Martin v. Gonzaga Univ. , 191 Wash. 2d 712 ( 2018 )

'U
IN CLERKS OPPICE
8UPR9E COURT,amiE OF URSHM8T0N
This opinion was filed for record
DATE SEP I 3 2018 i
^OAAhAAAM > ati Ama— on 1X5218f
CHieFJUSTice
SUSAN L; CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
DAVID MARTIN,
Petitioner, No. 95269-8
GONZAGA UNIVERSITY,
Filed SEP 1 3 ?niB
Respondent,
and
CHRIS STANDIFORD,et ux..
Defendants.
OWENS,J. — Gonzaga University discharged David Martin, the plaintiff in
this case. Martin sued Gonzaga, alleging that he was wrongfully discharged
because of his whistle-blowing, and asserting a private claim under RCW
49.12.250 for an alleged violation ofthat statute's requirement that Gonzaga
provide him with his complete personnel file. Gonzaga successfully moved for
summary judgment on both claims. The Court of Appeals affirmed the dismissal
Martin v, Gonzaga University
No. 95269-8
of the wrongful discharge claim but remanded the personnel file claim for further
findings of fact.
The main issue on appeal to this court is whether the Court of Appeals
applied the correct test to Martin's whistle-blower claim. We find that the Court of
Appeals applied the incorrect standard, one reserved for wrongful discharge claims
that do not fit into the four recognized categories of wrongful discharge claims,
rather than the standard used for wrongful discharge claims based on whistle-
blowing, one of the recognized categories of claims. However, we affirm the
Court of Appeals' ultimate holding that Gonzaga is entitled to summary judgment
on the wrongful termination claim. We further find that Martin's statutory claim
regarding his personnel file is not yet justiciable and thus reverse the Court of
Appeals' holding on that claim. The trial court correctly held that Gonzaga is
entitled to summary judgment on both claims.
PROCEDURAL AND FACTUAL HISTORY
This action stems from Martin's employment at Gonzaga University's Rudolf
Fitness Center. Gonzaga University opened the Rudolf Fitness Center in 2003. The
fitness center is a part of the athletic department at the university. Until 2012, there
was no padding on the walls in the fitness center's basketball field house. The
university began discussing whether padding should be installed in 2004. In 2004,
Chris Standiford, senior associate athletics director, directed Jose Hernandez, assistant
Martin v. Gonzaga University
No. 95269-8
athletics director, to work with a risk manager in determining whether the pads were
necessary. The university declined to install the padding. In 2007, another study was
conducted, and Hernandez recommended to the administration that pads be installed.
Several students had been injured jfrom accidental impact with the bare concrete walls.
Gonzaga University hired Martin in 2008 to work as an assistant director ofthe
fitness center. Martin was an at-will employee and was not subject to a written
contract for a definite term of employment. Martin received benefits, including a
tuition benefit, which he used to enroll in Gonzaga University's master's degree
program for sports administration. Martin was supervised by Hernandez, who
reported to assistant athletic director Joel Morgan, who reported to Standiford, who
reported to athletic director Mike Roth.
Martin's April 2011 job evaluation rated him below average for interpersonal
skills, problem solving, professional development, and leadership responsibilities.
Hernandez deemed Martin's overall performance below the quality and standard that
Martin was capable of, noting that his "inconsistent performance kept him from
meeting the basic job requirements." Clerk's Papers(CP)at 128. The evaluation
went on to say that "[tjhroughout the academic year, at times [Martin] displayed great
work ethics and at other times he would not. This up and down behavior and conduct
was a surprise and is uncharacteristic of him." Id. After the evaluation, Hernandez
asked Martin how Hernandez could improve his own performance and how the fitness
Martin v. Gonzaga University
No. 95269-8
center eould improve. Martin proposed starting a new swimming program and
expressed dissatisfaction with the fitness center staffs lack ofteamwork and
resistance to change. He did not mention safety at the basketball courts. Hernandez
counseled Martin on his resistance to following protocol and improving his
communication with colleagues to be less abrasive and insensitive.
As a part of his master's degree program, Martin Avrote a proposal to improve
the fitness center, which he alleges included a swimming program as a way to
generate funds for wall padding at the basketball court. There is no copy ofthe
proposal in the record, and no one other than Martin has testified to verify its eontents.
Martin gave the proposal to Hernandez and asked if he could submit it to Standiford,
who oversaw the budget. According to Martin, Hernandez granted him permission.
Hernandez denied that he gave Martin permission. On February 29, 2012, Martin sent
Standiford his proposal in an e-mail and requested a meeting to discuss it with him.
The e-mail was titled "Future Pool Proposal" and did not mention student safety
concerns resulting from the lack of protective padding in the basketball court. CP at
115. Standiford responded by explaining that "[i]t is more organizationally
appropriate for you to provide Jose [Hernandez] with the proposal for consideration.
If you have already done this, and Jose [Hernandez] supports the proposal, I would
suggest he meet with Joel[Morgan]for further consideration and deliberation." CP at
114. Martin replied.
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No. 95269-8
In the politest possible way . .. according to our organizational layout in
the Policies and Procedures Manual, pg. 6,there is no such line of
communication or organization hierarchy established for the RFC
[Rudolf Fitness Center] staff to follow. I have Jose's consent in this
matter and I understand that you are an extremely busy individual, I
wouldn't be asking for your time if I didn't plan on using it to the fullest.
Imagine this as a "golden ticket" idea. Something that I don't want
others corrupting or taking credit for. I would ask that you please meet
with me and hear my thoughts on this matter. If it needs to wait until
after you return, then so be it, but I have worked hard on this and would
appreciate your audience, and your audience alone.
Id. The e-mail gave Standiford concern that Martin was trying to generate income for
himself in violation ofthe university's mission, and so he contacted Hernandez and
Morgan and asked them to contact human resources for advice on how to proceed.
Hernandez scheduled a meeting with Martin and Morgan for the next day,
March 1, to express disappointment that Martin had disobeyed Standiford's direction
and to deliver a letter of expectations to Martin. After Hernandez informed Martin of
the meeting, Martin said,'"You cannot make me go.'" CP at 121. Hernandez told
him to attend; otherwise, his employment standing would worsen. At the meeting,
Martin argued with and interrupted Hernandez. Hernandez told Martin he would
receive a letter of expectations and his performance would be evaluated over the
following two weeks. Morgan told Martin to provide him with his proposal, and
Martin refused. Martin asked to leave the meeting and left. Id. Martin then found
another associate director ofthe fitness center. Shelly Radtke, and yelled at her that
she needed to give him permission to leave work. Martin persuaded Andrew Main, an
Martin v. Gonzaga University
No. 95269-8
assistant director, to cover his shift but did not ask permission from Hernandez to
leave work early. Main told Hernandez and Morgan that Martin told him,"Joel
[Morgan] is upset I went over his head and Jose [Hernandez] is a push over." CP at
216. Morgan and Heather Murray,from human resources, agreed that Martin should
be placed on administrative leave for his actions during and after the meeting. The
next day, March 2, Hernandez notified Martin of this decision and told him the terms
of his leave prohibited him from eontacting anyone at the university except human
resources staff and Hernandez.
On March 5, Martin called the exeeutive assistant to the university's president
and requested a meeting with President Thayne McCulloh to present a proposal. The
executive assistant told Martin to follow the ehain of command within the athleties
department. The next day, Martin sent President McCulloh his proposal in an e-mail.
The e-mail does not mention safety concerns related to the lack of padding in the
basketball courts. On March 6, the president's executive assistant responded by e-
mail, reiterating that Martin must follow the chain of command to submit the
proposal. She then forwarded the e-mail exchange to Roth, who forwarded it to
Murray and Standiford. On March 7, a student sustained a concussion and needed
stitches after running into one ofthe bare concrete walls in the fitness center's
basketball court. On March 8, Gonzaga University terminated Martin's employment,
citing his failure to correct past performance issues identified in his April 2011
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No. 95269-8
performance review and insubordination. According to Martin, at the meeting
wherein he was fired, Standiford told him one reason for his termination was the
belief that Martin gave information about student injuries resulting from the lack of
padding to the Gonzaga University student newspaper. Martin had submitted an
ineomplete article from the student newspaper, which quotes Hernandez and Martin,
reporting on the laek of wall padding and student injuries. Standiford denied firing
Martin because of his complaints about the lack of padding on the basketball court
walls.
On March 30, Martin sent a six-page letter to President McCulloh and athletics
director Roth. In the letter, he complained that during his employment, he saw "a lack
of responsiveness to safety issues at the Rudolf Fitness Center." CP at 102. He
claimed that insubordination was a pretext for his termination and that he was really
terminated for expressing concern about the university's failure to respond to safety
issues at the fitness center. He claimed that Morgan wrongfully accused him of
leaking information to the Gonzaga Bulletin. He wrote of several safety concerns,
though none involved the center's basketball courts. Later in 2012, Gonzaga
University installed padding on the walls in the basketball court. In the years leading
up to the padding installation, other university employees within the athletic
department had advoeated to install the wall padding and were not terminated for
doing so.
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After Martin's termination, Gonzaga University provided him with a copy of
his personnel file. Martin acknowledged receipt of his personnel file, which included
11 documents, and asked if there were any additional documents in his personnel file
that he should be aware of. There is no response in the record. Gonzaga University
has explained that it maintains two types of files on employees: a personnel file and
an employee relations file.
Martin brought a common law claim for wrongful discharge against Gonzaga
University, alleging that the university terminated his employment in violation of
public policy for raising concerns about the lack of wall padding for the basketball
court. He also brought a statutory claim under ROW 49.12.250, alleging that the
university did not provide him with his complete personnel file after his termination.
The trial court granted summary judgment to Gonzaga University and dismissed both
claims. Martin appealed, and the Court of Appeals, in a split opinion, affirmed the
trial court's summary judgment dismissal ofthe wrongful termination claim, vacated
the dismissal ofthe personnel file claim, and remanded for further proceedings.
Martin v. Gonzaga Univ., 200 Wash. App. 332, 375, 402 P.3d 294(2017). Judge
Pennell concurred in affirming the dismissal ofthe wrongful termination claim but
stated that the ground for summary judgment was causation. Id. at 375-77. Judge
Korsmo dissented with the reversal on the personnel file claim because he believed
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No. 95269-8
that the claim was notjusticiable as Martin had no cause of action from the statutes
and had not pursued administrative relief. Id. at 377-79.
Martin petitioned for review on three issues:(1)the Court of Appeals
incorrectly applied the Perritt test to Martin's whistle-blower wrongful discharge
claim,(2)assuming the Perritt test does apply, the court misapplied the overriding
justification element, and(3)the Court of Appeals improperly relied on the after-
acquired evidence doctrine. Gonzaga University cross petitioned for review, arguing
that Martin's claim is not justiciable and asked us to adopt the reasoning in Judge
Korsmo's dissent. We granted review of Martin's petition for review and Gonzaga
University's cross petition. Martin v. Gonzaga Univ., 190 Wash. 2d 1002, 412 P.3d
1262(2018).
ISSUES
1. Does the Perritt test apply to Martin's wrongful termination claim?
2. Is Martin's personnel file claim justiciable?
ANALYSIS
"On appeal of summary judgment, the standard of review is de novo, and the
appellate court performs the same inquiry as the trial court." Lybbert v. Grant
County, 141 Wash. 2d 29, 34, 1 P.3d 1124(2000). We view all facts and reasonable
inferences therefrom most favorably toward the nonmoving party, Martin. Id. The
court should grant summary judgment when "the pleadings, affidavits, and
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depositions establish that there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law," Id.
"A nonmoving party in a summary judgment may not rely on speculation,
argumentative assertions that unresolved factual issues remain, or in having its
affidavits considered at face value." Seven Gables Corp. v. MGM/UA Entm 't Co., 106
Wash. 2d 1, 13, 721 P.2d 1 (1986). If Gonzaga University submits adequate affidavits,
Martin must then "set forth specific facts that sufficiently rebut the moving party's
contentions and disclose that a genuine issue as to a material fact exists." Id.
1. The Perritt Test
a. The Perritt Test Does Not Apply to Martin's Whistle-Blower
Wrongful Termination Claim
Martin argues that the Court of Appeals erred by applying the four-part Perritt
test to Martin's wrongful discharge claim. Gonzaga University agrees that the Perritt
test does not apply in this case. In Thompson v. St. Regis Paper Co., we adopted the
tort of wrongful discharge in violation of public policy as a narrow exception to the
at-will doctrine. 102 Wash. 2d 219, 232-33,685 P.2d 1081 (1984). We held that to
prevail on a cause of action, a plaintiff employee must demonstrate that his or her
"discharge may have been motivated by reasons that contravene a clear mandate of
public policy." Id. at 232. Then,"the burden shifts to the employer to prove that the
dismissal was for reasons other than those alleged by the employee." Id. at 232-33.
The tort for wrongful discharge in violation of public policy has generally been
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limited to four scenarios:"(1) where employees are fired for refusing to commit an
illegal act;(2) where employees are fired for performing a public duty or obligation,
such as serving jury duty;(3) where employees are fired for exercising a legal right or
privilege, such as filing workers' compensation claims; and (4) where employees are
fired in retaliation for reporting employer misconduct, i.e., whistle-blowing." Gardner
V. Loomis Armored, Inc., 128 Wn.2d 931,936,913 P.2d 377(1996) Dicomes
V. State, 113 Wn.2d 612,618,782 P.2d 1002(1989)).
In Gardner, this court adopted a four-part framework based on a treatise
written by Henry Perritt to resolve a wrongful discharge suit that did not fit neatly into
one ofthose four recognized categories. 128 Wash. 2d at 941 (citing HENRY H.PERRITT
Jr., Workplace Torts: Rights and Liabilities (1991)). The Perritt test has four
factors: "(1) The plaintiffs must prove the existence of a clear public policy (the
clarity element). (2)The plaintiffs must prove that discouraging the conduct in which
they engaged would jeopardize the public policy (the jeopardy element). (3)The
plaintiffs must prove that 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 ofjustification element)." Id. (emphasis
and citations omitted).
However, in Becker and Rose, we clarified that the Perritt framework should
not be applied to a claim that falls within one ofthe four categories of wrongful
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discharge in violation of a public policy. Becker v. Cmty. Health Sys., Inc., 184
Wash. 2d 252, 258-59, 359 P.3d 746(2015)("When the plaintiffs case does not fit
neatly within one ofthese scenarios, a more refined analysis may be necessary, and
the four-factor Perritt analysis may provide helpful guidance. But such detailed
analysis is unnecessary here."(footnote and citation omitted)); Rose v. Anderson Hay
& Grain Co., 184 Wash. 2d 268, 277-78, 287, 358 P.3d 1139(2015)("We note that in
other instances, when the facts do not fit neatly into one ofthe four above-described
categories, a more refined analysis may be necessary. In those circumstances, the
courts should look to the four-part Perritt framework for guidance. But that guidance
is unnecessary here."). This court explained the implications of our Gardner decision,
which applied the Perritt test:
In adopting this four-part Perritt analysis, we stated that we did
not intend to substantively change the wrongful discharge tort. The
common law already contained clarity and jeopardy elements, so we said
the "adoption of this test does not change the existing common law in
this state." Gardner, 128 Wash. 2d at 941. Gardner was a highly unique
case, and its facts justified a refined analysis. This court's decisions prior
to Gardner remain good law and are merely supplemented by the
additional guidance provided by the Perritt factors.
Rose, 184 Wash. 2d at 278. Martin's suit falls into the fourth category, whistle-blowing,
because he alleges that he was fired in retaliation for voicing safety complaints about
the need for wall padding in the basketball courts. Thus,the Court of Appeals erred
by applying the Perritt test instead of using the standard enunciated in Thompson and
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further refined in Wilmot v. Kaiser Aluminum & Chemical Corp., 118 Wash. 2d 46, 821
P.2d 18(1991).
b. Under Thompson and Wilmot, Martin's Claim Does Not Survive
Summary Judgment
Under the correct standard, we affirm the Court of Appeals' ultimate holding
that Gonzaga University is entitled to summary judgment on this claim. The elements
of wrongful termination in violation of public policy were set forth in Thompson and
refined by Wilmot.
First, Martin has the burden to show that his "discharge may have been
motivated by reasons that contravene a clear mandate of public policy." Thompson,
102 Wash. 2d at 232. "The question of what constitutes a clear mandate of public policy
is one oflaw" and can be established by prior judicial decisions or constitutional,
statutory, or regulatory provisions or schemes. Dicomes, 113 Wash. 2d at 617. Martin
advocates that student safety, specifically wall padding in the basketball courts, is a
clear mandate of public policy. However, we find no court decision, statute, or .
regulation that establishes such. Martin has acknowledged that there was no policy or
regulation requiring Gonzaga University to install the wall padding. Without roots in
regulation or judicial precedent, Martin's mere opinion that wall padding should be
installed does not constitute a clear mandate of public policy. Even if Martin truly
believed the unpadded walls posed a danger to students, this does not change the
analysis, as the focus for whistle-blowing matters is on the employer's level of
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wrongdoing, not Martin's actions to address what he perceived as wrongdoing. See
Farnam v. CRISTA Ministries, 116 Wn.2d 659,671, 807 P.2d 830(1991). We hold
that Martin fails at this first step in the analysis by failing to point to a clear mandate
of public policy.
Even if Martin had met the first step, he does not satisfy the second step, which
requires the plaintiff to show that the public-policy-linked conduct was a "significant
factor" in the decision to discharge the worker. Wilmot, 118 Wash. 2d at 75. The
plaintiff must first establish a prima facie case by producing evidence that the public-
policy-linked conduct was a cause ofthe firing, and may do so by circumstantial
evidence. Id. at 70. Ifthe plaintiff succeeds in presenting a prima facie case, the
burden then shifts to the employer to "articulate a legitimate nonpretextual
nonretaliatory reason for the discharge." Id. (citing 1 Lex K.Larson,UNJUST
Dismissal § 6.05[6](1988)). This is a burden of production, not persuasion. Id.
("The employer must produce relevant admissible evidence of another motivation, but
need not do so by the preponderance of evidence necessary to sustain the burden of
persuasion, because the employer does not have that burden."). Ifthe employer
articulates such a reason, the burden shifts back to the plaintiff either to show "that the
reason is pretextual, or by showing that although the employer's stated reason is
legitimate, the [public-policy-linked conduct] was nevertheless a substantial factor
motivating the employer to discharge the worker." Id. at 73.
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If we assume that Martin meets his initial burden of production, Gonzaga
University has met its burden to show legitimate reasons for Martin's dismissal:
insubordination and inadequate job performance. Gonzaga University has presented
job performance evaluations, declarations, and e-mails showing Martin's consistent
problems with following the chain of command and communicating respectfully with
his colleagues. There is also ample evidence of Martin's insubordination and
disrespectful conduct in close proximity to his termination. A few days before he was
terminated, Martin met with Hernandez and Morgan and was essentially reprimanded
for insubordination. He was disrespectful during that meeting, arguing and
interrupting Hernandez, and then he left in the middle of his shift without receiving
permission from Hernandez. He yelled at Radtke, demanding permission to leave,
and told another colleague that Hernandez was a pushover. He was subsequently
placed on administrative leave for this behavior and then almost immediately violated
the terms of his leave by contacting the university's president, even when the
president's executive assistant advised him to use the proper chain of command. This
evidence satisfies Gonzaga University's burden to show legitimate reasons for
Martin's termination.
The burden then shifts back to Martin to show that despite these legitimate
reasons for discharge, his whistle-blowing was a significant factor in his termination.
There is a paucity of evidence linking Martin's termination with his voicing concerns
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about wall padding. The only evidence of Martin voicing such concerns is his own
testimony that his proposal raised the issue. Yet, as mentioned, the proposal is not in
the record. Even if the proposal mentioned that revenue from pool-related activities
could be used for wall padding, as Martin contends, this cannot be correctly
characterized as raising student safety concerns regarding the padding. Further,
Martin has not pointed to any evidence that his supervisors received his complaints
regarding the wall padding, let alone evidence that the university reacted negatively to
his suggestions. The record does not support Martin's claim that a significant factor
in his termination was his history of voicing student safety complaints about the need
for wall padding. Thus, we affirm the Court of Appeals' ultimate holding that
Gonzaga University is entitled to summary judgment on Martin's whistle-blower
wrongful discharge claim.
c. Overriding Justification Element and After-Acquired-Evidence
Doctrine
Martin claims that the Court of Appeals misapplied the overriding justification
element in three ways. We resolve some ofthese concerns in hopes that it will
provide clarity for future litigants.
First, Martin claims that the Court of Appeals erred in granting summary
judgment in favor of an employer on the basis ofthe overriding justification element
because this can be done only if the employer first concedes the first three elements of
the Perritt test. He interprets our decision in Gardner to hold that at summary
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judgment, an employer must concede the first three elements ofthe Perritt test before
it can assert an overriding justification. However, neither in our adoption ofthe
Perritt test in Gardner nor in any subsequent application of it have we held that the
overriding justification element comes into play only if the employer concedes the
first three elements.
The overriding justification element entails balancing the public policies raised
by the plaintiff against the employer's interest. Gardner, 128 Wash. 2d at 948-49. If
"the employer has an overriding reason for terminating the employee despite the
employee's public-policy-linked conduct," then it cannot be held liable. Id. at 947.
Martin contends that if the employer denies that the public-poliey-linked conduct
caused the dismissal, then the court has not established a public policy interest to
balance against the employer's business interest. However, that theory overlooks the
possibility ofthe court resolving the first three elements in favor ofthe plaintiff
employee, which would give the court a public policy interest to balance against the
business's stated interest when resolving the fourth element. We decline to accept
Martin's contention, as we have never held the employer must concede the first three
elements before the court can address the fourth element.
Second, Martin claims that the Court of Appeals erred with regard to the
burden of proof for the overriding justification element. In its analysis ofthis factor,
the court questioned which party carried the burden of proof for the element of
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overriding justification and did not come to a clear conclusion. Martin argues that this
was an error because in Rickman v. Premera Blue Cross, 184 Wash. 2d 300, 358 P.2d
1153 (2015), we said that the burden falls on the defendant employer. He is correct
that in Rickman, we made it clear where the burden lay. We stated that "[o]nce a
plaintiff presents a prima facia case of wrongful discharge in violation of public
policy, the burden ofproofshifts to the employer to show the termination was justified
by an overriding consideration." Id. at 314(emphasis added).
Third, Martin argues that the Court of Appeals erred by wrongly applying the
after-acquired-evidence doctrine to his wrongful discharge claim. The Court of
Appeals resolved the overriding justification element by posing eight questions to
consider. Martin, 200 Wash. App. at 359-373. The second question asked whether the
employer must be motivated by the overriding justification at the time the employee is
discharged in order to avoid liability. Id. at 362. The court answered this question in
the negative, depending primarily on the after-acquired-evidence doctrine. It reasoned
that
[t]he university may avoid liability if insubordination constitutes a
justifying reason under the law and overrides the advocacy of safety
concerns, regardless of whether insubordination motivated the firing.
We secure our decision, freeing the employer from showing the
overriding justification prompted its decision to fire, primarily on the
"after-acquired evidence" doctrine. This doctrine precludes or limits an
employee from receiving remedies for wrongful discharge if the
employer later discovers evidence of wrongdoing that would have led to
the employee's termination had the employer known ofthe misconduct.
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Lodis V. Corbis Holdings, Inc., 192 Wash. App. 30, 60, 366 P.3d 1246
(2015), review denied, 185 Wash. 2d 1038, 377 P.3d 744(2016); Janson v.
North Valley Hospital, 93 Wn. App. 892,900, 971 P.2d 67(1999/ Ifthe
employer may limit its liability with evidence ofinsubordination
discovered after the terminationfrom employment, the employer should
be able to limit its liability with evidence known at the time ofthe
discharge, even ifthe employer utilized only public-policy-defying
grounds. We discern no reason to distinguish the two factual scenarios
for purposes of employer liability. Under each circumstance, the
employee's misconduct retrospectively substantiated the termination.
Id. at 362-63 (emphasis added). Martin takes issue with applying the after-acquired-
evidence doctrine because this court has never done so in the wrongful discharge
context and because the after-acquired-evidence doctrine limits damages and remedies
rather than liability.
Martin is correct that there is no case law to support applying the after-
acquired-evidence doctrine to a wrongful discharge claim. There is no reasoning
within our common law wrongful discharge decisions or in our application ofthe
Perritt test that supports the Court of Appeals' conclusion that an overriding
justification can limit liability "regardless of whether [the overriding justification]
motivated the firing." Id. at 363. He is also correct that the doctrine limits the
damages an employee may recover and does not limit liability as a matter of law.
Lodis, 192 Wash. App. at 60. In addition to this significant difference, the after-
acquired-evidence doctrine requires that the employer prove that the wrongdoing was
of such severity that it would have terminated the employee on the newly discovered
evidence alone. Id. (quoting McKennon v. Nashville Banner Publ'g Co., 513 U.S.
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No. 95269-8
352, 362-63, 115 S. Ct. 879, 130 L. Ed. 2d 852(1995)). This does not comport with
the balancing posture ofthe overriding justification element. We hold that the after-
acquired-evidence doctrine does not apply to the overriding justification element of
the Perritt test.
2. Martin's Personnel File Claim Is Not Justiciable
The last issue this court must address is the one presented in Gonzaga
University's cross petition for review: whether Martin's claim regarding his personnel
file is justiciable. Martin claimed at the trial court that Gonzaga University failed to
provide him a complete copy of his personnel file in violation of RCW 49.12.250.
While the trial court granted summary judgment to Gonzaga University on this claim,
the Court of Appeals reversed, finding there were unanswered factual questions
requiring further proceedings at the trial court. Martin, 200 Wash. App. at 333. Judge
Korsmo dissented on this issue, concluding that the claim is not justiciable because
the relevant statutes "did not create a judicial cause of action" and the Department of
Labor and Industries(DLI)is the "first line defender" of rights contained in the
statute. Martin, 200 Wash. App. at 377-78. Gonzaga University advocates that we
adopt Judge Korsmo's conclusion and reasoning and reverse the Court of Appeals'
holding on this claim.
The statutes at issue, RCW 49.12.240 and RCW 49.12.250, are a part ofthe
industrial welfare chapter ofthe Revised Code of Washington. DLI has enforcement
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authority over this chapter. RCW 49.12,033; RCW 43.22.270(5). As Judge Korsmo
concluded, Martin would first have to pursue an administrative request through DLI
before seeking a judicial remedy from the court. Martin, 200 Wash. App. at 378. There
is nothing in the record to show that Martin has brought his request to DLI. Thus, we
reverse the Court of Appeals' holding on the personnel file claim and hold that
Gonzaga University is entitled to summary judgment on this claim.
CONCLUSION
We reverse the Court of Appeals' reasoning on the wrongful discharge claim
because it erred by applying the Perritt framework. However, we affirm the court's
ultimate holding that Gonzaga University is entitled to summary judgment on this
claim. We reverse the Court of Appeals' holding on the personnel file claim because
Martin's claim is not yet justiciable. We hold that Gonzaga University is entitled to
summary judgment on this claim. Thus, both of Martin's claims are dismissed.
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WE CONCUR:
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