By Jeffrey Needle
The Civil Justice System is a mechanism designed for determining the truth. It relies upon the truthful testimony of witnesses who appear in court or in a deposition to inform a fact finder of the information they know. When an employee is requested to give information contrary to the interests of his or her employer, a strong conflict of interest is created.
Many employees possess an extraordinary amount of loyalty toward their employer and testify against the employer's interests only reluctantly, if at all. Employers expect this loyalty. They feel betrayed by employees who testify against their interests, especially if the employer disagrees with the substance of the employee's testimony. Nevertheless, the integrity of the Civil Justice System transcends an employee's loyalty to the employer.
Quite simply, the law requires witnesses to tell the truth under oath. Invariably, people of good faith will differ about what is the truth. Truthful testimony, however, is not the same thing as accurate testimony. Both federal and state statutes criminalize untruthful testimony. But neither criminalizes inaccurate testimony.
Many employees who would otherwise be willing to testify against the interest of their employer are fearful of retaliation. This fear is entirely understandable. An employer's sense of betrayal easily translates into termination from employment, loss of promotion opportunities, or other adverse employment actions. In order to facilitate the search of truth, an employee's truthful testimony must be protected from retaliation by employers against whose interests they testify. Truthful testimony must be protected regardless of whether the testimony involves the employer's illegal employment practices, claims for product liability, toxic torts, common law torts or other wrongful behavior.
The protection from retaliation for truthful testimony depends upon the nature of the allegation against the employer. When an employee testifies in a proceeding which involves an allegation of illegal discrimination, employees are protected against retaliation by state or federal civil rights statutes. This protection finds its source in the "participation" clause of civil rights statutes as compared to the "opposition" clause. As participation conduct, testimony is absolutely protected. No affirmative defenses which otherwise might be applicable apply.
When an employee testifies, however, in a proceeding which involves allegations other than illegal employment discrimination, there most often is no statutory protection. In those circumstances, an employee must rely upon a common law public policy tort. This application of the public policy tort has not yet been formally recognized in Washington State. Its recognition and development is essential to the search for the truth and the integrity of the Civil Justice System.
Retaliation for Testimony - Civil Rights Statutes
The anti-retaliation provisions under the federal civil rights statutes prohibit both retaliation because of opposition to illegal practices and because of participation in enforcement proceedings.
Title VII makes it an unlawful employment practice for an employer to retaliate against an employee "because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). Under federal law, "participation" conduct enjoys far greater protection than "opposition" conduct. See Laughlin, v. Metropolitan Washington Airports Authority, 952 F. Supp. 1129, 1135 (E.Va. 1997)("Indeed, 'whether an activity [is] 'opposition' or 'participation' is often of critical importance in Title VII retaliation cases because the scope of protection afforded by the two clauses is different. While the 'participation' clause covers a narrower range of activities than the other, it gives those activities stronger protection than the 'opposition' clause provides'"); Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d 1304, 1312 (6th Cir. 1989)("Thus, once the activity in question is found to be within the scope of the participation clause, the employee is generally protected from retaliation"). Sias v. City Demonstration Agency, 588 F.2d 692, 695 (9th Cir. 1978)("It is well settled that the participation clause shields an employee from retaliation regardless of the merit of his EEOC charge); Merritt, v. Dillard Paper Company, 120 F.3d 1181, 1187 (11th Cir. 1997)("Whatever fetters McDonnell Douglas clamped onto the anti-retaliation provision, they were put on the opposition clause only; the broad language of the participation clause was left unfettered").
State law also protects employees from retaliation for opposing discriminatory employment practices or participating in an enforcement proceeding. RCW 49.60.210. Within the context of retaliation because of an employee's testimony, the employee must prove (1) that he assisted with an anti-discrimination proceeding brought under RCW 49.60 et seq; and (2) retaliation for this protected activity was a substantial factor in the decision to take adverse action. Allison v. Housing Auth., 118 Wash.2d 79, 95, 821 P.2d 34 (1992). Washington state law has not yet addressed the difference between opposition and participation conduct. There is no reason to believe, however, that Washington law will not adopt the distinctions recognized by federal law on this issue. Fahn v. Cowlitz County, 93 Wn.2d 368, 376, 610 P.2d 861, 621 P.2d 1293 (1980) ("because federal law, Title VII of the Civil Rights Act of 1964, is to be construed broadly, and the legislature has directed that RCW 49.60 be liberally construed, relevant federal cases may be looked to for guidance").
Under state and federal civil rights statutes, opposition conduct is protected so long as the employee reasonably believes that the employer's practices are illegal. See Graves v. Dep't of Game, 76 Wn.App. 705, 712, 887 P.2d 424 (1994) ("[A]n employee who opposes employment practices reasonably believed to be discriminatory is protected by the opposition clause whether or not the practice is actually discriminatory."); Moyo v. Gomez, 40 F.3d 982, 985 (9th Cir. 1994) ("Moyo would be able to state a retaliation claim if he could show that his belief that an unlawful employment practice occurred was reasonable"), cert. den., 513 U.S. 1081 (1995).
Opposition Conduct - The Affirmative Defense
Employers will argue that the employee exercised poor judgment in his testimony, and that the substance of the testimony caused disruption to the workplace thereby justifying termination from employment. But if the substance of an employee's testimony can even indirectly be used as a justification for the termination for employment, no employee can testify truthfully against the employer's interests without fear of losing his or her job.
In Selberg v. United Pacific Ins. Co., 45 Wn.App. 469, 726 P.2d 468 (1986), the Court acknowledged that even though opposition to an unlawful employment practice is generally protected, such protection is not absolute. Id. at 472. The Court ruled that when an employee's conduct in opposition so interferes with job performance that it renders the employee ineffective in the job, the conduct is not protected. Id. The opposition conduct must be in and of itself disruptive to the working environment; the opposition conduct itself must be excessive. "In summary, proof of disloyalty is insufficient by itself to serve as an independent, nondiscriminatory basis for Selberg's dismissal, and there is no objective evidence to support a conclusion that his conduct was 'so excessive' as to interfere with his job performance." Id. at 472- 472.
This affirmative defense "must be read narrowly lest legitimate activism by employees asserting civil rights be chilled." Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346, 1355 (9th Cir. 1984). Under federal law, an employer must prove that "plaintiff's protest activities significantly disrupted the workplace and sometimes directly hindered his or her job performance." EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1014-15 (9th Cir.1983). This is established by showing that the nature of the opposition conduct was in and of itself disruptive to the working environment. "[A]s long as an employee complains to his or her employer or participates in an employer's informal grievance procedure in an orderly and nondisruptive manner, the employee's activities are entitled to protection under Section 704's opposition clause." Laughlin v. Metropolitan Wash. Airports Auth., 149 F.3d 253, 260 (4th Cir. 1998). See also Hopkins v. Baltimore Gas & Elec.,Co., 77 F.3d 745, 754 (4th Cir.1996) (Activities such as "complaining to the employer" and "participating in an employer's informal grievance procedures," when done in a manner that is "not disruptive or disorderly," held to be opposition activities protected under Title VII). The disruption must also be attributable to the opposition conduct and not unrelated reasons. See O'Connor v. Steeves, 904 F.2d 905, 917 (1st Cir. 1993)("[The Defendant] has not yet met its burden of showing that the disruption was attributable to the exercise of O'Connor's First Amendment right to speak out on this subject, so as to warrant discharging him on speech-related grounds. On the contrary, the disruption which occurred in Department operations may as readily be attributed to unrelated factors. . .").
In order for the employer's interest to prevail, the disruption in the work place must be "actual, material and substantial." Roth v. Veteran's Administration, 856 F.2d 1401, 1407 (9th Cir. 1989). A certain amount of disruption in the workplace is inevitable whenever an employee opposes a management practice. "[I]t would be absurd to hold that the First Amendment generally authorizes corrupt officials to punish subordinates who blow the whistle simply because the speech somewhat disrupted the office." Roth, at 1407-1408. See also Johnson v. Multnomah County, Or., 48 F.3d 420, 427 (9th Cir. 1995)(same)("the County's legitimate interests [are not] injured if [the manager] was undermined by truthful statements exposing his own wrongdoing"); Keyser v. Sacramanto City Unified School District, No. 99-17562 (9th Cir. Feb. 7, 2001)("no evidence of actual disruption caused by [Plaintiffs'] speech, let alone any evidence of 'actual injury to . . . legitimate interests' beyond the 'disruption that necessarily accompanies' such speech")(internal citations omitted).
Participation Conduct - No Affirmative Defense
An employee's testimony is participation conduct. No affirmative defense applies. In Golver v. South Carolina Law Enforcement Division, 170 F.3d 411 (4th Cir. 1999), Plaintiff was discharged because of her deposition testimony in an employment discrimination suit. The Plaintiff brought suit alleging retaliation under Title VII. The district court granted summary judgment for the employer, reasoning that the conduct was not protected activity because Plaintiff testified unreasonably in her deposition. The Fourth Circuit reversed, holding that the participation clause protects even allegedly unreasonable testimony from employer retaliation. Id. at 412.
In Glover, the Plaintiff gave deposition testimony which was allegedly "open and wide-ranging." The testimony concerned her former employer, the U.S. Marshall's Office. During the deposition, Plaintiff allegedly offered testimony of facts about the Marshall's Office, but also "her impressions of the operations of the marshal's office; including the perceived failings of her successor, mismanagement, destruction of office documents, wasting funds, inappropriate behavior, dishonesty, and discrimination." Id. at 412. Glover asserted that her testimony was reasonable and that she was just answering questions. The defendant argued that Plaintiff was going out of her way through unresponsive answers to malign and disparage the defendants. Id.
Almost immediately after the deposition testimony, Glover was placed on probation. The first two reasons were performance related, and third was "that Glover's performance in her deposition had demonstrated poor judgment." It was admitted that the deposition testimony was the determining factor: it "tipped the balance in favor of firing." Id. at 413. In relevant part, the Court ruled that the deposition testimony was nevertheless protected. It rejected the "opposition" line of cases and adopted the "participation" line of cases. Id. at 414. "With her immunity limited by a reasonableness requirement, a witness might be forced to evade or to refuse to answer deposition questions. And those questions can be wide-ranging." Id. at 415.
As in Glover, employers who choose to retaliate against an employee will invariably attempt to find legitimate reasons for doing so. Even assuming the existence of legitimate reasons, however, those reasons do not immunize the employer so long as the employee's testimony was a substantial factor in the decision to terminate. See Allison v. Housing Authority of City of Seattle, 118 Wn.2d 79, 96, 821 P.2d 34 (1991)("this court holds that a plaintiff bringing suit under RCW 49.60.210 must prove causation by showing that retaliation was a substantial factor motivating the adverse employment decision"); Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 71, 821 P.2d 18 (1991) ("[u]nder the substantial factor test, if the pursuit of a claim for benefits was a significant or substantial factor in the firing decision, the employer could be liable, even if the employee's conduct otherwise did not entirely meet the employer's standards").
Retaliation for Testimony - Public Policy Tort
No statutory authority exists to protect an employee from retaliation for testimony outside the context of a claim for discrimination actionable under RCW 49.60 et seq., i.e., where the underlying lawsuit involves a claim for product liability, toxic tort, professional malpractice or any common law tort. Under those circumstances, an employee can only rely on a claim for retaliation in violation of a clear mandate of public policy (public policy tort). Unbelievably, a claim under the public policy tort is only actionable for wrongful discharge. Retaliation short of termination from employment, such as demotion, transfer and harassment is not actionable. White v. State, 131 Wn.2d 1, 19-20, 929 P.2d 396 (1997).
Generally, when an employment contract is indefinite in duration, either the employer or employee may terminate the contract at will. Roberts v. ARCO, 88 Wn.2d 887, 894 (1977). In Thompson v. St. Regis Paper Co., 102 Wn.2d 219 (1984), the Court recognized the public policy exception to the common law terminable at-will doctrine. Under Thompson, a plaintiff has a cause of action in tort for wrongful discharge if the discharge of the employee contravenes a clear mandate of public policy. Thompson, 102 Wn.2d at 232, 685 P.2d 1081. Washington Courts recognize four different categories of public policy tort claims; (1) where the discharge was a result of refusing to commit an illegal act; (2) where the discharge resulted due to the employee performing a public duty or obligation; (3) where the termination resulted because the employee exercised a legal right or privilege; and (4) where the discharge was premised on employee "whistleblowing" activity. Dicomes v. State, 113 Wn.2d 612, 618, 782 P.2d 1002 (1989). In order to prevail, Plaintiff must prove four elements: (1) the existence of a clear public policy (the clarity element); (2) that discouraging the conduct in which they engaged would jeopardize the public policy (the jeopardy element); (3) 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). Gardner v. Loomis Armored Inc., 128 Wn.2d 931, 941, 913 P.2d 377 (1996).
State and federal perjury statutes provide the source of public policy to protect an employee's trial or deposition testimony. See Petermann v. Teamsters Local 396, 174 Cal.App.2d 184, 344 P.2d 25 (1959)(an employee was discharged for refusing to perjure himself before a legislative committee. The court allowed recovery to uphold a public policy against perjury)(cited in Roberts v. Atlantic Richfield Co., 88 Wn.2d 887, 897, 568 P.2d 764 (1977). Under federal law, a person is guilty of committing perjury if she voluntarily and intentionally gives testimony that she knows to be false under oath about material matters. 18 U.S.C. § 1621. Under Washington law, a person is guilty of perjury in the first degree if in any official proceeding he makes a materially false statement which he knows to be false under an oath required or authorized by law. RCW 9A.72.020. These perjury statutes simply require a witness to testify truthfully. In order to be truthful, testimony need not be accurate. To succeed, Plaintiff only has to prove that he reasonably believed his testimony was truthful. If an employee reasonably believed that his testimony was truthful, a fortiori, he was not lying.
Within the context of the public policy tort, trial or deposition testimony is participation conduct. No affirmative defense should apply. The Civil Justice System provides a process which facilitates a search for the truth. Almost invariably, truth is debatable - with each witness telling their version of truth as they believe it. If an employee can be terminated from employment simply because an another witness contradicts them, no witness can testify without fear of losing their job.
In Ellis v. City of Seattle, ___Wn.2d ___, 13 P.3d 1065 (2000), the Court distinguished the reasonable belief standard as applied to the public policy tort from application to the civil rights statutes. As stated above, civil rights statutes only require that an employee reasonably believe that a statute has been violated. Graves v. Dep't of Game, supra; Moyo v. Gomez, supra. Under the public policy tort, however, an employee's reasonable belief that a statute has been violated is only sufficient where the statute allegedly violated protects public health or safety. In other circumstances, the employee must prove an actual violation of the statute upon which the employee relies. Id. But Ellis v. City of Seattle, supra, relates to opposition conduct and not participation conduct. In addition, the decision relates only to whistleblowing activity or an employee's refusal to perform an illegal act. Within the context of subpoenaed testimony, an employee is not relying upon a statute allegedly violated by the employer as a source of public policy. In this sense, the employee is not a whistleblower nor is he refusing to perform an illegal act, as in Ellis. Within this context, the employee is performing a public duty and/or exercising a legal right or privilege. The whistleblower model doesn't apply where Plaintiff is performing a public duty or exercising a legal right. To be protected, the employee should not have to prove that his or her testimony is actually true, only that the testimony was truthful.
Employees are often in the best position to know
of the illegal conduct by employers. The public interest mandates that
this illegal behavior be exposed, and that employers be held accountable
to the rule of law. Exposure and accountability is frequently impossible
without the willingness of employees of strong social conscience to tell
the truth about what they know despite enormous pressures to remain silent.
Employees who offer truthful testimony against the interests of an employer
must be absolutely protected from retaliation.