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Opinion Information Sheet

			

                                                                               FILED
                                                                           MAY 22, 2012
                                                                    In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division III

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

CHARLES ROSE,                                             No. 30545-7-III
                                                )
                      Appellant,                )
                                                )
              v.                                )
                                                )
ANDERSON HAY AND GRAIN                          )         PUBLISHED OPINION
COMPANY,                                        )
                                                )
                      Respondent.               )
                                                )

       Brown, J. ? Charles Rose sued his former employer, Anderson Hay and Grain 

Company (AHG), in the Kittitas County trial court for his alleged unlawful employment 

termination after a similar suit was dismissed in federal court for his failure to exhaust 

administrative remedies as set forth in 49 U.S.C. § 31105(b)(1).  The trial court similarly 

dismissed his action.  Mr. Rose appeals, contending he had the option to file his claim in 

federal court, state court, or with the Secretary of Labor.  Mainly Mr. Rose urges us to 

reject or modify Korslund v. DynCorp Tri-Cities Services, 156 Wn.2d 168, 183, 125 P.3d  

No. 30545-7-III 
Rose v. Anderson Hay & Grain Co. 

119 (2005), which precludes his claim.  We decline and affirm.              

                                            FACTS

       Mr. Rose worked as a commercial truck driver for AHG from March 2006 through 

November 2009. He alleges AHG terminated him for refusing to violate certain federal 

work regulations.  On March 3, 2010, Mr. Rose sued in federal court, alleging his AHG

termination violated the Commercial Motor Vehicle Safety Act (CMVSA) (49 U.S.C. 

chapter 311).  AHG requested dismissal based on 49 U.S.C. § 31105(b)(1), providing that 

the Secretary of Labor has exclusive jurisdiction over initial complaints under the 

CMVSA.  On August 6, 2010, the federal court dismissed Mr. Rose's complaint for lack 

of jurisdiction, three months after the expiration of the time limit for filing for 

administrative relief. Apparently, Mr. Rose chose not to pursue a federal appeal.

       Instead, in September 2010, Mr. Rose sued in the Kittitas County Superior Court 

alleging wrongful termination in violation of state public policy arising from alleged 

violations of 49 U.S.C. § 31105.  Based partly on Korslund, AHG requested summary 

judgment dismissal of Mr. Rose's claim, arguing he failed to satisfy the jeopardy element 

necessary to maintain a public policy claim.  AHG reasoned the CMVSA provides

comprehensive remedies protecting the specific public policy identified by Mr. Rose.  

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No. 30545-7-III 
Rose v. Anderson Hay & Grain Co. 

Thus, it argued an adequate alternative means of promoting the public policy exists, that,

as a matter of law, forecloses Mr. Rose's public policy cause of action. 

       The trial court agreed and on April 18, 2011, it summarily dismissed Mr. Rose's

complaint.  On transfer from our Supreme Court, we now consider his appeal.  

                                         ANALYSIS

       The issue is whether the trial court erred in summarily dismissing Mr. Rose's 

wrongful termination action in violation of public policy.  While acknowledging 

Korslund, Mr. Rose nevertheless contends he should not be required to exhaust his 

administrative remedies before suing in state court.  

       We review summary judgment orders de novo, performing the same inquiry as the 

superior court.  Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 

(2004).  The superior court properly grants summary judgment when no genuine issue of 

material fact exists and the moving party is entitled to judgment as a matter of law.  

Morin v. Harrell, 161 Wn.2d 226, 230, 164 P.3d 495 (2007) (citing CR 56(c)).  In a 

summary judgment motion, the burden is on the moving party to demonstrate summary 

judgment is proper.  Atherton Condo. Apartment-Owners Assoc. Bd. of Dirs. v. Blume 

Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990).  We consider all the facts submitted 

and the reasonable inferences from them in the light most favorable to the nonmoving 

party.  Id.  We resolve any doubts about the existence of a genuine issue of material fact 

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No. 30545-7-III 
Rose v. Anderson Hay & Grain Co. 

against the party moving for summary judgment.  Id.  "Summary judgment is appropriate 

only if, from all the evidence, reasonable persons could reach but one conclusion." Lilly 

v. Lynch, 88 Wn. App. 306, 312, 945 P.2d 727 (1997).

       To establish a claim for wrongful discharge in violation of public policy, the 

plaintiff must prove a clear public policy exists (clarity element), discouraging the 

conduct in which the employee engaged would jeopardize the public policy (jeopardy 

element), and the policy-linked conduct caused the dismissal (causation element).  

Korslund, 156 Wn.2d at 178. To establish the jeopardy element, the plaintiff must show 

other means of promoting public policy are inadequate.  Cudney v. ALSCO, Inc., 172 

Wn.2d 524, 530, 259 P.3d 244 (2011). Protecting the public is the policy that must be 

promoted, not protecting the employee's individual interests.  Id. at 538.

       The jeopardy element alone is disputed.  Federal law prohibits an employer from 

discharging an employee who refuses to operate a vehicle in violation of federal 

regulations or standards related to commercial vehicle safety.  49 U.S.C. § 

31105(a)(1)(B).  An employee alleging discharge in violation of this statute may file a 

complaint with the Secretary of Labor no later than 180 days after the alleged violation 

occurred. 49 U.S.C. § 31105(b)(1).  If the secretary determines an employer has violated 

the statute, the secretary can take affirmative action to abate the violation, reinstate the 

employee to the former position with the same pay and terms, and require the employer to 

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No. 30545-7-III 
Rose v. Anderson Hay & Grain Co. 

pay compensatory damages, including back pay with interest and compensation for 

special damages sustained by the wrongful termination, including litigation costs, expert 

witness fees, and reasonable attorney fees.  49 U.S.C. § 31105(b)(3)(A)(i)-(iii).  By its 

terms, nothing in the statute preempts or diminishes any other safeguards against 

discrimination, demotion, discharge, suspension, threats, harassment, reprimand, 

retaliation, or any other manner of discrimination provided by federal or state law.  49 

U.S.C. § 31105(f).

       As can be seen, the federal statute provides an adequate remedy.  Korslund is 

instructive.  The plaintiffs there claimed they were wrongfully terminated for reporting 

safety violations, mismanagement, and fraud at the Hanford Nuclear Reservation.  The 

Korslund court held that because the federal Energy Reorganization Act, 42 U.S.C. §

5851, provided an administrative process for adjudicating whistleblower claims and 

provided for reinstatement, back pay, and other compensatory damages, an adequate 

remedy existed that protected the public interest.  Korslund, 156 Wn.2d at 182-83. 

       And, in Cudney, the plaintiff claimed he was discharged after reporting his 

supervisor was drinking on the job and had driven a company vehicle while intoxicated. 

The Cudney court held that the Washington Industrial Safety and Health Act, RCW 

49.17.160, provided a sufficient administrative remedy, and that state laws on driving 

while intoxicated adequately protected the public.  Cudney, 172 Wn.2d at 527.

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No. 30545-7-III 
Rose v. Anderson Hay & Grain Co. 

       Mr. Rose argues the federal statutory scheme does not preempt state remedies.  

But the question is not whether the federal act preempts state tort claims generally but 

whether a state tort claim for wrongful discharge in violation of public policy exists given 

that the federal act provides adequate protection of the public interest.  See Korslund, 156 

Wn.2d at 183.  Recognizing that Korslund precludes him from establishing a claim, Mr. 

Rose urges us to reject Korslund or modify it.  We decline.  We are bound to follow 

Korslund. Moreover, the Korslund analysis was reaffirmed in Cudney. As to modifying 

Korslund, Mr. Rose argues the federal administrative remedy is not available to him 

because the federal statute of limitations expired before he filed his state suit.  But the 

Korslund court foreclosed this argument when it reasoned the other means of protecting 

the public policy need not be available specifically to the plaintiff so long as the other 

means are adequate to protect the public policy.  Korslund, 156 Wn.2d at 183.

       In sum, we conclude the trial court correctly dismissed Mr. Rose's claim of 

wrongful termination in violation of public policy in light of federal statutes protecting 

truck drivers who refuse to violate safety regulations. 

       Affirmed.

                                                           ___________________________
                                                           Brown, J.

WE CONCUR:

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No. 30545-7-III 
Rose v. Anderson Hay & Grain Co. 

_________________________________
Korsmo, C.J.

_________________________________
Kulik, J.

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