Court allows wrongful discharge claim against supervisor to proceed

Do federal courts ever get asked to decide novel questions of state law? You bet they do.

Judge Rice was presented with such a question last week in a wrongful termination case. His ruling expands the scope of a supervisor’s potential liability for wrongful discharge in violation of public policy.

Chris Blackman was the principal of Omak Middle School from April 2016 to November 2017. According to her complaint, Ms. Blackman was fired after she complained to her supervisor about illegal spending of school funds and suspected violations of Washington’s wage and hour laws.

Ms. Blackman sued her supervisor, Dr. Erik Swanson, for the common law tort of wrongful discharge in violation of public policy. Ms. Blackman asserted this claim on a whistle-blowing theory, alleging that Dr. Swanson retaliated against her for sounding the alarm about unlawful conduct.

Dr. Swanson challenged the claim in a 12(b)(6) motion, arguing that Washington law does not allow supervisors to be held individually liable for wrongful discharge in violation of public policy.

This was an issue of first impression. With no Washington precedent to apply, Judge Rice focused on how the Washington Supreme Court would decide the question. See Giles v. General Motors Acceptance Corp., 494 F.3d 865, 872 (9th Cir. 2007) (“Where the state’s highest court has not decided an issue, the task of the federal courts is to predict how the state high court would resolve it.”). His conclusion: that supervisors can be individually liable for terminating an employee in a manner that contravenes public policy.

The Court concludes that the purpose of the wrongful discharge tort — namely, the deterrence of discharge in violation of public policy — is best served if individual employees, particularly those in a position of power, are held personally liable for conduct that violates public policy and effectuates another employee’s termination. In a wrongful discharge case, the tortious act is not the discharge itself; rather, the discharge becomes tortious by virtue of the wrongful reasons behind it. As such, where those tortious reasons arise from the unlawful actions of the individual effecting the discharge, he or she should share in liability.

So there you have it. Supervisors can be individually liable for wrongful discharge in violation of public policy.

The case is Chris Blackman v. Omak School District, et al., Case No. 18-CV-0338-TOR. Blackman is represented by Mike Love and Matthew Crotty. The defendants are represented by Jerry Moberg and James Baker.

No cause of action under Section 1983 to enforce Federal Nursing Home Reform Amendments

42 U.S.C. § 1983 covers a lot of bases when it comes to bringing claims in federal court. But it does have its limits. A recent ruling by Judge Peterson reminds us that claims brought under Section 1983 must be based on a violation of a federal right. Not all federal statutes confer such a right.

John Shanklin suffered a debilitating stroke in 2014. Unable to provide the full-time care that he required, Mr. Shanklin’s wife arranged for him to be cared for at Coulee Medical Center (CMC). Despite being identified as a fall risk by CMC, Mr. Shanklin fell several times while in CMC’s care. He passed away shortly after his last fall.

Mr. Shanklin’s estate filed suit under Section 1983, alleging that CMC’s care violated the Federal Nursing Home Reform Amendments (FNHRA), 42 U.S.C. § 1396r. CMC moved to dismiss the complaint for failure to state a claim. CMC’s argument was that the alleged FNHRA violations, even if proven to have occurred, are not actionable under Section 1983.

To state a claim under Section 1983, a plaintiff “must assert [a] violation of a federal right, not merely a violation of federal law.” Blessing v. Freestone, 520 U.S. 329, 340 (1997) (emphasis in original). Applying that principle, Judge Peterson concluded that the complaint failed to state a claim. Her reasoning was twofold.

First, Judge Peterson ruled that Congress did not intend to create a federal right when it enacted FNHRA. Analyzing the text of the specific provisions that CMC was alleged to have violated, she found no evidence that the statute was designed to confer protected rights on individual patients:

The [FNHRA] provisions that [the estate] is attempting to enforce . . . are all phrased in terms of what the nursing facilities must do, rather than the protections that the patients must receive. Because the nursing facilities are the subjects of the provisions in question, the provisions are not “phrased in terms of the persons benefited” and do not afford individual rights to nursing facility patients.

Second, Judge Peterson concluded that the provisions in question were “too vague or amorphous” to be enforced through Section 1983. If the case were to proceed to trial, she observed, the jury would be asked highly subjective questions such as whether CMC’s services “enhanced the quality of life” for its patients. Had Congress intended for FNHRA violations to be actionable under Section 1983, Judge Peterson reasoned, it surely would have provided a more definite standard for establishing liability.

This is a question of first impression in the Ninth Circuit. Other circuits have taken the opposite view, holding that FNHRA violations are actionable under Section 1983. See Concourse Rehab. & Nursing Ctr. Inc. v. Whalen, 249 F.3d 136, 144 (2d Cir. 2001); Grammer v. John J. Kane Reg’l Ctrs.-Glen Hazel, 570 F.3d 520, 527 (3d Cir. 2009). Those cases, however, involved different subsections of the statute than the subsections that were implicated in this case. It will be interesting to see how the Ninth Circuit decides the question if the case is appealed.

The case is Shanklin v. Coulee Medical Center, Case No. 17-CV-0377-RMP. Shanklin was represented by Jerry Moberg of Jerry Moberg & Associates. Coulee Medical Center was represented by Jim King of Evans, Craven & Lackie.