Gregg Becker, Respondent, v. Community Health Systems, Inc., et al., Petitioners, 184 Wash. 2d 252

Johnson, J. ¶1 This case involves the “jeopardy” element of the tort for wrongful discharge against public policy and whether the Sarbanes-Oxley Act of 2002 (SOX), 18 U.S.C. § 1514A, or the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), 15 U.S.C. § 78u-6, bar Gregg Becker from recovery under the tort claim. This is one of three concomitant cases before us concerning the “adequacy of alternative remedies” component of the jeopardy element. See Rose v. Anderson Hay & Grain Co., 184 Wn.2d 268, 358 P.3d 1139 (2015), and Rickman v. Premera Blue Cross, 184 Wn.2d 300, 358 P.3d 1153 (2015).

Our recent holding in Rose instructs that alternative statutory remedies are to be analyzed for exclusivity, rather than adequacy. Under that formulation, neither SOX nor Dodd-Frank preclude Becker from recovery. We affirm the trial court’s denial of Community Health Systems Inc.’s (CHS) CR 12(b)(6) motion, and affirm the Court of Appeals in upholding that decision upon certified interlocutory review. Facts ¶2 Becker began working for Rockwood Clinic PS, an acquired subsidiary of CHS, as its chief financial officer (CFO) in February 2011.

As a publicly traded company, CHS is required to file reports with the United States Securities and Exchange Commission (SEC). These reports are available publicly for the purpose of accurately advising the SEC, and CHS’s creditors and investors, of CHS’s profitability and business strategies. As Rockwood’s CFO, Becker was required by state and federal law to ensure that Rockwood’s reports did not mislead the public, which also required his personal verification that the reports did not contain any inaccurate material facts or material omissions.

As the CFO, Becker himself was potentially criminally liable for misleading reporting. In October 2011, Becker submitted to CHS’s financial department an “EBIDTA,” a calculation of earnings before interest, depreciation, taxes, and amortization—it serves as an important measure of financial health for publicly traded companies. Becker’s EBIDTA report projected a $12 million operating loss for Rockwood the upcoming year. ¶3 Unbeknown to Becker, when CHS acquired Rock-wood it represented to creditors that the Rockwood acquisition would incur only a $4 million operating loss.

To cover the discrepancy, CHS’s financial supervisors allegedly directed Becker to correct his EBIDTA to reflect the targeted $4 million loss. CHS did not provide a basis for its low calculation. Becker refused, fearing that the projection would mislead creditors and investors in violation of SOX. ¶4 Soon after, Rockwood’s chief executive officer (CEO) initiated an unscheduled evaluation of Becker’s performance in which the CEO marked him with an unacceptable performance rating and placed him on a performance improvement plan.

As part of his improvement plan, Becker was directed to edit the EBIDTA projected loss to reflect the $4 million valuation. The CEO made clear that Becker’s refusal to do so put his position in jeopardy. ¶5 Becker sought legal counsel and decided to report his concerns upward: he wrote to CHS’s and Rockwood’s CEOs, explaining his concern that CHS was attempting to misrepresent its projected budget in violation of financial reporting laws. He wrote that he felt compelled to resign unless CHS responded to his concerns.

The next day, CHS and Rockwood accepted Becker’s resignation. ¶6 Becker filed two claims in Spokane County Superior Court: one for wrongful discharge in violation of public policy and the other for a violation of SOX. CHS successfully removed the case to federal court, prompting Becker to amend his complaint and omit his federal SOX claim. The federal court remanded the case back to the state superior court.

Becker’s amended complaint alleged wrongful discharge for Becker’s refusal to violate financial reporting laws, which resulted in economic and emotional distress damages. ¶7 CHS filed a CR 12(b)(6) motion to dismiss the complaint for failure to state a claim, contending that the jeopardy element of the tort had not been met because there were adequate alternative means to protect the public policy of honesty in corporate financial reporting. The trial court denied the motion, and CHS successfully moved to have the question certified for interlocutory review under RAP 2.3(b)(4).

The Court of Appeals accepted review and determined that the jeopardy element had been satisfied because the alternative administrative enforcement mechanisms of SOX and Dodd-Frank were inadequate and therefore did not foreclose the common law tort remedies for employees. Becker v. Cmty. Health Sys., Inc., 182 Wn. App. 935, 332 P.3d 1085 (2014), review granted, 182 Wn.2d 1009, 343 P.3d 759 (2015). Analysis ¶8 We review the trial court’s ruling on a motion to dismiss de novo.

Factual allegations are accepted as true, and unless it appears beyond doubt that the plaintiff can prove no set of facts consistent with the complaint that would entitle him or her to relief, the motion to dismiss must be denied. Corrigal v. Ball & Dodd Funeral Home, Inc., 89 Wn.2d 959, 961, 577 P.2d 580 (1978). ¶9 We accepted review of these three cases— Becker, Rose, and Rickman—to determine whether other nonexclusive administrative remedies nevertheless preempt the tort for wrongful discharge when those statutes are “adequate” to promote the public policy.

In our decision in Rose, we determined that the “adequacy of alternative remedies” analysis misapprehends the role of the common law and the underlying purpose of the tort. When other statutory remedies provide alternative remedies to protect the public policy, we concluded that exclusivity, not adequacy, is the key inquiry. Applied to these facts, we agree with the Court of Appeals that Becker’s claim properly survives CHS’s CR 12(b)(6) motion to dismiss. ¶10 The tort for wrongful discharge in violation of public policy is a narrow exception to the at-will doctrine.

It is recognized as a means of encouraging employees to follow the law and preventing employers from using the at-will doctrine to subvert those efforts to promote public policy. To state a cause of action, the plaintiff must plead and prove that his or her termination was motivated by reasons that contravene an important mandate of public policy. We maintain a strict clarity requirement in which the plaintiff must establish that the public policy is clearly legislatively or judicially recognized.

Once established, the burden shifts to the employer to plead and prove that the employee’s termination was motivated by other, legitimate, reasons. Thompson v. St.

Regis Paper Co., 102 Wn.2d 219, 232-33, 685 P.2d 1081 (1984). ¶11 Because we construe this tort exception narrowly, wrongful discharge claims have generally been 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., whistleblowing. Gardner v.

Loomis Armored, Inc., 128 Wn.2d 931, 936, 913 P.2d 377 (1996) (citing Dicomes v. State, 113 Wn.2d 612, 618, 782 P.2d 1002 (1989)). When the plaintiff’s case does not fit neatly within one of these scenarios, a more refined analysis may be necessary, and the four-factor Perritt analysis may provide helpful guidance. Gardner, 128 Wn.2d at 941 (citing Henry H. Perritt, Jr., Workplace Torts: Rights and Liabilities § 3.7 (1991)). ¶12 But such detailed analysis is unnecessary here. Becker’s complaint alleges that he was terminated for refusing to criminally misrepresent the EBIDTA report of Rockwood’s operating losses.

His case falls squarely within the first scenario—termination for refusal to commit an illegal act. Taking his allegations as true, as we must when reviewing a motion to dismiss, Becker has pleaded sufficient facts to establish a claim that his discharge was in violation of clear, important public policy. ¶13 As to the potential exclusionary effects of alternative statutes, we review these statutes for exclusivity, not adequacy. For the same reasons discussed in Rose, we reject the argument that the adequacy of alternative remedies approach plays any legitimate role in our analysis.

If SOX and Dodd-Frank already protect whistle-blowers from termination, then the availability of this alternative method of recovery does not impact the employer’s discretion to ter-mínate employees without cause. The elimination of this adequacy requirement has no effect on the breadth of the at-will doctrine; rather, its removal from our analysis merely eliminates a loophole for employers who intentionally contravene public policy to escape liability.

Once a plaintiff can establish that the employer’s actions violate an important mandate of public policy, no legitimate reason exists for excusing those actions. ¶14 In support of the “strict adequacy” requirement, CHS also argues that the concurrent availability of this tort with SOX and Dodd-Frank would undermine the statutes’ goal in encouraging whistle-blowers. SOX provides relief only for those employees who actually report, not those who merely refuse to violate the law.

CHS argues that the tort would encourage employees to “sit on their hands” rather than report violations because the concurrent availability of the tort would reward those employees for their indifference by providing relief when they deserve none. Without addressing the numerous flaws to this argument, we maintain that it is with the proper authority of Congress and the legislature to address that concern by expressly limiting remedies only to those provided by the statute.

Congress and the legislature possess greater relative competency to determine how and when employees should be afforded remedies for their termination, and retain the authority to determine when its administrative remedies should be exclusive. Here, Congress expressly declared that the remedies available under SOX and Dodd-Frank supplement rather than preclude state or federal remedies. See 18 U.S.C. § 1514A(d); 15 U.S.C. § 78u-6(h)(3).

We respect Congress’ choice to avail these administrative remedies in addition to our existing common law, and we decline to contravene that intent by barring Becker from full adjudication of his claim. Conclusion ¶15 We agree with the Court of Appeals that Becker’s allegations constitute a compelling case for protection under a public policy tort. Taking these allegations as true, as we must at this stage of review, Rockwood and CHS directed Becker to commit a crime for which he would be personally responsible.

By doing so, “Rockwood and CHS forced him to choose between the consequences of disobeying his employer and the consequences of disobeying criminal laws.” Becker, 182 Wn. App. at 952 (citing Daniel P. Westman & Nancy M. Modesitt, Whistleblowing: The Law of Retaliatory Discharge ch. 5.II.A.1, at 101 (2d ed. 2004)). When an employer intentionally uses the at-will doctrine to subvert public policy in this manner, it exposes itself to potential liability for wrongful termination. We affirm the Court of Appeals. Stephens, Wiggins, González, Gordon McCloud, and Yu, JJ., concur.

Rockwood is an acquired entity of CHS and does business as Community Health Systems Professional Services Corporation (CHSPS). CHS is a publicly traded company incorporated in Delaware and licensed to do business in Washington. Becker’s allegations are against CHS as the employer; however, the superior court dismissed CHS as a defendant, since CHS is a holding company with no contacts in Washington. CHSPS remains a party to the lawsuit. Becker also filed a whistle-blower complaint with the United States Occupational Safety and Health Administration, but it was dismissed.

His appeal on that matter will be heard in January 2016. Under our adoption of the Perritt analysis, courts examine (1) the existence of a “clear public policy’’ (clarity element), (2) whether “discouraging the conduct in which [the employee] engaged would jeopardize the public policy’’ (jeopardy element), (3) whether the “public-policy-linked conduct caused the dismissal’’ (causation element), and (4) whether the employer is “able to offer an overriding justification for the dismissal’’ (absence of justification element). Gardner, 128 Wn.2d at 941.

This framework was specifically helpful in Gardner, a very factually unique case that demanded a more refined analysis.