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FREAS v. ARCHER SERVICES

September 3, 1998

HAROLD T. FREAS, SR., APPELLANT,
V.
ARCHER SERVICES, INC., APPELLEE.



APPEAL FROM THE SUPERIOR COURT, STEPHEN F. EILPERIN AND JOHN H. BAYLY, JR., JJ.

Before Terry, Farrell and Reid, Associate Judges.

The opinion of the court was delivered by: Reid, Associate Judge:

This case, involving the dismissal of a wrongful discharge action under Super.Ct.Civ.R. 12(b)(6) (1998), is before us for the second time. In Freas v. Archer Services, Inc., 669 A.2d 144 (D.C. 1996) (Freas I), we dismissed the case on jurisdictional grounds because the trial court had retained jurisdiction over count two of the amended complaint, and no certification had been made under Super.Ct.Civ.R. 54(b) as to count one. Subsequently, upon joint motion of the parties, on February 14, 1996, the trial court dismissed count two with prejudice on jurisdictional grounds, and entered a final judgment dismissing count one pursuant to Rule 54(b). *fn1 Upon appellant's motion, this court [716 A2d Page 999]

reinstated his appeal, but held it in abeyance pending the disposition of the appeal in another case involving a wrongful discharge cause of action, Carl v. Children's Hosp., 702 A.2d 159 (D.C. 1997) (en banc). We conclude that Mr. Freas made a sufficient showing to withstand a motion to dismiss his amended complaint under Super.Ct.Civ.R. 12(b)(6). Because count one of his lawsuit is based on statutorily banned retaliation for his complaints and legal action concerning his employer's alleged violation of a statute, which prohibits deductions from an employee's paycheck for workers' compensation insurance premiums, the trial court erred in dismissing the count. Thus, we reverse the trial court's judgment and remand the case with instructions to reinstate count one.

FACTUAL SUMMARY

In reviewing a dismissal under Rule 12(b)(6), "we must construe appellant['s] complaint in the light most favorable to [his] claim and must accept [his] allegations as true." Cauman v. George Washington Univ., 630 A.2d 1104, 1105 (D.C. 1993). The complaint and other pleadings filed by Mr. Freas in this action alleged, inter alia, the following facts. Mr. Freas commenced employment as a courier for Archer Courier Systems, Inc. ("ACSI") in November 1982. On November 12, 1982, Mr. Freas discovered that ACSI made a deduction from his paycheck to cover cargo insurance and workers' compensation insurance payments. Mr. Freas complained about the cargo insurance and workers' compensation insurance deductions a number of times to the manager of ACSI's Air Department in New York. During one meeting, the manager allegedly told Mr. Freas: "You're wasting your time! We'll break you before it ever gets that far! If you file suit against us, I will personally guarantee it will cost you your job."

The problem concerning the deductions continued into 1983 and 1984, and on August 3, 1984, a class action suit was filed against ACSI alleging, inter alia, ACSI's violation of District wage payment and wage compensation laws due to the deduction of costs to cover cargo and workers' compensation insurance payments. Mr. Freas was one of the lead plaintiffs in the case. On January 10, 1985, Mr. Freas suffered a back injury while working. He provided deposition testimony in the class action suit on March 20, 1985. He was terminated on April 29, 1985, while he was still receiving workers' compensation benefits due to his injury. His termination notice stated that "because of [his] inability to provide services to [the employer] in recent months it has been necessary to engage an additional contractor." Mr. Freas alleged that he was not replaced on the shift to which he was assigned. In early December 1985, Mr. Freas's attorney informed ACSI that he was well enough to resume work, and inquired whether he could return on a temporary basis. Five days later ACSI hired someone else, and stated that there was no position for him. However, the new employee was assigned to the evening shift, not the day shift which Mr. Freas had worked. The class action was settled on November 13, 1987, when ACSI agreed to pay a total of $225,000 to the class members. The court approved the settlement on May 10, 1988.

On April 21, 1988, Mr. Freas filed a lawsuit against ACSI and others *fn2 claiming wrongful discharge due to (1) his involvement in the class action suit, and (2) his filing of a worker's compensation claim for his back injury. Count one of Mr. Freas's amended complaint, the only count now before us, alleged that ACSI terminated him "at least in part out of retaliation for filing, prosecuting, and actively participating in the class-action suit against them." He further alleged that: "Federal and District of Columbia statutes reflect a clear mandate of public policy to [716 A2d Page 1000]

protect employees in the District of Columbia generally for filing lawsuits against their employers." In addition, Mr. Freas averred that "[ACSI] violated public policy and committed an actionable tort when [it] terminated [his] employment"; and that, "as a result . . ., he has suffered damages. . . ." Supporting count one were allegations, set forth above, indicating that ACSI made deductions from Mr. Freas's paycheck for cargo insurance and workers' compensation insurance, in alleged violation of "the District of Columbia Worker's [sic] Compensation Act, D.C.Code 1981 §§ 36-101 et seq."

ANALYSIS

Mr. Freas contends that count one of his amended complaint should not have been dismissed because it stated a cause of action for wrongful discharge, since he was fired in reprisal for filing a class action complaint against his employer who allegedly violated District of Columbia law. Among other statutes, he points to D.C.Code §§ 36-220.9(3) (formerly § 36-213), -220.10, -220.11, and -316. *fn3 ACSI argues that count one of Mr. Freas's amended complaint was fatally defective because he did not plead a specific statutory provision until filing a later motion to reconsider the dismissal on September 9, 1988. In addition, ACSI maintains that Mr. Freas's case does not fall within the parameters of our decision in Adams v. George W. Cochran & Co., 597 A.2d 28 (D.C. 1991), and Carl v. Children's Hosp., supra. The Metropolitan Washington Employment Lawyers Association filed an amicus curiae brief contending that Mr. Freas's complaint "states a cause of action for the tort of wrongful discharge in violation of the public policy of the District of Columbia" because "the D.C. Workers['] Compensation Act expressly makes criminal an employer's deduction from salary for the purpose of covering the costs of workers['] compensation benefits or insurance." To allow dismissal of Mr. Freas's complaint to stand, the Association argues, "would undermine this express statutory policy."

The Holdings in Adams and Carl

In Adams, supra, we recognized an intentional tort action for wrongful discharge, holding "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. We concluded that, according to the jury's verdict in that case, the appellant "was forced to choose between violating [a] regulation [operation of a motor vehicle without a current inspection sticker] *fn4 and keeping his job — the very choice which . . . he should not have been required to make." In Carl, supra, "We h[e]ld that the very 'narrow exception' created in Adams should not be read in a manner that makes it impossible to recognize any additional public policy exceptions to the at-will doctrine that may warrant recognition." 702 A.2d at 160. In addition, a majority of the court also said:

Future requests to recognize [public policy] exceptions . . . should be addressed only on a case-by-case basis. The court should consider seriously only those arguments that reflect a clear mandate of public policy — i.e., those that make a clear showing, based on some identifiable policy that has been "officially declared" in a ...


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