Carlson v. Lewis County Hospital District No. 1 et al

MOTION for Partial Summary Judgment

W.D. Wash.January 4, 2017

PLAINTIFF’S MOTION FOR ORDER OF PARTIAL SUMMARY JUDGMENT - PAGE 1 OF 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SCHEFTER & FRAWLEY 1415 College Street SE Lacey, WA 98503 (360) 419-6666 * (360) 456-3632 fax U.S. DISTRICT COURT WESTERN DISTRICT OF WASHINGTON ERIC CARLSON, a single man, ) NO. 3:15-CV-05913 ) Plaintiff, ) PLAINTIFF’S MOTION FOR vs. ) ORDER OF PARTIAL SUMMARY ) JUDGMENT LEWIS COUNTY HOSPITAL DISTRICT ) NO. 1, a Washington government entity; ) ROSS JONES, a married man; JUDY ) NOTE ON MOTION CALENDAR: RAMSEY, a married woman; KENTON ) January 27, 2017 SMITH, a married man; MARC FISHER, ) a married man; SHANNON KELLY, a ) married woman; and SHERI ) HENDRICKS, a married woman, ) ) Defendants. ) COMES NOW the Plaintiff, ERIC CARLSON, by and through his attorney of record, JOE D. FRAWLEY, of SCHEFTER & FRAWLEY, and moves this Court for entry of an Order of partial summary judgment and establishing the liability of Defendant Lewis County Hospital District No. 1 (hereinafter the “District”). I. FACTS A. Mr. Carlson Was Fired for Being a Gay Man. Plaintiff Eric Carlson began work as the Chief Financial Officer (hereinafter “CFO”) of Morton General Hospital (hereinafter “MGH”) on November 24, 2014. See Frawley Decl. in Supp. Case 3:15-cv-05913-RJB Document 38 Filed 01/04/17 Page 1 of 15 PLAINTIFF’S MOTION FOR ORDER OF PARTIAL SUMMARY JUDGMENT - PAGE 2 OF 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SCHEFTER & FRAWLEY 1415 College Street SE Lacey, WA 98503 (360) 419-6666 * (360) 456-3632 fax of Pl’s Mot. for Summ. J., Jan. 4, 2017, Ex. A, p. 4. At the time of Mr. Carlson’s hiring, it is undisputed that the hospital’s financial situation was a wreck. Dkt. No. 20, ¶ 2; See also Docket No. 10, at 3:7-9 (discovery response indicating that MGH does not dispute that the financial situation was perilous). For example, at the time of Mr. Carlson’s hiring, MGH’s accounting department was completely unable to create monthly financial statements and had just written off one million dollars in unbilled account receivables because they had not been timely billed. Dkt. No. 20, ¶ 2. Mr. Carlson was hired specifically to fix the accounting problems being experienced by MGH. Id. ¶ 3. It is similarly undisputed that Mr. Carlson’s job performance was exemplary. During his short tenure with MGH, Mr. Carlson saved eighteen jobs and two departments from outsourcing, saved potentially millions of dollars’ worth of additional costs, found hundreds of thousands of dollars in missed charges on existing business, found a major problem in the pricing of the pharmacy’s products and began to correct those problems, began to rewrite the budget for 2015 because no zero-based budget had been done in over ten years, began a review of the Charge Master because such a review had not been done in over eight years, and began correcting the long- standing problem of not credentialing providers. Id. ¶¶ 3-13. In just over a month, Mr. Carlson created millions of dollars in value for MGH through additional revenue and cost savings. Because his work was so exemplary, the leadership team at MGH gave Mr. Carlson a $10,000.00 retention bonus. Id. ¶ 9. Despite his performance, Mr. Carlson was fired in early January of 2015 due to his sexual orientation. Id. ¶14. Mr. Whitmer, the Chief Executive Officer of MGH and Mr. Carlson’s supervisor, was forced by the Board of Commissioners (hereinafter the “BOC”) to terminate Mr. Carlson because the BOC did not want a gay man working at “their” hospital. Id. at ¶ 15. The Case 3:15-cv-05913-RJB Document 38 Filed 01/04/17 Page 2 of 15 PLAINTIFF’S MOTION FOR ORDER OF PARTIAL SUMMARY JUDGMENT - PAGE 3 OF 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SCHEFTER & FRAWLEY 1415 College Street SE Lacey, WA 98503 (360) 419-6666 * (360) 456-3632 fax BOC learned that Mr. Carlson was a homosexual after their first meeting with Mr. Carlson when he made a presentation to the BOC concerning the hospital’s financing. Id. Following the presentation, Defendants Commissioner Ross Jones and Commissioner Judy Ramsey spoke candidly to Mr. Whitmer regarding Mr. Carlson and stated that they “did not like him.” Id. They clearly assumed Mr. Carlson was gay and expressed their distaste in having a gay man in a leadership role at MGH. Id. The other Commissioners similarly, and very openly, did not like having a homosexual as the CFO of MGH. Id. For example, Defendant Kenton Smith explained that he and Defendant Commissioner Marc Fisher had hired a private investigator to find information on Mr. Carlson because they were disturbed by his homosexuality. Id. ¶ 16. Defendant Smith even accused Mr. Carlson of being a pedophile, participating in the sex slave trade, and fraud. Id. Mr. Smith told Mr. Whitmer that the BOC was ready to fire Mr. Carlson. Id. Mr. Smith also indicated that the BOC was going to fire Mr. Whitmer for having hired a homosexual. Id. Having already decided they were going to terminate Mr. Carlson, and since the BOC knew Mr. Carlson’s status as gay man did not justify his termination, the BOC hired private investigators to find an excuse to fire Mr. Carlson. Id. ¶ 17. Eventually, the BOC found an old court case involving Mr. Carlson’s prior business. Id. That court case contained an allegation of fraud but, in the end, the judge found that no fraud had actually been committed. Id. Under threat from the BOC, Mr. Whitmer contacted the hospital’s attorney, Julie Kebler, to find out if terminating Mr. Carlson for something he had not done (fraud) was legitimate. Id. ¶ 18. After an extensive review, MGH’s attorneys came up with a recommendation on how to proceed. Id. The attorneys recommended that MGH rely on the judge mentioning the fraud allegation. Id. The attorneys were anxious because it was well known that the BOC did not like Mr. Carlson being Case 3:15-cv-05913-RJB Document 38 Filed 01/04/17 Page 3 of 15 PLAINTIFF’S MOTION FOR ORDER OF PARTIAL SUMMARY JUDGMENT - PAGE 4 OF 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SCHEFTER & FRAWLEY 1415 College Street SE Lacey, WA 98503 (360) 419-6666 * (360) 456-3632 fax a homosexual. Id. Ultimately, Mr. Whitmer was given regimented instructions on how to proceed with Mr. Carlson’s dismissal. Id. Under threat of being terminated and out of fear for his family, Mr. Whitmer placed Mr. Carlson on administrative leave. Id. ¶ 19. Based on the advice of MGH’s counsel, Mr. Carlson was told that MGH would conduct an investigation. Id. This was pretextual only. Id. MGH was advised by its attorneys to “make it appear as if we had a legitimate reason to terminate Mr. Carlson.” Id. Mr. Carlson returned to a meeting at MGH on January 5, 2015. Id. ¶ 20. He had been instructed to bring any information he had about the allegation of fraud to MGH’s attention. Id. However, MGH had no intention of changing its mind “no matter what Mr. Carlson said at the January meeting.” Id. There was “absolutely no intention of anyone within the hospital’s administration to do any kind of investigation and none was ever conducted.” Id. Mr. Whitmer was forced to fire Mr. Carlson solely for being gay. Id. ¶ 21. When Mr. Whitmer objected, pointing out that not only was Mr. Carlson doing a spectacular job but also had not been found to have committed fraud (Mr. Carlson prevailed at trial), he was threatened by the BOC. Id. Mr. Whitmer was specifically told that if he did not fire Mr. Carlson, the BOC would fire both Mr. Carlson and Mr. Whitmer. Id. The fact that Mr. Carlson was placed on administrative leave was done on the advice of MGH’s attorneys to make it look like an investigation was done. Id. ¶ 22. No investigation was ever done. Id. Mr. Carlson was fired solely for being a gay man. Id. B. Mr. Whitmer is the Only Person That Has Knowledge of Why Mr. Carlson Was Fired. Defendants’ Answers to Plaintiff’s First Interrogatories and Requests for Production provides the following version of events: Case 3:15-cv-05913-RJB Document 38 Filed 01/04/17 Page 4 of 15 PLAINTIFF’S MOTION FOR ORDER OF PARTIAL SUMMARY JUDGMENT - PAGE 5 OF 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SCHEFTER & FRAWLEY 1415 College Street SE Lacey, WA 98503 (360) 419-6666 * (360) 456-3632 fax In Executive Session on or around December 17, 2014, the Commissioners and Mr. Whitmer discussed the concerns community members had raised. Following this meeting, Mr. Whitmer reviewed the judicial decision and determined that the court's findings warranted termination of Mr. Carlson from the position of Chief Financial Officer. On December 31, 2014, Mr. Whitmer, Shannon Kelly, and Shana Garcia met with Mr. Carlson. Mr. Whitmer informed Mr. Carlson of his concerns and provided him the opportunity to tell his side of the story. MGH put Mr. Carlson on administrative leave that day. Following the December 31, 2014 meeting, Mr. Whitener made the decision to terminate Mr. Carlson. He informed Mr. Carlson of that decision on January 5, 2016. At the next regular Board meeting on January 6, 2016, Mr. Whitener informed the Board of Commissioners that he had terminated Mr. Carlson. See Frawley Decl. in Supp. of Pl’s Mot. for Summ. J, Ex. A, p. 6. In that same discovery response, Defendants identify Leianne Everett, Ross Jones, Judy Ramsey, Kenton Smith, Marc Fisher, Shannon Kelly, and Sheri Hendricks as assisting in the answering of the discovery requests. Id. p. 3. Incredibly, none of these individuals have personal knowledge regarding why Mr. Carlson was fired 1 or nearly any of the information found in Defendants’ discovery responses. Leianne Everett is the current CEO of the District and was hired in February of 2016, roughly a year after Mr. Carlson was fired. Frawley Decl. in Supp. of Pl’s Mot. for Summ. J, Ex. B, at pp. 7-8. She was not present during Mr. Carlson’s employment, having replaced Mr. Whitmer after Mr. Whitmer was terminated based on his religious beliefs, and does not have any personal knowledge regarding Mr. Carlson’s termination. All of the commissioners testified that they have no personal knowledge of why Mr. Carlson was fired and that it is the role of the CEO, in this case Mr. Whitmer, to hire and fire the 1 This fact is acknowledged on page two of Defendants’ Motion for Reconsideration and/or Clarification. Case 3:15-cv-05913-RJB Document 38 Filed 01/04/17 Page 5 of 15 PLAINTIFF’S MOTION FOR ORDER OF PARTIAL SUMMARY JUDGMENT - PAGE 6 OF 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SCHEFTER & FRAWLEY 1415 College Street SE Lacey, WA 98503 (360) 419-6666 * (360) 456-3632 fax CFO. Mr. Fisher testified that he does not know if Mr. Whitmer ever read the bankruptcy decision at issue. Frawley Decl. in Supp. of Pl’s Mot. for Summ. J, Ex. C, p. 30. He further testified that Mr. Whitmer announced his termination of Mr. Carlson at a board meeting, Mr. Whitmer had not indicated why he fired Mr. Carlson and there had been no discussion beyond an announcement that Mr. Carlson had been fired. Id. pp. 30-32. Kenton Smith testified that he did not find out about Mr. Carlson’s termination until after Mr. Carlson was fired and “knew nothing about it before that.” Frawley Decl. in Supp. of Pl’s Mot. for Summ. J, Ex. D, p.15. Mr. Smith confirmed that he only spoke with Mr. Whitmerr regarding the fraud allegation once. That conversation only involved how Mr. Smith came to learn of the fraud allegation and that Mr. Smith told Mr. Whitmer that “he should take a look at” the fraud allegation. Id. p. 20. Commissioner Judy Ramsey testified that the commissioners told Mr. Whitmer about the fraud allegation at a board meeting and that she “assumes” Mr. Carlson was fired because the commissioners told Mr. Whitmer about the fraud allegation. Frawley Decl. in Supp. of Pl’s Mot. for Summ. J, Ex. E, pp. 27-28. When pressed, Ms. Ramsey confirmed that, beyond her assumption, she did not know “specifically” why Mr. Carlson was fired. Id. pp. 27-28. Commissioner Sheri Hendricks testified in her deposition that she was not involved in Mr. Carlson’s firing, in any way, other than receiving a telephone call from Mr. Whitmer that he was setting in motion “steps to terminate Eric.” Frawley Decl. in Supp. of Pl’s Mot. for Summ. J, Ex. F, p. 32. Commissioner Ross Jones testified that he could not recall nearly anything about Mr. Carlson’s firing other than the board “expressed concern” to Mr. Whitmer regarding the fraud allegation. Specifically, Mr. Jones cannot recall what action the board of commissioners took, what was said to Mr. Whitmer, what Mr. Whitmer said in response, what Mr. Whitmer did after the board of commissioners Case 3:15-cv-05913-RJB Document 38 Filed 01/04/17 Page 6 of 15 PLAINTIFF’S MOTION FOR ORDER OF PARTIAL SUMMARY JUDGMENT - PAGE 7 OF 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SCHEFTER & FRAWLEY 1415 College Street SE Lacey, WA 98503 (360) 419-6666 * (360) 456-3632 fax expressed concern to him, and, ultimately, that he did not know if Mr. Carlson was fired based on the fraud allegation. Frawley Decl. in Supp. of Pl’s Mot. for Summ. J, Ex. G, pp. 27-30. The testimony of the HR Director, Shannon Kelly, and Mr. Whitmer’s executive assistant, Shana Garcia, was the same: neither knew what Mr. Whitmer did specifically and why, exactly, Mr. Carlson was fired. Ms. Garcia testified that her only knowledge regarding Mr. Carlson’s firing was learned of at a December 31, 2015 meeting attended by Mr. Whitmer, Mr. Carlson, Ms. Garcia and Ms. Kelly. Frawley Decl. in Supp. of Pl’s Mot. for Summ. J, Ex. H, pp. 13-14. Specifically, Ms. Garcia testified that she knew nothing about Mr. Carlson’s firings except what she heard at that meeting, she knew nothing about the fraud allegation, and “didn’t even know how to spell the names.” Id. Ms. Garcia confirmed that she is unaware if anyone did any investigation, or did anything at all, related to Mr. Carlson’s termination between the December 31, 2014 meeting, when Mr. Carlson was placed on leave, until Mr. Carlson’s termination on January 5, 2015. Id. p. 20. Ms. Kelly testified that she never read the bankruptcy opinion containing the allegation that Mr. Carlson had committed fraud. Frawley Decl. in Supp. of Pl’s Mot. for Summ. J., Ex. B, p. 36. Ms. Kelly further testified, after relaying information from Jared Van Kirk, one of the attorneys for the Defendants, that there was “some wording or some statements by a judge about whether or not Eric had committed fraud.” Id. Ms. Kelly admitted that she never discussed the decision to terminate Mr. Carlson with Mr. Whitmer and that the decision was “100 percent Mr. Whitmer’s decision.” Id. p. 48. All of these individuals denied having knowledge of nearly everything found in Defendants’ discovery response. Mr. Smith testified that his input was limited to page 10 and possible knowledge regarding Mr. Carlson’s hiring: “[a]ll I can say is I have knowledge that he Case 3:15-cv-05913-RJB Document 38 Filed 01/04/17 Page 7 of 15 PLAINTIFF’S MOTION FOR ORDER OF PARTIAL SUMMARY JUDGMENT - PAGE 8 OF 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SCHEFTER & FRAWLEY 1415 College Street SE Lacey, WA 98503 (360) 419-6666 * (360) 456-3632 fax [Mr. Carlson] was hired by Morton General.” Frawley Decl. in Supp. of Pl’s Mot. for Summ. J, Ex. D, p.44. Mr. Fisher disagrees with some portions of the discovery responses, but confirmed that he did not “provide information relevant to any” of the discovery responses. Id. pp. 59-62. Ms. Hendricks confirmed that she only provided information of an email from Glenn Allen that was responsive to Interrogatory Number 6. Frawley Decl. in Supp. of Pl’s Mot. for Summ. J, Ex. F, pp. 22-25, 30. Ms. Ramsey testified that she had never seen the discovery responses and only provided information relevant to Interrogatory No. 6. Frawley Decl. in Supp. of Pl’s Mot. for Summ. J, Ex. E, pp. 16-20. Ms. Ramsey also testified that she had no knowledge regarding Mr. Carlson’s firing other than the board telling Mr. Whitmer they had concerns. Id. p. 28. Clearly, Ms. Ramsey did not provide the information found in Defendants’ discovery response. Commissioner Ross Jones testified that he may have provided and may have knowledge of the following portions of Defendants’ discovery response: 1) he may have provided the email address of Glenn Allen (but is not sure if he did); 2) he “imagines” he provided his name and address; 3) he was aware that Kenton Smith conducted an investigation of Mr. Carlson 2 ; and 4) he remembers a discussion occurring related to outsourcing jobs at the hospital. Frawley Decl. in Supp. of Pl’s Mot. for Summ. J, Ex. G, pp. 5-9. Again, the testimony of Ms. Garcia and Ms. Kelly were consistent on this point. Ms. Kelly testified that she had never seen the Defendants’ discovery responses but provided information relevant to Mr. Carlson’s employment found in Interrogatory No. 3, the information about Mr. Carlson’s benefits, and testified specifically that she did not know the details concerning Mr. Whitmer’s termination of Mr. Carlson. Frawley Decl. in Supp. of Pl’s Mot. for Summ. J, Ex. B, 2 This directly contradicts the testimony of the other witnesses and Defendants’ Answer to Plaintiff’s First Interrogatories and Requests for Production. See, Frawley Decl. in Supp. of Pl’s Mot. for Summ. J, Ex. B, at 18:6-8. Case 3:15-cv-05913-RJB Document 38 Filed 01/04/17 Page 8 of 15 PLAINTIFF’S MOTION FOR ORDER OF PARTIAL SUMMARY JUDGMENT - PAGE 9 OF 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SCHEFTER & FRAWLEY 1415 College Street SE Lacey, WA 98503 (360) 419-6666 * (360) 456-3632 fax pp. 37-46. Ms. Garcia testified unequivocally that she did not help answer the discovery requests. Frawley Decl. in Supp. of Pl’s Mot. for Summ. H, Ex. H, pp. 16-17. It is clear that none of the individuals identified by the Defendants in their discovery response have personal knowledge regarding Mr. Carlson’s firing. None of the individuals identified as answering the discovery responses helped answer the vast majority of the discovery response, including the most important section: why Mr. Carlson was fired and Mr. Whitmer did during the process of firing Mr. Carlson. The testimony of Defendants’ witnesses certainly begs the question: if nobody has any knowledge regarding why Mr. Carlson was fired or what actions Mr. Whitmer took, who did answer Plaintiff’s First Interrogatories and Requests for Production? The clear conclusion is that the discovery response was drafted solely by defense counsel. II. ARGUMENT A. Summary Judgment Standard A party is entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” FRCP 56(c). The burden of establishing there is no genuine issue of material fact lies with the moving party. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L.Ed.2d 265, 106 S.Ct. 2548 (1986). Once the moving party has met its burden, either by presenting evidence which, if uncontradicted, would entitle it to a directed verdict at trial or by demonstrating the lack of evidence for the non-moving party's case, FRCP 56(e) shifts to the non-moving party the burden of presenting specific facts showing a genuine issue for trial. See British Airways Board v. Boeing Co., 585 F.2d 946, 950-52 (9th Cir.1978). Case 3:15-cv-05913-RJB Document 38 Filed 01/04/17 Page 9 of 15 PLAINTIFF’S MOTION FOR ORDER OF PARTIAL SUMMARY JUDGMENT - PAGE 10 OF 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SCHEFTER & FRAWLEY 1415 College Street SE Lacey, WA 98503 (360) 419-6666 * (360) 456-3632 fax A party opposing summary judgment may not rest upon the mere allegations or denials in his pleadings. FRCP 56(e). Responses must set forth specific facts showing that there is a genuine issue of fact. FRCP 56(e). “The mere existence of a scintilla of evidence in support of the non- moving party's position is not sufficient.” Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir.1995). There must be enough of a showing that the jury could reasonably find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L.Ed.2d 202, 106 S.Ct. 2505 (1986). The question to be resolved is whether reasonable minds could differ as to the import of the evidence. Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288 (9th Cir.1987). If the evidence submitted in opposition to summary judgment is merely colorable, or is not significantly probative, summary judgment may be granted. Id. at 1288. B. Defendant Lewis County Hospital District No. 1 Violated the Washington Law Against Discrimination. Pursuant to the Washington Law Against Discrimination (“WLAD”), it is an Unfair Practice: To discharge or bar any person from employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability. See RCW 49.60.180(2) (emphasis added). RCW 49.60.180(3) provides, in relevant part, that it is an “unfair practice” for an employer “[t]o discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, sexual orientation, race, creed, color [or] national origin ... .” In determining whether an employer has discriminated against an employee in violation of the WLAD, Washington courts apply the federal McDonnell Douglas burden-shifting scheme that the Washington Supreme Court first adopted in Hill v. BCTI Income Fund-I for state-law Case 3:15-cv-05913-RJB Document 38 Filed 01/04/17 Page 10 of 15 PLAINTIFF’S MOTION FOR ORDER OF PARTIAL SUMMARY JUDGMENT - PAGE 11 OF 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SCHEFTER & FRAWLEY 1415 College Street SE Lacey, WA 98503 (360) 419-6666 * (360) 456-3632 fax discrimination claims. See Short v. Battle Ground School Dist., 279 P.3d 902, 169 Wn.App. 188 (Wash.App. Div. 2 2012) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (over-ruled on other grounds). Under this burden-shifting scheme, the employee must first establish a prima facie case of discrimination. See Short, 279 P.3d 902 (citing Renz v. Spokane Eye Clinic, P.S., 114 Wash.App. 611, 618, 60 P.3d 106 (2002). “If … the employee succeeds in establishing a prima facie case, a ‘legally mandatory, rebuttable presumption’ of discrimination temporarily takes hold, and the burden shifts to the employer to produce admissible evidence of a legitimate, non-discriminatory reason for its adverse employment action.” Id. Here, Mr. Whitmer, the CEO of the District, is undisputedly the only person in a position to fire Mr. Carlson. See Frawley Decl. in Supp. of Pl’s Mot. for Summ. J, Ex. B, p. 48; See also Frawley Decl. in Supp. of Pl’s Mot. for Summ. J, Ex. A, p. 6; See also RCW 70.44.080. All of the Defendants and individuals answering Plaintiff’s discovery requests testified they do not know the reason Mr. Carlson was fired. Accordingly, there is no factual dispute: the only individual with personal knowledge has testified, under oath, that Mr. Carlson was fired by the District because he was gay. C. Mr. Carlson’s Procedural Due Process Rights Were Violated. Mr. Carlson was entitled to adequate procedural due process in the form of notice and opportunity to be heard prior to being suspended or terminated. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545 (1985). “Generally, the amount of process due in a particular situation depends upon a balancing of the competing interests at stake.” See French v. Lincoln Hosp. Dist. No. 3, 10-CV-0259-TOR (United States District Court, E.D. Washington, 2012) (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). “Specifically, a court must balance, ‘first, the Case 3:15-cv-05913-RJB Document 38 Filed 01/04/17 Page 11 of 15 PLAINTIFF’S MOTION FOR ORDER OF PARTIAL SUMMARY JUDGMENT - PAGE 12 OF 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SCHEFTER & FRAWLEY 1415 College Street SE Lacey, WA 98503 (360) 419-6666 * (360) 456-3632 fax private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest.’” Id. “A pre-termination hearing must, [at a very minimum], afford an employee a meaningful opportunity to be heard.” See Loudermill, 470 U.S. at 546 (“The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story.”). “A hearing at which an employer merely announces a predetermined termination does not afford an employee a meaningful opportunity to be heard under Loudermill.” See Matthews v. Harney Cnty. Sch. Dist. No. 4, 819 F.2d 889, 893 (9th Cir. 1987) (holding that teacher’s opportunity to address the school board shortly after board voted in favor of termination deprived teacher of meaningful opportunity to be heard). Mr. Carlson was not given a meaningful opportunity to be heard. Mr. Whitmer testified that the District had already decided to fire Mr. Carlson well before he was given notice of any problem. Again, it is extremely important to note that the Defendants have not identified anyone with personal knowledge to the contrary. Ultimately, Mr. Carlson was told of a pretextual reason for termination to justify the District’s discriminatory termination. Dkt. No. 20. ¶19. In addition to never being told the true reason for his firing, the process afforded to Mr. Carlson was simply a hearing in which the District, through Mr. Whitmer, announced its predetermined termination of Mr. Carlson. Indeed, Mr. Whitmer testifies that Mr. Whitmer was put on leave to “make it appear as if we had a legitimate reason to terminate Mr. Carlson,” the process of putting Mr. Carlson on leave “was pretextual only,” and that “[w]e had no intention of changing our mind no matter what Mr. Carlson said at the January meeting.” Id. ¶¶ 18-20. D. Mr. Carlson’s Substantive Due Process Rights Were Violated. Case 3:15-cv-05913-RJB Document 38 Filed 01/04/17 Page 12 of 15 PLAINTIFF’S MOTION FOR ORDER OF PARTIAL SUMMARY JUDGMENT - PAGE 13 OF 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SCHEFTER & FRAWLEY 1415 College Street SE Lacey, WA 98503 (360) 419-6666 * (360) 456-3632 fax It is a violation of the federal Equal Protection Clause of the Fourteenth Amendment, and therefore actionable under 42 USC § 1983, to treat an employee differently than other employees based solely upon the employee’s sexual orientation. Miguel v. Guess, 51 P.3d 89, 97, 112 Wn.App. 536 (Wash.App. Div. 3 2002). To establish a cause of action under 42 U.S.C. § 1983, Mr. Carlson must show: (1) the defendant violated a federal constitutional or statutory right, and (2) the defendant acted under color of state law. Id. “There are three recognized circumstances in which a governmental entity, like the Hospital, may be sued under § 1983.” Id. (internal citation omitted). First, a plaintiff could show that the challenged conduct was the result of the entity’s official policy or the result of a custom so pervasive that it constituted policy. Id. (internal citation omitted). Second, a plaintiff could establish that the challenged conduct was the result of “a deliberate choice ... made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” Id. (internal citation omitted) (quotation in original). Finally, a plaintiff could demonstrate that, as to the challenged conduct, the Hospital's policymakers either delegated policymaking authority to a subordinate or ratified a subordinate's decision. Id. (internal citation omitted). As an initial matter, there is no dispute that Mr. Carlson was fired because he was gay. Mr. Whitmer unequivocally testifies that Mr. Carlson was fired because he was gay. Again, Defendants have not identified any individual with knowledge of why Mr. Carlson was fired and therefore cannot present testimony to the contrary. Clearly, the District violated Mr. Carlson’s constitutional right to equal protection. The District acted under color of state law for a number of reasons. First, all commissioners, who govern, oversee, and set policy for the District pursuant to Chapter 70.44 RCW, voiced their displeasure at having Mr. Carlson, a gay man, acting as the chief financial Case 3:15-cv-05913-RJB Document 38 Filed 01/04/17 Page 13 of 15 PLAINTIFF’S MOTION FOR ORDER OF PARTIAL SUMMARY JUDGMENT - PAGE 14 OF 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SCHEFTER & FRAWLEY 1415 College Street SE Lacey, WA 98503 (360) 419-6666 * (360) 456-3632 fax officer of Morton General Hospital. Dkt. No. 20. ¶¶ 14-15. They encouraged his firing and then voiced their approval of his firing after the fact. Id. The different treatment afforded to gay individuals, in this case termination, is therefore a custom so pervasive that it constitutes policy. Second, the firing of Mr. Carlson was a deliberate choice made from two clear alternatives, to fire or not to fire, and the choice was made by the official responsible for hiring and firing the chief financial officer. Id. ¶ 21. Third, the hospital’s policy makers, the board of commissioners, ratified the firing of Mr. Carlson, based on his sexual orientation, at the board meeting on January 6, 2015. Id. ¶ 16. III. CONCLUSION Mr. Whitmer was the chief executive officer of Morton General Hospital. It is undisputed that he was in charge of firing Mr. Carlson and that it was “100 percent” his decision. It is also clear that none of the individuals identified by Defendants have any personal knowledge, that they will admit to, of why Mr. Carlson was fired. Now, Mr. Whitmer is allowed to testify candidly regarding the advice he was given by the Defendant’s attorneys. Based on Defendants’ discovery responses, it appears that the alleged facts found in Defendants’ discovery responses were drafted solely by counsel for Defendants. Each and every person identified by Defendants as answering the discovery responses, with the exception of Ms. Everett who was not hired until a year after Mr. Carlson was terminated, has testified they lack personal knowledge of nearly any alleged fact found in Defendants’ discovery responses. All confirm that they have no personal knowledge and confirm they had virtually no role in responding to Plaintiff’s discovery requests. If Defendants’ counsel did not come up with the version of events and Defendants did, in fact, provide the information, the only other alternative is that the Defendants lied under oath during their depositions. Someone came up with the discovery Case 3:15-cv-05913-RJB Document 38 Filed 01/04/17 Page 14 of 15 PLAINTIFF’S MOTION FOR ORDER OF PARTIAL SUMMARY JUDGMENT - PAGE 15 OF 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SCHEFTER & FRAWLEY 1415 College Street SE Lacey, WA 98503 (360) 419-6666 * (360) 456-3632 fax responses. At this point, nobody will admit to it. Ultimately, however, it does not matter. Plaintiff and Defendants agree that Mr. Whitmer, as the chief executive officer and was responsible for hiring and firing the other corporate officers. See, e.g., Frawley Decl. in Supp. of Pl’s Mot. for Summ. J., Ex. B. pp 5-6; see also, Frawley Decl. in Supp. of Pl’s Mot. for Summ. J., Ex A, p 6. Because Mr. Whitmer was the superintendent of the District with the duty to hire and fire the chief financial officer, in this case Mr. Carlson, his actions were done on behalf of, and bind, the District. See RCW 70.44.080. Mr. Whitmer testified that he fired Mr. Carlson, albeit under duress from the commissioners, because Mr. Carlson is a homosexual. Defendants have all testified that nobody has knowledge to the contrary. The Court must enter summary judgment against the District. DATED this 4th day of January, 2017. SCHEFTER & FRAWLEY Attorneys for Plaintiff /s/ Joe D. Frawley______________ JOE D. FRAWLEY, WSBA #41814 Case 3:15-cv-05913-RJB Document 38 Filed 01/04/17 Page 15 of 15 [PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT - PAGE 1 OF 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SCHEFTER & FRAWLEY 1415 College Street SE Lacey, WA 98503 (360) 419-6666 * (360) 456-3632 fax U.S. DISTRICT COURT WESTERN DISTRICT OF WASHINGTON ERIC CARLSON, a single man, ) NO. 3:15-CV-05913 ) Plaintiff, ) [PROPOSED] vs. ) ) ORDER GRANTING PLAINTIFF’S LEWIS COUNTY HOSPITAL DISTRICT ) MOTION FOR PARTIAL SUMMARY NO. 1, a Washington government entity; ) JUDGMENT ROSS JONES, a married man; JUDY ) RAMSEY, a married woman; KENTON ) SMITH, a married man; MARC FISHER, ) a married man; SHANNON KELLY, a ) married woman; and SHERI ) HENDRICKS, a married woman, ) ) Defendants. ) THIS MATTER came before the Court on Plaintiff’s Motion for Partial Summary Judgment (the “Motion”). The Court reviewed the pleadings on file herein regarding Plaintiff’s Motion, including the following: 1. Plaintiff’s Motion for Order of Partial Summary Judgment; 2. Declaration of Joe D. Frawley in Support of the Motion, including exhibits attached thereto; 3. This [Proposed] Order granting the Motion; and Case 3:15-cv-05913-RJB Document 38-1 Filed 01/04/17 Page 1 of 2 [PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT - PAGE 2 OF 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SCHEFTER & FRAWLEY 1415 College Street SE Lacey, WA 98503 (360) 419-6666 * (360) 456-3632 fax 4. ______________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ ______________________________________________________________________________ Based on the foregoing, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED That Plaintiff’s Motion for Partial Summary Judgment is GRANTED. _________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ ______________________________________________________________________________ DONE IN OPEN COURT this ___ day of _______________, 2017. _________________________________ HONORABLE ROBERT J. BRYAN United States District Court Judge Presented by: SCHEFTER & FRAWLEY ________________________________ JOE D. FRAWLEY, WSBA No. 41814 1415 College Street SE Lacey, WA 98503 Attorney for Plaintiff Case 3:15-cv-05913-RJB Document 38-1 Filed 01/04/17 Page 2 of 2