Wrongful Termination - Co-Workers
Some employer defendants have argued that a claim for wrongful discharge in violation of public policy can only be brought against the employer, not corporate officers or other employees of the employer. In the only Washington State case to address the issue, the Washington Court of Appeals held that a co-worker could not be sued for wrongful termination, but in that case the co-worker had “no supervisory or managerial control over” the plaintiff, and the plaintiff had not even lost her job. Jenkins v. Palmer, 116 Wn. App. 671, 673-74, 677, 66 P.3d 1119 (2003). Nevertheless, a few federal courts relied on Jenkins to find that no employee can ever be sued for wrongful termination.
This may be going too far. As a general rule, “an officer of a corporation who takes no part whatever in a tort committed by the corporation is not personally liable to third persons for such tort but . . . this immunity vanishes if such corporate officer knowingly participated in, cooperated in the doing of, or directed that the acts be done.” Johnson v. Harrigan-Peach Land Dev. Co., 79 Wn.2d 745, 753, 489 P.2d 923 (1971); accord R.N. v. Kiwanis Int’l, 19 Wn. App. 2d 389, 415, 496 P.3d 748 (Div. 22021). Many courts in other states have held that if an employee knowingly participate in, cooperated in, or directed that others do acts constituting wrongful termination in violation of public policy, the employee may be liable for wrongful termination. VanBuren v. Grubb, 284 Va. 584, 733 S.E.2d 919, 922-23 (2012); Jasper v. H. Nizam, Inc., 764 N.W.2d 751, 776 (Iowa 2009); Higgins v. Assmann Elecs., Inc., 217 Ariz. 289, 173 P.3d 453, 458 (2007); Ballinger v. Delaware River Port Authority, 172 N.J. 586, 800 A.2d 97, 110 (2002); Harless v. First Nat’l Bank in Fairmont, 169 W. Va. 673, 289 S.E.2d 692, 698-99 (1982); Kamensky v. Roemer Indus., Inc., 1988 WL 188472, at *2, 1 Pa. D. & C.4th 497 (1988); Myers v. Alutiiq Int’l Solutions, LLC, 811 F. Supp. 2d 261, 269 (D.D.C. 2011).
However, many other states have ruled that only the employer can be sued for wrongful termination. DeCarlo v. Bonus Stores, Inc., 989 So.2d 351 (Miss. 2008); Miklosy v. Regents of Univ. of Cal., 188 P.3d 629 (Cal. 2008); Rebarchek v. Farmers Co-op. Elevator, 35 P.3d 892 (Kan. 2001); Buckner v. Atl. Plant Maint., Inc., 694 N.E.2d 565 (Ill. 1998); Bourgeous v. Horizon Healthcare Corp., 872 P.2d 852 (N.M. 1994); Physio GP, Inc. v. Naifeh, 306 S.W.3d 886 (Tex. App. 2010); Schram v. Albertson’s, Inc., 934 P.2d 483 (Or. App. 1997); Cavez-Lavagnino v. Motivation Educ. Training, Inc., 767 F.3d 744 (8th Cir. 2014); Hooper v. North Carolina, 379 F. Supp. 2d 804 (M.D.N.C. 2005).
If a plaintiff brings an otherwise meritorious suit against a co-worker for wrongful termination, it will likely end up in the appellate courts, but the outcome at that point is far from certain.