Carl v. Children's Hospital

We granted appellant’s petition for rehearing en banc to consider her contention that the narrow public policy exception to the employment-at-will doctrine which we first recognized in Adams v. George W. Cochran & Co., 597 A.2d 28, 32 (D.C.1991), should be expanded to include the rights of employees to speak out publicly on issues affecting the public interest without fear of retaliation by their employers. The division that initially heard this appeal affirmed the trial court’s denial of relief because it was bound by precedent to do so. Carl v. Children’s Hospital, 657 A.2d 286, 289 (D.C.1995), citing Gray v. Citizens Bank, 602 A.2d 1096, 1097 (D.C.) (“a division of [this] court is not free to expand the Adams exception”), vacated, id. at 1102, opinion reinstated on denial of rehearing en banc, 609 A.2d 1143 (D.C.1992); see M.A.P. v. Ryan, 286 A.2d 310, 312 (D.C. 1971). A majority of the en banc court now agrees with Ms. Carl that Adams does not foreclose any additional “public policy” exceptions to the general rule that employment contracts are always at will unless they expressly provide otherwise.

We hold 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. We think Judge Schwelb, in his concurring opinion in Gray v. Citizens Bank, read Adams correctly: “We could not and did not hold in Adams that this was the only public policy exception, because that question was simply not presented.” Gray, supra, 602 A.2d at 1098 (Schwelb, J., concurring). Adams simply said that there is “a very narrow exception to the at-will doctrine,” 597 A.2d at 34 (emphasis added), not “just one and only one” such exception. There is nothing in the Adams opinion that bars this court—either a three-judge panel or the court en banc—from recognizing some other public policy exception when circumstances warrant such recognition. On this point a majority of the en banc court agrees. To the extent that Gray v. Citizens Bank holds differently, it is overruled.

I

From October 1991 until she was fired in March 1992, Linda Carl was employed as a part-time nurse in the Neonatal Intensive Care Unit (“NICU”) of Children’s Hospital. Shortly thereafter, Ms. Carl filed this suit against the hospital and Cathy Fonner, a nurse employed by the hospital as a clinical educator, alleging that she had been discharged because of her advocacy for patients’ rights before the legislature and the courts. Ms. Carl claimed specifically that she was fired because she had testified before the Council of the District of Columbia on proposed tort reform legislation, taking a position contrary to the interests of her employer, and because she had appeared in court as an expert witness for plaintiffs in medical malpractice cases. She sought recovery on six separate theories: wrongful discharge, promissory estoppel, defamation, intentional infliction of emotional distress, breach of contract, and intentional interference with contractual relations. With respect to the wrongful discharge claim, Ms. Carl asserted that her termination contravened specific public policies recognized in the District of Columbia. This court’s prior decision summarized these claimed policies as follows:

(1) a citizen’s right to engage in political expression before the Council without fear of harassment or intimidation; (2) a professional nurse’s duty to participate in the legislative process, to advocate positions of public importance on behalf of patients, and to educate the legislature so that it can make informed public policy decisions; and (3) the evidentiary rule requiring expert testimony to establish a prima facie case of negligence in a medical malpractice action.

Carl v. Children’s Hospital, 657 A.2d 286, 288 (hereafter “Carl I ”), vacated on grant of rehearing en banc, 665 A.2d 650 (D.C.1995).

The hospital moved under Super. Ct. Civ. R. 12(b)(6) to dismiss Ms. Carl’s complaint for failure to state a claim upon which relief could be granted. In its motion, the hospital defended its decision to fire Ms. Carl on the ground that she was originally hired as a probationary employee and that, as such, “she was required to complete the NICU orientation program, which consisted of both clinical and classroom components, in order to be fully qualified to care for the infants in the unit, and to work a minimum of twenty hours per week.” Carl I, 657 A.2d at 287. According to the hospital, Ms. Carl never completed her orientation classes, and she consistently failed to meet her weekly twenty-hour quota. Hospital personnel held at least three meetings with Ms. Carl in February 1992 to discuss her employment status. Citing her failure to meet the orientation requirements, the hospital fired her on March 20,1992.

Ms. Carl alleged, on the other hand, that she was not a probationary employee, that she requested to defer orientation only once, and that she met her minimum work requirements as scheduled by her supervisor, who made the assignments on a weekly basis. Since the trial court dismissed. Ms. Carl’s complaint under Rule 12(b)(6), we must construe the complaint in the light most favorable to her and must take her allegations as true. See, e.g., McBryde v. Amoco Oil Co., 404 A.2d 200, 202 (D.C.1979).

The trial court, after a hearing, granted the hospital’s motion to dismiss Ms. Carl’s wrongful discharge claim. Apparently relying on Adams v. George W. Cochran & Co., supra, the court said:

I really don’t think there’s much dispute about what the law is here.... [T]hat’s a claim that only lies if there’s a dismissal based on the refusal to perform an illegal act. And I don’t think that’s what we [have] here....

After further proceedings related mainly to discovery, Ms. Carl voluntarily dismissed her remaining claims so as to put her case in an appealable posture. Her appeal was briefed and argued before a division of this court, which affirmed the dismissal of her wrongful discharge claim and found no abuse of discretion in the denial of her motion to compel discovery. Carl I, supra. She petitioned for rehearing en banc on the wrongful discharge claim, which we granted in Carl v. Children’s Hospital, 665 A.2d 650 (D.C.1995).

II

On the merits of the controversy between the parties, a majority of the court concludes that Ms. Carl’s complaint was dismissed in error and should be reinstated. The judgment of the trial court is therefore reversed, and the case is remanded for such further proceedings as may be appropriate.

Reversed and remanded.

. The proposed legislation against which Ms. Carl testified would have limited the recovery of damages in medical malpractice cases, thereby benefiting hospitals in the District of Columbia.

2. Ms. Carl contends that this policy is clearly embodied in D.C.Code § 1-224 (1992), which provides in part:

Whoever, corruptly or by threat of force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any witness in any proceeding pending before the Council, or in connection with any inquiry or investigation being had by the Council, or any committee of the Council, or any joint committee of the Council; or whoever injures any party or witness in his person or property on account of his attending or having attended such proceeding, inquiry, or investigation, or on account of his testifying or having testified to any matter pending therein ... shall be fined not more than $2,000 or imprisoned not more than 2 years, or both.

3. "This policy is supposedly grounded in the District of Columbia Health Occupations Act, D.C.Code § 2-3301.2(17X0 (1981), defining the practice of registered nursing; and the national nursing code of conduct, Code For Nurses With Interpretive Statements § 11.2 (1985).” Carl I, supra, 657 A.2d at 288 n. 3.

4. To support this proposition, Ms. Carl cites Washington v. Washington Hospital Center, 579 A.2d 177, 181 (D.C.1990); Eibl v. Kogan, 494 A.2d 640, 642 (D.C. 1985); Gordon v. Neviaser, 478 A.2d 292, 295 (D.C.1984); and Sponaugle v. Pre-Term, Inc., 411 A.2d 366, 368 (D.C.1980).

. The hospital asserted that Ms. Carl requested, and was granted, permission to defer two of her orientation classes, but that they were never made up.

. Along with Ms. Carl's wrongful discharge claim, the court also dismissed at the same time her defamation and emotional distress claims. It ruled, however, that she had sufficiently stated claims for promissory estoppel, breach of contract, and interference with contractual relations. The parties then began the discovery process, and in the course of discovery the court denied Ms. Carl's motion to compel the production of certain documents. Thereafter the intentional interference claim was dismissed by stipulation, without prejudice as to the hospital and with prejudice as to co-defendant Fonner. Ms. Carl voluntarily dismissed the remainder of her complaint in order to seek appellate review of the denial of the motion to compel discovery and the dismissal of the wrongful discharge claim.

.Ms. Carl did not seek rehearing on the discovery issue, and this opinion does not address it. We leave it to the trial court, on remand, to decide whether its discovery ruling should be reconsidered in light of our decision in this appeal.