Becker v. Community Health Systems, Inc.

Brown, A.C.J. ¶ 1 Rockwood Clinic PS and its parent company, Community Health Systems Inc. (CHS), successfully petitioned for discretionary review of a decision denying their CR 12(b)(6) motion to dismiss Gregg Becker’s 939 claim for wrongful discharge in violation of public policy. Rockwood and CHS contend Mr. Becker cannot establish the jeopardy element because a myriad of statutes and regulations adequately promote the public policy of honesty in corporate financial reporting, rendering a private common law tort remedy superfluous. We disagree with Rockwood and CHS, and affirm. FACTS ¶ 2 In February 2011, Rockwood recruited Mr. Becker to be its chief financial officer (CFO), a job he performed admirably. CHS had acquired Rockwood with a business strategy to improve profitability. Upon doing so, CHS represented to investors and creditors it expected Rockwood to sustain a $4 million operating loss in 2012. However, in October 2011, Mr. Becker correctly projected Rockwood’s earnings before interest, taxes, depreciation, and amortization (EBITDA) as showing a $12 million operating loss in 2012. This projection was significantly important to investors and creditors as a measure of Rockwood’s and, by relation, CHS’s financial health. Additionally, CHS had to report this projection to the United States Securities and Exchange Commission (SEC). As CFO, Mr. Becker had to ensure this projection was not false or misleading. ¶ 3 Rockwood and CHS demanded Mr. Becker recalculate his EBITDA projection to show a target $4 million operating loss in 2012. Mr. Becker refused to submit the $4 million figure because he reasonably believed it would require overstating income and understating expenses, fraudulently misleading investors and creditors in violation of criminal laws. Rockwood and CHS rated his job performance as “ ‘unacceptable,’ ” placed him on a probationary “ ‘performance improvement plan,’ ” and gave him an ultimatum to either submit the $4 million figure or lose his job. Clerk’s Papers (CP) at 735-36. Then, Mr. Becker told Rockwood’s chief executive officer (CEO) and CHS’s inter 940 nal auditor he thought Rockwood and CHS were using the false $4 million figure to fraudulently mislead investors and creditors. Mr. Becker hypothesized that upon acquiring Rockwood, CHS procured investments and credits using the false $4 million figure. He reported his concerns to Rockwood and CHS but did not report the misconduct to law enforcement agencies. Soon, Mr. Becker saw signs that Rockwood and CHS were preparing to use his subordinate to submit the false $4 million figure under the auspices of his department. Mr. Becker detailed these matters in writing to Rockwood and CHS, advising them he would have no choice but to resign unless they responded appropriately to abate the misconduct. They sent him a one-line e-mail accepting his resignation the next day. ¶ 4 In February 2012, Mr. Becker sued in superior court for wrongful discharge in violation of public policy. He additionally filed a whistleblower retaliation complaint with the United States Occupational Safety and Health Administration (OSHA). Apparently, his OSHA complaint remains unresolved. Rockwood and CHS removed his civil suit to federal district court. But after Mr. Becker amended his complaint to remove references to federal law, the federal district court remanded his case. ¶ 5 Back in superior court, Rockwood and CHS moved unsuccessfully to dismiss Mr. Becker’s amended complaint under CR 12(b)(6) for failure to state a cognizable claim for relief. The trial court certified the ruling for interlocutory review regarding whether Mr. Becker can establish the jeopardy element in his claim for wrongful discharge in violation of public policy. This court granted discretionary review regarding whether other available means for promoting the public policy of honesty in corporate financial reporting are adequate. ANALYSIS ¶ 6 The issue is whether the trial court erred under CR 12(b)(6) in declining to dismiss Mr. Becker’s claim for 941 wrongful discharge in violation of public policy. Rockwood and CHS contend Mr. Becker cannot establish the jeopardy element because a myriad of statutes and regulations adequately promote the public policy of honesty in corporate financial reporting, rendering a private common law tort remedy superfluous. Our review is de novo. See Korslund v. DynCorp Tri-Cities Servs., Inc., 156 Wn.2d 168, 182, 125 P.3d 119 (2005); Hoffer v. State, 110 Wn.2d 415, 420, 755 P.2d 781 (1988). ¶ 7 A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” CR 8(a)(1). Otherwise, a trial court may dismiss the complaint on motion for “failure to state a claim upon which relief can be granted.” CR 12(b)(6). Dismissal is proper if, accepting all factual allegations as true, “it appears beyond doubt that the plaintiff can prove no set of facts, consistent with the complaint, which would entitle the plaintiff to relief.” Corrigal v. Ball & Dodd Funeral Home, Inc., 89 Wn.2d 959, 961, 577 P.2d 580 (1978); see Barnum v. State, 72 Wn.2d 928, 929-30, 435 P.2d 678 (1967). Thus, dismissal is proper where the plaintiff has an “ ‘insuperable bar to relief’ ” appearing on the face of the complaint. Hoffer, 110 Wn.2d at 420 (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, at 604 (1969)); accord Cutler v. Phillips Petrol. Co., 124 Wn.2d 749, 755, 881 P.2d 216 (1994). We will consider hypothetical situations, including facts argued for the first time on appeal, that the complaint could conceivably allege to justify relief for the plaintiff. Halvorson v. Dahl, 89 Wn.2d 673, 674-75, 574 P.2d 1190 (1978); Bravo v. Dolsen Cos., 125 Wn.2d 745, 750, 888 P.2d 147 (1995). ¶ 8 Washington provides a private common law tort remedy when an employer discharges an at-will employee “for a reason that contravenes a clear mandate of public 942 policy.”1 Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 233, 685 P.2d 1081 (1984). This claim usually arises where the employer discharges the employee for (1) “refusing to commit an illegal act”; (2) “performing a public duty or obligation”; (3) “exercis[ing] a legal right or privilege”; or (4) engaging in “ ‘whistleblowing’ activity.” Dicomes v. State, 113 Wn.2d 612, 618, 782 P.2d 1002 (1989). But the elements are the same regardless of what conduct prompts this claim. ¶ 9 To prevail on a claim of wrongful discharge in violation of public policy, a plaintiff must establish (1) “the existence of a clear public policy (the clarity element)”; (2) “that discouraging the conduct in which [the plaintiff] engaged would jeopardize the public policy (the jeopardy element)”; (3) “that the public-policy-linked conduct caused the dismissal (the causation element)”; and (4) “[t]he defendant [is not] able to offer an overriding justification for the dismissal (the absence of justification element).” Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 941, 913 P.2d 377 (1996) (adopting these elements from Henry H. Perritt, Jr., Workplace Torts: Rights and Liabilities §§ 3.7, .14, .19, .21 (1991) (hereinafter Perritt, Workplace Torts). The parties dispute whether Mr. Becker’s amended complaint establishes the jeopardy element. f 10 To establish the jeopardy element, the plaintiff must show 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.” Id. at 945 (citing Perritt, Workplace Torts, supra, § 3.14, at 75-76). Thus, the plaintiff must argue “‘other means for promoting the policy ... are inadequate.’ ” Id. (alteration in original) (quoting Perritt, Workplace Torts, supra, § 3.14, at 77). In other words, the plaintiff must argue the actions he or she took were the “only available adequate means” to 943 promote the public policy. Danny v. Laidlaw Transit Servs., Inc., 165 Wn.2d 200, 222, 193 P.3d 128 (2008). ¶ 11 Our Supreme Court first recognized the claim of wrongful discharge in violation of public policy in Thompson, 102 Wn.2d at 232. There, a divisional controller sued his corporate employer, alleging the employer discharged him, as a warning to other controllers, for instituting accurate accounting procedures complying with the Foreign Corrupt Practices Act of 1977 (FCPA), 15 U.S.C. §§ 78m, 78dd-1 to -2, 78ff. Thompson, 102 Wn.2d at 223, 234. The Thompson court held the divisional controller could recover under a private common law tort remedy if he could prove his allegations. Id. at 234. The court reasoned the employer’s action would contravene the public policy prohibiting bribery of foreign officials and requiring transparency in accounting by discouraging other controllers from complying with the FCPA. Id. ¶ 12 Our Supreme Court first articulated and applied the jeopardy element in Gardner, 128 Wn.2d at 941, 945-46. There, an armored vehicle driver sued his employer for wrongful discharge in violation of public policy, alleging the employer discharged him for exiting the vehicle to disarm an attacker inside a bank. Id. at 933-35. The Gardner court concluded the threat of discharge would jeopardize the public policy of supporting altruism and protecting human life by discouraging an employee like the driver from rescuing a person from imminent life threatening harm. Id. at 945-46. The court reasoned the driver’s conduct was both directly related to the public policy and necessary to effectively promote the public policy. Id. While the driver technically could have remained in the vehicle and summoned help through its radio, public address system, or siren, the court reasoned his conduct was the only available adequate means for serving the public policy because other people were not then prepared to help. Id. at 935, 945-46. ¶ 13 In Korslund, 156 Wn.2d at 182-83, our Supreme Court held the comprehensive remedies available under the 944 Energy Reorganization Act of 1979 (ERA), 42 U.S.C. § 5851, adequately promoted public health and safety, and prevented fraudulent use of public funds in the nuclear industry. Specifically, the ERA prohibits specific employers from taking adverse employment action against employees for, among other things, reporting violations of nuclear industry laws. 42 U.S.C. § 5851(a). If an employer takes adverse employment action, the employee may complain to an administrative agency with power to investigate the claim. Id. § 5851(b)(1)-(2)(A). If the agency decides the claim has merit, the ERA requires it to order the employer abate the violation; reinstate the employee to his or her former position with the same compensation and employment terms, conditions, and privileges; and pay the employee back pay and compensatory damages, as well as attorney and expert fees and costs. Id. § 5851(b)(2)(B). But if the agency does not decide within one year, the ERA allows the employee to sue the employer in federal district court. Id. § 5851(b)(4). Because these remedies adequately promoted the relevant public policy, the Korslund court was unwilling to provide a private common law tort remedy. See 156 Wn.2d at 182-83. ¶ 14 In Cudney v. ALSCO, Inc., 172 Wn.2d 524, 531-33, 259 P.3d 244 (2011), our Supreme Court held the robust remedies available under the Washington Industrial Safety and Health Act of 1973 (WISHA), RCW 49.17.160, adequately promoted workplace safety. Specifically, WISHA prohibits general employers from taking adverse employment action against employees for, among other things, reporting violations of workplace safety laws. RCW 49.17-.110, .160(1). If an employer takes adverse employment action, the employee may complain to an administrative agency with power to investigate the claim. RCW 49.17-.160(2). If the agency decides the claim has merit, WISHA requires it to sue the employer in superior court on behalf of the employee. Id. But if the agency decides the opposite, WISHA allows the employee to sue the employer in supe 945 rior court on his or her own behalf. Id. In either case, the court may order all appropriate relief, including requiring the employer to cease the violation as well as restore and compensate the employee. Id. Again, because these remedies adequately promoted the relevant public policy, the Cudney court was unwilling to recognize a common law tort remedy. See 172 Wn.2d at 536, 538. ¶ 15 In Cudney, our Supreme Court additionally held law enforcement action available under Washington statutes criminalizing drunk driving adequately protected the public from drunk driving. Id. at 536-38. There, the employee reported to his private employer that his supervisor drove a company vehicle while intoxicated. Id. at 527-28. But the employee did not inform law enforcement agencies, who theoretically could have stopped the supervisor. Id. at 537. In those circumstances, the Cudney court could not say the actions the employee took were the ‘only available adequate means’ to protect the public from drunk driving. Id. at 536-38. ¶ 16 Then, in Piel v. City of Federal Way, 177 Wn.2d 604, 609-17, 306 P.3d 879 (2013), our Supreme Court held the administrative remedies available through the Public Employment Relations Commission (PERC) under chapter 41.56 RCW were inadequate, on their own, to fully vindicate public policy when a public employer discharges a public employee for asserting collective bargaining rights. Unlike Korslund and Cudney, Piel involved a prior case holding PERC remedies failed to fully address the broader public interests involved because it protected personal contractual rights solely. Id. at 616-17 (quoting Smith v. Bates Tech. Coll., 139 Wn.2d 793, 805, 809, 991 P.2d 1135 (2000)). And unlike Korslund and Cudney, Piel involved a statute declaring PERC remedies supplement others and must be liberally construed to accomplish their purpose. Id. at 617 (quoting RCW 41.56.905). In those circumstances, the Piel court recognized a private common law tort remedy as necessary to fully vindicate public policy. Id. 946 ¶ 17 Meanwhile, our division of this court issued two opinions adhering to Korslund and Cudney, though our Supreme Court recently remanded one case for reconsideration in light of Piel. See Worley v. Providence Physician Servs. Co., 175 Wn. App. 566, 574-76, 307 P.3d 759 (2013) (holding whistleblower protections available under the Washington health care act, RCW 43.70.075, adequately promoted workplace safety, ensured compliance with the accepted standard of care, and prevented fraudulent billing in the health care industry); Rose v. Anderson Hay & Grain Co., 168 Wn. App. 474, 478-79, 276 P.3d 382 (2012) (holding the employee remedies available under the Commercial Motor Vehicle Safety Act, 49 U.S.C. § 31105, adequately protected truck drivers who refuse to violate commercial motor vehicle safety laws, even though a statute declared these remedies do not preclude others), remanded, 180 Wn.2d 1001. Division One of this court issued another opinion applying Korslund and Cudney, and our Supreme Court denied review of that case despite Piel. See Weiss v. Lonnquist, 173 Wn. App. 344, 353-60, 293 P.3d 1264 (holding the misconduct reporting and disciplinary process prescribed by the Washington Rules of Professional Conduct, RPC 3.3 and 8.3, adequately promoted attorney candor toward the tribunal), review denied, 178 Wn.2d 1025 (2013). ¶ 18 Our recent cases faithfully analyzed the jeopardy element in a manner we thought the reasoning of Korslund and Cudney required. We now realize our jeopardy analysis overemphasized the abstract adequacy of statutes and regulations while forgetting the concrete public policy impact of chilling protected employee conduct. See Henry H. Perritt, Jr., Employee Dismissal Law and Practice § 7.06[A] at 7-82.1 to .4 (5th ed. 2014) (hereinafter Perritt, Employee Dismissal). This approach tended to foreclose private common law tort remedies for employees any time statutes or regulations provided some means of promoting public policy. See Cudney, 172 Wn.2d at 548 (Stephens, J., dissenting). But doing so actually undermined public pol 947 icy enforcement by chilling employee conduct advocating compliance with statutes and regulations. See Perritt, Employee Dismissal, supra, § 7.06[A] at 7-82.3 to .4-1, § 7.09[D] at 7-173. Thus, in Mr. Becker’s case, we reform our jeopardy analysis under the reasoning of Thompson, Gardner, and Piel. ¶ 19 As the trial court concluded, Mr. Becker’s amended complaint implicates the public policy of honesty in corporate financial reporting because he alleged he was constructively discharged after refusing to submit a false or misleading EBITDA projection. To establish the jeopardy element, Mr. Becker must show the threat of constructive discharge would jeopardize the public policy of honesty in corporate financial reporting by discouraging a CFO like him from refusing to submit a false or misleading EBITDA projection. Mr. Becker’s refusal must have been either directly related to the public policy or necessary to effectively enforce the public policy. Thus, Mr. Becker’s refusal must have been the only available adequate means for promoting the public policy. For the reasons discussed below, we think it undoubtedly was. ¶ 20 Initially, the parties dispute whether Mr. Becker’s case concerns constructive discharge for refusing to commit an illegal act, engaging in whistleblower activity, or both. But Mr. Becker clearly elected his legal theory where he alleged, “Rockwood and CHS engaged in retaliation and in adverse employment action against [Mr. Becker] for his refusal to engage in improper accounting practices” involving “illegal and unethical acts.” CP at 744 (emphasis added). Mr. Becker did not allege Rockwood and CHS constructively discharged him for engaging in whistleblower activity. However, any whistleblower options available to him are still relevant in determining whether his refusal was the only available adequate means for promoting the public policy. ¶ 21 The parties mainly dispute if other available means for promoting the public policy of honesty in 948 corporate financial reporting are adequate in Mr. Becker’s case. First, Rockwood and CHS cite section 806(a) of the Sarbanes-Oxley Act of 2002 (SOX), 18 U.S.C. § 1514A, and section 922(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, 15 U.S.C. § 78u-6. These statutes provide comprehensive whistleblower protections. See 15 U.S.C. § 78u-6(h)(1)-(2); 18 U.S.C. § 1514A(a)-(c). These statutes apply even when an employee reports misconduct he or she reasonably believes is “about to” or “ ‘likely to’ ” occur. 17 C.F.R. § 240.21F-2(b)(1)(i) (implementing 15 U.S.C. § 78u-6); Wiest v. Lynch, 710 F.3d 121, 133 (3d Cir. 2013) (construing 18 U.S.C. § 1514A) (quoting Sylvester v. Parexel Int'l LLC, No. 07-123, 2011WL 2165854, at *13, 2011 DOL Ad. Rev. Bd. LEXIS 47, at *37-39 (U.S. Dep’t of Labor Admin. Review Bd. May 25, 2011)). But because these statutes declare their remedies do not preclude others, see 15 U.S.C. § 78u-6(h)(3); 18 U.S.C. § 1514A(d), we have the “strongest possible evidence” these remedies are inadequate, on their own, to fully vindicate public policy, Piel, 177 Wn.2d at 617. Therefore, we do not reach the parties’ remaining arguments on these statutes. ¶ 22 Second, Rockwood and CHS cite numerous statutes imposing criminal penalties on a person responsible for false or misleading statements related to corporate financial reporting. SOX section 302(a) requires both a CEO and CFO to certify in periodic corporate financial reports that (2) based on the officer’s knowledge, the report does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which such statements were made, not misleading; (3) based on such officer’s knowledge, the financial statements, and other financial information included in the report, fairly present in all material respects the financial condition and results of operations of the [corporation] as of, and for, the periods presented in the report. 15 U.S.C. § 7241(a). SOX section 906(a) imposes criminal penalties on a CEO or CFO who willfully certifies the 949 report knowing it contains a false or misleading statement. 18 U.S.C. § 1350(c)(1)-(2). Under long-standing criminal principles, a corporation is responsible for the crime of its CEO or CFO if the corporation “aids, abets, counsels, commands, induces or procures [the] commission [of that crime].” 18 U.S.C. § 2(a). ¶ 23 SOX section 903(a) and (b) enhance criminal penalties for mail fraud and wire fraud, while section 807(a) separately criminalizes securities fraud. 18 U.S.C. §§ 1341, 1343, 1348. Under SOX section 902(a), attempting or conspiring to commit any of these crimes invokes “the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” 18 U.S.C. § 1349. ¶ 24 Section 24 of the Securities Act of 1933, 15 U.S.C. § 77x, and section 32(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78ff(a), impose criminal penalties on a person who willfully violates securities laws, including by knowingly making false or misleading statements related to corporate financial reporting or connected to the offer or sale of securities. See also Securities Act § 17(a), 15 U.S.C. §§ 77q(a); Securities Exchange Act § 10(b), 15 U.S.C. § 78j(b); SEC Rule 10b-5, 17 C.F.R. § 240.10b-5. Moreover, SOX section 1107(a) imposes criminal penalties on a person who “knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the . . . possible commission of any Federal offense.” 18 U.S.C. § 1513(e). ¶ 25 Even a state statute imposes criminal penalties on a corporate agent who “knowingly make[s] or publish [es] or concur [s] in making or publishing any written ... report... or statement of [the corporation’s] affairs or pecuniary condition, containing any material statement that is false or exaggerated.” RCW 9.24.050. This statute exists to protect members of the public who may rely on such reports or 950 statements but are not conversant with the corporation’s finances. State v. Swanson, 16 Wn. App. 179, 185-86, 554 P.2d 364 (1976) (citing State v. Pierce, 175 Wash. 461, 467, 27 P.2d 1083 (1933); State v. O’Brien, 143 Wash. 636, 639, 255 P. 952 (1927)). Attempting, conspiring, or soliciting another person to commit this crime is also a crime. RCW 9A.28.020(1), .030(1), .040(1). ¶ 26 Third, Rockwood and CHS cite statutes and regulations providing an investor a private right of action against a person responsible for false or misleading statements connected to the offer or sale of securities.2 See Securities Exchange Act § 10(b), 15 U.S.C. § 78j(b); SEC Rule 10b-5,17 C.F.R. § 240.10b-5; Securities Act of Washington, RCW 21.20.010, .430(1); Superintendent of Ins. v. Bankers Life & Cas. Co., 404 U.S. 6, 13, 92 S. Ct. 165, 30 L. Ed. 2d 128 (1971); Janus Capital Grp., Inc. v. First Derivative Traders, _ U.S. _, 131 S. Ct. 2296, 2301, 180 L. Ed. 2d 166 (2011). ¶ 27 Finally, Rockwood and CHS cite statutes granting the SEC administrative powers against a person responsible for false or misleading statements connected to the offer or sale of securities. Specifically, the SEC may initiate an investigation upon complaint or its own initiative, and, if it determines a person has violated or is about to violate securities laws, it may issue a cease and desist order; impose civil monetary penalties; and sue in federal district court for injunctive relief, disgorgement of profits, prohibition from future service as a corporate director or officer, and additional civil monetary penalties. See Securities Act 951 §§ 8A, 20, 15 U.S.C. §§ 77h-1, 77t; Securities Exchange Act §§ 21, 21B, 21C, 15 U.S.C. §§ 78u, 78u-2, 78u-3. ¶ 28 These statutes and regulations provide comprehensive criminal, civil, and administrative enforcement mechanisms promoting the important public policies they secure. But those means of promoting public policy do not foreclose private common law tort remedies for employees. See Cudney, 172 Wn.2d at 549-50 (Stephens, J., dissenting). “The central idea of the public policy tort is to create privately enforceable disincentives for ... employers to use their power in the workplace to undermine important public policies.” Perritt, Employee Dismissal, supra, § 7.06[A] at 7-82.2. And the public policy tort may sometimes coexist with comprehensive criminal, civil, and administrative enforcement mechanisms. See Piel, 177 Wn.2d at 614-16. Such coexistence is essential where, as here, the threat of constructive discharge would jeopardize the public policy of honesty in corporate financial reporting by discouraging a CFO like Mr. Becker from refusing to submit a false or misleading EBITDA projection. ¶ 29 Mr. Becker claimed his EBITDA projection correctly showed a $12 million operating loss in 2012 but Rockwood and CHS demanded he recalculate his projection to show a target $4 million operating loss in 2012. Mr. Becker refused to submit the $4 million figure because he reasonably believed it would require overstating income and understating expenses, fraudulently misleading investors and creditors in violation of criminal laws. Rockwood and CHS rated his job performance as “ ‘unacceptable,’ ” placed him on a probationary “ ‘performance improvement plan,’ ” and gave him an ultimatum to either submit the $4 million figure or lose his job. CP at 735-36. Then, he told Rockwood’s CEO and CHS’s internal auditor he thought Rockwood and CHS were using the false $4 million figure to fraudulently mislead investors and creditors. Mr. Becker hypothesized that upon acquiring Rockwood, CHS procured investments and credits using the false $4 million fig 952 ure. He reported his concerns to Rockwood and CHS but did not report the misconduct to law enforcement agencies. Soon, Mr. Becker saw signs that Rockwood and CHS were preparing to use his subordinate to submit the false $4 million figure under the auspices of his department. Mr. Becker detailed these matters in writing to Rockwood and CHS, advising them he would have no choice but to resign unless they responded appropriately to abate the misconduct. They sent him a one-line e-mail accepting his resignation the next day. ¶ 30 Mr. Becker’s case is “[t]he most compelling case for protection” under a public policy tort because by instructing him to commit a crime for which he would be personally responsible, Rockwood and CHS forced him to choose between the consequences of disobeying his employer and the consequences of disobeying criminal laws. Daniel P. Westman & Nancy M. Modesitt, Whistleblowing: The Law of Retaliatory Discharge ch. 5 II.A. 1 at 101 (2d ed. 2004). Recognizing this dilemma, “most courts have readily responded ... by recognizing a cause of action” in similar cases. Id. ch. 5 II.A.1.a at 102; see also id. ch. 5 II.A.1.a at 5-7 (Supp. 2013). ¶ 31 For example, in McGarrity v. Berlin Metals, Inc., 774 N.E.2d 71, 75-79 (Ind. Ct. App. 2002), a CFO sued his corporate employer for wrongful discharge in violation of public policy, alleging the employer discharged him for refusing to fraudulently underreport tax liability in violation of criminal laws. The trial court granted the employer judgment on the evidence, and the Indiana Court of Appeals reversed, partly reasoning the common law would not countenance a scenario where the employer could abuse its workplace authority by giving the CFO an ultimatum to either commit an illegal act for which he would be personally responsible or lose his job. Id. at 76-78. ¶ 32 Similarly, in Gossett v. Tractor Supply Co., 320 S.W.3d 777, 779-80 (Tenn. 2010), a CFO sued his corporate employer for wrongful discharge in violation of public 953 policy, alleging the employer discharged him for refusing to make misleading account alterations that would have produced misleading SEC filings. The trial court granted the employer summary judgment, and the Tennessee Supreme Court reversed, partly reasoning the common law did not require the CFO to show he reported the misconduct externally after he refused to participate in it. Id. at 787-89. ¶ 33 The jeopardy analysis in Mr. Becker’s case “proceeds from the proposition that permitting such dismissals would encourage conduct in violation of [criminal laws], because employers could shield themselves from detection.” Perritt, Employee Dismissal, supra, § 7.06, at 7-72. We recognize the jeopardy element is difficult to satisfy where, as here, statutes and regulations provide comprehensive criminal, civil, and administrative enforcement mechanisms promoting the important public policies they secure. See id. § 7.06, at 7-69 to -71. But the jeopardy analysis in Mr. Becker’s case does not end there. The jeopardy element becomes easier to satisfy where, as here, the employee has special responsibilities or expertise connected with the public policy and other enforcement mechanisms are less likely to succeed because they depend on the employee’s individual procompliance efforts. See id. § 7.06, at 7-71; id. § 7.09[D] at 7-159. In those circumstances, chilling employee conduct advocating compliance with statutes and regulations renders public policy enforcement uncertain, at best, or a matter of chance, at worst. See Cudney, 172 Wn.2d at 548-49 (Stephens, J., dissenting); Perritt, Employee Dismissal, supra, § 7.06[A] at 7-82.4-1. ¶ 34 In sum, we follow the reasoning of Thompson, Gardner, and Piel to conclude Mr. Becker’s amended complaint establishes the jeopardy element. Accepting all factual allegations as true, the threat of constructive discharge would jeopardize the public policy of honesty in corporate financial reporting by discouraging a CFO like Mr. Becker from refusing to submit a false or misleading EBITDA projection. Mr. Becker’s refusal was both directly related to 954 the public policy and necessary to effectively enforce the public policy. And, Mr. Becker’s refusal was the only available adequate means for promoting the public policy, given the uncertainty of other enforcement mechanisms and their dependence on his individual pro-compliance efforts. We must evaluate each public policy tort “in light of its particular context.” Piel, 177 Wn.2d at 617. Because Korslund and Cudney addressed different enforcement mechanisms, they do not dictate the outcome in Mr. Becker’s case. See id. Therefore, the trial court did not err under CR 12(b)(6) in declining to dismiss Mr. Becker’s claim for wrongful discharge in violation of public policy. ¶ 35 Affirmed. Lawrence-Berrey, J., concurs. Footnotes [1] This claim is available regardless of whether the employer discharges the employee expressly or constructively. Korslund, 156 Wn.2d at 177 n.1 (citing Snyder v. Med. Serv. Corp. of E. Wash., 145 Wn.2d 233, 238, 35 P.3d 1158 (2001)). [2] Accepting all factual allegations as true, we assume, without deciding, the EBITDA projection Rockwood and CHS demanded would not have been protected by the safe harbor provisions of the Private Securities Litigation Reform Act of 1995, 15 U.S.C. § 78u-5(c)(1). The projection certainly would have been a forward-looking statement. See id. § 78u-5(i)(1); Prime Mover Capital Partners LP v. Elixir Gaming Techs., Inc., 898 F. Supp. 2d 673, 689 & n.95 (S.D.N.Y. 2012) (citing Slayton v. Am. Express Co., 604 F.3d 758, 766-67 (2d Cir. 2010)). But the complaint implies Rockwood and CHS knew the projection would have been false or misleading, and material to investors and creditors. See 15 U.S.C. § 78u--5(c)(1)(A)(ii), (B). Because the pleadings do not address the issue, we do not consider whether the projection would have contained any meaningful cautionary statement. See id. § 78u-5(c)(1)(A)(i).