APPEAL FROM THE SUPERIOR COURT, STEPHEN F. EILPERIN, J. [718 A2d Page 1072]
Before Schwelb and Ruiz, Associate Judges, and King,
Associate Judge, Retired.[fn*]
[fn*] Judge King was an Associate Judge of the court at the time of
argument. His status changed to Associate Judge, Retired, on
September 1, 1998.
The opinion of the court was delivered by: Schwelb, Associate Judge:
This appeal presents two important questions regarding the application of our recent decision in Carl v. Children's Hosp., 702 A.2d 159 (D.C. 1997) (en banc) (Carl II), in which we expanded in some measure the circumstances under which an "at will" employee may recover against his or her employer in an action for wrongful discharge. Specifically, we must decide
1. whether the standard articulated in Carl II applies retroactively to cases in which the complaining employee was discharged prior to September 23, 1997 (the date on which Carl II was decided); and, if so,
2. whether, under Carl II, Tracie Washington's sworn allegation that she was discharged in retaliation for attempting to ensure compliance by a fellow employee with District of Columbia health and food regulations was sufficient to preclude entry of summary judgment against her.
We answer both questions in the affirmative.
A. The plaintiff's account.
In September 1994, Tracie Washington was employed as a dietary aide and cook at the Friendship Terrace Retirement Home in northwest Washington, D.C. The home housed approximately two hundred elderly residents, and its dining room and kitchen were operated by Guest Services, Inc. This case arises from the involuntary termination of Ms. Washington's employment on September 9 of that year.
The circumstances which allegedly led to Ms. Washington's discharge are described in an affidavit which she filed in opposition to Guest Services' motion for summary judgment, and also in Ms. Washington's pretrial deposition. Briefly, Ms. Washington claims that on September 8, 1994, she was preparing a meal for the residents of the home when a fellow worker, Tyrica Martin, began spraying stainless steel cleaner in the area where Ms. Washington was cooking. Ms. Washington stated in her affidavit that "[t]he spray is poisonous and if it comes into contact with food it renders the food unwholesome and unfit for human consumption." She asserted that "where I stood I could feel the spray on me and I could see the spray entering the food I was preparing." Ms. Washington claimed to have been especially concerned about potential contamination of the food because many of the residents of Friendship Terrace were in ill health.
According to Ms. Washington, "[t]he law requires that I not prepare nor serve food unless it is appropriately protected from . . . contamination." Therefore, in an effort to obey the law, Ms. Washington "told to [Ms. Martin] to stop spraying. To me this was a health emergency."
The events that followed were described by Ms. Washington in her affidavit:
12. The manager heard what I told the employee and called me into his office and told me that when he tells an employee to do something, I do not have the authority to tell the employee not to do it. He stated that he told the employee to spray, and that by me telling the employee to stop spraying that this was insubordination.
13. I explained to the manager that the spray was entering into the food and that the employee was spraying next to open food which was being cooked.
14. The manager accused me of insubordination. He told me to go home. I went [718 A2d Page 1073]
home and when I returned to work the next day I was fired for insubordination.
15. The insubordination I was fired for was for telling the employee to not spray into and around and near the food I was preparing. This was the only act of insubordination I was told that I committed or that I was aware of.
On February 13, 1996, Ms. Washington filed a complaint against Guest Services, Inc., alleging that her discharge was wrongful. Ms. Washington claimed that her co-worker's conduct in spraying the food with cleaning fluid contravened applicable District of Columbia health and food regulations, *fn1 and that Guest Services had dismissed her (Ms. Washington) "for protesting safety, health, and food code violations on the part of the defendant."
On June 17, 1996, Guest Services filed a motion for summary judgment. Guest Services argued that Ms. Washington was an at-will employee *fn2 and that her allegations, even if true, *fn2 did not bring her within the only public policy exception to the at-will employment doctrine that had been recognized by this court at the time. See Adams v. George W. Cochran & Co., 597 A.2d 28, 34 (D.C. 1991) (holding that an at-will employee may not be discharged for refusal to violate the law).
On July 23, 1996, the trial judge granted Guest Services' motion for summary judgment. He held that Ms. Washington
had no legal obligation to prevent food from being contaminated or to complain about others contaminating food. Rather, her obligation was not to prepare or serve unfit food. [Guest Services] did not put her to the choice of disobeying that obligation as the price for keeping her job.
On July 26, 1996, Ms. Washington filed her notice of appeal.
Ms. Washington and Guest Services filed their initial briefs in this court on May 8, 1997 and June 3, 1997 respectively. In their submissions, the attorneys debated the question whether Ms. Washington's allegations, if credited, brought her situation within the Adams exception to the at-will doctrine. The case was scheduled for submission without oral argument on November 4, 1997. The appeal was thus still pending on September 23, 1997, when the en banc court issued its decision in Carl II.
On December 18, 1997, recognizing that Carl II had added a potential new dimension to Ms. Washington's appeal, this division issued an interim order. Washington v. Guest Servs., Inc., 703 A.2d 646 (D.C. 1997) (per curiam) (Washington I). We held in Washington I that the trial judge had properly granted Guest Services' motion for summary judgment under the law as it existed prior to Carl II. We further directed counsel to submit their views as to whether the law as enunciated in Carl II applies to the present appeal and, if so, whether the entry of summary judgment in Guest Services' favor remained appropriate. *fn3 Having considered the parties' supplemental written and oral submissions, we now hold that although the trial [718 A2d Page 1074]
judge's decision correctly reflected the case law at the time the motion was decided, the basis for his ruling has been superseded by Carl II.
We first consider the question whether the modification of the at-will doctrine adopted by the en banc court in Carl II applies to cases in which the plaintiff was discharged ...