Filed: April 11, 2006.
Appeal from Superior Court of Clark County. Docket No: 04-2-00574-8. Judgment or order under review. Date filed:
Counsel for Appellant(s), Gregory D. Ferguson, Law Offices Of Gregory D. Ferguson PC, 1104 Main St Ste 216, Vancouver, WA 98660-2955.
Counsel for Respondent(s), Dan'l Wayne Bridges, Law Offices of Dan'L W. Bridges, 11100 NE 8th St Ste 300, Bellevue, WA 98004-4477.
Steven Winter appeals from the trial court's dismissal of his claim against Toyota of Vancouver USA, Inc., and Jorge Juarez (Toyota). We reverse and remand.
Winter filed a lawsuit against Toyota for unlawful withholding of wages, wrongful termination in violation of public policy, and false imprisonment. In his complaint, he alleged that he worked as a Toyota service technician and performed well during his employment but that Toyota repeatedly `deducted earned wages from [his] pay and the pay of other employees without their consent.' Clerk's Papers (CP) at 6. He further alleged that Toyota fired him because he complained about the practice and threatened to report it to the Department of Labor and Industries (LI).
More specifically, Winter alleged:
The conduct of defendants amounted to wrongful termination in violation of public policy in that plaintiff was terminated as a consequence of opposing defendants' unlawful withholding or rebating of employee wages, and/or his stated intent to contact governmental agencies regarding defendants' practices. Defendants' discharge of plaintiff violated the clear mandates of public policy including but not limited to those enumerated in RCW 49.46 et. seq., 49.48 et. seq., and 49.52 et. seq. CP at 7.
Toyota moved to dismiss Winter's wrongful termination claim under CR 12(b)(6) or, in the alternative, for a judgment on the pleadings under CR 12(c). Toyota stated that Winter's requests to set depositions, allow on-site inspections, and produce documents prompted it to move for summary judgment to avoid further work on the matter.
In arguing for summary judgment, Toyota claimed that no public policy protected an employee from discharge for merely threatening to complain about alleged unlawful conduct (as opposed to actually filing a complaint) and that Winter's interest in his wages was a private, not public, interest. Toyota also argued that the wage statutes cited (relating to minimum wages, payment of wages, and wage deductions) do not give rise to a clear mandate of public policy because wages are a `private interest' and `[t]he public and community are not affected by an employer's violation of [these] statutes.' CP at 21-22.
The trial court granted the motion, stating:
[T]o meet the requirements for the tort to exist, there has to be a very clear mandated public policy against firing somebody for certain conduct. And one way we can find such public policy is to look at the statutes. And [RCW] 49.46, the Minimum Wage Act, has been held to be such a clear mandate of public policy.
But the complaint and the facts alleged here, if you look at them broadly, if you construe them broadly in favor and liberally in favor of the plaintiff, can arguably fit within various provisions of the statute. But that's exactly what St. Regis tells us we can't do. That is, we don't try to create an expansive tort. It's a very narrow tort.
Report of Proceedings (RP) at 23.
The trial court granted the motion and signed an order dismissing Winter's case under CR 12(b)(6). Winter appeals.
CR 12(b)(6) provides: `Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross claim, or third party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: . . . (6) failure to state a claim upon which relief can be granted.'
Toyota states that it also sought, in the alternative, a judgment on the pleadings. As noted in footnote 2, this alternative ground is not relevant to the case on appeal.
A court properly dismisses a claim under CR 12(b)(6) only if "it appears beyond doubt that the plaintiff can prove no set of facts, consistent with the complaint, which would entitle the plaintiff to relief." Haberman v. Wash. Pub. Power Supply Sys., 109 Wn.2d 107, 120, 744 P.2d 1032, 750 P.2d 254 (1987) (internal quotations marks omitted) (quoting Bowman v. John Doe, 104 Wn.2d 181, 183, 704 P.2d 140 (1985)). CR 12(b)(6) motions should be granted only "sparingly and with care'.' Haberman, 109 Wn.2d at 120 (quoting Orwick v. Seattle, 103 Wn.2d 249, 254, 692 P.2d 793 (1984)). A court improperly dismisses a claim under CR 12(b)(6) when any conceivable set of facts consistent with the complaint would be legally sufficient to support the plaintiff's claim, including even hypothetical facts raised for the first time on appeal. Bravo v. Dolsen Cos., 125 Wn.2d 745, 750, 888 P.2d 147 (1995) (noting that `[n]either prejudice nor unfairness is deemed to flow from this rule,' because the inquiry is whether any conceivable set of facts could support the claim).
At argument before us, counsel for Toyota stated that because he moved for a judgment on the pleadings under CR 12(c) as an alternative to dismissal under CR 12(b)(6), we should apply a more stringent standard of review and disregard Winter's hypothetical facts. But a motion to dismiss for failure to state a claim and a motion for judgment on the pleadings raise identical issues and are subject to the same standard of review. Gaspar v. Peshastin Hi-Up Growers, 131 Wn. App. 630, ___, 128 P.3d 627 (2006). See also North Coast Enters., Inc. v. Factoria P'ship, 94 Wn. App. 855, 859, 974 P.2d 1257, review denied, 138 Wn.2d 1022 (1999); Suleiman v. Lasher, 48 Wn. App. 373, 376, 739 P.2d 712, review denied, 109 Wn.2d 1005 (1987). In either case, dismissal is appropriate only if it is beyond doubt that the plaintiff can prove no facts that would justify recovery, considering even hypothetical facts outside the record. Gaspar, 131 Wn. App. at ___.
Toyota's argument is particularly inappropriate given that it sought early dismissal in order to head off Winter's discovery requests, thus denying Winter the opportunity to develop the factual record. See Barnum v. State, 72 Wn.2d 928, 931, 435 P.2d 678 (1967) (reversing a CR 12(b)(6) dismissal where the factual record was undeveloped, noting `[t]he procedural rules under our present practice are to be liberally construed in order that full discovery proceedings will be afforded in all instances where factual inquiries are in order').
Also, in a statement of supplemental authorities, Toyota cites inapposite cases in support of its argument that we should not consider hypothetical facts in evaluating Winter's claim.
Sedlacek v. Hillis, 145 Wn.2d 379, 385, 36 P.3d 1014 (2001) (noting merely that a wrongful discharge in violation of public policy claim must be `clearly grounded in legislation or prior jurisprudence in order to protect employers from frivolous lawsuits,' not that a different standard of review applies to CR 12 motions relating to such claims); Pearson v. Vandermay, 67 Wn.2d 222, 232-33, 407 P.2d 143 (1965) (reversing a judgment on the pleadings where the existence of a disputed factual issue became apparent through counsels' conflicting statements at the motion hearing); Hodgson v. Bicknell, 49 Wn.2d 130, 136, 298 P.2d 844 (1956) (reversing a judgment on the pleadings where the prevailing party's pleading included a key factual admission
compelling a ruling in favor of the opposing party); Loger v. Washington Timber Prods., Inc., 8 Wn. App. 921, 923-24, 509 P.2d 1009, review denied, 82 Wn.2d 1011 (1973) (trial court's consideration of materials outside the pleadings does not convert a CR 12 motion into a summary judgment motion where no set of facts, either within or outside the record, could support the claim and only questions of law exist).
The general rule in Washington is that employment is at-will, meaning that an employer may discharge an employee without resulting liability. Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 226, 685 P.2d 1081 (1984). One narrow exception to the employment at-will doctrine allows for a tort of wrongful discharge in violation of public policy. Ford v. Trendwest Resorts, Inc., 146 Wn.2d 146, 153, 43 P.3d 1223 (2002).
Under the tort exception, an employer may not discharge an employee when doing so would frustrate a clear public policy. Ford, 146 Wn.2d at 153. To establish a cause of action under this tort, an `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.
A court determines what qualifies as a clear mandate of public policy as a question of law. Hubbard v. Spokane County, 146 Wn.2d 699, 708, 50 P.3d 602 (2002). A clear mandate of public policy may be established either by statute or prior judicial decision. Smith v. Bates Technical Coll., 139 Wn.2d 793, 807, 991 P.2d 1135 (2000).
Our Supreme Court has recognized a tort action for wrongful discharge in four general areas where the termination resulted from an employee's (1) refusal to commit an illegal act, Hubbard, 146 Wn.2d 699 (enforcement of zoning regulations); Thompson, 102 Wn.2d 219 (compliance with federal anti-bribery law); (2) performance of a public duty or obligation, Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 913 P.2d 377 (1996) (life-saving activity); (3) exercise of a legal right or privilege, Roberts v. Dudley, 140 Wn.2d 58, 993 P.2d 901 (2000) (freedom from sex discrimination); Smith, 139 Wn.2d 793 (filing an employee grievance); Wilmot v. Kaiser Aluminum Chem. Corp., 118 Wn.2d 46, 821 P.2d 18 (1991) (filing for worker's compensation); Bennett v. Hardy, 113 Wn.2d 912, 784 P.2d 1258 (1990) (freedom from age discrimination); and (4) `whistleblowing' activity, Dicomes v. State, 113 Wn.2d 612, 782 P.2d 1002 (1989).
This case falls within the third category, the exercise of a legal right or privilege. Smith, 139 Wn.2d at 807. In determining whether a clear public policy mandate exists here, we begin by noting that our Supreme Court believes that the comprehensive scheme governing wages evidences our State's `strong policy in favor of payment of wages due employees.' Seattle Prof'l Eng'g Employees Ass'n v. Boeing Co., 139 Wn.2d 824, 830, 991 P.2d 1126 (2000) (internal quotation marks omitted) (referencing chapters 49.46, 49.48 and 49.52 RCW); Schilling v. Radio Holdings, Inc., 136 Wn.2d 152, 157-58, 961 P.2d 371 (1998)); United Food Commercial Workers Union Local 1001 v. Mut. Benefit Life Ins. Co., 84 Wn. App. 47, 51-52, 925 P.2d 212 (1996) (referencing chapters 49.46, 49.48 and 49.52 RCW), review denied, 133 Wn.2d 1021 (1997).
Chapter 49.46 RCW requires employers to pay employees a minimum hourly wage, including compensation at no less than 1.5 times the regular hourly rate for work in excess of 40 hours per week. RCW 49.46.020, .130(1). RCW 49.48.010 makes it unlawful for an employer to withhold any portion of an employee's wages except as required by law, absent an employee's consent. Under RCW 49.52.050(1) and (2), an employer may not collect any portion of an employee's wages as a rebate or willfully and intentionally pay an employee less than agreed.
Failure to pay wages in accordance with any of these wage statutes is a criminal offense. RCW 49.46.100(2), RCW 49.48.020, RCW 49.52.050. The law entitles an employee to attorney fees when the employer forces the employee to sue for wages due. RCW 49.46.090(1), RCW 49.48.030, RCW 49.52.070. Additionally, an employer is liable for double damages plus attorney fees related to any violation of RCW 49.52.050(1) (unlawful rebate) or (2) (intentional failure to pay agreed wages).
Clearly, employers who retaliate against employees for asserting wage claims under chapter 49.46 RCW are liable for the tort of wrongful discharge in violation of public policy. See Hume v. Am. Disposal Co., 124 Wn.2d 656, 880 P.2d 988 (1994), cert. denied, 513 U.S. 1112 (1995); Hayes v. Trulock, 51 Wn. App. 795, 755 P.2d 830, review denied, 111 Wn.2d 1015 (1988). In Hume, an employer terminated waste disposal workers for asserting their right to overtime pay. The Hume court recognized a clear mandate of public policy to pay an employee wages due, noting that the legislature made it a criminal offense for employers to discharge or discriminate against an employee for complaining to an employer or to LI about violations of chapter 49.46 RCW. 124 Wn.2d at 662.
We previously held that an employee may pursue a wrongful discharge suit against an employer based on the employer's failure to pay overtime. Young v. Ferrellgas, L.P., 106 Wn. App. 524, 531, 21 P.3d 334 (2001) (an employer's failure to pay overtime as required by RCW 49.46.130(1) contravenes `a substantive, nonnegotiable, statutorily-guaranteed right'). Thus, an employee's right to receive wages due, in compliance with chapters 49.46, 49.48 and 49.52 RCW, is among the legal rights protected by the tort of wrongful discharge in violation of public policy. Next, we turn to whether Winter set forth a prima facie case, even through hypotheticals.
A prima facie case for wrongful discharge in violation of public policy includes three elements: (1) the employee exercised a statutory right or communicated to the employer an intent to do so, (2) the employer thereafter discharged the employee, and (3) a causal link exists between the exercise of the legal right and the discharge. Wilmot, 118 Wn.2d at 68-69 (tort action for wrongful discharge where employer fired employees in retaliation for filing a worker's compensation claim).
Winter's complaint establishes a prima facie case for wrongful discharge in violation of public policy. He alleged that Toyota unlawfully deducted earned wages from his and other employee paychecks without their consent, in violation of chapters 49.46, 49.48, and 49.52 RCW, and then fired him because he complained about it and threatened to report the unlawful conduct to LI, thereby informing Toyota of his intent to exercise his statutory rights.
On appeal, Winter offers the following hypothetical facts. Toyota routinely paid him and other employees for fewer hours than they worked. For example, if they turned in time slips for 200 hours, Toyota paid them for only 190 hours. The unpaid hours included overtime work. Toyota only paid the correct amount after Winter complained. Toyota fired Winter because he threatened to complain to LI about Toyota's practice of not paying him. Assuming Winter's allegations prove true, Toyota would be liable for wrongful discharge in violation of public policy predicated on Toyota's retaliatory discharge for asserting his right to overtime pay under chapter 49.46 RCW. We do not address whether chapters 49.48 and 49.52 RCW provide additional grounds for Winter's claim. Once we have determined that recovery for a claim is possible under any theory or set of facts, we need not address the sufficiency of other theories or factual scenarios. Hoffer v. State, 110 Wn.2d 415, 421, 755 P.2d 781 (1988).
We note that Toyota raises four counter arguments why Winter should not prevail on appeal, all of which fail. First, Toyota counters that `[t]he plaintiff's case is simply a strained attempt to boot strap [sic] this private disagreement into various wage and hour statutes.' Resp't's Br. at 8. In Toyota's view, recognizing a cause of action here would allow the wrongful discharge in violation of public policy tort to swallow the rule of at-will employment. We disagree.
Toyota's first argument stands contrary to the State's strong policy in favor of requiring employers to pay wages due employees, as our Supreme court recognized. Schilling, 136 Wn.2d at 157-58. Winter still must carry the burden at trial of demonstrating that the discharge resulted from the employee's assertion of his right to be paid in compliance with the wage statutes, and not for some other bona fide reason. See Thompson, 102 Wn.2d at 232-33. The employee's burden of proving that the employer's conduct contravened a clear mandate of public policy properly balances the employee's interest in job security and the employer's interest in making personnel decisions without fear of incurring civil liability. See Thompson, 102 Wn.2d at 232-33.
And Toyota's first argument particularly fails to persuade us given that the trial court dismissed Winter's lawsuit before Toyota complied with his proper discovery requests. Winter may or may not be able to establish facts that entitle him to recover. The record before the trial court and before us does not contain sufficient facts to determine whether the case involves a private disagreement rather than a public policy violation.
Second, Toyota counters that the trial court properly dismissed Winter's claim based on his admissions during argument on the dismissal motion. More specifically, Toyota asserts that he admitted the issue was not whether Toyota paid him a minimum hourly rate, but whether it paid him for all hours worked. The record does not support Toyota's assertion.
Although Winter maintained that Toyota violated the minimum wage act by failing to pay him for all hours worked, he did not concede that Toyota paid him more than the minimum wage, on average. Regardless, the particular manner in which Toyota violated the statute remains a fact that must be proven at trial. According to Winter's hypothetical facts, Toyota failed to pay him some overtime hours. This suffices to establish a hypothetical violation of chapter 49.46 RCW.
Third, Toyota counters that Winter admitted that chapter 49.48 RCW did not apply because he received a final check. Although Winter stated that he received a final check, he argued that he did not receive all wages due. The statute relates not only to the timing of a final payment following termination but also to an employer's obligation to pay all wages due.
Finally, Toyota argues that Winter's allegations support a breach of contract claim, not a tort action. But our Supreme Court has held that the availability of other remedies for wrongful discharge does not exclude a tort action based on violation of a public policy. Whereas a contract action vindicates the plaintiff's private interest, a tort action for wrongful discharge in violation of public policy vindicates the public interest and exists as an independent cause of action. See Smith, 139 Wn.2d at 807 (extending tort remedy to employees covered by Collective Bargaining Agreement because the failure to do so would `immuniz[e] the alleged tortious conduct of her employer — simply because . . . administrative and contractual remedies may partially compensate [for] wrongful discharge); Wilmot, 118 Wn.2d 46 (tort action available in addition to the statutory remedy for employees who are wrongfully discharged for filing a worker's compensation claim).
Reversed and remanded for further proceedings.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J. and PENOYAR, J., concur.