156 Wn.2d 150, In re Det. of Marshall

[No. 75521-3. En Banc.]

Argued March 10, 2005. Decided December 22, 2005.

In the Matter of the Detention of RAYMOND MARSHALL , Petitioner .

[1] Mental Health - Involuntary Commitment - Sexually Violent Predators - Recent Overt Act - Necessity - Incarceration - Effect. In a proceeding to commit an individual as a sexually violent predator under chapter 71.09 RCW, the State is not required to plead and prove any additional act demonstrating the individual's dangerousness in order to satisfy the recent overt act requirement if, at the time the commitment petition was filed, the individual was incarcerated for a sexually violent offense or for an act that itself would have constituted a recent overt act.

[2] Mental Health - Involuntary Commitment - Sexually Violent Predators - Recent Overt Act - Determination - Question of Law or Fact. For purposes of a sexually violent predator commitment proceeding under chapter 71.09 RCW involving an offender who was incarcerated at the time the commitment petition was filed, whether the offender is being incarcerated for a sexually violent act or for an act that itself qualifies as a recent overt act is a question for the court, not a jury. The court must determine (1) whether materials relating to the offender's conviction show that the offender is incarcerated for an act that actually caused harm of a sexually violent nature or (2) whether the individual was incarcerated for an act that qualifies as a recent overt act, based upon (a) the factual circumstances of the offender's history and mental condition and (b) a legal inquiry into whether an objective person knowing the factual circumstances of the offender's history and mental condition would have a reasonable apprehension that the individual's act would cause harm of a sexually violent nature.

[3] Mental Health - Involuntary Commitment - Sexually Violent Predators - Recent Overt Act - Third Degree Rape. Depending on the circumstances under which it was committed and the perpetrator's history of offenses and mental condition, a third degree rape for which the perpetrator is convicted and incarcerated can constitute a "recent overt act" for purposes of a petition to commit the perpetrator as a sexually violent predator under chapter 71.09 RCW.

Dec. 2005 In re Det. of Marshall 151
156 Wn.2d 150

[4] Mental Health - Involuntary Commitment - Sexually Violent Predators - Evaluation - Professional Qualifications - Necessity - No Personal Contact. An evaluation to determine whether an individual is a sexually violent predator that is based on a review of records and evaluations made by other professionals and not on personal interviews with the individual does not constitute an RCW 71.09.040 (4) evaluation, and the person performing the evaluation is not required to meet the particular qualifications of that statute.

[5] Mental Health - Involuntary Commitment - Sexually Violent Predators - Trial - Evidence - Expert Testimony - Psychologist With Temporary Permit. In a sexually violent predator commitment proceeding under chapter 71.09 RCW, a psychologist licensed in another state may testify as an expert if the psychologist qualifies as an expert based on knowledge, skill, experience, training, and education and the psychologist's testimony will assist the trial court in understanding the evidence and determining the facts in issue.

[6] Mental Health - Involuntary Commitment - Sexually Violent Predators - Evaluation - Testimony - Based on Records Prepared by Others. In a sexually violent predator commitment proceeding under chapter 71.09 RCW, the admission of a psychologist's testimony that is based solely on a review of records prepared by others does not violate the rule that a sex offender who is the subject of a sexually violent predator commitment petition may not be required under CR 35 to submit to a psychological examination in addition to or separate from the psychological evaluation mandated by RCW 71.09.040 (4).

[7] Evidence - Opinion Evidence - Expert Testimony - Factual Basis - Inadmissible Data. Under ER 703, a trial court may admit an expert's opinion that is based on facts or data not otherwise admissible at trial if the data is of a kind reasonably relied on by experts in the particular field in forming opinions in the subject area for purposes other than litigation.

[8] Evidence - Opinion Evidence - Expert Testimony - Hearsay - Underlying Facts. Under ER 705, an expert may be permitted to relate otherwise inadmissible hearsay to the fact finder in order to explain the reasons for the expert's opinion, subject to appropriate limiting instructions.

CHAMBERS and SANDERS , JJ., dissent by separate opinion.

Nature of Action: Petition to have a sex offender committed as a sexually violent predator.

Superior Court: The Superior Court for Clark County, No. 00-2-04434-1, John F. Nichols, J., entered a judgment of commitment on February 13, 2003.

152 In re Det. of Marshall Dec. 2005
156 Wn.2d 150

Court of Appeals: The court affirmed the judgment at 122 Wn. App. 132 (2004), holding that the act for which the offender was incarcerated at the time the petition was filed constituted a "recent overt act," that the State did not need to prove an additional act, that the trial court did not abuse its discretion by granting the State's motion to continue the trial date or by permitting the State's expert to testify, that the trial court properly denied the offender's motion to exclude any reliance on or reference to his juvenile records in expert testimony, that the testimony of the State's expert was not inadmissible hearsay, that the court properly permitted the expert to relate hearsay to explain the basis for her opinion, and that the evidence was sufficient to support the commitment order.

Supreme Court: Holding that the State was not required to plead and prove that the offender committed a recent overt act of sexual violence in order for him to be committed as a sexually violent predator because, at the time the petition was filed, the offender was incarcerated for an act that itself constituted a recent overt act; that the question of whether an individual is incarcerated for an act that itself qualifies as a recent overt act is for the court, not a jury; and that no error was committed in the admission of testimony by an expert psychologist for the State based on otherwise inadmissible evidence, the court affirms the decision of the Court of Appeals and the judgment.

David Schultz , for petitioner.

Robert M. McKenna , Attorney General, and Krista K. Bush , Assistant, for respondent.

Dec. 2005 In re Det. of Marshall 153
156 Wn.2d 150

¶1 MADSEN, J. - Petitioner Raymond Marshall challenges a Court of Appeals decision affirming his commitment as a sexually violent predator. He claims that his detention is improper because the State was required to plead and prove a "recent overt act." Marshall also challenges the State's expert's testimony, arguing, among other things, that the psychologist who testified was not licensed to practice in Washington and therefore was not authorized to conduct an evaluation to determine whether he is a sexually violent predator. We affirm the Court of Appeals.

FACTS

¶2 On November 6, 2000, the State filed a petition seeking to have Mr. Marshall committed as a sexually violent predator pursuant to chapter 71.09 RCW. Marshall has a history of sex offenses, including a conviction pursuant to a plea agreement for child molestation resulting from sexual contact with a six-year-old girl in 1989. This offense was a sexually violent offense, as the term is defined in RCW 71.09.020 . At the same time, Mr. Marshall pleaded guilty to communicating with a child for immoral purposes; the offense was committed in 1989, and the victim was an 11-year-old boy. Marshall was sentenced to a 27-month prison term for these offenses and was released in June 1992. Mr. Marshall was convicted in 1992 of felony communication with a minor for immoral purposes, resulting from fondling a nine-year-old girl on August 14, 1992, while he worked as a ride attendant at a county fair. In exchange for his guilty plea on this charge, an additional charge of child molestation was dismissed. Marshall was sentenced to 16 months' confinement and was released in August 1993.

¶3 In 1995, Mr. Marshall attempted to lure two 11-year-old girls to him and stared at the genital area of one of the girls. He was on community placement at the time, with conditions that prohibited him from having contact with minor girls. He received a community placement violation as a result of these acts.

154 In re Det. of Marshall Dec. 2005
156 Wn.2d 150

¶4 In 1996, following a jury trial, Mr. Marshall was convicted of third degree rape, the offense for which he was incarcerated at the time the State filed the sexually violent predator petition. This conviction resulted from Marshall having nonconsensual sexual intercourse with an adult female on November 19, 1995. Although the victim was an adult, she was developmentally disabled and functioned at the level of a 10- to 12-year-old.

¶5 The certification of probable cause included the opinion of a Department of Corrections psychologist that Marshall met the criteria for commitment as a sexually violent predator. Neither the State's petition nor the certificate alleged that Mr. Marshall was confined as a result of a conviction for a sexually violent act or an act that would qualify as a "recent overt act" under RCW 71.09.020 (10). Marshall moved to dismiss the petition, arguing that due process required that the State plead and prove a recent overt act. The trial court denied the motion.

¶6 The trial court found that there was probable cause to believe that Marshall was a sexually violent predator and ordered him detained for an evaluation pursuant to RCW 71- .09.040(4) before his commitment trial. At the special commitment center, a Washington licensed psychologist conducted the evaluation and prepared a report concluding that Mr. Marshall met the criteria for commitment as a sexually violent predator. The State also obtained an evaluation by another psychologist pursuant to a CR 35 court order. Shortly before the commitment trial was to begin, the trial court granted Mr. Marshall's motion to exclude the evaluation and testimony by this psychologist in light of In re Detention of Williams , 147 Wn.2d 476 , 55 P.3d 597 (2002), where this court held that CR 35 may not be used to compel a mental examination during pretrial discovery in civil commitment proceedings under chapter 71.09 RCW.

¶7 The State then retained Dr. Amy Phenix, who has been licensed as a clinical psychologist since 1992 in her home state of California. Dr. Phenix specializes in sex offender risk assessment and evaluation. She has con

Dec. 2005 In re Det. of Marshall 155
156 Wn.2d 150

ducted over 225 evaluations of individuals under sexually violent predator statutes in California, Washington, and other states.

¶8 Dr. Phenix did not conduct an in-person interview or evaluation of Mr. Marshall. Instead, she reviewed records of Marshall's criminal and psychiatric history, including police reports, legal records, treatment records, juvenile records, psychological and psychiatric evaluations, and medical records. At the commitment trial, which was tried to the judge, Dr. Phenix testified that these are the type of records on which professionals in her field rely when evaluating individuals to determine whether they are sexually violent predators.

¶9 Dr. Phenix determined that Mr. Marshall suffers from multiple mental abnormalities described in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000) (DSM-IV-TR), a reference relied on by experts. Specifically, she found he suffers from pedophilia, sexual sadism, and paraphilia not otherwise specified (nonconsenting adults or rape-like behavior).«1»In reaching these conclusions, Dr. Phenix also relied on Mr. Marshall's self-reported fantasies and results of phallometric assessment. In addition, Dr. Phenix testified, Marshall suffers from antisocial personality disorder. Dr. Phenix testified that in her opinion Marshall's mental abnormalities made it very likely that he would commit predatory acts of sexual violence in the future if he were not confined in a secure facility.

¶10 The State also called Mr. Marshall as a witness, who admitted to a jail guard that he might pose a risk to children but denied that he would be a danger to children if

«1»"Pedophilia" is characterized by "recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child . . . (generally age 13 years or younger)." DSM-IV-TR at 572. "Sexual sadism" is characterized by "recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving acts (real, not simulated) in which the psychological or physical suffering (including humiliation) of the victim is sexually exciting to the person." DSM-IV-TR at 574. "Paraphilia" not otherwise specified is a catch-all category for paraphilias that do not fall within one of the other specified categories. DSM-IV-TR at 576.

156 In re Det. of Marshall Dec. 2005
156 Wn.2d 150

released. Additionally, the jail guard testified that he had transported Marshall to the courtroom that day and that during a short conversation Marshall said that "your children aren't safe." Report of Proceedings (RP) at 229. The State introduced copies of the records of Marshall's conviction for the 1989 child molestation that was a sexually violent offense, as well as copies of the records of Marshall's convictions for other sex-related offenses.

¶11 The trial court determined that Mr. Marshall is a sexually violent predator and entered an order committing him to the custody of the Department of Social and Health Services for placement in a secure facility pursuant to chapter 71.09 RCW. Mr. Marshall appealed, arguing that the State was required to plead and prove a "recent overt act," that Dr. Phenix was not qualified to testify, and that her testimony should have been excluded because she relied on inadmissible hearsay evidence to form her testimony. The Court of Appeals affirmed. In re Det. of Marshall , 122 Wn. App. 132 , 90 P.3d 1081 (2004). We granted Marshall's petition for discretionary review.

ANALYSIS

¶12 Mr. Marshall contends that because he was not incarcerated for a sexually violent offense when the sexually violent predator petition was filed, the State was required as a matter of due process to plead and prove beyond a reasonable doubt that he had committed a "recent overt act" in order to commit him as a sexually violent predator. The State maintains that the third degree rape for which Marshall was incarcerated at the time the sexually violent predator petition was filed was a crime that itself qualified as a recent overt act and therefore the State was not required to allege and prove that Marshall had committed a recent overt act.

¶13 The State may file a petition alleging an individual is a sexually violent predator when "it appears that . . . [a] person who at any time previously has been convicted of

Dec. 2005 In re Det. of Marshall 157
156 Wn.2d 150

a sexually violent offense is about to be released from total confinement." RCW 71.09.030 (1). Under RCW 71.09.020(16) a "sexually violent predator" is one who "suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility." RCW 71.09.020 (8) defines "mental abnormality" which "is tied directly to present dangerousness." In re Det. of Henrickson , 140 Wn.2d 686 , 692, 2 P.3d 473 (2000). This tie to present dangerousness is constitutionally required, as recognized in In re Personal Restraint of Young , 122 Wn.2d 1 , 27, 857 P.2d 989 (1993), because due process requires that an individual must be both mentally ill and presently dangerous before he or she may be indefinitely committed. Accord In re Det. of Albrecht , 147 Wn.2d 1 , 7-8, 51 P.3d 73 (2002).

[1, 2]¶14 Proof of a recent overt act may be required to establish current dangerousness. A "recent overt act" is "any act or threat that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm in the mind of an objective person who knows of the history and mental condition of the person engaging in the act." RCW 71.09.020 (10). However, RCW 71.09.060 (1) provides that the State must prove beyond a reasonable doubt that an individual has committed a recent overt act only if on the day the petition is filed, the individual was living in the community after release from custody. The statute "unambiguous[ly] direct[s] that the State need not prove a recent overt act when the subject of a sexually violent predator petition is incarcerated on the day the petition is filed." Henrickson , 140 Wn.2d at 693 .

¶15 Moreover, as we expressly held in Henrickson , due process does not require the State to prove a recent overt act "[w]hen, on the day a sexually violent predator petition is filed, an individual is incarcerated for a sexually violent offense, RCW 71.09.020 [(15)], or for an act that would itself qualify as a recent overt act, RCW 71.09.020 [(10)]." Henrickson , 140 Wn.2d at 695 ; see Albrecht , 147 Wn.2d at 8 .

158 In re Det. of Marshall Dec. 2005
156 Wn.2d 150

¶16 Instead, where the individual is incarcerated on the day the petition is filed, the question is whether the confinement is for a sexually violent act or an act that itself qualifies as a recent overt act. We agree with the analysis in State v. McNutt , 124 Wn. App. 344 , 350, ¶ 12, 101 P.3d 422 (2004), that the inquiry whether an individual is incarcerated for an act that qualifies as a recent overt act is for the court, not a jury. The court must either determine from the materials relating to the individual's conviction whether the individual is incarcerated for an act that actually caused harm of a sexually violent nature, or it must determine whether the individual was incarcerated for an act that qualifies as a recent overt act under a two step analysis described by the Court of Appeals in McNutt : first, an inquiry must be made into the factual circumstances of the individual's history and mental condition; second, a legal inquiry must be made as to whether an objective person knowing the factual circumstances of the individual's history and mental condition would have a reasonable apprehension that the individual's act would cause harm of a sexually violent nature. Id.

¶17 That this is a question for the court is demonstrated by our decision in Henrickson . There, one of the petitioners, Henrickson, had a history of sexual assaults on young girls and was incarcerated for attempted kidnapping and communicating with a minor - based on abducting a six-year-old girl and showing her a pornographic picture. The other petitioner, Halgren, had a history of sexual related offenses including first degree rape and was incarcerated for unlawful imprisonment of a prostitute. After holding that the State does not have to prove a recent overt act where the individual is incarcerated at the time a sexually violent predator petition is filed for an act that qualifies as a recent overt act, we concluded in each case that the petitioner was incarcerated for an act that constituted a recent overt act. Henrickson , 140 Wn.2d at 696 (Henrickson's convictions "would certainly qualify as . . . a recent overt act" and Halgren's conviction "would also qualify as a . . . recent overt act").

Dec. 2005 In re Det. of Marshall 159
156 Wn.2d 150

[3]¶18 Here, the trial court concluded that the act for which the petitioner was convicted, third degree rape, was a recent overt act based upon the nature of the rape, as alleged in the charging document and proved at the rape trial, and petitioner's history of offenses and mental condition. We agree with the trial court's conclusion. Marshall's history includes numerous incidents of seeking out and molesting young children. He was diagnosed as suffering from pedophilia, sexual sadism, and nonspecified paraphilia. His diagnosis of sexual sadism resulted in part from Marshall's fantasies of molesting and hurting or killing young girls. In light of Marshall's history and mental condition, the third degree rape, which involved nonconsensual sex with a developmentally disabled woman who functioned at the level of a 10- or 12-year-old, would create a reasonable apprehension of harm of a sexually violent nature in the mind of an objective person.

¶19 Mr. Marshall's reliance on Albrecht and In re Detention of Broten , 115 Wn. App. 252 , 62 P.3d 514 (2003), is misplaced. In each of these cases the offenders had been released into the community following total confinement and were then incarcerated again for violating the conditions of community placement. In each case the court noted that where the offender has not been released from total confinement, due process does not require proof of a recent overt act. Albrecht , 147 Wn.2d at 10 ; Broten , 115 Wn. App. at 256 .

¶20 Mr. Marshall next argues that Dr. Phenix was not licensed in Washington and therefore was not authorized to perform an evaluation under RCW 71.09.040 (4). That statute requires that offenders submit to a sexually violent predator evaluation conducted "by a person deemed to be professionally qualified to conduct such an examination pursuant to rules developed by the department of social and health services." RCW 71.09.040 (4). Former WAC 388-880-010(12)(d) (2000 Supp.) defined a "psychologist" in relevant part as "a person licensed as a doctor of psychology under

160 In re Det. of Marshall Dec. 2005
156 Wn.2d 150

chapter 18.83 RCW."«2»Under chapter 18.83 RCW, psychologists must obtain a license to practice psychology in this state. RCW 18.83.020 . Pursuant to RCW 18.83.082 , a psychologist licensed in another state may obtain a temporary permit to practice in Washington state. Here, Dr. Phenix had obtained a temporary permit, but the record does not establish that it was valid at the time she conducted her evaluation of Marshall.«3»

[4, 5]¶21 But, as the Court of Appeals determined, Dr. Phenix did not conduct an evaluation pursuant to RCW 71.09.040(4), and therefore whether she was qualified to conduct an evaluation under this statute is not relevant. Rather, her role in Mr. Marshall's commitment trial was as an expert witness. She qualified as an expert witness based on her knowledge, skill, experience, training and education, and her knowledge assisted the trial judge in understanding the evidence and determining the facts at issue, i.e., whether Mr. Marshall suffered from a mental abnormality or personality disorder that made him likely to commit a predatory sexually violent act unless confined. See ER 702. RCW 71.09.040 (4) simply does not address a psychologist's expert testimony at trial.

[6]¶22 Mr. Marshall also contends, however, that allowing Dr. Phenix to testify contravenes our decision in Williams . In Williams the petitioners contended that the State could not obtain court ordered mental evaluations under CR 35 in advance of their sexually violent predator commitment trials. We agreed. Williams , 147 Wn.2d at 491 . However, Marshall was not compelled to submit to an evaluation by Dr. Phenix, whether under CR 35 or otherwise, and in fact Dr. Phenix did not interview Marshall in person. Nothing in Williams forecloses the type of evaluation conducted by Dr. Phenix or her expert testimony at the commitment trial.

«2»WAC 388-880-010 has been amended to define "psychologist" as "a person licensed as a doctor of psychology in this state, or licensed or certified in another state, in accordance with chapter 18.83 RCW."

«3»Dr. Phenix testified that she believed she had a temporary license in Washington but was unsure of its expiration date. RP at 131.

Dec. 2005 In re Det. of Marshall 161
156 Wn.2d 150

[7]¶23 Next, Mr. Marshall argues that Dr. Phenix's opinion testimony was improperly based on a review of inadmissible hearsay records and violated ER 703 because it was conducted solely for the purpose of litigation.

¶24 ER 703 provides that if "facts or data . . . upon which an expert bases an opinion or inference [are] of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence." The judicial comment to ER 703 notes, however, that an expert opinion should not be permitted "if the expert can show only that he [or she] customarily relies upon such material or that it is relied upon only in preparing for litigation." ER 703 cmt.; see State v. Ecklund , 30 Wn. App. 313 , 317-18, 633 P.2d 933 (1981).

¶25 Marshall contends the practice of psychology in Washington is defined by RCW 18.83.010 (1), which, he says, contemplates that a psychologist will evaluate, diagnose, and treat based upon the observation of behavior and objective testing and measurement. He argues the definition does not contemplate that a psychologist would base a diagnosis on the records of others. He urges that the diagnostic method used by Dr. Phenix would be used only to prepare to testify in a lawsuit, and her opinion was therefore not admissible under ER 703.

¶26 The statutory definition of the practice of psychology is clearly broader than Mr. Marshall claims.«4»Moreover, Dr.

«4»RCW 18.83.010 (1) provides:

When used in this chapter:

"(1) The 'practice of psychology' means the observation, evaluation, interpretation, and modification of human behavior by the application of psychological principles, methods, and procedures for the purposes of preventing or eliminating symptomatic or maladaptive behavior and promoting mental and behavioral health. It includes, but is not limited to, providing the following services to individuals, families, groups, organizations, and the public, whether or not payment is received for services rendered:

"(a) Psychological measurement, assessment, and evaluation by means of psychological, neuropsychological, and psychoeducational testing;

"(b) Diagnosis and treatment of mental, emotional, and behavioral disorders, and psychological aspects of illness, injury, and disability; and

"(c) Counseling and guidance, psychotherapeutic techniques, remediation, health promotion, and consultation within the context of established psychological principles and theories."

162 In re Det. of Marshall Dec. 2005
156 Wn.2d 150

Phenix testified that her particular area of expertise is sex offender risk assessment and evaluation of sex offenders. She testified that the documents that she reviewed are of the type that other mental health professionals rely on when evaluating individuals to determine whether they are sexually violent predators. While Marshall objected, he presented no evidence to rebut Dr. Phenix's testimony that the records are of the type reviewed by experts in the field.

¶27 Admission of Dr. Phenix's testimony under ER 703 was proper. See Young , 122 Wn.2d at 58 (admission of expert testimony in sexually violent predator commitment trials upheld where the testimony was based on records reasonably relied on by others to diagnose future dangerousness).

[8]¶28 Finally, Marshall contends that Dr. Phenix's testimony should have been excluded because she related inadmissible hearsay as factual assertions. As noted, ER 703 permits an expert to base his or her expert opinion on facts or data that are not otherwise admissible provided that they are of a type reasonably relied on by experts in the particular field. Thus, the rule allows expert opinion testimony based on hearsay data that would otherwise be inadmissible in evidence. State v. Russell , 125 Wn.2d 24 , 73-74, 882 P.2d 747 (1994); Group Health Coop. of Puget Sound, Inc. v. Dep't of Revenue , 106 Wn.2d 391 , 399, 722 P.2d 787 (1986) ("[t]he trial court may allow the admission of otherwise [inadmissible] hearsay evidence and inadmissible facts for the purpose of showing the basis of the expert's opinion"). However, " ' "it does not follow that such a witness may simply report such matters to the trier of fact: The Rule was not designed to enable a witness to summarize and reiterate all manner of inadmissible evidence." ' " State v. DeVries , 149 Wn.2d 842 , 848 n.2, 72 P.3d 748 (2003) (quoting State v. Martinez , 78 Wn. App. 870 , 880,

Dec. 2005 In re Det. of Marshall 163
156 Wn.2d 150

899 P.2d 1302 (1995) (quoting 3 DAVID LOUISELL & CHRISTOPHER MUELLER, FEDERAL EVIDENCE § 389, at 663 (1979))).

¶29 At trial, Marshall's counsel objected to admission of facts in the records that Dr. Phenix reviewed as substantive evidence. The trial court sustained the objection, ruling that Dr. Phenix could relate otherwise inadmissible material only for the purpose of explaining the basis for her expert opinion. This ruling was consistent with ER 705, which grants the court discretion to allow the expert to relate hearsay or otherwise inadmissible evidence to the trier of fact to explain the reasons for his or her expert opinion, subject to appropriate limiting instructions. 5B KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE §§ 705.4, 705.5 (4th ed. 1999).

¶30 In accord with the trial court's ruling and ER 703 and 705, Dr. Phenix related a number of facts that would have been inadmissible if offered to prove their truth to explain how she reached her conclusions about the likelihood that Mr. Marshall would commit a predatory sexually violent act unless confined. Mr. Marshall contends, however, that Dr. Phenix's testimony rested entirely on inadmissible evidence.«5»We do not agree that the State failed to present any admissible evidence to support the factual bases for Dr. Phenix's testimony. For example, the State introduced the records of Mr. Marshall's prior sex and sex-related offenses, as well as his testimony and that of the jail guard.

¶31 We find no error in allowing Dr. Phenix to relate otherwise inadmissible hearsay to explain the basis for her expert opinion.

CONCLUSION

¶32 The State was not required to plead and prove that Mr. Marshall committed a recent overt act in order for him

«5»Marshall does not, however, address the facts and data that Dr. Phenix relied on in reaching her opinion and explain how all of it constituted inadmissible evidence.

164 In re Det. of Marshall Dec. 2005
156 Wn.2d 150

to be committed as a sexually violent predator because at the time the sexually violent predator petition was filed Marshall was incarcerated for an act that itself constituted a recent overt act. The question whether an individual is incarcerated for an act that itself qualifies as a recent overt act is for the court, not a jury. Further, the trial court did not err in admitting the testimony of the State's expert psychologist, allowing her to base her testimony on otherwise inadmissible evidence, and allowing her to refer to that evidence during her testimony.

¶33 The Court of Appeals is affirmed.

ALEXANDER, C.J., and C. JOHNSON, BRIDGE, OWENS, FAIRHURST, and J.M. JOHNSON , JJ., concur.

¶34 CHAMBERS, J. (dissenting) - I respectfully dissent.

As incarceration of persons is the most common and one of the most feared instruments of state oppression and state indifference, we ought to acknowledge at the outset that freedom from this restraint is essential to the basic definition of liberty in the Fifth and Fourteenth Amendments of the Constitution.

Foucha v. Louisiana, 504 U.S. 71, 90, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992) (Kennedy, J., dissenting). It is our solemn duty to ensure that the State's power to incarcerate is exercised only under the most stringent of standards. This is just as important for civil confinement as for criminal confinement.

¶35 It is bedrock law that a person must be currently dangerous to be civilly committed. In re Pers. Restraint of Young, 122 Wn.2d 1 , 40, 857 P.2d 989 (1993); see also Foucha, 504 U.S. at 80. This is not merely a matter of statutory grace; a substantial showing of current dangerousness is required to satisfy due process of law. See In re Harris, 98 Wn.2d 276 , 284, 654 P.2d 109 (1982).

¶36 Current dangerousness is best established by proving actual recent conduct, rather than through the arcana of propensity evaluations. See In re Det. of Albrecht , 147

Dec. 2005 In re Det. of Marshall 165
156 Wn.2d 150

Wn.2d 1, 11, 51 P.3d 73 (2002); Harris , 98 Wn.2d at 284 . Thus, as a matter of due process, the State must prove a recent overt act of violence before a man or woman may be civilly committed. Harris , 98 Wn.2d at 284 ; see also RCW 71.09.060 (1); Albrecht , 147 Wn.2d at 11 .

¶37 We have, however, relieved the State of the obligation to prove a recent overt act when it seeks to civilly commit as a sex predator a person currently incarcerated and not recently released into the community. In re Det. of Henrickson , 140 Wn.2d 686 , 697, 2 P.3d 473 (2000); Young , 122 Wn.2d at 41 . This is because our court once decided that those in prison have had less opportunity to engage in recent acts of predatory violence. Young , 122 Wn.2d at 41 ; see also RCW 71.09.020 (15).

¶38 Because Raymond Marshall was confined the day the civil commitment petition was filed against him, the State contends its burden of proof is reduced. It no longer has to prove, the State contends, that Marshall committed a recent overt act tending to show he is currently dangerous. Because he was not incarcerated for a crime that is statutorily defined as a sexually violent act, Marshall contends the State was required to prove he was actually incarcerated for a sexually violent offense.

¶39 I agree with Marshall. Due process requires its due, and that means Marshall has a right to demand the State meaningfully prove to a jury that he is currently dangerous. Thus, whether his prior crime was actually a sexually violent offense (or recent overt act) should be decided by the trier of fact as a matter of fact, not by a judge as a matter of law.

¶40 Our legislature seems to have been mindful of due process requirements when it drafted the sexually violent predators act, chapter 71.09 RCW. That is why, I suspect, it has required proof beyond a reasonable doubt that the person is a sexually violent predator and why it requires a jury to be unanimous. RCW 71.09.060 (1).

¶41 A conviction for rape in the third degree, RCW 9A.44.060, the crime for which Marshall was incarcerated,

166 In re Det. of Marshall Dec. 2005
156 Wn.2d 150

certainly could be a conviction for a sexually violent act. But it is not a "sexually violent offense" enumerated in RCW 71.09.020(15). Whether it can still provide the predicate for civil confinement will turn on whether it was an act that "either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm in the mind of an objective person who knows of the history and mental condition of the person engaging in the act." RCW 71.09.020(10). This is properly a question for the finder of fact, and, again, Marshall was entitled to ask a jury to make the decision.

¶42 The issue before this court is not whether Marshall's 1996 conviction for third degree rape could be the functional equivalent of a "recent overt act" as defined in RCW 71.09.020(10). I have no doubt a rational trier of fact could so find. The question before this court is who should be asked to so find and how. The answer to this question, I believe, is that the State must go through the exercise of pleading and proving its case before committing a man, even a bad man, to total confinement for what is likely to be the rest of his life. See generally Humphrey v. Cady, 405 U.S. 504, 509, 92 S. Ct. 1048, 31 L. Ed. 2d 394 (1972) (civil commitment is "a massive curtailment of liberty"); Specht v. Patterson, 386 U.S. 605, 608, 87 S. Ct. 1209, 18 L. Ed. 2d 326 (1967) (requiring states to observe due process protections before civilly committing sex offenders). In my view, it should.

¶43 The statutes do not dictate the majority's conclusion, and given the very real fact that Marshall could spend the rest of his life confined to the special commitment center based in part on the resolution of this question, we should err on the side of giving generous due process and on the side of entrusting juries to make the call.

¶44 The fact Marshall chose a bench trial does not change the fact he was denied the opportunity to ask the trier of fact to decide a critical question beyond a reasonable doubt.

¶45 Facts found by a neutral fact finder, weighing the arguments of equally motivated opponents with equal op

Dec. 2005 In re Det. of Marshall 167
156 Wn.2d 150

portunity to prove and contest facts, are far more reliable than facts asserted by charging documents. An adversarial process promotes reliable outcomes and assures a fair procedure for those for whom conclusions of fact are of life-altering importance. It also gives due weight to the gravity of the questions that must be answered. A jury should be available to decide whether a man is to be totally confined or whether society should be subjected to the risk of another sexual predator walking among us.

¶46 Without our constant vigilance, sexually violent predator proceedings risk becoming, as one of my brethren once observed, "an Orwellian 'dangerousness court.' " Young, 122 Wn.2d at 60 (C. Johnson, J., dissenting). It is our solemn duty to protect "our system of ordered liberty guaranteed by the constitution," id., even or especially when it is the most despised among us at risk. "History has proven the grave error in creating special classes of individuals for whom constitutional rights are diminished." Id. When the State has created such special classes, we should be especially vigilant to guard the constitution. We are, almost always, literally its last guardians.

¶47 I would reverse and remand to give both parties an opportunity to meaningfully contest the facts underlying the alleged current dangerousness of Marshall before a jury, using the best evidence we have: the actual conduct of the person the State seeks to incarcerate.

¶48 I respectfully dissent.

SANDERS, J., concurs with CHAMBERS, J.

[No. 75662-7. En Banc.]

Argued June 7, 2005. Decided December 22, 2005.

STEVEN M. KORSLUND ET AL ., Respondents , v. DYNCORP TRI -Cities SERVICES , INC ., ET AL ., Petitioners .

[1] Employment - Termination - Violation of Public Policy - Right of Action - In General. A claim for wrongful discharge in violation of public policy may arise when an employer discharges an employee for reasons that contravene a clear mandate of public policy.

[2] Employment - Termination - Violation of Public Policy - Categories. Claims of wrongful discharge in violation of public policy generally arise where employees are fired for refusing to commit an illegal act, for performing a public duty or obligation, for exercising a legal right or obligation, or for engaging in whistleblowing activity.

[3] Employment - Termination - Violation of Public Policy - Right of Action - Exception to At-Will Employment Rule. The cause of action for wrongful discharge in violation of public policy is an exception to the rule that employment contracts that are indefinite in duration may be terminated at will by either the employer or the employee.

[4] Employment - Termination - Violation of Public Policy - Right of Action - For-Cause Employees. The cause of action for wrongful discharge in violation of public policy is available to employees who are dischargeable only for cause (and who may be covered by a collective bargaining agreement).

[5] Employment - Termination - Violation of Public Policy - Intent To Discharge. Wrongful discharge in violation of public policy is an intentional tort - the plaintiff must establish wrongful intent to discharge in violation of public policy.

[6] Employment - Termination - Violation of Public Policy - Elements - In General. A cause of action for wrongful discharge in violation of public policy is not established unless (1) the employee proves (a) the existence of a clear public policy (the clarity element), (b) that discouraging the employee's conduct would jeopardize the public policy (the jeopardy element), and (c) that public-policy-linked conduct caused the dismissal (the causation element) and (2) the employer is unable to offer an overriding justification for the dismissal.[7] Employment - Termination - Violation of Public Policy - Elements - Discharge - Actual or Constructive - Intolerable Working Conditions - Medical Leave - Permanence - Necessity. For purposes of an action for wrongful discharge in

Dec. 2005 Korslund v. DynCorp Tri-Cities Servs., Inc. 169
156 Wn.2d 168

violation of public policy, constructive discharge from employment may be shown where the employer deliberately made the employee's working conditions so intolerable that the employee was required for medical reasons to permanently leave the workplace. A medical leave must be comparable to termination of employment to qualify as a constructive discharge for purposes of the wrongful discharge action, and therefore constructive discharge is not shown where the employee leaves the workplace for medical reasons but the employee continues to receive employment benefits and is still considered to be an active employee, or where the employee's ability to return to work is protected in some other way.

[8] Employment - Termination - Violation of Public Policy - Elements - Jeopardy - Proof. To establish the jeopardy element of an action for wrongful discharge in violation of public policy, the plaintiff must show that he or she engaged in particular conduct directly relating to or necessary for the effective enforcement of the public policy. The plaintiff must prove that discouraging the particular conduct would jeopardize the public policy. The plaintiff must also show that other means of promoting the public policy are inadequate.

[9] Employment - Termination - Violation of Public Policy - Elements - Jeopardy - Question of Law or Fact. While the question whether the jeopardy element of an action for wrongful discharge in violation of public policy is satisfied generally involves a question of fact, the question whether adequate alternative means for promoting the public policy exist may present a question of law where the inquiry is limited to examining existing laws to determine whether they provide adequate alternative means of promoting the public policy.

[10] Employment - Termination - Violation of Public Policy - Elements - Jeopardy - Energy Reorganization Act - Whistleblowing Procedures - Effect. The administrative process for adjudicating whistleblower complaints under 42 U.S.C. § 5851(b)(2)(B) of the federal Energy Reorganization Act provides sufficient protection of the public policy expressed in 42 U.S.C. § 5851(a)(1)(A) of encouraging and protecting employee reporting of statutory violations in nuclear industry operations without fear of retaliation or reprisal to preclude an action for wrongful discharge in violation of public policy based on that public policy.

[11] Employment - Employee Policy Manual - Effect - Promise of Treatment - Enforcement - In General. Where an employer, for whatever reason, creates an atmosphere of job security and fair treatment with promises of specific treatment in specific situations and an employee is induced thereby to remain on the job and not actively seek other employment, the promises are enforceable components of the employment relationship.

170 Korslund v. DynCorp Tri-Cities Servs., Inc. Dec. 2005
156 Wn.2d 168

[12] Employment - Employee Policy Manual - Effect - Promise of Treatment - Enforcement - Elements of Claim. An employee seeking judicial enforcement of a claimed promise of specific treatment in specific situations as set forth in an employee manual or handbook or similar document must prove (1) that the statement or statements of the policy made in the manual, handbook, or document amount to a promise of specific treatment in specific situations; (2) justifiable reliance on the promise; and (3) breach of the promise by the employer.

[13] Employment - Employee Policy Manual - Effect - Promise of Treatment - Question of Law or Fact. Each of the elements of a claim for breach of a promise of specific treatment in specific situations as set forth in an employee manual or handbook generally presents a question of fact that may be decided as a matter of law if reasonable minds could not differ as to its resolution.

[14] Employment - Employee Policy Manual - Effect - Promise of Treatment - Enforcement - Relationship to Breach of Contract Action. An employee's claim of breach of a provision in an employee manual or handbook promising specific treatment in specific situations rests on a justifiable reliance theory; it is not an express or implied contract claim and is not analyzed as a contract claim.

[15] Employment - Employee Policy Manual - Effect - Promise of Treatment - Enforcement - Discharge From Employment - Necessity. Actual discharge from employment is not a necessary prerequisite to a claim of breach of a promise of specific treatment in specific situations as set forth in an employee manual or handbook.

[16] Employment - Employee Policy Manual - Effect - Promise of Treatment - Collective Bargaining Agreement - Effect. An employee who is covered by a collective bargaining agreement is not necessarily precluded from pursuing a claim against the employer for breach of a promise of specific treatment in specific situations as expressed in an employee manual or handbook.

[17] Employment - Employee Policy Manual - Effect - Terminable-at-Will Relationship - In General. An employee's written acknowledgment that the employment relationship is terminable at will by either the employer or the employee does not preclude the possibility of an alteration in the employment relationship by language in an employee manual or handbook issued by the employer if such language constitutes (1) a promise of specific treatment in specific situations or (2) a modification of the employment contract (if the formalities of contract modification are met).[18] Employment - Employee Policy Manual - Effect - Promise of Treatment - Protection Against Retaliation - Mandatory Language - "Will". A statement of company policy in an employee manual or handbook is not too indefinite if the policy

Dec. 2005 Korslund v. DynCorp Tri-Cities Servs., Inc. 171
156 Wn.2d 168

statement provides that some corrective action will be taken against management or employees if the policy is violated and that disciplinary action will be taken against any supervisor who retaliates, directly or indirectly, or who encourages others to retaliate against an employee who reports a violation of the policy.

[19] Employment - Employee Policy Manual - Effect - Promise of Treatment - Reliance - Justifiable Reliance - Inducement To Remain on Job. The justifiable reliance element of an employee's claim for breach of a promise of specific treatment in specific situations as expressed in an employee manual or handbook requires a showing that the employee was aware of the specific promise allegedly breached and was induced by that specific promise to remain on the job and not seek other employment.

CHAMBERS and SANDERS , JJ., dissent in part by separate opinion.

Nature of Action: Three employees sought damages from their former employer, a subcontractor at the Hanford Nuclear Reservation, and from the general contractor for wrongful discharge and wrongful retaliation in violation of public policy and breach of promises of specific treatment in specific situations. The plaintiffs also sought punitive damages under Virginia law if any of their claims were actionable. The plaintiffs claimed that they were subjected to unlawful, adverse treatment arising from their allegations of safety violations, mismanagement, and fraud at the Hanford site.

Superior Court: The Superior Court for Benton County, No. 98-2-00979-6, Vic L. VanderSchoor, J., on November 15, 2002, entered a summary judgment in favor of the defendants.

Court of Appeals: The court affirmed the judgment in part, reversed it in part, and remanded the case for further proceedings at 121 Wn. App. 295 (2004), holding that, as to one of the plaintiffs, the record supported a claim of wrongful discharge in violation of public policy, that the claims of wrongful retaliation in violation of public policy were not cognizable, that the record supported the claims of breach of promises of specific treatment in specific situations, and that Virginia law did not apply to allow the plaintiffs to recover punitive damages.

172 Korslund v. DynCorp Tri-Cities Servs., Inc. Dec. 2005
156 Wn.2d 168

Supreme Court: Holding that the trial court properly dismissed the tort claims alleging discharge and retaliation in violation of public policy but that material issues of fact precluded summary judgment on the claims of breach of promises of specific treatment in specific situations, the court affirms the decision of the Court of Appeals in part, reverses it in part, and remands the case for further proceedings.

Larry E. Halvorson and Michael B. Saunders (of Halvorson & Saunders, P.L.L.C. ), for petitioners.

Victoria L. Vreeland (of Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim, P.L.L.C. ), for respondents.

Russell C. Brooks and Deborah J. La Fetra on behalf of Pacific Legal Foundation, amicus curiae.

Jayne L. Freeman on behalf of Washington Defense Trial Lawyers, amicus curiae.

Jeffrey L. Needle and Susan B. Mindenbergs on behalf of Washington Employment Lawyers Association, amicus curiae.

Debra L.W. Stephens and Bryan P. Harnetiaux on behalf of Washington State Trial Lawyers Association Foundation, amicus curiae.

¶1 MADSEN, J. - Steven M. Korslund, Virginia A. Miller, and John Acosta (the plaintiffs) brought suit against DynCorp Tri-Cities Services, Inc., and Fluor Daniel Hanford, Inc. (DynCorp), arising from alleged retaliation and harassment by DynCorp management and employees in response to the plaintiffs' reports of safety violations, mismanagement, and fraud at the Hanford Nuclear Reservation. Two plaintiffs, Korslund and Miller, claim that they were constructively discharged in violation of public policy.

Dec. 2005 Korslund v. DynCorp Tri-Cities Servs., Inc. 173
156 Wn.2d 168

All three plaintiffs urge that they have raised valid claims of retaliation in violation of public policy and that their employer breached promises of specific treatment in specific situations. We conclude that the trial court properly granted summary on the tort claims alleging discharge and retaliation in violation of public policy, but that material issues of fact preclude summary judgment on the plaintiffs' claims that their employer breached promises of specific treatment in specific situations.

FACTS

¶2 In October 1996, Fluor became the prime Department of Energy contractor at the Hanford site, and its subcontractor DynCorp took over responsibility for the Fire Systems Maintenance (FSM) group. Jon Finley became manager of the FSM group, and his supervisor was Fire Chief Don Good, who reported to Mike Dallas, DynCorp's director of operations. Miller and Acosta were partnered journeymen electricians who had worked in the FSM group since 1979. They were covered by collective bargaining agreements. Korslund was the fire systems administrator and lead engineer in the group. At the time DynCorp took over, Korslund signed an employment application that stated that employment was at will.

¶3 Starting early in 1997, the plaintiffs made a series of oral and written reports and complaints, some anonymous, relating to health and safety issues, abuse of overtime, abuse of work hours, misuse of government funds, nepotism, improper gifting of equipment, improper use of government property, and threats and retaliation against them for reporting. Many of the reports implicated Finley. The plaintiffs allege they were mistreated, threatened, harassed by managers and coworkers, and retaliated against in numerous ways. For example, Miller had raised concerns, both anonymously and in a meeting on August 1 that did not include Finley, that other workers were harassing her because she had raised issues about abuse of work hours.

174 Korslund v. DynCorp Tri-Cities Servs., Inc. Dec. 2005
156 Wn.2d 168

On August 4, 1997, allegedly in response to one of the anonymous complaints, Finley issued a memorandum outlining his expectations about workers' starting times and breaks. Miller alleges that other workers were upset that she had raised the issue and that she and Acosta were ostracized, threatened, and harassed by the group's pipe fitters. She says that she complained about it to another supervisor, but nothing was done.

¶4 On September 10, 1997, Finley issued written warnings to Miller and Acosta for extremely serious misconduct and insubordination when they did not move their equipment from a Suburban to a van in a timely fashion. They had used the Suburban for years and believed that Finley wanted it for his own use because it was a nicer vehicle. Both filed union grievances. Then, allegedly as part of his retaliatory conduct and harassment, on September 29, 1997, Finley told Miller that she would have to begin work at 7:30 instead of 8:00, which he said conflicted with the start time of other FSM electricians. Miller alleges that Finley knew that the later starting time was necessary because she has a special needs child.

¶5 On November 21, 1997, Finley, and others (including a union representative), met with Miller and notified her that she was being transferred from FSM in order to remove her from what she considered to be a hostile work environment and to accommodate her scheduling needs relating to her child. She was to receive the same salary, benefits, seniority, and job position. Miller filed a union grievance, which was later withdrawn. She never actually transferred because she left work. She alleges the proposed transfer was retaliatory and that in the new position she would have been unable to maintain certain credentials and would have been lower in relative seniority because many workers at the new location had seniority.

¶6 In the meantime, on July 25, Finley appointed another man to the FSM electrical lead position, removing Korslund's lead engineer title. Korslund alleges that his work authority and job responsibilities were also dimin

Dec. 2005 Korslund v. DynCorp Tri-Cities Servs., Inc. 175
156 Wn.2d 168

ished. His work hours were not changed and his salary was not reduced. In August, Korslund was asked to submit a revised conflict of interest questionnaire to show his personal relationship with Ms. Miller. The request was later rescinded. On September 17, 1997, Korslund met with Dallas and told him about overtime abuses, theft, and bribery in the FSM group and then sent him a 15-page memorandum raising 29 concerns, some of which were safety and ethical concerns. DynCorp's president then appointed Don Hay to investigate. After the investigation was complete, Korslund was called to a meeting on November 14, 1997, where, he alleges, he was not permitted to dispute findings accusing him of misconduct. He also says he was threatened with termination if he would not support and trust management. In October 1997, Korslund sent a letter to DynCorp's corporate ethics office in Virginia and included reports that health and safety principles were being violated, unqualified persons were directing the work, and he was being harassed for reporting.

¶7 Promises contained in policy manuals, which the plaintiffs contend were breached, are discussed below in connection with the claim of breach of promises of specific treatment in specific situations.

¶8 All three plaintiffs allege that DynCorp's actions caused them physical and emotional injury. Korslund suffered a panic attack, displayed symptoms associated with posttraumatic stress disorder, aggravated work related high blood pressure, and stomach and bowel problems. In November 1997, Korslund was placed on disability by a Hanford psychologist. He received full salary for three months on paid medical leave and then was on short-term disability until June 1998. In July 1998, he applied for unemployment benefits, contending he had been constructively discharged. DynCorp responded saying Korslund was still employed but on long-term disability. The Employment Security Department found that an insurer had denied long-term disability benefits, determined that Korslund had quit work with good cause, and awarded unemploy

176 Korslund v. DynCorp Tri-Cities Servs., Inc. Dec. 2005
156 Wn.2d 168

ment benefits. Korslund notified DynCorp in September 1998 that he had accepted other employment, requested the balance of benefits due him and a rollover of his pension funds, and then moved to Virginia for the new job.

¶9 Also in November 1997, Miller was placed on medical disability by a physician. A number of health care professionals determined in 1997 and 1998 that she suffers from too many medical and psychological problems to return to work. She relocated to Virginia with Korslund. In October 2000, Miller was found to be disabled and awarded social security disability benefits. Acosta remained at work with DynCorp. He was treated for problems of depression, nervousness, sleeplessness, anxiety, and fear.

¶10 The plaintiffs sued DynCorp, bringing claims, among others, of wrongful discharge in violation of public policy and breach of promises of specific treatment in specific situations. DynCorp moved for summary judgment, which the trial court granted, concluding that the plaintiffs had failed to show they were constructively discharged and that as a matter of law DynCorp did not make promises of specific treatment in specific situations in its policy manuals. The plaintiffs appealed. The Court of Appeals reversed dismissal of Korslund's wrongful discharge claim, holding, among other things, that Korslund did not have to formally quit or resign to show constructive discharge; instead, the court determined, Korslund raised a sufficient fact question as to whether he permanently left the workplace on medical leave as a result of DynCorp's creation of intolerable working conditions. Korslund v. DynCorp Tri-Cities Servs., Inc. , 121 Wn. App. 295 , 313-16, 88 P.3d 966 (2004). The court affirmed dismissal of Miller's wrongful discharge claim on the basis that reasonable minds could not differ that she had not permanently left her job. Id . at 316. The Court of Appeals also reversed summary judgment on the plaintiffs' claims of breach of promises of specific treatment in specific situations, concluding that the plaintiffs had raised fact questions as to each element of the cause of action. Id . at 325-31. The court declined to recognize a cause

Dec. 2005 Korslund v. DynCorp Tri-Cities Servs., Inc. 177
156 Wn.2d 168

of action for wrongful retaliation in violation of public policy, ruling that it was precluded from doing so by White v. State , 131 Wn.2d 1 , 929 P.2d 396 (1997). The Court of Appeals rejected the plaintiffs' argument that Virginia's law of punitive damages should apply. Korslund , 121 Wn. App. at 334 -36.

¶11 We granted DynCorp's petition for discretionary review. The plaintiffs have also raised issues on discretionary review.

ANALYSIS

¶12 This case is here for review of the trial court's grant of summary judgment in favor of DynCorp. Accordingly, review is de novo, with this court engaging in the same inquiry as the trial court. Hubbard v. Spokane County , 146 Wn.2d 699 , 707-08, 50 P.3d 602 (2002). Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Hubbard , 146 Wn.2d at 707 . The facts and reasonable inferences therefrom are construed most favorably to the nonmoving party. Id . Summary judgment should be granted if reasonable persons could reach but one conclusion from the evidence presented. Id .

Claim of Wrongful Discharge in Violation of Public Policy

¶13 The first question raised by the parties is whether a claim of wrongful constructive discharge in violation of public policy can be brought where the employee "permanently leaves" the job on medical leave but does not quit or resign.«1»

«1»DynCorp urges the court to consider whether constructive discharge should support a claim of wrongful discharge in violation of public policy. While we have not analyzed this issue, we have stated that a cause of action for wrongful discharge in violation of public policy may be based on either express or constructive discharge. Snyder v. Med. Serv. Corp. of E. Wash. , 145 Wn.2d 233 , 238, 35 P.3d 1158 (2001). DynCorp offers no reason why the theory of constructive discharge should not apply in the context of the tort of wrongful discharge in violation of public policy, and we find no compelling reason why the tort cannot be based on constructive discharge.

178 Korslund v. DynCorp Tri-Cities Servs., Inc. Dec. 2005
156 Wn.2d 168

[1-4]¶14 A claim for wrongful discharge in violation of public policy may arise when an employer discharges an employee for reasons that contravene a clear mandate of public policy. Gardner v. Loomis Armored, Inc. , 128 Wn.2d 931 , 936, 913 P.2d 377 (1996). The cases addressing the claim generally involve situations where employees are fired for refusing to commit an illegal act, for performing a public duty or obligation, for exercising a legal right or privilege, or for engaging in whistleblowing activity. Id . at 938; Dicomes v. State , 113 Wn.2d 612 , 618, 782 P.2d 1002 (1989). The cause of action was first recognized in this state as an exception to the rule that employment contracts that are indefinite in duration may be terminated at will by either the employer or the employee. Thompson v. St. Regis Paper Co. , 102 Wn.2d 219 , 231-33, 685 P.2d 1081 (1984); see Hubbard , 146 Wn.2d at 707 . The cause of action is also available to employees who are dischargeable only for cause (and who may be covered by a collective bargaining agreement). Smith v. Bates Technical Coll. , 139 Wn.2d 793 , 801-07, 991 P.2d 1135 (2000); see Wilson v. City of Monroe , 88 Wn. App. 113 , 119-21, 943 P.2d 1134 (1997).

[5, 6]¶15 The claim of wrongful discharge in violation of public policy is a claim of an intentional tort - the plaintiff must establish wrongful intent to discharge in violation of public policy. Havens v. C&D Plastics, Inc. , 124 Wn.2d 158 , 177, 876 P.2d 435 (1994); Cagle v. Burns & Roe, Inc. , 106 Wn.2d 911 , 726 P.2d 434 (1986). To satisfy the elements of the cause of action, the "plaintiff must prove (1) the existence of a clear public policy ( clarity element); (2) that discouraging the conduct in which [he or she] engaged would jeopardize the public policy ( jeopardy element); and (3) that the public-policy-linked conduct caused the dismissal ( causation element)." Hubbard , 146 Wn.2d at 707 (citing Gardner , 128 Wn.2d at 941 ). Then, (4) " 'the defendant must not be able to offer an overriding justification for the dismissal' ( absence of justification element)." Hubbard , 146 Wn.2d at 707 (quoting Gardner , 128 Wn.2d at 941 ).

¶16 The Court of Appeals held that the tort of wrongful discharge in violation of public policy is available to a

Dec. 2005 Korslund v. DynCorp Tri-Cities Servs., Inc. 179
156 Wn.2d 168

worker if the employer makes working conditions so intolerable that the employee is forced to leave the workplace for medical reasons rather than quit or resign. The court relied on the analysis in White v. Honeywell, Inc. , 141 F.3d 1270 (8th Cir. 1998), where an employee brought a claim of constructive discharge in violation of the Civil Rights Act, 42 U.S.C. § 2000e. She had not formally quit but instead had taken an unpaid medical leave. The Eighth Circuit held that the trial court improperly instructed the jury that it had to find the employee "quit" her job, reasoning that it was

not prepared to say that "quit" is the magic word in a constructive discharge instruction. A person who has suffered a forced unpaid medical leave of absence, from which she is unable to return and which resulted from objectively intolerable working conditions, is in no better position than one who was forced to quit as a result of objectively intolerable conditions. In either case, the employer has, through objectively intolerable conditions, forced the employee out of active service. We believe it is sufficient for a plaintiff to prove that an employer deliberately rendered working conditions intolerable and thus forced the employee to permanently "leave" the employment; the employee need not prove that she technically "quit" in every case.

White , 141 F.3d at 1279, quoted in Korslund , 121 Wn. App. at 315 ; see also Llewellyn v. Celanese Corp. , 693 F. Supp. 369, 381 (W.D.N.C. 1988) (sex discrimination claim under Civil Rights Act; employee left work on unpaid medical leave).

¶17 As DynCorp points out, Washington cases generally describe constructive discharge as involving deliberate acts by the employer that create intolerable conditions, thus forcing the employee to quit or resign. See Bulaich v. AT&T Info. Sys. , 113 Wn.2d 254 , 261, 778 P.2d 1031 (1989); Martini v. Boeing Co. , 137 Wn.2d 357 , 366 n.3, 971 P.2d 45 (1999); Barrett v. Weyerhaeuser Co. Severance Pay Plan , 40 Wn. App. 630 , 631, 700 P.2d 338 (1985). However, we have not previously considered and rejected the constructive discharge theory advanced by the plaintiffs.

180 Korslund v. DynCorp Tri-Cities Servs., Inc. Dec. 2005
156 Wn.2d 168

¶18 DynCorp also contends that the Court of Appeals' holding is inconsistent with the principle that the tort should be " 'narrowly construed in order to guard against frivolous lawsuits.' " Reninger v. Dep't of Corr. , 134 Wn.2d 437 , 446, 951 P.2d 782 (1998) (quoting Gardner , 128 Wn.2d at 936 ). The rule of narrow construction was first stated when the public policy tort was adopted as an exception to the at-will doctrine. Thompson , 102 Wn.2d at 232 . The court recognized the need to guard against frivolous lawsuits and unwarranted judicial intervention in personnel decisions. Id . The rule of narrow construction announced in Thompson is primarily concerned, however, with the need to identify an existing clear mandate of public policy. Id .; Roberts v. Dudley , 140 Wn.2d 58 , 65, 993 P.2d 901 (2000). It does not foreclose following an analysis like the Eighth Circuit's in White .

[7]¶19 We agree that an employee who is forced to permanently leave work for medical reasons may have been constructively discharged. Deliberately creating conditions so intolerable as to make the employee so ill that he or she must leave work permanently is functionally the same as forcing the employee to quit.

¶20 However, we are also aware that employers must comply with a number of laws, such as the Washington Law Against Discrimination ( chapter 49.60 RCW), the Americans with Disabilities Act of 1990 ( 42 U.S.C. § 12101), and the Family and Medical Leave Act of 1993 ( 29 U.S.C. § 2601). Employers often elect or are mandated to leave jobs open, grant leaves of absence to allow employees to obtain medical treatment or recovery time, and provide reasonable accommodation to help employees return to work. An employee on medical leave is often still an employee. Accordingly, where the employee continues to receive employment benefits and is still considered to be an active employee, or where his or her ability to return to work is protected in some other way, that employee has not been constructively discharged. The leave must be, in other words, comparable to termination of employment.

Dec. 2005 Korslund v. DynCorp Tri-Cities Servs., Inc. 181
156 Wn.2d 168

¶21 Here, we need not consider whether either Korslund or Miller has presented sufficient evidence to take the issue of constructive discharge to a trier of fact because the public policy cause of action is otherwise foreclosed in this case. As a matter of law, the plaintiffs have not satisfied the jeopardy element of the tort of wrongful discharge in violation of public policy because there is an adequate alternative means of promoting the public policy on which they rely.

[8-10]¶22 To explain our reasoning, we first turn to the clarity element. The clarity element requires establishing the existence of a clear mandate of public policy and is a question of law for the court. Hubbard , 146 Wn.2d at 708 ; Dicomes , 113 Wn.2d at 617 . The plaintiffs contend that a clear mandate of public policy is found in the federal Energy Reorganization Act of 1974 (ERA), which provides that "[n]o employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee . . . notified his employer of an alleged violation of this chapter or the Atomic Energy Act of 1954 ( 42 U.S.C. § 2011 et. seq.)." 42 U.S.C. § 5851(a)(1)(A). This provision is intended to protect the health and safety of the public and to protect against waste and fraud in nuclear industry operations. The ERA makes it illegal for employers to retaliate against employees who are in the best position to observe and report what they believe to be violations. Thus, as the plaintiffs argue, there is a clear public policy encouraging and protecting their right to report without fear of retaliation or reprisal.

¶23 In order to establish jeopardy, "a plaintiff must show that he or she 'engaged in particular conduct, and the conduct directly relates to the public policy, or was necessary for the effective enforcement of the public policy.' " Hubbard , 146 Wn.2d at 713 (quoting Gardner , 128 Wn.2d at 945 ). The plaintiff has to prove that discouraging the conduct that he or she engaged in would jeopardize the public policy. Ellis v. City of Seattle , 142 Wn.2d 450 , 460, 13 P.3d 1065 (2000). And, of particular importance here, the

182 Korslund v. DynCorp Tri-Cities Servs., Inc. Dec. 2005
156 Wn.2d 168

plaintiff also must show that other means of promoting the public policy are inadequate. Hubbard , 146 Wn.2d at 713 ; Gardner , 128 Wn.2d at 945 .

¶24 While the question whether the jeopardy element is satisfied generally involves a question of fact, Hubbard , 146 Wn.2d at 715 , the question whether adequate alternative means for promoting the public policy exist may present a question of law, i.e., where the inquiry is limited to examining existing laws to determine whether they provide adequate alternative means of promoting the public policy. See id. at 716-17.

¶25 As explained, the plaintiffs identify the public policy to protect "the health and safety of the public and to protect against waste or fraud of public funds in the operations of the nuclear industry," and they say that "to effectuate its purpose, the law prohibits retaliation against employees, who are in the best position to observe potential misconduct and who are strongly encouraged to report it." Suppl. Br. of Pl./Resp't at 6. The ERA provides an administrative process for adjudicating whistleblower complaints and provides for orders to the violator to "take affirmative action to abate the violation;" reinstatement of the complainant to his or her former position with the same compensation, terms, conditions of employment; back pay; compensatory damages; and attorney and expert witness fees. 42 U.S.C. § 5851(b)(2)(B). The ERA thus provides comprehensive remedies that serve to protect the specific public policy identified by the plaintiffs.

¶26 The plaintiffs urge, however, that the Court of Appeals correctly reasoned that the statutory remedies under 42 U.S.C. § 5851(a)(1) are not mandatory and exclusive and therefore do not bar the common law tort claim. It is true that the federal law is not mandatory and exclusive. The United States Supreme Court has held that 42 U.S.C. § 5851 does not preempt state common law tort claims. English v. Gen. Elec. Co. , 496 U.S. 72, 110 S. Ct. 2270, 110 L. Ed. 2d 65 (1990); see Norris v. Lumbermen's Mut. Cas.

Dec. 2005 Korslund v. DynCorp Tri-Cities Servs., Inc. 183
156 Wn.2d 168

Co. , 881 F.2d 1144, 1150 (1st Cir. 1989) (the statutory remedy is permissive, not mandatory).

¶27 However, the Court of Appeals relied on Wilmot v. Kaiser Aluminum & Chemical Corp. , 118 Wn.2d 46 , 821 P.2d 18 (1991), and confused two distinct legal issues. Wilmot addressed the issue whether a provision in the Industrial Insurance Act (Title 51 RCW) precluded a tort cause of action for retaliation for filing a workers' compensation claim. We examined the relevant statute to determine whether the legislature intended that the statute, including its remedies, was mandatory and exclusive and thus precluded the public policy tort cause of action. Id. at 53-66. Here, however, the question is not whether the legislature intended to foreclose a tort claim but whether other means of protecting the public policy are adequate so that recognition of a tort claim in these circumstances is unnecessary to protect the public policy. Moreover, the Court of Appeals' analysis conflicts with Hubbard , where we said that the "other means of promoting the public policy need not be available" to the person seeking to bring the tort claim "so long as the other means are adequate to safeguard the public policy." Hubbard , 146 Wn.2d at 717 .

¶28 We conclude that the remedies available under the ERA are adequate to protect the public policy on which the plaintiffs rely.«2»Therefore, as a matter of law, Korslund's and Miller's claims of wrongful discharge in violation of public policy fail.

Claim of Wrongful Retaliation in Violation of Public Policy

¶29 The Court of Appeals declined the plaintiffs' request that it recognize a claim for wrongful retaliation in violation of public policy, reasoning that the decision in White ,

«2»Other jurisdictions addressing the adequacy of remedies under the ERA split on the issue whether they are adequate, but they tend to consider the adequacy of redress for the employee rather than whether the public policy is adequately protected. Compare Masters v. Daniel Int'l Corp. , 917 F.2d 455, 457 (10th Cir. 1990) (remedies under 42 U.S.C. § 5851(b)(2)(B) adequate), with Norris , 881 F.2d at 1151 (remedies under 42 U.S.C. § 5851(b)(2)(B) do not adequately redress employee because punitive damages not available).

184 Korslund v. DynCorp Tri-Cities Servs., Inc. Dec. 2005
156 Wn.2d 168

131 Wn.2d 1, prevented it from doing so. Korslund, 121 Wn. App. at 316 -17. In White , we declined to recognize a cause of action for wrongful transfer in violation of public policy.

¶30 We, too, decline to consider the cause of action in this case, but for a different reason. The public policy claimed to have been violated is the same policy embodied in the ERA that the plaintiffs rely on for their claim of wrongful discharge in violation of public policy. As we have explained, that public policy is adequately protected by the remedies available under the ERA. Accordingly, the plaintiffs cannot show that public policy will be jeopardized if we do not recognize the proposed tort.

¶31 Finally, the plaintiffs argue that Virginia's punitive damages law should apply to their public policy tort claims. Because we conclude that as a matter of law the plaintiffs' tort claims fail, we do not reach the issue of punitive damages.

Promises of Specific Treatment in Specific Situations

¶32 We next turn to the plaintiffs' claims that DynCorp breached promises of specific treatment in specific situations.

[11-14]¶33 In Thompson , this court recognized a cause of action for breach of promise of specific treatment in specific situations:

[I]f an employer, for whatever reason, creates an atmosphere of job security and fair treatment with promises of specific treatment in specific situations and an employee is induced thereby to remain on the job and not actively seek other employment, those promises are enforceable components of the employment relationship.

Thompson , 102 Wn.2d at 230 . The employee must prove these elements of the cause of action: (1) that a statement (or statements) in an employee manual or handbook or similar document amounts to a promise of specific treatment in specific situations, (2) that the employee justifiably relied on the promise, and (3) that the promise was

Dec. 2005 Korslund v. DynCorp Tri-Cities Servs., Inc. 185
156 Wn.2d 168

breached. Bulman v. Safeway, Inc. , 144 Wn.2d 335 , 340-41, 27 P.3d 1172 (2001); Thompson , 102 Wn.2d at 233 . Each of these elements presents an issue of fact. Swanson v. Liquid Air Corp. , 118 Wn.2d 512 , 525, 826 P.2d 664 (1992); Thompson , 102 Wn.2d at 233 . The issues may be decided as matters of law, however, if reasonable minds could not differ in resolving them. Burnside v. Simpson Paper Co. , 123 Wn.2d 93 , 105, 864 P.2d 937 (1994); Swanson , 118 Wn.2d at 522 . The Thompson specific treatment claim is not an implied or express contract claim but is independent of a contractual analysis and instead rests on a justifiable reliance theory. DePhillips v. Zolt Constr. Co. , 136 Wn.2d 26 , 34-36, 959 P.2d 1104 (1998); Swanson , 118 Wn.2d at 525 ; Gaglidari v. Denny's Rests., Inc. , 117 Wn.2d 426 , 433, 815 P.2d 1362 (1991); Thompson , 102 Wn.2d at 229 -30.

[15]¶34 DynCorp first contends that a specific treatment claim can be brought only when the employee is discharged. We disagree. While Thompson factually involved a claim of wrongful discharge, the court's legal analysis concerned an employer's act in issuing a policy manual that "can lead to obligations that govern the employment relationship." Thompson , 102 Wn.2d at 229 . Enforceable obligations may exist where there has been no discharge. See , e.g ., Lawson v. Boeing Co. , 58 Wn. App. 261 , 263, 792 P.2d 545 (1990) (employee offered choice between demotion and discharge and chose demotion). None of the elements of the specific treatment cause of action suggest that the claim is only available if the employee is discharged.

¶35 DynCorp argues, however, that the employee must show that he or she was induced to stay on the job and not seek other employment and suggests that this means a specific treatment claim can be brought only if the employee is terminated. The requirement of inducement goes to the question of justifiable reliance. See Bulman , 144 Wn.2d 335 . Showing that one has stayed on the job in reliance on promises made is a distinct matter from showing that a promise of specific treatment was made and then breached.

186 Korslund v. DynCorp Tri-Cities Servs., Inc. Dec. 2005
156 Wn.2d 168

¶36 DynCorp says, though, that Trimble v. Washington State University , 140 Wn.2d 88 , 91, 993 P.2d 259 (2000), stands for the proposition that absent termination a plaintiff fails to state a claim. This is a mischaracterization of Trimble . There we concluded that as a matter of law the plaintiff failed to produce sufficient evidence on the promise and breach elements of the specific treatment cause of action to take to a trier of fact. Id. at 94-96. Nothing in the analysis indicates that a plaintiff fails to state a claim for relief if he or she was not terminated.

¶37 Discharge of the employee is not a prerequisite to bringing a Thompson specific treatment claim.

¶38 DynCorp next argues that a claim of breach of promise of specific treatment in specific situations can be brought only "[w]hen the employment relationship is not evidenced by a written contract and is indefinite in duration." Thompson , 102 Wn.2d at 229 . DynCorp maintains that the Court of Appeals erred when it held that the fact that Miller and Acosta were covered by a collective bargaining does not bar them from bringing a specific treatment claim.

¶39 As the Court of Appeals reasoned, DynCorp takes its quotation from Thompson out of context. The relevant passage from Thompson states:

[E]mployers may be obligated to act in accordance with policies as announced in handbooks issued to their employees. When the employment relationship is not evidenced by a written contract and is indefinite in duration, the parties have entered into a contract whereby the employer is essentially obligated to only pay the employee for any work performed. In this contractual relationship, the employer exercises substantial control over both the working relationship and his employees by retaining independent control of the work relationship. Thus, the employer can define the work relationship. Once an employer takes action, for whatever reasons, an employee must either accept those changes, quit, or be discharged. Because the employer retains this control over the employment relationship, unilateral acts of the employer are binding on his employees and both parties should understand this rule.

Dec. 2005 Korslund v. DynCorp Tri-Cities Servs., Inc. 187
156 Wn.2d 168

However, absent specific contractual agreement to the contrary , we conclude that the employer's act in issuing an employee policy manual can lead to obligations that govern the employment relationship. Thus, the employer's reason for unilaterally issuing an employee policy manual or handbook, purporting to contain the company policy vis-à-vis employee relations, becomes relevant.

Thompson , 102 Wn.2d at 229 (emphasis added).

[16]¶40 As the Court of Appeals correctly said, the language relied on by DynCorp is part of this court's description of the classic at-will relationship. Korslund , 121 Wn. App. at 325 . The second italicized reference to contractual agreement means that promises in an employee handbook or manual may be given effect provided that they do not conflict with a specific, enforceable contractual term.«3»The fact that an employee is covered by a collective bargaining agreement does not always, as a matter of law, bar the employee from bringing a claim of breach of promise of specific treatment in specific situations.

¶41 In a related vein, DynCorp contends that Korslund cannot maintain this cause of action because when DynCorp took over operations at Hanford, Korslund signed an employment application stating that his employment was at will. The Court of Appeals held that Korslund was not thereby precluded as a matter of law from bringing a specific treatment claim. The court relied on Grimes v. Allied Stores Corp. , 53 Wn. App. 554 , 768 P.2d 528 (1989), for the proposition that employee handbooks may contractually modify a written contract for terminable at-will employment provided the formalities of contract formation are satisfied.

¶42 DynCorp contends that Korslund's signing the application stating that his employment was at will precludes his justifiable reliance on promises in employee policy

«3»As we explained in Swanson in the context of addressing disclaimers, the employer-employee working relationship may subsequently be modified, either through contract formation or modification or through an employer's issuance of employee handbooks or manuals containing promises of specific treatment. Swanson , 118 Wn.2d at 531 -35.

188 Korslund v. DynCorp Tri-Cities Servs., Inc. Dec. 2005
156 Wn.2d 168

manuals as a matter of law. DynCorp also relies on Grimes because in that case the employee did not offer any evidence to show that the parties intended to be contractually bound by statements in the policy manual. Grimes , 53 Wn. App. at 557 .

[17]¶43 As discussed in Swanson , the employment relationship can be altered through the employer's issuance of policy manuals either as a matter of promises of specific treatment in specific situations or as a matter of contract modification, provided, in the latter case, that the formalities of contract formation are met. Swanson , 118 Wn.2d at 531 -35. It would be inconsistent with Thompson and its progeny to conclude that once an application containing an at-will provision is signed, the employer is thereafter free to make whatever promises it wishes to make without any obligation to carry them out.

¶44 Here, there is sufficient evidence to create a factual question on the question whether DynCorp modified the employment relationship with Korslund by issuing its policy manuals with promises of specific treatment in specific situations. DynCorp distributed the ethics booklet to Korslund each year and required him to acknowledge receipt and attend a training session.

¶45 Turning now to the elements of the specific treatment claim, DynCorp initially argues that the only promises in an employee manual or handbook on which the specific treatment claim can be based are promises of termination only for cause or only after exhaustion of specified disciplinary measures, citing cases where factually these were the circumstances. As we have explained, there is nothing in the Thompson analysis that limits the specific treatment claim to promises involving discharge.

¶46 The next question is whether there is sufficient evidence that DynCorp made promises to the employees. The trial court granted summary judgment on the basis that DynCorp did not make promises of specific treatment in specific situations. The Court of Appeals reversed, reasoning that the plaintiffs presented sufficient evidence of

Dec. 2005 Korslund v. DynCorp Tri-Cities Servs., Inc. 189
156 Wn.2d 168

promises of specific treatment.«4»First, Fluor's Employee Concerns Program included a document titled "Resolving Employee Concerns," which provides in part:

Management must ensure that employees who raise concerns or who testify or otherwise participate in congressional investigations are not harassed, intimidated, or subject to any discriminatory or retaliatory actions. Any employee who engages in or condones any of these actions against another employee will be subject to appropriate corrective measures.

Clerk's Papers (CP) at 2862. Second, DynCorp's parent corporation issued a policy statement titled "PS330 - Business Ethics and Compliance with Laws and Regulations," applicable to all subsidiaries, that required establishment of written standards of business ethics and conduct, which each employee would be required to read and acknowledge. The resulting booklet, "Ethics: Standards of Business Ethics and Conduct," provides in part:

All employees of DynCorp, its divisions and its subsidiaries are required to fully comply with these Standards of Conduct. Employees are required to report violations of the Standards and assist the Company, when necessary, in investigating violations.

. . . .

Disciplinary action will be taken when:

. . . .

any supervisor retaliates, directly or indirectly, or encourages others to retaliate against an employee who reports a violation of these Standards.

CP at 3234.

[18]¶47 DynCorp contends that the alleged promises do not promise specific treatment in specific situations but instead vest too much discretion in the employer for the alleged promises to be enforceable. See Trimble , 140 Wn.2d

«4»The Court of Appeals rejected employee Korslund's argument that one document, a Fluor document titled "Administering Progressive Discipline," contained promises of specific treatment in specific situations. Korslund , 121 Wn. App. at 332 -34. The plaintiffs have not argued the Court of Appeals erred in this conclusion.

190 Korslund v. DynCorp Tri-Cities Servs., Inc. Dec. 2005
156 Wn.2d 168

at 95. "[G]eneral statements of company policy" do not constitute promises of specific treatment in specific situations. Thompson , 102 Wn.2d at 231 .

¶48 However, the alleged promises provide that some corrective action will be taken against management or other employees who harass, intimidate, or subject an employee to any discriminatory or retaliatory actions for raising concerns, or condone such conduct, and that disciplinary action will be taken against any supervisor who retaliates, directly or indirectly, or encourages others to retaliate against an employee who reports a violation of the Standards of Conduct. Thus, while there is discretion as to what action is taken, there is no discretion that some disciplinary action will be taken. Contrary to DynCorp's contention, this case is therefore unlike Stewart v. Chevron Chemical Co. , 111 Wn.2d 609 , 613-14, 762 P.2d 1143 (1988), where the court held that a termination policy stating that management "should" consider certain factors in layoff decisions was too indefinite to create an obligation.

¶49 Plaintiffs have at least raised a question of fact as to whether DynCorp made promises of specific treatment in specific situations. They have also presented evidence that DynCorp did nothing, and thus breached the promises. (The issue of breach has not been raised at this stage of the proceedings.)

[19]¶50 Next, DynCorp contends that the Court of Appeals erred when it concluded that establishing justifiable reliance does not require the plaintiff to produce evidence of inducement to remain on the job. Korslund , 121 Wn. App. at 327 . The court distinguished cases where the employee was unaware of the policies allegedly breached and so could not prove justifiable reliance. Id . DynCorp maintains that the employee must prove that he or she was aware of the specific promises allegedly breached and that those specific promises induced him or her to remain on the job and not seek other employment. We agree.

¶51 In Bulman , we held that the justifiable reliance element cannot be established where the employee does not

Dec. 2005 Korslund v. DynCorp Tri-Cities Servs., Inc. 191
156 Wn.2d 168

even show awareness of the specific promises allegedly breached. Bulman , 144 Wn.2d at 350 . We rejected the premise that an employee could show justifiable reliance by showing that an atmosphere of job security and fair treatment induced the employee to stay on the job and not seek employment elsewhere. Id. at 342-43. We reaffirmed earlier cases that said that the employee must have been aware of the specific promise allegedly breached and that specific promise must have induced the employee to remain on the job and not seek other employment. Id. at 343-44, 350; see Stewart , 111 Wn.2d at 614 . Thus, the Court of Appeals erred insofar as it reasoned that a plaintiff does not have to show inducement.

¶52 Whether the plaintiffs justifiably relied on promises of specific treatment in specific situations is a fact question appropriately left for the trial court's consideration on remand.

CONCLUSION

¶53 We agree that a claim of constructive wrongful discharge in violation of public policy may, under some circumstances, be brought where an employer deliberately creates intolerable working conditions and thus forces the employee to permanently leave the workplace on medical leave. However, plaintiffs Korslund and Miller are foreclosed from bringing the wrongful discharge claim because, as a matter of law, the jeopardy element has not been satisfied since the remedies under the ERA adequately protect the relevant public policy and in fact are designed to carry out public policy encouraging whistleblowing. Therefore, summary judgment was proper on this claim.

¶54 Because the same public policy is at issue with respect to the new tort the plaintiffs want recognized, i.e., wrongful retaliation in violation of public policy, we conclude the jeopardy element could not be satisfied and accordingly decline to consider whether to recognize such a tort.

192 Korslund v. DynCorp Tri-Cities Servs., Inc. Dec. 2005
156 Wn.2d 168

¶55 We agree with the Court of Appeals that there is a material issue of fact as to whether DynCorp made promises of specific treatment in specific situations and remand for further proceedings.

ALEXANDER, C.J., and C. JOHNSON, BRIDGE, OWENS, FAIRHURST, and J.M. JOHNSON, JJ., concur.

¶56 CHAMBERS, J. (concurring/dissenting) - I part ways with the majority on two grounds. First, the majority unnecessarily reaches an issue not properly before us. On plaintiffs' claims of wrongful discharge and wrongful retaliation in violation of public policy, the trial court did not make any factual determinations with regard to the jeopardy element. Despite this, and in my view without appropriate factual basis, the majority holds as a matter of law that the plaintiffs fail to satisfy the jeopardy element. Given the record, I would not so precipitously reach this issue.

¶57 Second, while I agree "that an employee who is forced to permanently leave work for medical reasons may have been constructively discharged," majority at 180, I disagree that that same employee cannot be found to be constructively discharged merely because she continues to receive some employment benefits. It is antithetical to any remedy grounded in public policy to require an employee to suffer great economic consequences and forgo needed medical, disability, and other benefits the offending employer is already obligated to provide before seeking redress for wrongful discharge. In my view, it is a question of fact whether such employees have been constructively discharged.

¶58 In this case, present and former Hanford employees have brought actions for, among other things, wrongful discharge and wrongful retaliation for reporting alleged employer misconduct. Plaintiffs contend they observed and reported acts and omissions which threatened the health and safety of the plant and the community, wasted and misused government property and funds, and showed

Dec. 2005 Korslund v. DynCorp Tri-Cities Servs., Inc. 193
156 Wn.2d 168

abuse of authority. As a result of the alleged misconduct and management's failure to respond, Steven M. Korslund initially sought medical leave, but ultimately quit. Virginia A. Miller sought long term medical disability. John Acosta continues to work at the Hanford facility.

THE JEOPARDY ELEMENT

¶59 The trial court granted summary judgment in favor of DynCorp Tri-Cities Services, Inc., on the sole grounds that plaintiffs failed to show they were constructively discharged and that DynCorp did not make any promises of specific treatment in its policy manuals. The trial court did not grant summary judgment in favor of DynCorp because plaintiffs were unable to prove that important policies of the State would be jeopardized. The Court of Appeals was correct to conclude that "[w]hether a plaintiff has satisfied the jeopardy element is a question of fact." Korslund v. DynCorp Tri-Cities Servs., Inc., 121 Wn. App. 295 , 320, 88 P.3d 966 (2004) (citing Hubbard v. Spokane County , 146 Wn.2d 699 , 715, 50 P.3d 602 (2002); Ellis v. City of Seattle , 142 Wn.2d 450 , 463, 13 P.3d 1065 (2000)). Given the record, this court should not reach such an important and fact driven issue.

¶60 Since the majority does reach the jeopardy issue, I write separately to express my disagreement. The remedies offered to employees under the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. § 5851, are neither mandatory nor exclusive. For instance, administrative remedies under the ERA are permissive only; they do not supplant common law torts nor do they provide the same remedies to an injured employee. 42 U.S.C. § 5851(h). In addition, the ERA is more restrictive, it does not permit direct civil action by the employee, it does not provide for jury trials, and it is limited to complaints which the employee elects to submit to the Department of Labor. See generally 42 U.S.C. § 5851.

¶61 Proof of jeopardy to public policy is an either/or test: that is, the employee must show that her conduct furthers

194 Korslund v. DynCorp Tri-Cities Servs., Inc. Dec. 2005
156 Wn.2d 168

a clear mandate of public policy either because that policy directly promotes the conduct or because the conduct is necessary to the effective enforcement of the policy. See Gardner v. Loomis Armored, Inc., 128 Wn.2d 931 , 945, 913 P.2d 377 (1996); HENRY H. PERRITT, JR., WORKPLACE TORTS: RIGHTS AND LIABILITIES § 3.14, at 75 (1991). Nevertheless, the majority, without any record or factual finding to support its conclusion, reaches up into the thinnest of atmospheres to conclude as a matter of law that plaintiffs cannot meet the jeopardy element because the ERA allegedly provides an adequate alternative means of promoting the public policy. Majority at 181, 183.

¶62 Additionally, an employee can prove jeopardy by a showing of imminent harm. When imminent harm is threatened, the jeopardy element "may be established if an employee has an objectively reasonable belief the law may be violated in the absence of his or her action." Ellis, 142 Wn.2d at 461 . In other words, the plaintiff need not prove an actual violation of public policy but merely show that they had an objectively reasonable belief that a violation would occur. Id.

¶63 In Ellis , this court found imminent harm threatened, and thus the jeopardy element satisfied, when the plaintiff refused orders to disable the fire alarm system at Key Arena because the plaintiff reasonably believed that disabling the system would not only break the law, but jeopardize public safety. Id . In my humble opinion, an employee's good faith concerns about safety procedures at a nuclear power plant may very well be categorized as "imminent harm," on the same or greater level than the facts found to be sufficient in Ellis.

¶64 I must emphasize again, the trial court in this case, in granting summary judgment, never reached this issue, and the majority has now foreclosed this issue by ruling as a matter of law the jeopardy element cannot be satisfied. I respectfully disagree and would await a case that squarely presents the issue.

Dec. 2005 Korslund v. DynCorp Tri-Cities Servs., Inc. 195
156 Wn.2d 168

WHEN IS AN EMPLOYEE DISCHARGED?

¶65 Constructive discharge is the imposition on the employee of intolerable working conditions which cause the employee to abandon his job. Bulaich v. AT&T Info. Sys. , 113 Wn.2d 254 , 262, 778 P.2d 1031 (1989). An employee should not be required to either forgo mitigating options short of resignation and suffer the economic consequences (such as the loss of all employment benefits) or refrain from reporting workplace conduct that violates public policy. Miller, for example, was treated for symptoms of anxiety, poor concentration, poor memory, and panic attacks. Major stressors included her fears of retaliation and being targeted at work. She was also diagnosed with major depressive disorder, irritable bowel syndrome, hypertension, and glaucoma - all a likely consequence of the intolerable working conditions she was placed under. A Social Security administrative law judge found that the "medical evidence establishes" she (Miller) has "severe impairments: an affective disorder [depression] and an anxiety disorder," that she "lacks the residual functional capacity to perform basic mental requirements of any work [and] is unable to perform the requirements of her past relevant work." Clerk's Papers at 382. She was awarded Social Security benefits. The evidence is substantial that plaintiff Miller not only abandoned her employment, but the evidence shows she was simply unemployable. Surely, Miller should not, as a matter of law, have had to forgo all her employment benefits before bringing a wrongful discharge action. Unfortunately, the majority seems to reach this ominous conclusion.

PROMISES OF SPECIFIC TREATMENT

¶66 Finally, on the issue of specific promises, I read the majority as affirming our holding in Bulman v. Safeway, Inc., 144 Wn.2d 335 , 27 P.3d 1172 (2001) and the jury instruction approved therein. I therefore agree with the majority's resolution with regard to that issue.

196 Korslund v. DynCorp Tri-Cities Servs., Inc. Dec. 2005
156 Wn.2d 168

CONCLUSION

¶67 I would remand this case back to the trial court to determine: (1) whether the plaintiffs can satisfy the jeopardy element by showing imminent harm, and if not, (2) whether the plaintiffs can show there are not other means of promoting the public policy which are adequate. Gardner , 128 Wn.2d at 945 (citing PERRITT , supra , § 3.14, at 77). Without these factual determinations, this court cannot reasonably decide whether the torts of wrongful discharge and retaliation in violation of public policy exist in this case. I would also hold that an employee need not forgo her employment benefits in order to maintain actions for wrongful discharge and retaliation in violation of public policy. Because I agree this case must be returned to the trial court, I concur in part and dissent in part.

SANDERS, J., concurs with CHAMBERS, J.