Part II
On May 11, 2001, Majer met with Boring and handed him a letter terminating his employment at Alaska Airlines. The letter stated that Boring's explanation that the discipline incident had been "purged from the official records" was substantiated. The letter also stated that Alaska Airlines could not substantiate Boring's assertion that he had been instructed not to disclose the prior disciplinary action.(fn3) The letter also said that although Boring had been asked, during his job application interview, several questions specific to "ever" having been removed from flying status or missing work, Boring "did not disclose anything concerning the actions taken at Mesa." The letter also stated that Boring signed Alaska Airlines' application form, which specifically asked if the information was complete and whether Boring "knowingly withheld any information which would affect this information." Boring was informed that he was being terminated from employment for failure to disclose the prior discipline, despite multiple opportunities and the obligation to do so. Clerk's Papers at 14.
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The official reason for the termination on Alaska Airline's Separation Notice was "failure to disclose background information." Clerk's Papers at 205.
DISCUSSION
I. Wrongful Termination Claim
Employees in Washington are generally at will and can be discharged without reason. However, a discharge of an at-will employee is wrongful if done in violation of a clearly articulated public policy. Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 232, 685 P.2d 1081 (1984).
In order to establish a claim for wrongful discharge in violation of a public policy, Boring must demonstrate (1) the existence of a clear public policy; (2) that discouraging the conduct in which he engaged would jeopardize the public policy; and (3) that the public-policy-linked conduct caused the dismissal. Alaska Airlines must then not be able to show an "overriding justification for the dismissal." Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 941, 913 P.2d 377 (1996).
The public policy exception to the at-will doctrine of employment has been recognized by Washington courts in four situations: (1) employee fired for refusing to commit illegal act; (2) employee fired for performing public duty or obligation such as jury duty; (3) employee fired for exercising a legal right or privilege; or (4) employee fired in retaliation for reporting employer misconduct. See, e.g., Gardner, 128 Wn.2d at 936, 913 P.2d 377; Dicomes v. State, 113 Wn.2d 612, 618, 782 P.2d 1002 (1989); Thompson, 102 Wn.2d at 234, 685 P.2d 1081.
Boring claims that his discharge violated the public policy articulated by the federal Pilot Records Improvement Act (PRIA) of 1996, former 49 U.S.C. § 44936 (1996), current 49 U.S.C. § 44703 (2001), and he relies upon the third situation--employee fired for exercising a legal right or privilege. He points out that the PRIA requires air carriers to disclose "any disciplinary action taken with respect to the individual that was not
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subsequently overturned[.]" Former 49 U.S.C. § 44936(f)(1)(B)(ii)(II) (current 49 U.S.C. § 44703(h)(1)(B)(ii)(II)). From this, Boring concludes that Mesa Air was prohibited from disclosing information regarding disciplinary action that was subsequently overturned, and reasons not only that Alaska Airlines had no legal right to ask him to reveal the information, but also, once Alaska did so, that it was his right or privilege to conceal it. Boring is mistaken.
Whether a particular statute contains a clear mandate of public policy is a question of law. Roberts v. Dudley, 140 Wn.2d 58, 65, 993 P.2d 901 (2000); Gardner, 128 Wn.2d at 937, 913 P.2d 377. In determining whether a clear mandate of public policy is violated, courts should inquire whether the employer's conduct contravenes the letter or purpose of a constitutional, statutory, or regulatory provision or scheme. Thompson, 102 Wn.2d at 232, 685 P.2d 1081. Prior judicial decisions may also establish the relevant public policy, but "courts should proceed cautiously if called upon to declare public policy absent some prior legislative or judicial expression on the subject." Id.
Current 49 U.S.C. § 44703(h)(1) (prior 49 U.S.C. § 443936(f)(1)) addresses the records of employment of pilot applicants and provides:
(h) Records of employment of pilot applicants.--
(1) In general.--Subject to paragraph (14), before allowing an individual to begin service as a pilot, an air carrier shall request and receive the following information . . .
(B) Air carrier and other records.--From any air carrier . . . that has employed the individual as a pilot of a civil or public aircraft at any time during the 5-year period preceding the date of the employment application of the individual, or from the trustee in bankruptcy for such air carrier or person . . .
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(ii) other records pertaining to the individual's performance as a pilot that are maintained by the air carrier or person concerning . . .
(I) the training, qualifications, proficiency, or professional competence of the individual . . . ;
(II) any disciplinary action taken with respect to the individual that was not subsequently overturned; and
(III) any release from employment or resignation, termination, or disqualification with respect to employment.
Current 49 U.S.C. § 44703(h)(11) (former U.S.C. § 44936(f)(11)) additionally provides:
(11) Privacy protections.--An air carrier that receives the records of an individual under paragraph (1) may use such records only to assess the qualifications of the individual in deciding whether or not to hire the individual as a pilot. The air carrier shall take such actions as may be necessary to protect the privacy of the pilot and the confidentiality of the records, including ensuring that information contained in the records is not divulged to any individual that is not directly involved in the hiring decision.
In 1996, Congress passed the Airline Pilot Hiring and Safety Act, 49 U.S.C.s 44936. That act was renamed the Pilot Records Improvement Act (PRIA) in 1997 and is now found at 49 U.S.C. § 44703. As stated by the court in Sky Fun 1 v. Schuttloffel, 27 P.3d 361, 367 (Colo.2001), the primary purpose of the act is to "promote air safety through the hiring of qualified pilots." Although the PRIA recognizes the privacy rights of pilots in the records that air carriers are required to provide to each other, nothing in the act clearly articulates a public policy that would prevent Alaska from requestingadditional information from Boring about his discipline history with Mesa. To the contrary, when Congress amended the PRIA in 1997, the House Committee Report stated that, "while airlines would be free to request and receive other information not directly related to competency of the individual as a pilot, the Committee does not consider it to be required by the Pilot
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Records Improvement Act." H.R. Rep. 105-372 at 3, 105th Cong., 1st Sess. (1997).
Nothing in the provisions of the PRIA cited by Boring or revealed by this court's independent research indicates a public policy mandate that pilots may not be required to submit any more information to a potential employer than that required to be disclosed between air carriers. The regulations relating to the PRIA specifically outline the rights and duties of air carriers regarding disclosure, not limitations on requests from air carriers to individual pilot applicants.
The act prohibits disclosure of records "entered more than 5 years before the date of the request, unless the information concerns a revocation or suspension of an airman certificate or motor vehicle license that is in effect on the date of the request." Current 49 U.S.C. § 44703(h)(3). The act contains no similar prohibition regarding disclosure of records of disciplinary action taken against the individual that has been overturned. Thus, an air carrier is not required to provide records regarding disciplinary action that has been overturned, but is not expressly prohibited from doing so.
Here, Mesa Air provided no records concerning the disciplinary action that was subsequently overturned, although both it and the union provided verbal information when expressly asked by Alaska Airlines officials about the matter. Although Boring seemingly believes that Mesa Air was forbidden from confirming the rescinded disciplinary action once Alaska Airlines asked about it, he has cited no authority for this proposition, and we have found none. Thus, we reject both Boring's contention that Mesa Air was prohibited from disclosing the information and that Alaska Airlines was prohibited from inquiring about it--either directly to Boring or to Mesa Air.
Certainly, we agree with Boring that the act contains provisions for the protection of pilot privacy. In addition to the limitations on the use and dissemination of the records by the requesting air carrier, the act provides that an air
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carrier shall not furnish a requested record "without first obtaining a copy of the written consent of the individual who is the subject of the records requested[.]" 49 U.S.C. § 44703(h)(5). Subsections (h)(9) and (h)(10) of the current act also give the individual the right to request to review the records and to submit comments to correct any inaccuracies contained in the records, before a final hiring decision is made. But Boring reads the act far too broadly when he concludes that these privacy provisions not only permit him to fail to disclose to a prospective employer who expressly asks about the matter whether he ever has been subjected to disciplinary action, but also permit him to affirmatively report to the contrary.
Neither the promotion of air safety through the hiring of qualified pilots nor the protection of the privacy of pilots as provided in the act is placed into jeopardy when an air carrier asks a pilot who applies for employment whether he or she has ever been suspended, terminated or otherwise disciplined by any previous employer, regardless of whether the action was subsequently overturned, and no policy promulgated by the act permits such a pilot to lie or otherwise fail to reveal the information once it is requested. Accordingly, the trial court did not err by dismissing Boring's wrongful termination claim on summary judgment.
A majority of the panel having determined that the remainder of this opinion lacks precedential value and will not be printed in the Washington Appellate Reports but will be filed for public record in accord with RCW 2.06.040, it is so ordered.
Affirmed.
We concur: GROSSE and APPELWICK, JJ.
1. See 49 U.S.C.A. § 44703(h)(1).
2. Boring sued for wrongful termination of employment, defamation, and invasion of privacy. The trial court dismissed all his claims. He appeals the dismissal of the wrongful termination and defamation claims. We will discuss the defamation claim in the unpublished portion of this opinion.
3. Boring later testified that his statement that Ferverda had instructed him not to disclose the discipline was a "poor choice of words," and that Ferverda had indicated to Boring that he would not have to disclose the incident to future employers because Ferverda had said that it was as though "nothing had ever happened." Clerk's Papers at 60-62.
WA
Wn. App.