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Thigpen v. Greenpeace

DISTRICT OF COLUMBIA COURT OF APPEALS


May 1, 1995

BOBBY CHARLES THIGPEN, APPELLANT,
v.
GREENPEACE, INC., APPELLEE.

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

Before Steadman, Farrell and Ruiz, Associate Judges.

The opinion of the court was delivered by: Steadman

STEADMAN, Associate Judge: Before us is an appeal by a discharged employee seeking to invoke the "very narrow exception" to the at-will doctrine articulated in Adams v. George W. Cochran & Co., Inc., 597 A.2d 28, 34 (D.C. 1991). In his complaint, Bobby Charles Thigpen, a payroll clerk for appellee Greenpeace, alleged that in April of 1992, he discovered that Greenpeace was in violation of the District's minimum wage law, D.C. Code §§ 36-220 et seq. (1993). He notified two of his superiors of his belief. When no action was taken, he filed a complaint with the District's Wage and Hour Office. In July 1992, he was discharged by Greenpeace, assertedly due to downsizing but in fact, the complaint alleged, for refusing to violate the laws of the District of Columbia. The trial court granted Greenpeace's motion to dismiss with prejudice made under Super. Ct. Civ. R. 12(b)(6). *fn1 Bound by Adams and subsequent cases interpreting its holding, *fn2 we affirm the trial court's action.

It has long been settled in the District of Columbia that an employer may discharge an at-will employee at any time and for any reason, or for no reason at all. Adams, 597 A.2d at 30. However, in Adams, for the first time, we held:

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.

In Adams, the employee, a delivery truck driver, had refused to drive a truck that did not have an inspection sticker on its windshield. A municipal regulation prohibited the operation of a vehicle without a valid inspection sticker. We adopted what we termed the Texas rule, found in Sabine Pilot Service v. Hauck, 687 S.W.2d 733 (Tex. 1985), which permits a fired at-will employee to sue only if the firing was "for the sole reason that the employee refused to perform an illegal act." 687 S.W.2d at 735. We concluded that it was "unacceptable and unlawful for his employer to compel him to choose between breaking the law and keeping his job." 597 A.2d at 34.

Thigpen here acknowledges that other than communicating with his superiors and filing the complaint with the District authorities, he continued to work as before and did not refuse to carry out any instructions from his employer. He does not suggest that he attempted without success to obtain a reassignment to other duties. He argues, nonetheless, that his complaints to his employer and to the District authorities constituted at least a constructive refusal to violate the law, "by way of omission rather than a commission," *fn3 sufficient to bring him within the Adams holding.

We do not think that Adams can be stretched to encompass such an argument. Functionally, the action taken by Thigpen here is indistinguishable from that which could have been taken by any other employee in the organization, constituting classic whistle-blowing. As Adams demonstrates, the exception requires an outright refusal to violate a specific law, with the employer putting the employee to the choice of breaking the law or losing his job. That simply is not the situation alleged to have existed here.

As we have subsequently emphasized, the Adams decision, coupled with the earlier case of Sorrells v. Garfinckel's, Brooks Bros., Miller & Rhoads, Inc., 565 A.2d 285 (D.C. 1989), "demonstrate the extent of and limitations upon an exception to the at-will doctrine under current District of Columbia law." Gray v. Citizens Bank of Washington, supra note 2, 602 A.2d at 1097, opinion reinstated on denial of rehearing, 609 A.2d 1143 (D.C. 1992). *fn4 There, as here, "we are of the view that, absent a relevant legislative change, only the en banc court may undertake the extension appellant urges upon us." Id. *fn5

Affirmed


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