Opinion
No. 22310-8-III.
Filed: June 3, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 02-2-05957-5. Judgment or order under review. Date filed: 07/25/2003. Judge signing: Hon. Kathleen M O'Connor.
Counsel for Appellant(s), Michelle Kay Wolkey, Michelle K Wolkey PS, 501 N Riverpoint Blvd Ste 111, Spokane, WA 99202.
Counsel for Respondent(s), Kimberly Kamel, Witherspoon Kelly, 1100 Us Bank Bldg, 422 W Riverside Ave, Spokane, WA 99201-0300.
Duane Michael Swinton, Attorney at Law, 1100 Us Bank Bldg, 422 W Riverside Ave, Spokane, WA 99201-0369.
Summary judgment is not appropriate in the face of disputed material facts. Here, an employer sought summary dismissal of an employee's claim of termination against public policy. The employer asserted that the employee was not fired at all. The employee offered evidence that he was fired. We therefore reverse the trial court's summary dismissal and remand for trial.
FACTS
We are reviewing a summary dismissal. We then accept the facts in the light most favorable to Donald D. Reichert. CR 56(c); Clark v. Baines, 150 Wn.2d 905, 910-11, 84 P.3d 245 (2004).
In May 1999, Mr. Reichert retired from his position as a journeyman pressman for Cowles Publishing Company after 37 years. Under his union's collective bargaining agreement with Cowles, Cowles was required to maintain a list of retired journeymen who wanted fill-in work for the company. Mr. Reichert registered for this substitute board. Cowles called him from the board as needed. And he accepted work for almost three years. A person's name is removed from the board only if the retiree requests it or is fired.
On April 26, 2001, Mr. Reichert was the only retiree on the substitute board. On that day he contacted Cowles' human resources department to request a worker's compensation claim form. His claim was based on a condition which developed in July 1997, when he was still a full-time employee. He was exposed to a chemical in the workplace that caused a rash and swelling. Mr. Reichert received emergency treatment when he was first exposed. He filed the claim in 2001 when he became aware that industrial insurance would cover the residual effects.
A human resources worker provided a claim form and helped him complete it. He was instructed to deliver the form to John Wilhelm, the pressroom supervisor. Mr. Wilhelm had to complete a portion of the form and sign the back. Mr. Reichert presented the form to Mr. Wilhelm. Mr. Wilhelm became extremely upset about the claim and told Mr. Reichert he was fired. Mr. Reichert went to the break room and told coworkers that he had been fired and said his goodbyes. He cleaned out his locker and left. Later that afternoon, Jim Hagins, a fellow pressman and union shop steward, called Mr. Reichert. Mr. Reichert told him that he did not want to "make waves" about his discharge until after he was sure Mr. Wilhelm signed his workman's compensation claim form. Mr. Reichert had no contact with the union until the spring of 2002 when he looked into filing a grievance. Mr. Reichert was not allowed to work the shift he was next scheduled for on Saturday, April 28, 2001.
Within several days of his termination, Mr. Reichert returned to Cowles to make sure that he cleaned out both of his lockers. But his security card no longer worked. On previous occasions when he had been absent on a worker's compensation injury, his security card continued to work.
A few months after Mr. Reichert filed his worker's compensation claim, Mr. Wilhelm was informed by other retirees that Mr. Reichert told them he was fired. Mr. Wilhelm says he did not fire Mr. Reichert.
Mr. Reichert received a permanent partial disability for his claim in October 2001. On February 28, 2002, Mr. Reichert filed a grievance with the union for termination, seeking reinstatement and back pay. He met with the union representative and was told that all he needed to do to return to work at Cowles was to provide a doctor's note. In May 2002, Cowles was notified that Mr. Reichert was medically cleared for work. Still he was not contacted for the return of his name to the substitute board. In July 2002, Mr. Reichert returned to work. But he is no longer allowed to work overtime shifts.
DISCUSSION
We review a summary dismissal de novo. Hubbard v. Spokane County, 146 Wn.2d 699, 706, 50 P.3d 602 (2002). The evidence and reasonable inferences are viewed in the light most favorable to the nonmoving party. Id. at 707. "`Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.'" Id. (quoting Ellis v. City of Seattle, 142 Wn.2d 450, 458, 13 P.3d 1065 (2000)). A material fact is one upon which the outcome of the litigation depends. Greater Harbor 2000 v. City of Seattle, 132 Wn.2d 267, 279, 937 P.2d 1082 (1997). Summary judgment should only be granted "`if, from all the evidence, reasonable persons could reach but one conclusion.'" Hubbard, 146 Wn.2d at 707 (quoting Ellis, 142 Wn.2d at 458).
Mr. Reichert has a viable cause of action if he was terminated because he filed a worker's compensation claim. RCW 51.48.025; Warnek v. ABB Combustion Eng'g Servs., Inc., 137 Wn.2d 450, 455-56, 972 P.2d 453 (1999). Cowles seized upon termination — the factual basis for the claim — as the subject of summary judgment. It essentially argues that there is more evidence that Mr. Reichert was not fired than there is evidence that he was fired. And Mr. Reichert's evidence should not be believed.
But "summary judgment is not proper when credibility issues involving more than collateral matters exist." Morinaga v. Vue, 85 Wn. App. 822, 828, 935 P.2d 637 (1997). In order to raise a credibility issue "the nonmoving party must present contradictory evidence or otherwise impeach the evidence of the moving party." Cowiche Basin P'ship v. Mayer, 40 Wn. App. 223, 228, 698 P.2d 567 (1985). Here, the assertions of Cowles' employees that claimed Mr. Reichert was not fired is contradicted by Mr. Reichert's sworn testimony that he was.
Cowles argues that we should not consider Mr. Reichert's self-serving affidavit as one creating genuine issues of fact. For this proposition it cites Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 753 P.2d 517 (1988). Grimwood is not on point. There, the defendant employer moved for summary judgment by providing affidavits which "set forth specific events, occurrences, things that were claimed to exist in reality." Id. at 360. Conversely, the plaintiff's affidavit in opposition to summary judgment contained "only his conclusions and opinions as to the significance of the facts set forth in defendant's affidavit, e.g., that was `petty,' this was a `pretext,' that was `an exaggeration,' or a fact set forth was `much ado about nothing.'" Id. Cowles views the fact that Mr. Reichert presents — that he was terminated — as an ultimate conclusion. It is not. Mr. Reichert's affidavit describes his version of the events.
Cowles claims that Mr. Reichert's personnel file and other internal records do not support that he was terminated. However, when material facts averred in the moving party's affidavits are particularly within the knowledge of the moving party, the case should proceed to trial so that the opponent may be allowed to disprove self-serving facts by cross-examination. Hulse v. Driver, 11 Wn. App. 509, 517, 524 P.2d 255 (1974); Mich. Nat'l Bank v. Olson, 44 Wn. App. 898, 905, 723 P.2d 438 (1986).
CONCLUSION
The trial court erred in granting summary judgment. Mr. Reichert's declarations raise material issues of fact. The order of dismissal is reversed and the case remanded for trial.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KATO, C.J., and KURTZ, J., Concur.