Opinion
No. 61966-7-I.
April 27, 2009.
Appeal from a judgment of the Superior Court for King County, No. 06-2-32477-3, Charles W. Mertel, J., entered June 16, 2008.
Affirmed by unpublished opinion per Grosse, J., concurred in by Agid and Cox, JJ.
Pro Se litigants are held to the same standard as attorneys and must comply with all procedural rules on appeal. Chief among these rules is the requirement that appellants support their assignments of error with authority and argument. In this pro se appeal from rulings dismissing his claims against his former employer, supervisors, and union, former Kirkland Police Officer Kevin Murphy fails to support virtually all of his claims with citations to pertinent authority or meaningful legal analysis. Because of these omissions, and for the additional reasons set forth below, we affirm.
FACTS
From 1996 until his resignation in December 2004, Kevin Murphy worked as a police officer for the Kirkland Police Department. Before he resigned, Murphy twice sought, but failed to receive, a promotion to corporal. He also filed a grievance seeking an increase in pay to the corporal level, but the grievance was denied.
Murphy's supervisors soon noticed a negative change in his performance and attitude. The City of Kirkland (City) eventually referred him for a fitness for duty evaluation. The examining psychologist determined that Murphy was not fit for duty due to his "preoccupation and obsessive orientation about his discontent" concerning his failed promotions. Murphy then received three months of treatment.
In early 2004, supervisors placed Murphy on a performance improvement plan to address insubordination and time management issues. In September 2004, the chief of police sent Murphy a notice of a predisciplinary hearing. On October 8, 2004, following a hearing, the chief disciplined Murphy with a 12-day unpaid suspension.
On October 13, 2004, Murphy filed a grievance regarding the disciplinary action. When the City denied the grievance, the Kirkland Police Guild, with Murphy's approval, notified the City that it planned to take the matter to arbitration. On December 26, 2004, after the matter was referred to arbitration, Murphy resigned.
In an e-mail to Guild representative Jack Keese, Murphy stated, "I'll stay out of the way unless needed, trusting things to the Guild. . . . Naturally, I want to be present at arbitration when the time comes."
In June 2005, prior to arbitration, the Guild negotiated a settlement of the grievance. The settlement reduced Murphy's suspension from 12 to 4 days, allowed him to submit a written rebuttal to be kept in his file, precluded the City from using Murphy's discipline as precedent in other disciplinary matters, and required supervisor training regarding performance improvement plans.
In October 2006, Murphy filed suit against the Guild, the City, and members of the Kirkland Police Department. Among other things, Murphy alleged that the Guild and the City had "surreptitiously" settled his grievance against his wishes, and that the Guild acted arbitrarily and in bad faith. The complaint set forth a number of causes of action, including wrongful discharge, breach of the Guild's duty of fair representation, breach of the collective bargaining agreement, defamation, negligence, outrage, and intentional and negligent infliction of emotional distress.
Following motions for summary judgment, the court dismissed Murphy's claims against the Guild. The court concluded that the Guild did not breach its duty of fair representation and that Murphy's claims were time barred in any event.
In a series of orders, the court excluded evidence relating to the settlement, alleged retaliation against Murphy, and Murphy's performance improvement plan. The court then dismissed all claims against the City and the individual defendants except the claims for negligent infliction of emotional distress and wrongful discharge. The latter claims were ultimately dismissed by stipulation. Murphy appeals.
DECISION
The law does not distinguish between litigants who elect to proceed pro se and those who seek assistance of counsel. Both must comply with applicable procedural rules, and failure to do so may preclude review. The most fundamental and frequently cited rule of appellate procedure is that issues raised on appeal must be supported by argument and pertinent authority. Appellate courts generally will not consider issues that do not comply with this rule. In this case, Murphy fails to support the vast majority of the issues raised in his opening brief with pertinent authority and/or meaningful legal analysis. These omissions are fatal to virtually all of his claims.
In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993).
Olson, 69 Wn. App. at 626; State v. Marintorres, 93 Wn. App. 442, 452, 969 P.2d 501 (1999).
RAP 10.3(a)(5); In re Marriage of Arvey, 77 Wn. App. 817, 819 n. 1, 894 P.2d 1346 (1995); Saunders v. Lloyd's of London, 113 Wn.2d 330, 345, 779 P.2d 249 (1989).
King County v. Seawest Inv. Assocs., 141 Wn. App. 304, 317, 170 P.3d 53 (2007); Saviano v. Wesport Amusements, Inc., 144 Wn.App. 72, 180 P.3d 874 (2008).
This appeal is a prime example of the risks associated with handling an appeal, particularly a complex one, pro se. The proceedings below involved multiple defendants, numerous causes of action, a number of superior court rulings, at least one issue of first impression, and a voluminous record. An appeal in a case of this nature requires a firm grasp of the law and the record, and a high degree of analytical precision. While this court appreciates Murphy's efforts, his briefing, as discussed below, is simply inadequate given the legal and factual complexities of this case. Guild's Breach of Duty of Fair Representation
Murphy first contends the trial court erred in dismissing his claim against the Guild for breach of its duty of fair representation. We review a summary judgment order de novo, engaging in the same inquiry as the trial court, and viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party. Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.
Hearst Commc'ns, Inc. v. Seattle Times Co., 154 Wn.2d 493, 501, 115 P.3d 262 (2005).
CR 56(c); Hearst, 154 Wn.2d at 501.
The superior court ruled that Murphy's claims against the Guild were time barred and that the Guild did not breach its duty of fair representation in any event. Under the Public Employees Collective Bargaining Act (PECBA), chapter 41.56 RCW, a complaint for unfair labor practices must be filed with the Public Employment Relations Commission within six months of the alleged violation. Our appellate courts have not addressed whether this limitation period applies to a public employee's lawsuit for breach of the duty of fair representation. This issue was fully briefed below, however, and the trial court concluded that the statute barred Murphy's claim. Although Murphy challenges that conclusion on appeal, he provides no pertinent authority or meaningful legal analysis. Nor has he made his response to the Guild's motion for summary judgment a part of the record on appeal. These omissions preclude review.
There is support for the superior court's conclusion. In construing the PECBA, Washington courts may look to judicial interpretations of similar federal labor laws. Navlet v. Port of Seattle, 164 Wn.2d 818, 828-829, 194 P.3d 221, 227 (2008). The PECBA is "substantially similar" to the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151- 169 (1976), State ex rel. Wash. Fed'n of State Employees v. Board of Trustees, 93 Wn.2d 60, 67-68, 605 P.2d 1252 (1980), and both acts provide a six-month limitation period for claims based upon "any unfair labor practice." 29 U.S.C. § 160(b); RCW 41.56.160(1). Accordingly, the United States Supreme Court's decision in DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 165, 103 S. Ct 2281, 76 L. Ed. 2d 476 (1983) (applying federal six-month limitations period for filing unfair labor practice charges to private employee's action for breaches of bargaining agreement and duty of fair representation) is arguably persuasive authority for applying the six-month limitation in RCW 41.56.160 to Murphy's claim against the Guild. See generally Tracy A. Bateman, Annotation, What Statute of Limitations Applies to State Law Action by Public Sector Employee for Breach of Union's Duty of Fair Representation, 12 A.L.R.5th 950, § 3, at 958 (1993).
City's Breach of Collective Bargaining Agreement.
Murphy contends the court erred in dismissing his claims against the City for breach of contract. Again, he cites no pertinent authority and provides no meaningful legal analysis. In fact, the argument section of his opening brief contains little more than an invitation for this court to review his superior court filings. Trial court briefs cannot be incorporated into appellate briefs by reference.
Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290, review denied, 136 Wn.2d 1015 (1998) (no incorporation of summary judgment briefs on appeal); State v. Kalakosky, 121 Wn.2d 525, 540 n. 18, 852 P.2d 1064 (1993) ("If this court allowed parties to expand the issues subject to appeal by reference to trial memoranda, the Rules of Appellate Procedure would be rendered meaningless. Respondents would have no idea what issues required a response, and appellate courts would have to search trial court records and clerk's papers and address all issues raised below. Such an `end run' around the Rules of Appellate Procedure will not be sanctioned [.]").
Murphy's reply brief contains additional and more specific arguments regarding his breach of contract claim. But that portion of the brief provides no citations to the record and virtually no supporting authority. Moreover, arguments raised for the first time in a reply brief need not be considered. These deficiencies are fatal.
In re Marriage of Sacco, 114 Wn.2d 1, 5, 784 P.2d 1266 (1990).
Murphy's briefing is also deficient in that it fails to address the City's arguments that he did not exhaust administrative remedies, and that the grievance settlement precludes any judicial action on claims arising from the handling of the grievance.
In any case, Murphy's principal breach of contract claim is unpersuasive. Murphy contends the grievance settlement was not authorized by the Collective Bargaining Agreement and violated RCW 41.56.080. But the Guild was acting as Murphy's agent when, with his approval, it referred the matter to arbitration, and nothing in the CBA precluded a settlement short of arbitration.
See Lew v. Seattle Sch. Dist., 47 Wn. App. 575, 578, 736 P.2d 690 (1987).
Employees generally have no right to have a grievance arbitrated and settlement short of arbitration is both contemplated and encouraged. See Vaca v. Sipes, 386 U.S. 171, 177, 191-92, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967) ("If the individual employee could compel arbitration of his grievance regardless of its merit, the settlement machinery provided by the contract would be substantially undermined.").
Nor did RCW 41.56.080 preclude the City from settling the grievance. That statute permits an employee to "present his grievance to the public employer and have such grievance adjusted without the intervention of the exclusive bargaining representative[.]" Murphy alleges that he presented his grievance to the City solely in his individual capacity. But even assuming that allegation is true, Murphy later turned the matter over to the Guild when the grievance was denied. He thus waived his right to proceed without Guild intervention. The settlement did not violate RCW 41.56.080.
RCW 41.56.080 provides in part:
The bargaining representative . . . shall be certified by the commission as the exclusive bargaining representative of . . . all the public employees . . .: PROVIDED, That any public employee at any time may present his grievance to the public employer and have such grievance adjusted without the intervention of the exclusive bargaining representative. . . .
City's Negligence and Defamation
Murphy next argues, again without citation to authority, that the superior court erred in dismissing his claims against the City and several City employees for negligence and defamation. The City contends no cause of action exists in Washington for either negligent investigation or negligent infliction of emotional distress occurring during workplace disputes. Murphy's filings in this court fail to address these arguments or demonstrate a legal basis for his negligence claims.
M.W. v. Dep't of Soc. Health Servs., 110 Wn. App. 233, 247-248, 39 P.3d 993, 1000 (2002), reversed on other grounds, 149 Wn.2d 589, 70 P.23d 954 (2003) (there is generally no common law cause of action for negligent investigation); Lambert v. Morehouse, 68 Wn. App. 500, 504-06, 843 P.2d 1116, review denied, 121 Wn.2d 1022, 854 P.2d 1084 (1993) ("tort liability for negligent investigation is equally inappropriate in the employment relationship").
Snyder v. Med. Ser. Corp., 145 Wn.2d 233, 243-46, 35 P.3d 1158 (2001) (negligent infliction of emotional distress generally not recognized in the employment setting).
Murphy's defamation claims have similar flaws. His arguments on appeal are not only conclusory and unsupported by authority, but they fail to address critical aspects of the case. He alleges the police chief and others defamed him in a written performance evaluation that referred to him as unprofessional, insubordinate, and unfit for law enforcement. Among other things, the City argued below and on appeal that a supervisor's evaluation of a subordinate's performance is absolutely privileged. Murphy claims the evaluators only enjoyed a qualified privilege, but his filings in this court cite nothing supporting that claim. And even assuming the evaluators enjoyed only a qualified privilege, Murphy fails to demonstrate an issue of fact as to whether his evaluators abused that privilege.
See Wood v. Battle Ground Sch. Dist., 107 Wn. App. 550, 569-570, 27 P.3d 1208 (2001) (discussing absolute versus qualified privilege); Stidham v. State, Dep't of Licensing, 30 Wn. App. 611, 614-615, 637 P.2d 970 (1981) ("A supervisor's evaluation of [his or] her subordinate's performance may be absolutely privileged.").
A qualified privilege protects a defendant from defamation claims unless the plaintiff shows by clear and convincing evidence that the defendant abused the privilege, i.e., made a statement with knowledge or reckless disregard of its falsity. Murphy's filings in this court simply do not demonstrate that a reasonable juror could find by clear and convincing evidence that his evaluators abused their privilege.
Lillig v. Becton-Dickinson, 105 Wn.2d 653, 658, 717 P.2d 1371 (1986); Lawson v. Boeing Co., 58 Wn. App. 261, 266-68, 792 P.2d 525 (1990).
Furthermore, as the City pointed out below, the statements Murphy singles out on appeal are more in the nature of opinions, which are generally not actionable, than false assertions of fact. Despite the existence of a well-settled test for determining whether an opinion is actionable defamation, Murphy does not apply that test to the statements at issue here. Nor does he adequately address the City's contention that he failed to show that the alleged defamatory statements in the evaluation were published.
For example, one contributor to the evaluation stated, "I feel that Officer Murphy should not be involved with the Kirkland Police Department or involved in Law Enforcement as a career." This was clearly an opinion. Compare Botos v. Los Angeles County Bar Ass'n, 151 Cal. App. 3d 1083, 1090, 199 Cal. Rptr. 236 (Ct.App. 1984) (evaluation that plaintiff is "not qualified" is a statement of opinion); Glaze v. Marcus, 151 Ariz. 538, 540, 729 P.2d 342, 344 (1986) (employer's description of the plaintiff as unprofessional, insubordinate, and abusive was "`nonactionable opinion'"); Hopewell v. Vitullo, 299 Ill. App. 3d 513, 519-20, 233 Ill. Dec. 456, 701 N.E.2d 99, 104 (1st Dist. 1998) (statement that a plaintiff was "`fired because of incompetence,'" not actionable because "one person's idea of when one reaches the threshold of incompetence will vary from the next person's."); Petsch-Schmid v. Boston Edison Co., 914 F.Supp. 697, 704-05 (D. Mass. 1996) (statements that employee "behaved unprofessionally" and had "performance problems" were statements of opinion that were not actionable).
Dunlap v. Wayne, 105 Wn.2d 529, 539, 716 P.2d 842 (1986).
Doe v. Gonzaga Univ., 143 Wn.2d 687, 701, 24 P.3d 390 (2001) (publication is an element of defamation, and communications within an entity are generally not considered published if the entity is, in essence, communicating with itself).
Finally, we note that courts in other jurisdictions have expressed great reluctance to allow judicial interference, specifically defamation claims, in the arena of performance evaluations. Given the importance of such evaluations in the workplace, their inherently subjective nature, and the need for candor in their execution, we agree that courts should exercise caution in this area. It is all the more critical, then, that litigants present cogent briefing before asking us to delve into such claims. As discussed above, the briefing in this appeal falls far short of that standard.
See e.g. Jensen v. Hewlett Packard Co., 14 Cal. App. 4th 958, 964, 18 Cal. Rptr. 2d 83 (1993) (noting "strong judicial disfavor for libel suits based on communications in employment performance reviews"); Campanelli v. Regents of the Univ. of Cal., 44 Cal. App. 4th 572, 581 (1996) (performance evaluations are subjective and "courts should be extremely cautious before allowing such comments to become the basis of a libel action."); Ott v. Automatic Connector, Inc., 193 A.D.2d 657, 658, 598 N.Y.S.2d 10, 11 (2d Dept. 1993) (holding that assessment of work performance was nonactionable opinion, court noted that "[a]n employer has the right to assess an employee's performance on the job without judicial interference").
We note that when read in the context of the entire performance evaluation, the alleged defamatory statements in this case are not nearly as damning as Murphy contends. As a whole, the evaluation is actually quite balanced in its assessments and objective in tone. One section describes Murphy's strengths, including his dedication, teamwork, and accurate reports, and his scores on many performance criteria are satisfactory. While one contributor to the evaluation describes Murphy's conduct as "insubordinate" and "unprofessional," those comments were clearly focused on one aspect of his performance and not a generalized indictment of him as an employee.
Murphy's remaining arguments regarding the court's exclusion of evidence are too conclusory to merit discussion.
Affirmed.
WE CONCUR.