Appeals

incorrectly applied the Perritt test to Martin's whistle-blower wrongful discharge

claim,(2)assuming the Perritt test does apply, the court misapplied the overriding

justification element, and(3)the Court of Appeals improperly relied on the after-

acquired evidence doctrine. Gonzaga University cross petitioned for review, arguing

that Martin's claim is not justiciable and asked us to adopt the reasoning in Judge

Korsmo's dissent. We granted review of Martin's petition for review and Gonzaga

University's cross petition. Martin v. Gonzaga Univ., 190 Wn.2d 1002, 412 P.3d

1262(2018).

                                       ISSUES


       1. Does the Perritt test apply to Martin's wrongful termination claim?

      2. Is Martin's personnel file claim justiciable?

                                      ANALYSIS


      "On appeal of summary judgment, the standard of review is de novo, and the

appellate court performs the same inquiry as the trial court." Lybbert v. Grant

County, 141 Wn.2d 29, 34, 1 P.3d 1124(2000). We view all facts and reasonable

inferences therefrom most favorably toward the nonmoving party, Martin. Id. The

court should grant summary judgment when "the pleadings, affidavits, and
Martin v. Gonzaga University
No. 95269-8



depositions establish that there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law," Id.

      "A nonmoving party in a summary judgment may not rely on speculation,

argumentative assertions that unresolved factual issues remain, or in having its
affidavits considered at face value." Seven Gables Corp. v. MGM/UA Entm 't Co., 106

Wn.2d 1, 13, 721 P.2d 1 (1986). If Gonzaga University submits adequate affidavits,

Martin must then "set forth specific facts that sufficiently rebut the moving party's

contentions and disclose that a genuine issue as to a material fact exists." Id.

       1. The Perritt Test


              a. The Perritt Test Does Not Apply to Martin's Whistle-Blower
                 Wrongful Termination Claim

       Martin argues that the Court of Appeals erred by applying the four-part Perritt

test to Martin's wrongful discharge claim. Gonzaga University agrees that the Perritt

test does not apply in this case. In Thompson v. St. Regis Paper Co., we adopted the
tort of wrongful discharge in violation of public policy as a narrow exception to the
at-will doctrine. 102 Wn.2d 219, 232-33,685 P.2d 1081 (1984). We held that to

prevail on a cause of action, a plaintiff employee must demonstrate that his or her
"discharge may have been motivated by reasons that contravene a clear mandate of
public policy." Id. at 232. Then,"the burden shifts to the employer to prove that the
dismissal was for reasons other than those alleged by the employee." Id. at 232-33.

The tort for wrongful discharge in violation of public policy has generally been
                                            10
Martin v, Gonzaga University
No. 95269-8



limited to four scenarios:"(1) where employees are fired for refusing to commit an

illegal act;(2) where employees are fired for performing a public duty or obligation,

such as serving jury duty;(3) where employees are fired for exercising a legal right or

privilege, such as filing workers' compensation claims; and (4) where employees are

fired in retaliation for reporting employer misconduct, i.e., whistle-blowing." Gardner

V. Loomis Armored, Inc., 128 Wn.2d 931,936,913 P.2d 377(1996)                 Dicomes

V. State, 113 Wn.2d 612,618,782 P.2d 1002(1989)).

      In Gardner, this court adopted a four-part framework based on a treatise

written by Henry Perritt to resolve a wrongful discharge suit that did not fit neatly into

one ofthose four recognized categories. 128 Wn.2d at 941 (citing HENRY H.PERRITT

Jr., Workplace Torts: Rights and Liabilities (1991)). The Perritt test has four

factors: "(1) The plaintiffs must prove the existence of a clear public policy (the

clarity element). (2)The plaintiffs must prove that discouraging the conduct in which

they engaged would jeopardize the public policy (the jeopardy element). (3)The

plaintiffs must prove that the public-policy-linked conduct caused the dismissal(the

causation element). (4)The defendant must not be able to offer an overriding

justification for the dismissal(the absence ofjustification element)." Id. (emphasis

and citations omitted).

       However, in Becker and Rose, we clarified that the Perritt framework should

not be applied to a claim that falls within one ofthe four categories of wrongful


                                            11
Martin v. Gonzaga University
No. 95269-8



discharge in violation of a public policy. Becker v. Cmty. Health Sys., Inc., 184

Wn.2d 252, 258-59, 359 P.3d 746(2015)("When the plaintiffs case does not fit

neatly within one ofthese scenarios, a more refined analysis may be necessary, and

the four-factor Perritt analysis may provide helpful guidance. But such detailed

analysis is unnecessary here."(footnote and citation omitted)); Rose v. Anderson Hay

& Grain Co., 184 Wn.2d 268, 277-78, 287, 358 P.3d 1139(2015)("We note that in

other instances, when the facts do not fit neatly into one ofthe four above-described

categories, a more refined analysis may be necessary. In those circumstances, the

courts should look to the four-part Perritt framework for guidance. But that guidance

is unnecessary here."). This court explained the implications of our Gardner decision,

which applied the Perritt test:

             In adopting this four-part Perritt analysis, we stated that we did
      not intend to substantively change the wrongful discharge tort. The
      common law already contained clarity and jeopardy elements, so we said
      the "adoption of this test does not change the existing common law in
      this state." Gardner, 128 Wn.2d at 941. Gardner was a highly unique
      case, and its facts justified a refined analysis. This court's decisions prior
      to Gardner remain good law and are merely supplemented by the
      additional guidance provided by the Perritt factors.

Rose, 184 Wn.2d at 278. Martin's suit falls into the fourth category, whistle-blowing,

because he alleges that he was fired in retaliation for voicing safety complaints about

the need for wall padding in the basketball courts. Thus,the Court of Appeals erred

by applying the Perritt test instead of using the standard enunciated in Thompson and



                                           12
Martin v. Gonzaga University
No. 95269-8



further refined in Wilmot v. Kaiser Aluminum & Chemical Corp., 118 Wn.2d 46, 821

P.2d 18(1991).

              b. Under Thompson and Wilmot, Martin's Claim Does Not Survive
                 Summary Judgment

       Under the correct standard, we affirm the Court of Appeals' ultimate holding

that Gonzaga University is entitled to summary judgment on this claim. The elements

of wrongful termination in violation of public policy were set forth in Thompson and

refined by Wilmot.

       First, Martin has the burden to show that his "discharge may have been

motivated by reasons that contravene a clear mandate of public policy." Thompson,

102 Wn.2d at 232. "The question of what constitutes a clear mandate of public policy

is one oflaw" and can be established by prior judicial decisions or constitutional,

statutory, or regulatory provisions or schemes. Dicomes, 113 Wn.2d at 617. Martin

advocates that student safety, specifically wall padding in the basketball courts, is a

clear mandate of public policy. However, we find no court decision, statute, or .

regulation that establishes such. Martin has acknowledged that there was no policy or

regulation requiring Gonzaga University to install the wall padding. Without roots in
regulation or judicial precedent, Martin's mere opinion that wall padding should be

installed does not constitute a clear mandate of public policy. Even if Martin truly

believed the unpadded walls posed a danger to students, this does not change the

analysis, as the focus for whistle-blowing matters is on the employer's level of

                                            13
Martin v. Gonzaga University
No. 95269-8



wrongdoing, not Martin's actions to address what he perceived as wrongdoing. See

Farnam v. CRISTA Ministries, 116 Wn.2d 659,671, 807 P.2d 830(1991). We hold

that Martin fails at this first step in the analysis by failing to point to a clear mandate

of public policy.

       Even if Martin had met the first step, he does not satisfy the second step, which

requires the plaintiff to show that the public-policy-linked conduct was a "significant

factor" in the decision to discharge the worker. Wilmot, 118 Wn.2d at 75. The

plaintiff must first establish a prima facie case by producing evidence that the public-

policy-linked conduct was a cause ofthe firing, and may do so by circumstantial

evidence. Id. at 70. Ifthe plaintiff succeeds in presenting a prima facie case, the

burden then shifts to the employer to "articulate a legitimate nonpretextual

nonretaliatory reason for the discharge." Id. (citing 1 Lex K.Larson,UNJUST

Dismissal § 6.05[6](1988)). This is a burden of production, not persuasion. Id.

("The employer must produce relevant admissible evidence of another motivation, but

need not do so by the preponderance of evidence necessary to sustain the burden of

persuasion, because the employer does not have that burden."). Ifthe employer

articulates such a reason, the burden shifts back to the plaintiff either to show "that the

reason is pretextual, or by showing that although the employer's stated reason is

legitimate, the [public-policy-linked conduct] was nevertheless a substantial factor

motivating the employer to discharge the worker." Id. at 73.


                                             14
Martin v. Gonzaga University
No. 95269-8



      If we assume that Martin meets his initial burden of production, Gonzaga

University has met its burden to show legitimate reasons for Martin's dismissal:

insubordination and inadequate job performance. Gonzaga University has presented

job performance evaluations, declarations, and e-mails showing Martin's consistent

problems with following the chain of command and communicating respectfully with

his colleagues. There is also ample evidence of Martin's insubordination and

disrespectful conduct in close proximity to his termination. A few days before he was

terminated, Martin met with Hernandez and Morgan and was essentially reprimanded

for insubordination. He was disrespectful during that meeting, arguing and

interrupting Hernandez, and then he left in the middle of his shift without receiving

permission from Hernandez. He yelled at Radtke, demanding permission to leave,

and told another colleague that Hernandez was a pushover. He was subsequently

placed on administrative leave for this behavior and then almost immediately violated

the terms of his leave by contacting the university's president, even when the

president's executive assistant advised him to use the proper chain of command. This

evidence satisfies Gonzaga University's burden to show legitimate reasons for

Martin's termination.


       The burden then shifts back to Martin to show that despite these legitimate

reasons for discharge, his whistle-blowing was a significant factor in his termination.

There is a paucity of evidence linking Martin's termination with his voicing concerns

                                           15
Martin v. Gonzaga University
No. 95269-8



about wall padding. The only evidence of Martin voicing such concerns is his own

testimony that his proposal raised the issue. Yet, as mentioned, the proposal is not in

the record. Even if the proposal mentioned that revenue from pool-related activities

could be used for wall padding, as Martin contends, this cannot be correctly

characterized as raising student safety concerns regarding the padding. Further,

Martin has not pointed to any evidence that his supervisors received his complaints

regarding the wall padding, let alone evidence that the university reacted negatively to

his suggestions. The record does not support Martin's claim that a significant factor

in his termination was his history of voicing student safety complaints about the need

for wall padding. Thus, we affirm the Court of Appeals' ultimate holding that

Gonzaga University is entitled to summary judgment on Martin's whistle-blower

wrongful discharge claim.

              c. Overriding Justification Element and After-Acquired-Evidence
                 Doctrine


       Martin claims that the Court of Appeals misapplied the overriding justification

element in three ways. We resolve some ofthese concerns in hopes that it will

provide clarity for future litigants.

       First, Martin claims that the Court of Appeals erred in granting summary

judgment in favor of an employer on the basis ofthe overriding justification element
because this can be done only if the employer first concedes the first three elements of

the Perritt test. He interprets our decision in Gardner to hold that at summary

                                           16
Martin v. Gonzaga University
No. 95269-8



judgment, an employer must concede the first three elements ofthe Perritt test before

it can assert an overriding justification. However, neither in our adoption ofthe

Perritt test in Gardner nor in any subsequent application of it have we held that the

overriding justification element comes into play only if the employer concedes the

first three elements.


       The overriding justification element entails balancing the public policies raised

by the plaintiff against the employer's interest. Gardner, 128 Wn.2d at 948-49. If

"the employer has an overriding reason for terminating the employee despite the

employee's public-policy-linked conduct," then it cannot be held liable. Id. at 947.

Martin contends that if the employer denies that the public-poliey-linked conduct

caused the dismissal, then the court has not established a public policy interest to

balance against the employer's business interest. However, that theory overlooks the

possibility ofthe court resolving the first three elements in favor ofthe plaintiff

employee, which would give the court a public policy interest to balance against the

business's stated interest when resolving the fourth element. We decline to accept

Martin's contention, as we have never held the employer must concede the first three

elements before the court can address the fourth element.

       Second, Martin claims that the Court of Appeals erred with regard to the

burden of proof for the overriding justification element. In its analysis ofthis factor,

the court questioned which party carried the burden of proof for the element of

                                           17
Martin v. Gonzaga University
No. 95269-8



overriding justification and did not come to a clear conclusion. Martin argues that this

was an error because in Rickman v. Premera Blue Cross, 184 Wn.2d 300, 358 P.2d

1153 (2015), we said that the burden falls on the defendant employer. He is correct

that in Rickman, we made it clear where the burden lay. We stated that "[o]nce a

plaintiff presents a prima facia case of wrongful discharge in violation of public

policy, the burden ofproofshifts to the employer to show the termination was justified

by an overriding consideration." Id. at 314(emphasis added).

       Third, Martin argues that the Court of Appeals erred by wrongly applying the

after-acquired-evidence doctrine to his wrongful discharge claim. The Court of

Appeals resolved the overriding justification element by posing eight questions to

consider. Martin, 200 Wn. App. at 359-373. The second question asked whether the

employer must be motivated by the overriding justification at the time the employee is

discharged in order to avoid liability. Id. at 362. The court answered this question in

the negative, depending primarily on the after-acquired-evidence doctrine. It reasoned

that


       [t]he university may avoid liability if insubordination constitutes a
       justifying reason under the law and overrides the advocacy of safety
       concerns, regardless of whether insubordination motivated the firing.

              We secure our decision, freeing the employer from showing the
       overriding justification prompted its decision to fire, primarily on the
       "after-acquired evidence" doctrine. This doctrine precludes or limits an
       employee from receiving remedies for wrongful discharge if the
       employer later discovers evidence of wrongdoing that would have led to
       the employee's termination had the employer known ofthe misconduct.

                                           18
Martin v. Gonzaga University
No. 95269-8



       Lodis V. Corbis Holdings, Inc., 192 Wn. App. 30, 60, 366 P.3d 1246
      (2015), review denied, 185 Wn.2d 1038, 377 P.3d 744(2016); Janson v.
      North Valley Hospital, 93 Wn. App. 892,900, 971 P.2d 67(1999/ Ifthe
      employer may limit its liability with evidence ofinsubordination
      discovered after the terminationfrom employment, the employer should
      be able to limit its liability with evidence known at the time ofthe
      discharge, even ifthe employer utilized only public-policy-defying
      grounds. We discern no reason to distinguish the two factual scenarios
      for purposes of employer liability. Under each circumstance, the
      employee's misconduct retrospectively substantiated the termination.

Id. at 362-63 (emphasis added). Martin takes issue with applying the after-acquired-

evidence doctrine because this court has never done so in the wrongful discharge

context and because the after-acquired-evidence doctrine limits damages and remedies

rather than liability.

       Martin is correct that there is no case law to support applying the after-

acquired-evidence doctrine to a wrongful discharge claim. There is no reasoning

within our common law wrongful discharge decisions or in our application ofthe

Perritt test that supports the Court of Appeals' conclusion that an overriding

justification can limit liability "regardless of whether [the overriding justification]

motivated the firing." Id. at 363. He is also correct that the doctrine limits the

damages an employee may recover and does not limit liability as a matter of law.

Lodis, 192 Wn. App. at 60. In addition to this significant difference, the after-

acquired-evidence doctrine requires that the employer prove that the wrongdoing was

of such severity that it would have terminated the employee on the newly discovered

evidence alone. Id. (quoting McKennon v. Nashville Banner Publ'g Co., 513 U.S.

                                            19
Martin v. Gonzaga University
No. 95269-8



352, 362-63, 115 S. Ct. 879, 130 L. Ed. 2d 852(1995)). This does not comport with

the balancing posture ofthe overriding justification element. We hold that the after-

acquired-evidence doctrine does not apply to the overriding justification element of

the Perritt test.


       2. Martin's Personnel File Claim Is Not Justiciable

       The last issue this court must address is the one presented in Gonzaga

University's cross petition for review: whether Martin's claim regarding his personnel

file is justiciable. Martin claimed at the trial court that Gonzaga University failed to

provide him a complete copy of his personnel file in violation of RCW 49.12.250.

While the trial court granted summary judgment to Gonzaga University on this claim,

the Court of Appeals reversed, finding there were unanswered factual questions

requiring further proceedings at the trial court. Martin, 200 Wn. App. at 333. Judge

Korsmo dissented on this issue, concluding that the claim is not justiciable because

the relevant statutes "did not create a judicial cause of action" and the Department of

Labor and Industries(DLI)is the "first line defender" of rights contained in the

statute. Martin, 200 Wn. App. at 377-78. Gonzaga University advocates that we

adopt Judge Korsmo's conclusion and reasoning and reverse the Court of Appeals'

holding on this claim.

       The statutes at issue, RCW 49.12.240 and RCW 49.12.250, are a part ofthe

industrial welfare chapter ofthe Revised Code of Washington. DLI has enforcement


                                           20
Martin v. Gonzaga University
No. 95269-8




authority over this chapter. RCW 49.12,033; RCW 43.22.270(5). As Judge Korsmo

concluded, Martin would first have to pursue an administrative request through DLI

before seeking a judicial remedy from the court. Martin, 200 Wn. App. at 378. There

is nothing in the record to show that Martin has brought his request to DLI. Thus, we

reverse the Court of Appeals' holding on the personnel file claim and hold that

Gonzaga University is entitled to summary judgment on this claim.

                                   CONCLUSION


       We reverse the Court of Appeals' reasoning on the wrongful discharge claim

because it erred by applying the Perritt framework. However, we affirm the court's

ultimate holding that Gonzaga University is entitled to summary judgment on this

claim. We reverse the Court of Appeals' holding on the personnel file claim because

Martin's claim is not yet justiciable. We hold that Gonzaga University is entitled to

summary judgment on this claim. Thus, both of Martin's claims are dismissed.




                                          21
Martin v. Gonzaga University
No. 95269-8




WE CONCUR:




                               22
