           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                       DIVISION ONE

RHONDA MOEN, a married individual,                 No. 74260-4-


                         Respondent,                                                   O
                                                                                           1
                                                                                                ?•
                                                                                       en

                 v.                                                                    32*°
                                                                                                iX'r
                                                   UNPUBLISHED OPINION                 ——
                                                                                                "' '" V

NORTHWEST EDUCATIONAL                                                                      a*   il'J .'•
                                                                                       ro       2l
SERVICE DISTRICT NO. 189, a
municipal corporation,

                         Appellant.                FILED: December 5, 2016

       Schindler, J. — To establish wrongful discharge in violation of public policy, a

plaintiff must identify a clear mandate of public policy in the constitution, a statute, or a

prior court decision. Rhonda Moen filed a lawsuit against Northwest Educational

Service District No. 189 alleging constructive wrongful discharge in violation of public

policy. The court denied summary judgment dismissal of the claim. We granted

discretionary review. Because Moen does not identify a clear mandate of public policy,

we reverse and remand to enter an order dismissing the lawsuit.

                                            FACTS


       Educational Service Districts are regional agencies that provide "informational

services to local school districts" and "[a]ssist the superintendent of public instruction

and the state board of education in the performance of their respective statutory or
No. 74260-4-1/2


constitutional duties" including "[cooperative curriculum services such as health

promotion and health education services." RCW28A.310.010(1), (2); RCW

28A.310.350(2).

       Northwest Educational Service District No. 189 (NWESD) provides services to

school districts in Island, San Juan, Skagit, Snohomish, and Whatcom counties. One of

the services NWESD offers the school districts is a drug and alcohol prevention and

intervention curriculum—"Project SUCCESS." The goal of Project SUCCESS is to help

adolescents understand substance abuse and prevent and reduce the use of alcohol,

tobacco, and drugs. Project SUCCESS is funded through a grant from the Washington

State Department of Social and Health Services Division of Behavioral Health and

Recovery and implemented under the auspices of the Washington State Office of

Superintendent of Public Instruction (OSPI).

       NWESD employs prevention intervention specialists to implement Project

SUCCESS at participating schools. The prevention intervention specialist is

accountable to NWESD and the school principal. The school principal is responsible for

the on-site supervision of the prevention intervention specialist and the day-to-day

operation of Project SUCCESS.

       Project SUCCESS is designed to be presented in three phases. In Phase I, the

"Prevention Education Series," the curriculum addresses adolescence, the cause and

effect of drug abuse, and how substance abuse can affect a family. The Prevention

Education Series is presented over the course of six to eight class periods one to three

times a week. During Phase II, the prevention intervention specialist assesses the level

of risk as well as the physical and mental functioning of students including family and
No. 74260-4-1/3


peer relationships; alcohol, tobacco, and other drug use; risk-taking behavior; and

violence. In Phase III, the prevention intervention specialist may schedule individual or

group sessions with students or parents and refer students to substance abuse or

mental health treatment.

       In November 2012, NWESD hired Rhonda Moen as a Project SUCCESS

prevention intervention specialist at Marysville Middle School for the 2012-2013 school

year. The NWESD policy manual states that prevention intervention specialists are at-

will employees "granted provisional trial status during the first six (6) months of

employment. During that period of time, they are subject to termination without advance

notice." At the time of hire, Moen acknowledged she received and reviewed the

NWESD policy manual.

       After being assigned to Marysville Middle School, Moen received training on the

Project Success curriculum. Because Moen was not hired until November 2012 and

was not trained until January 2013, implementation of the Project SUCCESS curriculum

was delayed until spring of the 2012-2013 school year.

       On March 5, 2013, Moen informed her supervisor, NWESD Behavioral Health

and Prevention Services Director Jodie DesBiens, about her frustration with Marysville

Middle School Principal Susan Hegeberg. Moen told DesBiens that Hegeberg had not

sent out the parental permission slips necessary to begin teaching the Project

SUCCESS curriculum. DesBiens told Moen she would talk to Hegeberg "and try and

hurry things along."

       DesBiens contacted Hegeberg to discuss Moen's frustration with the permission

slips. According to DesBiens, Hegeberg said she "was not aware of the timeliness"
No. 74260-4-1/4


need for the permission slips. Hegeberg sent the permission slips to parents on March

18.


       DesBiens met with Moen on March 19. According to DesBiens, because of the

delay in sending out the permission slips, Moen "felt like it was too late in the year" to

teach the curriculum. Moen also said she "wasn't comfortable" delivering the

Prevention Education Series curriculum in front of classrooms. DesBiens told Moen "we

were still going forward" as planned and approved by OSPI. DesBiens said NWESD

Behavioral Health and Prevention Services Program Manager Wendi Thomas was

available to help Moen teach the curriculum.

       On March 26, Moen met with DesBiens and Thomas to discuss her "ongoing

frustration" with Hegeberg. DesBiens and Thomas explained to Moen that "she must

follow directives given by Principal Hegeberg."

       On March 28, DesBiens and Thomas met with Hegeberg. Hegeberg told

DesBiens and Thomas that Moen did not respect her authority and argued with her in

front of the Marysville Middle School staff.

       On March 29, Hegeberg met with Moen. According to Moen, Hegeberg told her

to teach Phase I of Project SUCCESS to 109 students in the school cafeteria for 20

minutes each day "but not Phase II and III." Moen said she told Hegeberg it would be

unethical for her to teach the program in the manner requested by Hegeberg because "it

could potentially cause emotional harm to the students."

       After DesBiens learned that Moen refused to implement Project SUCCESS as

directed by Hegeberg, NWESD placed Moen on paid administrative leave.
No. 74260-4-1/5


       Moen tried without success to contact the developer of Project SUCCESS. Moen

then contacted Community Prevention and Wellness Initiative Coalition Coordinator

Joseph Neigel. DesBiens also talked to Neigel. Neigel's "only concern" was that if the

program began during the last week of school, "there would not be an opportunity to

follow-up with students before school was out for the summer."

       On April 1, DesBiens and NWESD Assistant Superintendent for Operations

Buckley Evans met with Moen. Moen told DesBiens and Evans that Neigel told her

NWESD should not leave students "exposed and emotional the last week of school."

DesBiens and Evans stated that "no decision had been made on when Project Success

would start, but that it would not be within the last two weeks of school." Evans told

Moen he wanted to schedule a meeting between Moen and Hegeberg to resolve their

differences.

       Moen insisted she "could not teach Project Success with only three months left in

the school year." Evans told Moen her refusal to teach Project SUCCESS meant "she

was not fulfilling the requirements of her job" as a prevention intervention specialist.

Moen stated she "realized she was putting herself in a position of insubordination and

that she would resign her position."

       After the meeting, Moen submitted a letter of resignation to NWESD dated April

1, 2013. The letter states, in pertinent part:

            After looking back at the suggested ways to implement Project
       Success with Fidelity it is my belief that it is not true enough to how it's
       supposed to be presented. I do not feel morally or ethically able to
       implement the Project Success curriculum in the manner in which it is
       being asked of me. I refuse to teach Project Success as it goes against
       my professional, moral and ethical judgment with students.
No. 74260-4-1/6


              I have not been able to perform the necessary requirements of
       project success because of Susan Hegebergs [sic] in-ability to allow the
       flow of services to occur.
               In addition to Project Success, I have not been given adequate time
       to talk with staff which is also a requirement of my job. I was given 5 min.
       to present on Jan. 11, 2013.
              I do realize that my refusal puts me in a position of insubordination
       and I am willing to accept those consequences.

       Moen filed a lawsuit against NWESD alleging constructive wrongful discharge in

violation of public policy, negligent infliction of emotional distress, defamation of

character, and false light.

       The complaint alleged that demanding Moen to teach Program SUCCESS as

required by NWESD and Hegeberg placed the students at risk for emotional harm. The

complaint alleged, in pertinent part:

       [l]t was demanded of [Moen] that she teach this class contrary to the
       methodology in which the class was designed to be instructed and without
       fidelity. . . . The manner in which Ms. Hegeberg demanded the class be
       taught and the refusal of [NWESD] to support the Plaintiff placed the
       students who would attend this class at risk for emotional harm.

       NWESD filed a motion for summary judgment dismissal of the lawsuit. The court

dismissed all claims except constructive wrongful discharge in violation of public policy.

The court ruled genuine issues of material fact precluded summary judgment dismissal

of the claim. We granted discretionary review.

                                         ANALYSIS

       NWESD contends the court erred in denying summary judgment dismissal of the

constructive wrongful discharge in violation of public policy claim. NWESD argues that

as a matter of law Moen did not identify a clear public policy to establish the clarity

element of wrongful discharge in violation of public policy.
No. 74260-4-1/7



       We review summary judgment de novo. Citizens All, for Prop. Rights Legal Fund

v. San Juan County. 184 Wn.2d 428, 435, 359 P.3d 753 (2015). Summary judgment is

proper when there are no genuine issues of material fact and the moving party is

entitled to judgment as a matter of law. CR 56(c); Scrivener v. Clark Coll.. 181 Wn.2d

439, 444, 334 P.3d 541 (2014). If the nonmoving party" 'fails to make a showing

sufficient to establish the existence of an element essential to that party's case, and on

which that party will bear the burden of proof at trial,'" then the court should grant

summary judgment. Young v. KevPharm., Inc.. 112 Wn.2d216, 225, 770 P.2d 182

(1989) (quoting Celotex Corp. v. Catrett. 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed.

2d 265 (1986)).

       As a general rule, an employer may terminate an at-will employee "without fear of

liability." Thompson v. St. Regis Paper Co.. 102 Wn.2d 219, 226, 685 P.2d 1081

(1984). But the Washington Supreme Court recognizes as a narrow exception to the

common law doctrine of at-will employment a cause of action in tort for wrongful

discharge in violation of public policy. Thompson. 102 Wn.2d at 232.

       To establish a cause of action for wrongful discharge in violation of public policy,

the employee must "plead and prove that a stated public policy, either legislatively or

judicially recognized, may have been contravened." Thompson. 102 Wn.2d at 232.

       In Gardner v. Loomis Armored Inc.. 128 Wn.2d 931, 913 P.2d 377 (1996), the

Washington Supreme Court utilized the four-part Perritt framework to analyze a claim

for wrongful discharge in violation of public policy. Gardner. 128 Wn.2d at 941; Henry

H. Perritt, Jr., Workplace Torts: Rights and Liabilities §§3.7-3.21 (1991).
No. 74260-4-1/8


However, the court makes clear that adoption of this test "does not change the existing

common law in this state." Gardner. 128 Wn.2d at 941.

       Under the Perritt framework, the court examines (1) the existence of a clear

public policy, the clarity element; (2) whether the employer's actions would jeopardize

the public policy, the jeopardy element; and (3) whether the public-policy-linked conduct

caused the dismissal, the causation element. Rose v. Anderson Hay & Grain Co.. 184

Wn.2d 268, 277, 358 P.3d 1139 (2015). If the plaintiff proves these three elements,

then the burden shifts to the defendant to prove (4) there was an overriding justification

for terminating the employee, the absence of justification element. Rose. 184 Wn.2d at

277; Gardner. 128 Wn.2d at 941.

       Whether there is a clear mandate of public policy is a question of law we review

denovo. Dicomes v. State. 113 Wn.2d 612, 617, 782 P.2d 1002 (1989); Gardner, 128

Wn.2d at 937. The public policy " 'for which we search is an authoritative public

declaration of the nature of the wrong.'" Roe v. TeleTech Customer Care Mgmt.

(Colorado) LLC, 171 Wn.2d 736, 757, 257 P.3d 586 (2011) (quoting Roberts v. Dudley.

140 Wn.2d 58, 63, 993 P.2d 901 (2000)). Only clear violations of important recognized

public policies can expose employers to liability. Rose. 184 Wn.2d at 27.

       In Dicomes. the Washington Supreme Court states:

              Courts have found contravention of a clear mandate of public policy
       in four general areas: (1) where the discharge was a result of refusing to
       commit an illegal act; (2) where the discharge resulted due to the
       employee performing a public duty or obligation; (3) where the termination
       resulted because the employee exercised a legal right or privilege; and (4)
       where the discharge was premised on employee "whistleblowing" activity.

Dicomes. 113 Wn.2d at 618.1


        Citations omitted.
No. 74260-4-1/9


       In Rickman v. Premera Blue Cross. 184 Wn.2d 300, 309, 358 P.3d 1153(2015),

the court reiterated "the employee has the burden of proving the dismissal violates a

clear mandate of public policy" in the constitution, a statute, or a prior court decision.

       This means "a court may not sua sponte manufacture public policy but
       rather must rely on that public policy previously manifested in the
       constitution, a statute, or a prior court decision." Roberts v. Dudley. 140
       Wn.2d 58, 65, 993 P.2d 901 (2000); see also Thompson. 102 Wn.2d at
       232 (noting we determine the public policy from " 'the letter or purpose of a
       constitutional, statutory, or regulatory provision or scheme'" or" '[p]rior
       judicial decisions'" (quoting Parnarv. Americana Hotels. Inc.. 65 Haw.
       370, 652 P.2d 625, 631 (1982))).

Rickman. 184 Wn.2d at 309-10.2

       NWESD argues Moen does not identify a clear mandate of public policy to

support her wrongful discharge in violation of public policy claim. In her complaint,

Moen alleges NWESD demanded she teach the Project SUCCESS curriculum "contrary

to the methodology in which the class was designed to be instructed" and in a manner

that "placed the students who would attend this class at risk for emotional harm." Moen

identifies four statutes in support of her wrongful discharge in violation of public policy

claim: RCW28A.300.070, RCW 28A.310.500, RCW28A.320.127, and RCW

28A.320.1271. In opposition to summary judgment, Moen also cited RCW

28A.310.010. On appeal, Moen concedes RCW 28A.310.010 does not establish the

clarity element.3 In support of the motion to modify the commissioner's ruling granting


       2 Alteration in original.
       3 RCW 28A.310.010 states:
       It shall be the intent and purpose of this chapter to establish educational service districts
       as regional agencies which are intended to:
                 (1) Provide cooperative and informational services to local school districts;
               (2) Assist the superintendent of public instruction and the state board of
       education in the performance of their respective statutory or constitutional duties; and
               (3) Provide services to school districts and to the Washington state center for
       childhood deafness and hearing loss and the school for the blind to assure equal
       educational opportunities.
No. 74260-4-1/10


discretionary review, for the first time Moen identified two additional statutes—RCW

28A.300.2851 and RCW 28A.320.125. But when reviewing an order denying a motion

for summary judgment, we consider only the evidence and issues called to the attention

of the trial court. RAP 9.12; Wash. Fed'n of State Emp.'s. Council 28. AFL-CIO v. Office

of Fin. Mgmt. 121 Wn.2d 152, 157, 849 P.2d 1201 (1993).4

      The interpretation of a statute is a matter of law subject to de novo review.

Castro v. Stanwood Sch. Dist. No. 401, 151 Wn.2d 221, 224, 86 P.3d 1166(2004).

"Where the language of a statute is clear, legislative intent is derived from the language

of the statute alone." City of Spokane v. Rothwell. 166 Wn.2d 872, 876, 215 P.3d 162

(2009).

      Three of the statutes Moen relies on, RCW 28A.310.500,5




      4 RCW 28A.300.2851 states, in pertinent part:
      (1) The office of the superintendent of public instruction and the office of the education
      ombuds shall convene a work group on school bullying and harassment prevention to
      develop, recommend, and implement strategies to improve school climate and create
      respectful learning environments in all public schools in Washington. The superintendent
      of public instruction or a designee shall serve as the chair of the work group.
       RCW28A.320.125 states, in pertinent part:
      (1) The legislature considers it to be a matter of public safety for public schools and staff
      to have current safe school plans and procedures in place, fully consistent with federal
      law. The legislature further finds and intends, by requiring safe school plans to be in
      place, that school districts will become eligible for federal assistance. The legislature
      further finds that schools are in a position to serve the community in the event of an
      emergency resulting from natural disasters or man-made disasters.
      5 Former RCW 28A.310.500 (Laws of 2013, ch. 197, § 6) states:
      Each educational service district shall develop and maintain the capacity to offer training
      for educators and other school district staff on youth suicide screening and referral, and
      on recognition, initial screening, and response to emotional or behavioral distress in
      students, including but not limited to indicators of possible substance abuse, violence,
      and youth suicide. An educational service district may demonstrate capacity by
      employing staff with sufficient expertise to offer the training or by contracting with
      individuals or organizations to offer the training. Training may be offered on a fee-for-
      service basis, or at no cost to school districts or educators if funds are appropriated
      specifically for this purpose or made available through grants or other sources.


                                                   10
No. 74260-4-1/11


RCW 28A.320.127,6 and RCW 28A.320.1271,7 were not in effect when Moen resigned

on April 1, 2013. On April 22, 2013, the legislature passed "K-12 SCHOOLS-

TROUBLED YOUTH                    AN ACT Relating to increasing the capacity of school districts

to recognize and respond to troubled youth." Laws of 2013, ch. 197. This act added

new sections to chapter 28A.310 RCW and chapter 28A.320 RCW including RCW

28A.310.500, RCW28A.320.127, and RCW 28A.320.1271. Laws of 2013, ch. 197, §§

6, 4, 5. The governor signed the act on May 10, 2013 and it became effective on July

28,2013. Laws of 2013, ch. 197, § 10; Laws of 2013, at ii. Because RCW

28A.310.500, RCW28A.320.127, and RCW 28A.320.1271 were not in effect at the time

Moen resigned, they do not establish a clear mandate of public policy related to her

claim.


         RCW 28A.300.070 was in effect when Moen resigned. RCW 28A.300.070

provides:

         The state of Washington and/or any school district is hereby authorized to
         receive federal funds made or hereafter made available by acts of
         congress for the assistance of school districts in providing physical
         facilities and/or maintenance and operation of schools, or for any other
         educational purpose, according to provisions of such acts, and the state


         6 Former RCW 28A.320.127 (Laws of 2013, ch. 197, § 4) states, in pertinent part:
         (1) Beginning in the 2014-15 school year, each school district must adopt a plan for
         recognition, initial screening, and response to emotional or behavioral distress in
         students, including but not limited to indicators of possible substance abuse, violence,
         and youth suicide. The school district must annually provide the plan to all district staff.
         7RCW28A.320.1271 states:
         The office of the superintendent of public instruction and the school safety [center]
         advisory committee shall develop a model school district plan for recognition, initial
         screening, and response to emotional or behavioral distress in students, including but not
         limited to indicators of possible substance abuse, violence, and youth suicide. The model
         plan must incorporate research-based best practices, including practices and protocols
         used in schools and school districts in other states. The model plan must be posted by
         February 1, 2014, on the school safety center web site, along with relevant resources and
         information to support school districts in developing and implementing the plan required
         under RCW 28A.320.127.
(Alteration in original.)


                                                       11
No. 74260-4-1/12


        superintendent of public instruction shall represent the state in the receipt
        and administration of such funds.


       The clear and unambiguous language of RCW 28A.300.070 authorizes school

districts to receive federal funds for educational purposes. RCW 28A.300.070 does not

establish a clear mandate of public policy that supports Moen's wrongful discharge in

violation of public policy claim—that she was required to teach the Project SUCCESS

curriculum contrary to the methodology of the program or in a manner that might place

students at risk of emotional harm.

       As a matter of law Moen has not identified a statute containing a clear mandate

of public policy. We reverse denial of summary judgment and remand to enter an order

of dismissal of the wrongful discharge in violation of public policy claim.8




                                                       ^C&x^r-^&.
WE CONCUR:




 ^fr^^j Ac^                                                 Wr/w^J.



        8 Because Moen does not identify a clear mandate of public policy, we need not consider whether
Moen "presented sufficient evidence to take the issue of constructive discharge to a trier of fact." See
Korslund v. DvnCorp Tri-Cities Servs.. Inc.. 156Wn.2d 168, 181, 125 P.3d 119 (2005V overruled on other
grounds by Rose, 184 Wn.2d at 280.



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