Opinion
No. 30310-8-II
April 5, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 02-2-08468-6. Judgment or order under review. Date filed: 04/04/2003. Judge signing: Hon. Kitty-Ann Van Doorninck.
Counsel for Appellant(s), Dan Matthew Albertson, Attorney at Law, 711 Court a Ste 200, Tacoma, WA 98402-5228.
Counsel for Respondent(s), Kathryn L. Feldman, Ater Wynne LLP, 601 Union St Ste 5450, Seattle, WA 98101-2327.
Brenda S Molner, Ater Wynne LLP, 601 Union St Ste 5450, Seattle, WA 98101-2327.
As representative of her husband's estate (the Estate), Daphne Logan sued Pierce County Fire Protection District No. 2 (the Fire District) for wrongfully terminating her late husband's employment. Logan claimed that the Fire District's civil service rule violations are per se violations of public policy and that, therefore, the Estate is entitled to damages for wrongful termination. Because, as a matter of law, violation of civil service rules is not a per se violation of public policy and because Logan does not establish that the Fire District terminated her late husband's employment for engaging in any protected activity, we affirm summary judgment in favor of the Fire District.
FACTS
James R. Logan was Director of `Fire Comm,' a dispatch center operated by the Fire District.
According to the job description, the Director is the Division Head responsible for proper management of round-the-clock operation of the fire communication center and to provide staff support to the chief of the Department. The Director . . . shall oversee and direct the functions of the division emergency call receiving and dispatching, communications center records and reports, data systems management, and communications system maintenance.
Clerk's Papers (CP) at 48. Fire Comm also handles dispatch for other area fire agencies.
Following incorporation of the City of Lakewood, the Fire District was also known as the Lakewood Fire Department. Both names appear in the record.
In April 1999, following an investigation by its attorney, the Fire District fired James Logan for misconduct. The April 13, 1999 `Final Disciplinary Action' memorandum listed the grounds for termination as:
Inefficiency, inattention to, and dereliction of duty;
Discourteous treatment of the public (Fire Comm Users);
Discourteous treatment of a fellow employee (Subordinates);
Prejudicial conduct;
Willful failure on the part of the employee to properly conduct himself; and
Act or failure to act which is sufficient to show the offender to be an unsuitable and unfit person to be employed in the public service.
Clerk's Papers (CP) at 28. The Fire District based these findings on evidence of James Logan's `confrontational behavior and otherwise poor interpersonal skills,' his `delayed responses to requests and arbitrary decisions,' and his inappropriate use of `comp time' (to which he was not entitled as a salaried employee) to supplement vacation time. CP at 28. On April 26, James Logan appealed his termination to the Fire District's Civil Service Commission.
See RCW 41.08.080, which provides:
The tenure of every one holding an office, place, position or employment under the provisions of this chapter shall be only during good behavior, and any such person may be removed or discharged, suspended without pay, demoted, or reduced in rank, or deprived of vacation privileges or other special privileges for any of the following reasons:
(1) Incompetency, inefficiency or inattention to or dereliction of duty;
(2) Dishonesty, intemperance, immoral conduct, insubordination, discourteous treatment of the public, or a fellow employee, or any other act of omission or commission tending to injure the public service; or any other wilful failure on the part of the employee to properly conduct himself; or any wilful violation of the provisions of this chapter or the rules and regulations to be adopted hereunder;
(3) Mental or physical unfitness for the position which the employee holds;
(4) Dishonest, disgraceful, immoral or prejudicial conduct;
. . . .
(7) Any other act or failure to act which in the judgment of the civil service commissioners is sufficient to show the offender to be an unsuitable and unfit person to be employed in the public service. This statute is incorporated into the Fire District's December 1996 `Rules and Regulations of the Civil Service Commission,' under Section X, `Maintaining Discipline.' CP at 149.
The Fire District adopted the civil service system for its employees in the 1960s. See RCW 41.08.090, which states in part:
No person in the classified civil service who shall have been permanently appointed or inducted into civil service under provisions of this chapter, shall be removed, suspended, demoted or discharged except for cause, and only upon the written accusation of the appointing power, or any citizen or taxpayer, a written statement of which accusation, in general terms, shall be served upon the accused, and a duplicate filed with the commission. Any person so removed, suspended, demoted or discharged may within ten days from the time of his removal, suspension, demotion or discharge, file with the commission a written demand for an investigation, whereupon the commission shall conduct such investigation. The investigation shall be confined to the determination of the question of whether such removal, suspension, demotion or discharge was or was not made for political or religious reasons and was or was not made in good faith [f]or cause. After such investigation the commission may affirm the removal, or if it shall find that the removal, suspension, or demotion was made for political or religious reasons, or was not made in good faith for cause, shall order the immediate reinstatement or reemployment of such person in the office, place, position or employment from which such person was removed, suspended, demoted or discharged, which reinstatement shall, if the commission so provides in its discretion, be retroactive, and entitle such person to pay or compensation from the time of such removal, suspension, demotion or discharge. The commission upon such investigation, in lieu of affirming the removal, suspension, demotion or discharge may modify the order of removal, suspension, demotion or discharge by directing a suspension, without pay, for a given period, and subsequent restoration to duty, or demotion in classification, grade, or pay; the findings of the commission shall be certified, in writing to the appointing power, and shall be forthwith enforced by such officer.
Beginning on July 19, 1999, the Commission held eight days of hearings on the matter. In October 1999, the Commission issued an order upholding James Logan's termination.
One commissioner dissented by a separate opinion and would have ruled that James Logan's actions merited demotion, not termination, because he did not have an opportunity to improve his performance.
On November 10, 1999, James Logan appealed the Commission's ruling to the Pierce County Superior Court under RCW 41.08.090. The following month, James Logan died of a heart attack.
RCW 41.08.090 also provides for appeal from a commission's determination to the superior court:
If such judgment or order [for removal, suspension, demotion or discharge] be concurred in by the commission or a majority thereof, the accused may appeal therefrom to the court of original and unlimited jurisdiction in civil suits of the county wherein he resides. . . . The court . . . shall thereupon proceed to hear and determine such appeal in a summary manner: PROVIDED, HOWEVER, That such hearing shall be confined to the determination of whether the judgment or order of removal, discharge, demotion or suspension made by the commission, was or was not made in good faith for cause, and no appeal to such court shall be taken except upon such ground or grounds.
On June 8, 2001, the superior court determined that the Commission had failed to follow the applicable civil service rules in upholding the termination. The court concluded that James Logan's termination was, therefore, arbitrary and capricious and not supported by just cause or substantial evidence. The court awarded the Estate back pay and benefits and attorney fees for the superior court action.
The superior court found that:
V.
The . . . [Commission] failed to follow the governing civil service rules with respect to progressive discipline.
VI.
The . . . [Commission] failed to follow the governing civil service rules with respect to notice and timeliness of notice of disciplinary action to . . . [Logan].
VII.
Substantial evidence does not exist in the record for . . . [the Fire District] to have terminated . . . [Logan's] employment. . . .
VIII.
Substantial evidence does not exist in the record for . . . [the Commission's] findings of fact that just cause existed for the termination of [Logan] from his employment. . . .
IX.
The action of the [Commission] was arbitrary and capricious in finding just cause for the termination of [Logan's] employment. . . .
X.
Substantial evidence does not exist in the record that any misconduct on [Logan's] part . . . was so flagrant that termination would be warranted as the first disciplinary action to be imposed. CP at 87-88.
The superior court also ordered reinstatement. The court declined to award attorney fees for James Logan's appeal to the Commission, having determined that under RCW 49.48.030 and Cohn v. Department of Corrections, 78 Wn. App. 63, 895 P.2d 857 (1995), he was not entitled to them. The Estate does not appeal the trial court's denial of these fees.
On June 12, 2002, the Estate sued the Fire District, alleging that James Logan was wrongfully terminated without just cause. It sought damages for emotional distress and attorney fees.
The Estate's responses to interrogatories identified the failure to follow civil service rules as the basis for the wrongful termination claim. On April 4, 2003, the trial court granted the Fire District's summary judgment motion and dismissed the Estate's claims with prejudice.
Logan, as representative of her husband's estate, appeals.
ANALYSIS Standard of Review
Summary judgment is appropriate where there are no disputed material facts and the moving party is entitled to judgment as a matter of law. CR 56(c); Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299, 305, 96 P.3d 957 (2004). We engage in the same inquiry as the trial court, reviewing questions of law de novo and viewing the facts and all reasonable inferences from them in the light most favorable to the nonmoving party. Christensen, 152 Wn.2d at 305 (citing Williamson, Inc. v. Calibre Homes, Inc., 147 Wn.2d 394, 398, 54 P.3d 1186 (2002)).
The moving party bears the initial burden of showing the absence of an issue of material fact. Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989) (citing LaPlante v. State, 85 Wn.2d 154, 158, 531 P.2d 299 (1975)). If the moving party is a defendant and meets this initial showing, then the inquiry shifts to the party with the burden of proof at trial, the plaintiff. If, at this point, the plaintiff `fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial,' then the trial court should grant the summary judgment motion. Young, 112 Wn.2d at 225 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). Civil Service Rules and Public Policy
Under the common law, an employer in Washington could discharge an employee with or without cause, absent an agreement to the contrary. Roberts v. Atl. Richfield Co., 88 Wn.2d 887, 891, 568 P.2d 764 (1977). In Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 685 P.2d 1081 (1984), our Supreme Court first recognized an exception to this general terminable-at-will rule and held that a cause of action for the tort of wrongful discharge will lie where `the discharge of [an] employee contravenes a clear mandate of public policy.' Thompson, 102 Wn.2d at 232.
What qualifies as a clear mandate of public policy is a legal question. Gardner v. Loomis Armored Inc., 128 Wn.2d 931, 937, 913 P.2d 377 (1996). The contravention of a clear mandate of public policy occurs in four situations: `(1) where employees are fired for refusing to commit an illegal act; (2) where employees are fired for performing a public duty or obligation . . .; (3) where employees are fired for exercising a legal right or privilege . . .; and (4) where employees are fired in retaliation for reporting employer misconduct, i.e., whistleblowing.' Reninger v. Dep't of Corr., 134 Wn.2d 437, 447, 951 P.2d 782 (1998) (quoting Gardner, 128 Wn.2d at 936); Dicomes v. State, 113 Wn.2d 612, 618, 782 P.2d 1002 (1989). The touchstone of these exceptions is whether the employee's termination would contravene some public, as opposed to a purely private, interest. Reninger, 134 Wn.2d at 447; see also Dicomes, 113 Wn.2d at 618 ('public policy concerns . . . what affects the citizens of the State collectively') (quoting Palmateer v. Int'l Harvester Co., 85 Ill. 2d 124, 130, 421 N.E.2d 876 (1981)). The wrongful termination exception is construed narrowly and we proceed cautiously in declaring public policy absent some prior legislative or judicial expression. Gardner, 128 Wn.2d at 936-37 (quoting Thompson, 102 Wn.2d at 232).
Our courts have identified four elements to a claim for wrongful termination in violation of public policy. A plaintiff must prove (1) the existence of a clear public policy; (2) that discouraging the conduct in which a plaintiff engaged would jeopardize the public policy; (3) that the public policy-related conduct caused the dismissal; and (4) that no overriding justification for the dismissal existed. Gardner, 128 Wn.2d at 941. The Estate's claim does not present disputed questions of fact on these elements.
The Estate contends only that the procedures leading to James Logan's termination violated the Fire District's civil service rules and, therefore, violated public policy. In determining whether a clear mandate of public policy has been violated, we consider `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 (quoting Parnar v. Americana Hotels, Inc., 65 Haw. 370, 380, 652 P.2d 625 (1982)). The Estate contends it had a legally sufficient claim for wrongful termination in violation of public policy when the superior court ruled that the Fire District had violated the civil service rules when it terminated James Logan's employment and that, therefore, the trial court's summary judgment in favor of the Fire District is contrary to law.
But while courts may find public policy based on statutes, a majority of our Supreme Court expressly rejected similar claims that a violation of the civil service rules is a per se violation of public policy. Reninger, 134 Wn.2d 437. In Reninger, a majority of the court explicitly stated to the contrary, holding that a violation of civil service rules is not a per se violation of public policy. 134 Wn.2d at 447-48. In that case, Department of Corrections employees Reninger and Cohen were transferred to posts that they asserted would have been especially hazardous and, therefore, constructively discharged, after they were accused of failing to properly secure shotguns used in training exercises. In denying their wrongful discharge claims, the court reasoned:
If Reninger and Cohen were `set up,' as they allege, then the State arguably violated a `statutory or regulatory provision' by terminating Reninger and Cohen without cause. See RCW 41.06.186 (authorizing the personnel resources board to adopt rules relating to the termination of state employees); WAC 356-34-010, WAC 356-34-040 (defining `cause' for dismissal and providing that public employees may be dismissed `for cause'). The alleged impetus for the plaintiffs' termination does not, however, fall within one of the categories we recognized in Dicomes. Nor does their firing contravene public policy. Reninger and Cohen claimed they did not leave any firearms unattended and their fellow employees concocted this scheme. . . . Although this conduct is certainly unworthy of fellow officers, it does not affect the public collectively, and therefore does not constitute a wrongful discharge under Thompson and Dicomes. If we were to permit the officers to state a wrongful discharge claim simply by alleging that their employer violated a statute, even though the statute has nothing to do with the public as a whole, we would be extending the tort far beyond the parameters set by Thompson and Dicomes. Reninger and Cohen failed to state a claim for wrongful discharge.
Reninger, 134 Wn.2d at 447-48.
Justice Sanders dissented on the grounds that civil service statutes could supply the public policy:
These public employees were constructively discharged in violation of specific provisions of the civil service statute. Such is a matter of public interest since (1) any discharge in violation of statute is of public concern, and (2) the civil service statute, in particular, was enacted precisely to accomplish an alleged public purpose. Therefore constructive discharge of a public employee in violation of an applicable statute is a much more straightforward violation of `public policy' than is the termination of a private employee for whistle blowing activity not in clear violation of an express statutory mandate. Compare Dicomes[, 113 Wn.2d at 617] ('[A]bsent some prior legislative or judicial expression on the subject,' public policy may nonetheless be violated by discharge for whistle blowing.) (quoting Thompson[, 102 Wn.2d at 232]). Reninger, 134 Wn.2d at 457-58 (J. Sanders, dissenting).
In Smith v. Bates Technical College, 139 Wn.2d 793, 991 P.2d 1135 (2000), the court clarified that public employees who could only be terminated `for cause' were not barred from bringing a wrongful discharge claim. There, a discharged employee of a state-operated vocational technical college sued the college and her supervisors for, among other things, wrongful discharge in violation of public policy. Although acknowledging that some authority supported the college's contention that wrongful discharge did not apply to public employees who could only be terminated for cause, the court determined that the tort should be available to all employees, whether at-will or for-cause. Smith, 139 Wn.2d at 803-04.
The Smith court summarized this authority:
In Reninger[, 134 Wn.2d at 445], we questioned the viability of the tort `where other relief is available to an affected employee.' And in White v. State, 131 Wn.2d 1, 929 P.2d 396 (1997), we declined to extend the tort to include wrongful transfers and refused to subject each disciplinary decision of the employer to judicial scrutiny. `This is particularly true in instances like this one where an employee's rights are already protected by civil service rule, by a collective bargaining agreement, and by civil rights statutes.' [White, 131 Wn.2d at 20]. Furthermore, the United States District Court for the Eastern District of Washington observed: `[T]he claim of `discharge in violation of public policy' exists only as a narrow exception to the at-will doctrine; there is no such claim in cause-only employment.' Keenan v. Allan, 889 F. Supp. 1320, 1367 (E.D. Wash. 1995), aff'd, 91 F.3d 1275 (9th Cir. 1996). 139 Wn.2d at 802 (some citations omitted).
But Smith had claimed that she was wrongfully terminated for filing a grievance, not merely that her employer had violated its own rules in terminating her employment. Smith clearly states that the alleged violation of public policy at issue, filing a grievance, is a protected activity. See 139 Wn.2d at 807 (citing RCW 41.56.140(3) (unfair labor practice for public employer to discriminate against a public employee who has filed an unfair labor practice charge)); see also Clallam County v. Pub. Employment Relations Comm'n, 43 Wn. App. 589, 599, 719 P.2d 140 (unfair labor practice for a public employer to discharge an employee for pursuing a grievance), review denied, 106 Wn.2d 1013 (1986).
There is undoubtedly some merit to Justice Sanders's assertion in the Reninger dissent that:
These public employees were constructively discharged in violation of specific provisions of the civil service statute. Such is a matter of public interest since (1) any discharge in violation of statute is of public concern, and (2) the civil service statute, in particular, was enacted precisely to accomplish an alleged public purpose. Reninger, 134 Wn.2d at 457-58. But this remains a dissenting opinion.
The Estate's claim that civil service regulations were violated during the termination proceedings does not demonstrate a per se violation of public policy as that phrase is defined in Gardner and applied in Reninger and Smith. Thus, the Estate failed to present evidence sufficient to meet the elements of wrongful discharge.
Moreover, as noted in Gardner, the second element of a wrongful discharge claim requires that a plaintiff prove that discouraging the conduct that he engaged in would jeopardize the asserted public policy. See Gardner, 128 Wn.2d at 941. Here, the Estate has identified no protected conduct in which James Logan engaged. His termination for, among other things, confrontational behavior, poor interpersonal skills, delayed responses, and inappropriate use of comp time, was procedurally defective, not a `wrongful' chilling of his right to engage in a protected activity.
Civil service statutes and rules further our State's `public policy' to ensure that removal of public employees occurs subject to certain objective protections. But a violation of civil service statutes and rules alone is not a per se public policy violation unless it results in an employee being fired for (1) refusing to commit an illegal act; (2) performing a public duty or obligation; (3) exercising a legal right or privilege; or (4) whistle blowing.
The `public policy' of protecting civil service employment is adequately served by the rules and regulations permitting removal, suspension, and demotion `for [just] cause' only. In the face of the Estate's failure to allege that James Logan was fired for engaging in protected conduct, the trial court's ruling on summary judgment that a procedural violation of the civil service rules is insufficient to establish termination in violation of `public policy' was appropriate as a matter of law.
In its summary judgment motion, the Fire District asserted that res judicata and collateral estoppel bar the Estate's wrongful termination claim and relitigation of the issue of damages. But the trial court did not rule on the matter. Similarly, we do not reach the matter.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J., and BRIDGEWATER, J., Concur.