By Wayne D. Garris Jr., J.D.
The employer questioned whether a criminal statute could form the basis of a wrongful discharge in violation of public policy clam.
Denying a construction company’s motion for summary judgment, a federal district court in the District of Columbia held that an executive assistant can go to trial on her claim that she was fired in retaliation for reporting a company’s vice president’s threat to shoot another employee, then himself. The employee’s wrongful discharge in violation of public policy claim should proceed, the court found, because District of Columbia criminal statutes on threats of assault reflect the government’s public policy to prevent violent acts. Furthermore, the temporal proximity between the employee’s complaints and her termination created genuine issue of fact as to whether retaliation was the reason for her termination (Perkins v. WCS Construction, Inc., June 12, 2020, Contreras, R.).
The employee worked as the Executive Assistant to the president of WCS Construction. During a meeting between the vice president of operations and the CFO, the employee heard the VP state that he was going to drive down to the office of a company that the employer was working on a project with and take out his gun, shoot an individual there, and then shoot himself in the head.
Complaint. According to the employee, the VP owned several firearms, so she was concerned that he might act on his comments. The employee sent a letter to the CFO explaining her concerns about the VP’s statement. The CFO allegedly told the employee that he was ‘not getting involved.’
The employee then gave the letter to her office manager, who sent the letter to HR. HR conducted an investigation but was unable to substantiate the allegations. HR told the VP, however, “that any comments about violence, even if made in jest, were inappropriate in the workplace, and warned him against taking any action against [the employee] for reporting the incident.” HR told the employee that it had ‘taken the necessary next steps and precautions’ and thanked her for raising her concerns.
Retaliation? The employee believed that HR failed to protect her confidentiality and reported an ‘uncomfortable encounter’ with the VP. She contacted the local police department’s nonemergency line, but the police declined to investigate.
The next day, the employee emailed the company’s new president accusing HR of disclosing her identity to the VP causing her to be subjected to hostile work environment. The employee also stated that she would be “consulting representation and any support from the [police] as to how to handle this unfair and unjust treatment.” Several days later the new president and the VP of HR met with the employee and terminated her.
Lawsuit. The employee filed suit alleging wrongful discharge in violation of public policy. The employer moved for summary judgment arguing that the employee could not “identify a clear statement of official policy that the termination supposedly offended” and that, even if there was a policy at issue, she could not establish a connection between the policy and her termination.
Public policy. The employee identified three Washington, DC criminal statutes that were implicated by the VP’s statement and her complaint. The statutes impose criminal penalties for assault and threatened assault, threatened kidnapping, threatened injury to another, and obstructing or interfering with the report of a criminal offense to a law enforcement agency through force or intimidation.
The employer argued that these statutes could not form the basis of a public policy claim because, as criminal statutes, they did not impose standards of conduct for an employer. The court rejected this argument noting that the cases that the employer cited in support of its argument involved “general statements of policy or broad statutory exhortations,” whereas here, the employee identified specific criminal statutes related to the VP’s threat.
Nor was the court persuaded by the employer’s argument that the VP didn’t actually violate any of the cited criminal statutes. First, the court was not convinced that the VP’s statement did not constitute a threatened injury to another. Furthermore, the employee was not required to prove the elements of a crime, but to put forth evidence of “the existence of specific laws or regulations that clearly reflect a policy prohibiting the activity about which the employee complained, whether or not the employer actually violated the law or regulation.”
“Close fit.” Next, the court considered whether there was a “close fit” between the policy and the employee’s termination. The employer stated it thought the employee “was not going to be satisfied in any position or role” because she “walked out of meetings with executives, indicated she was having difficulty working with several different employees at her small 75-person employer, and continued to voice her dissatisfaction with her job, her employer, and everyday ordinary workplace occurrences.”
The court noted that the employer did not point to any performance or conduct issues and concluded that the employer’s proffered reasons were in line with the employee’s argument that she was fired for “drawing attention to her uncomfortable interactions with [the VP].” Thus, a question for the jury remained as to whether the employee was fired for refusing to drop the issue of her complaint against the VP.
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