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March 12, 1993


Appeal from the Superior Court of the District of Columbia; (Hon. Richard S. Salzman, Motions Judge)

Before Steadman and King, Associate Judges, and Gallagher, Senior Judge. Opinion for the court by Associate Judge Steadman. Concurring opinion by Senior Judge Gallagher.

The opinion of the court was delivered by: Steadman

STEADMAN, Associate Judge: The District of Columbia Workers' Compensation Act (the "Act") prohibits any employer from discriminating against an employee because that employee has claimed compensation under the Act, and provides an administrative remedy for any such discrimination. D.C. Code § 36-342 (1988). The issue before us is whether an employee who claims she has been discharged in retaliation for making such a claim may eschew the administrative remedy and instead obtain recovery against the employer on a tort theory of wrongful discharge under the narrow "public policy" exception to the employment-at-will doctrine recognized by this court in Adams v. George W. Cochran & Co., 597 A.2d 28 (D.C. 1991). We hold that she may not and accordingly uphold the trial court's grant of summary judgment in favor of the employer.


Appellant Nancy Nolting was employed as a financial analyst from August 1987, to June 1989, with National Capitol Group, Inc. ("National"). In the course of her employment she suffered work-related injuries and filed a claim for workers' compensation. On June 2, 1989, she was discharged from her position, allegedly in retaliation for her filing the claim.

Instead of pursuing the administrative remedy for retaliatory action provided in the Act, *fn1 Nolting filed a complaint in the Superior Court on a tort theory of wrongful discharge in violation of public policy. She sought front and back pay, the value of her lost employee benefits, and compensatory, consequential, and punitive damages. National filed a motion to dismiss and/or for summary judgment, which was granted by the trial court. *fn2 A timely appeal was filed.


In 1982, the current Workers' Compensation Act (the "Act"), enacted by the Council of the District of Columbia, became effective. See D.C. Code §§ 36-301 to -345 (1988). As part of the Act, it was made unlawful for an employer

to discharge or in any other manner discriminate against an employee as to his employment because such employee has claimed or attempted to claim compensation from such employer, or because he has testified or is about to testify in a proceeding under this chapter.

D.C. Code § 36-342. *fn3

This section also contains a specific remedy for any such unlawful retaliatory action. The prescribed remedy subjects an employer who violates this section to "a penalty of not less than $100 or more than $1,000," and further provides that the employee "so discriminated against shall be restored to his employment and shall be compensated by his employer for any loss of wages arising out of such discrimination." D.C. Code § 36-342. The Act does not refer to any other remedies. *fn4

At the time the Act was promulgated, it had been settled for many years that in the District of Columbia an employment contract, absent evidence to the contrary, was terminable at the will of either party *fn5 and that an employer could discharge an at-will employee at any time and for any reason, or for no reason at all. *fn6 Thus, this statute was enacted against the clear backdrop of an unconditional employment-at-will doctrine. This being the case, we see no basis for any argument that in enacting the provision barring retaliatory discharge, the Council contemplated that any relief would be available for its violation apart from that expressly provided for. See Smith v. Police & Firemen's Retirement & Relief Bd., 460 A.2d 997, 1000 (D.C. 1983) ("when a statute provides a comprehensive enforcement scheme for violations of its substantive provisions, a legislative intent to provide an exclusive remedy may be inferred"); 1 HENRY H. PERRITT, JR., EMPLOYEE DISMISSAL LAW AND PRACTICE § 2.38, at 170 (3d ed. 1992) ("courts usually are reluctant to recognize an implied private right of action when the statute establishes comprehensive administrative remedies available to dismissed employees" (citing cases)); see also Garrett v. Washington Air Compressor Co., 466 A.2d 462, 463 (D.C. 1983) (no right to institute court action against employer for alleged failure to make timely workers' compensation payments where Act provides specific remedy for alleged wrong). *fn7


However, appellant argues that regardless of the status of the law at the time the provision was enacted, subsequent case law has opened the possibility of a tort remedy. She invokes the narrow exception to the employment-at-will doctrine that we recognized in 1991. In Adams, supra, this court held that

there is a very narrow exception to the at-will doctrine under which a discharged at-will employee may sue his or her former employer for wrongful discharge when the sole reason for the discharge is the employee's refusal to violate the law, as expressed in a statute or municipal regulation.

597 A.2d at 34. Appellant argues that § 36-342 sets forth a clear public policy, the violation of which should give rise to a tort remedy based on a "public policy exception" to the employment-at-will doctrine as readily as a discharge for refusing to violate a law.

We do not think this argument is tenable. First of all, as discussed above, we are dealing here with a statutory provision which not only creates the wrong but also contains a specific remedy to compensate the person suffering that wrong. No such statute was involved in Adams; there was no administrative or other remedy available to the plaintiff. The injury to the plaintiff in Adams would have gone uncompensated if the court had refused to recognize a public policy tort. In the case sub judice, appellant does not stand in that same position; she is not facing a situation in which the only possibility for compensation for her claimed injury is the recognition by this court of a public policy tort expansive enough to cover her situation. See, e.g., Mello v. Shop & Stop Cos., 524 N.E.2d 105, 106 & n.2 (Mass. 1988) (public policy liability may exist "unless no common law rule is needed because the legislature has also prescribed a statutory remedy," citing as one example its worker's compensation retaliation provision); PERRITT, (supra) , § 5.25, at 483 ("courts are reluctant to permit public policy tort recovery for violation of labor statutes containing their own administrative remedies"), § 5.28, at 494-95.

Furthermore, we have subsequently emphasized the narrowness of the Adams exception. In Gray v. Citizens Bank of Washington, 602 A.2d 1096 (D.C), opn. reinstated on denial of reh'g, 609 A.2d 1143 (D.C. 1992), the court held that Adams, supra (creating exception for an employee who was discharged in retaliation for refusing to break a statutorily declared law or regulation), and the prior case of Sorrells, supra note 5, 565 A.2d at 289 (refusing to carve out exception where no statutorily declared public policy was involved), together "demonstrate the extent of a limitation upon" the public policy exception to the at-will doctrine in the District of Columbia. Gray, supra, 602 A.2d at 1097 (emphasis in original). However that "very narrow" exception may apply in other circumstances, we do not think it can be invoked where the very statute creating the relied-upon public policy already contains a specific and significant remedy for the party aggrieved by its violation.


GALLAGHER, Senior Judge, Concurring: I would have disposed of this appeal on res judicata grounds if only because of public interest considerations. The doctrine of res judicata establishes that once a claim is finally adjudicated "the doctrine of claim preclusion will operate to prevent the same parties from '"relitigation of not only those matters actually litigated but also those which might have been litigated in the first proceeding."'" Stutsman v. Kaiser Found. Health Plan, 546 A.2d 367, 369-70 (D.C. 1988) (quoting Jonathan Woodner Co. v. Adams, 534 A.2d 292, 295 n.6 (D.C. 1987) (quoting Goldkind v. Snider Bros., Inc., 467 A.2d 468, 473 n.10 (D.C. 1983))). In Stutsman, we stated, "It is the factual nucleus, not the theory upon which a plaintiff relies, which operates to constitute the cause of action for claim preclusion purposes." Id. at 370.

Those considerations, which apply here, led me to conclude that this proceeding should be decided against appellant on res judicata grounds. I believe it is not in the public interest to permit such relitigation here.

Since, however, the court has determined to decide this case on the merits, I agree with the court's reasoned opinion and join in it.

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