WA State Torts: Wrongful Termination in Violation of Public Policy
THE JUDICIAL EXCEPTION: WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY
"In Thompson v. St. Regis Paper Co., ... [the Washington State Supreme Court] adopted the tort of wrongful discharge in violation of public policy as a narrow exception to the at-will doctrine." Martin v. Gonzaga University, 425 P.3d 837, 842-43, 191 Wn.2d 712 (Wash. 2018) (citing Thompson, 102 Wn.2d 219, 232-33, 685 P.2d 1081 (1984)). "[This tort] has generally been limited to four scenarios:
 where employees are fired for refusing to commit an illegal act;
 where employees are fired for performing a public duty or obligation, such as serving jury duty;
 where employees are fired for exercising a legal right or privilege, such as filing workers' compensation claims; and
 where employees are fired in retaliation for reporting employer misconduct, i.e., whistle-blowing."Id., 191 Wn.2d 712 (citing Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 936, 913 P.2d 377 (1996)) (internal citations and quotations marks omitted). "The elements of wrongful termination in violation of public policy were set forth in Thompson and refined in Wilmot [v. Kaiser Aluminum & Chemical Corp., 118 Wn.2d 46, 821 P.2d 18 (1991),]" as follows[:]
 First, ... [the plaintiff] has the burden to show that his discharge may have been motivated by reasons that contravene a clear mandate of public policy ... [;]
 Second[,] ... [t]he plaintiff [is required] to show that the public-policy-linked conduct was a significant factor in the decision to discharge the worker[:]
[a] [t]he plaintiff must first establish a prima facie case by producing evidence that the public-policy-linked conduct was a cause of the firing, and may do so by circumstantial evidence[;]
[b] [i]f the 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 ... [;]
[c] [i]f the 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."Martin, 425 P.3d at 843, 191 Wn.2d 712 (internal citations and quotation marks omitted).
"In Gardner, ... [the Washington State Supreme 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 of those four recognized ... [scenarios]." Id., 191 Wn.2d 712 (citing Gardner, 128 Wn.2d at 941, 913 P.2d 377 (citing HENRY H. PERRITT JR., WORKPLACE TORTS: RIGHTS AND LIABILITIES (1991))) (emphasis added). "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 of justification element)."