Thoma v. Spokane City of et al, No. 2:2012cv00156 - Document 160 (E.D. Wash. 2014)
Court Description: ORDER GRANTING IN PART (AS TO BREACH OF CONTRACT AND PROMISSORY ESTOPPEL) AND RESERVING RULING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; dfts' 71 Motion for Summary Judgment is granted in part (pltf's 2nd, 5th, 6th, 7th, 10th and 11th Claims) and Taken Under Advisement in Part (remainder). Signed by Senior Judge Edward F. Shea. (LE, Case Administrator)
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Thoma v. Spokane City of et al Doc. 160 1 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 4 No. BRADLEY N. THOMA, CV-12-0156-EFS 5 Plaintiff, 6 ORDER GRANTING IN PART (AS TO BREACH OF CONTRACT AND PROMISSORY ESTOPPEL) AND RESERVING RULING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT v. 7 8 9 CITY OF SPOKANE, a municipal corporation in and for the State of Washington; and ANNE E. KIRKPATRICK, a single person, 10 Defendants. 11 I. INTRODUCTION 12 On February 20, 2014, the Court heard from counsel as to 13 Defendants’ Motion for Summary Judgment, ECF No. 71. After reviewing 14 the pleadings and hearing argument, the Court took the matter under 15 advisement and directed the parties to file supplemental briefing on 16 the contract issue. Having reviewed supplemental briefing the Court 17 is fully informed and for the following reasons grants Defendants’ 18 Motion for Summary Judgment as to breach of contract and promissory 19 estoppel. The Court’s ruling on other pending motions will follow. 20 II. BACKGROUND 21 A. Factual History1 22 Plaintiff Bradley Thoma, began working for the City of Spokane 23 Police Department (“SPD”) on October 1, 1989. 24 1 25 26 In ruling on the motion for summary judgment, the Court has considered the facts and all reasonable inferences therefrom as contained in the submitted affidavits, declarations, exhibits, and depositions, in the light most favorable to the party opposing the motion. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999). ORDER - 1 Dockets.Justia.com On the evening of September 23, 2009, Plaintiff was involved in 1 2 an off-duty vehicle accident. He was arrested and charged with 3 driving under the influence and failure to remain at the scene of the 4 accident. 5 placed Plaintiff on administrative leave and initiated an internal 6 investigation. On September 24, 2009, Defendant City of Spokane (“City”) 7 During the prosecution on the criminal charges, Plaintiff sought 8 a deferred prosecution in which he was evaluated, and on October 9, 9 2009, diagnosed by Colonia Clinic with moderate alcohol dependence. 10 ECF Nos. 79-10 & 91-1. 11 District Court entered an Order deferring prosecution. 12 that deferred prosecution agreement, Plaintiff was required to obtain 13 an Ignition Interlock Driver’s License (“IIL”), which limited him to 14 driving 15 (“IID”). 16 prosecution, 17 employers 18 “declaration”) of the IID requirement on employer-owned vehicles used 19 during working hours. only vehicles At the equipped time Washington to issue On November 13, 2009, the Spokane County a of with the State an November law ignition 13, allowed, “waiver” (referred As part of interlock 2009 Order but did to by device deferring not require, statue as a During the City’s internal investigation, on November 9, 2009, 20 21 Plaintiff’s Spokane 22 that 23 problem.” 24 had informed [his] employer of [his] alcoholism.” 25 47:17-19. 26 DUI, there was no record in Plaintiff’s personnel, civil service, or Plaintiff ORDER - 2 “was Police Guild evaluated ECF No. 79-8, at 19. representative and determined advised to have Defendants an alcohol This was the “first time [Plaintiff] ECF No. 79-5, at The parties agree that “[p]rior to Plaintiff’s arrest for 1 medical files of any report that Plaintiff had any issue with alcohol 2 abuse.” ECF No. 72 at 4 & 19; ECF No. 113. 3 On December 9, 2009, Defendant Police Chief Anne Kirkpatrick 4 provided Plaintiff with a Notice of Intent to Terminate, pursuant to 5 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985). 6 explained 7 Plaintiff’s job which Defendant Kirkpatrick believed Plaintiff was 8 unable to perform because he was required to maintain an IID on any 9 vehicle he drove. that driving was a required essential The Notice function of Defendant Kirkpatrick further explained that it was 10 not reasonable to place an IID on a police vehicle and that she did 11 not believe it 12 December 11, 2009, Plaintiff filed a complaint with the Human Rights 13 Commission (“HRC”). was reasonable to waive the IID requirement. On 14 On December 14, 2009, Plaintiff’s physician Dr. Mark Hart faxed 15 a short, hand-written letter to Defendants in which he stated that he 16 had diagnosed Plaintiff with alcoholism and suggested accommodations. 17 Whatever Plaintiff’s alcohol consumption may have been up to that 18 time, he had always been able to perform his job duties as a police 19 officer. 20 Plaintiff reported that drinking caused him to drink with friends 21 instead of going to the gym, caused him to spend less time with his 22 daughter, but did not affect his ability to go to work. 23 Plaintiff was never intoxicated while at work for the SPD. During the December 17, 2009 Loudermill hearing Defendants 24 declined to equip Plaintiff’s vehicle with an IID or to sign a waiver 25 allowing 26 Instead ORDER - 3 Plaintiff Defendant to operate Kirkpatrick a police offered to vehicle put without an IID. Plaintiff in non- 1 commissioned layoff status for two years, the time he was required to 2 have an IIL, during which he would be placed at the top of the Civil 3 Service 4 qualified. 5 period, 6 commissioned Detective, rather than as a Sergeant, as discipline for 7 his 8 Defendants’ offer. 9 list for jobs with the City for which he may be As part of the offer, at the conclusion of the two-year he would conduct On other become leading December to 21, reemployed the criminal 2009, with the charges. Defendants City as a Plaintiff terminated fully- rejected Plaintiff’s 10 employment, and issued a Termination of Employment Letter on December 11 30, 2009, finding that the accommodations requested by Plaintiff had 12 been evaluated but rejected as unacceptable and unreasonable. 13 same day, a grievance was filed on behalf of Plaintiff by the Spokane 14 Police Guild (“Guild”). 15 That On October 18, 2010, the Guild filed an unfair labor practices 16 claim against the SPD. On January 5, 2011, the City and the Guild 17 drafted an agreement between the City and the Guild to resolve the 18 discipline grievance, 19 Plaintiff. The Guild did not sign the agreement. and read the agreement over the phone to ECF No. 79-17. 20 Around January 2011, the SPD became aware that the law changed 21 reducing driving restrictions for DUI deferred sentences from two 22 years to one year. 23 On July 7, 2011, the HRC and the City began considering a 24 settlement. 25 the terms of a settlement agreement in which Plaintiff would dismiss 26 his HRC complaint, Guild grievance, and lawsuit in consideration for ORDER - 4 In December 2011, the HRC, City, and Plaintiff discussed 1 reinstatement as Detective with payment of back wages at a Sergeant’s 2 pay rate. 3 Settlement Agreement between Plaintiff, City, and the HRC. 4 No. 1, at App. C. 5 which stated: See ECF The Settlement Agreement had an integration clause This agreement comprises the entire agreement of the parties with respect to the above-referenced complaints. No other agreement, statement, or promise made by any party with respect to this complaint, which is not included in this agreement, shall be binding or valid. 6 7 8 9 In February 2012, these terms were reduced to a written ECF No. 1, at App. C. Importantly, the agreement was “contingent on 10 approval by the Spokane City Council and will become effective upon 11 approval by the Washington State Human Rights Commission.” 12 Settlement Agreement was signed by Plaintiff, Mayor Condon, and an 13 assistant city attorney. Id. The On February 22, 2012, the HRC informed the parties that it would 14 15 not approve the Settlement Agreement. 16 Council voted unanimously to reject the Settlement Agreement. 17 same day, Plaintiff sent a letter to the City notifying Defendants 18 that Plaintiff had withdrawn his HRC Complaint and offered a new 19 settlement 20 agreement but not including the HRC as a party. 21 the City signed or accepted the newly proposed settlement agreement. 22 Plaintiff filed the instant action the next day. 23 B. agreement containing the On February 27, 2012, the City same terms as the The previous No representative of Procedural History 24 On February 28, 2012, Plaintiff filed suit in Spokane County 25 Superior Court alleging a eleven different claims, including violation 26 of due process under 42 U.S.C. § 1983 and violations of the Americans ORDER - 5 1 with Disabilities Act, 42 U.S.C. § 12101 et seq., and the Washington 2 Law Against Discrimination (WLAD), RCW Chapter 49.60. 3 March 15, 2012, Defendants removed the lawsuit to this Court pursuant 4 to 28 U.S.C. §§ 1331 and 1441(b)-(c). 5 conference was held on June 19, 2012, ECF No. 12, and a jury trial was 6 set for April 14, 2014, ECF No. 14. On 7 February 4, 2013, Id. Plaintiff ECF No. 1. On A telephonic scheduling moved for partial summary 8 judgment, asking the Court to find, as a matter of law, that Plaintiff 9 was “disabled” within the meaning of both the Americans with 10 Disabilities Act (ADA) and Washington’s Law Against Discrimination 11 (WLAD). 12 seal eleven of the exhibits. 13 granted in part and denied in part Plaintiff’s Motion to Seal, and 14 denied Plaintiff’s Motion for Partial Summary Judgment. 15 On ECF No. 17. September Plaintiff contemporaneously filed a motion to 27, ECF No. 21. 2013, Defendants On April 3, 2013, the Court moved to ECF No. 32. exclude expert 16 witnesses Mark Mays and Scott Stephens, ECF Nos. 37 & 39. 17 3, 2013, Defendants’ moved for a protective order for the continuation 18 deposition of Anne Kirkpatrick. 19 Plaintiff’s moved to compel production of communications and documents 20 pertaining 21 Loudermill hearing. 22 the Court permitted the parties to supplement their expert reports. 23 On November 19, 2013, Defendants filed supplemental replies addressing 24 the new expert reports. 25 Defendants filed for summary judgment. 26 ORDER - 6 to Plaintiff’s Subsequently, on October 15, 2013, employment ECF No. 49. On October history, termination, and After the November 7, 2013 hearing, ECF Nos. 64 & 66. On November 25, 2013, ECF No. 71. On November 27, 1 2013, Plaintiff moved to exclude Defendant’s expert Michael Brasfield. 2 ECF No. 84. III. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 3 4 A. Legal Standard 5 Summary judgment is appropriate if the “movant shows that there 6 is no genuine dispute as to any material fact and the movant is 7 entitled to judgment as a matter of law.” 8 Once a party has moved for summary judgment, the opposing party must 9 point to specific facts establishing that there is a genuine dispute Fed. R. Civ. P. 56(a). 10 for trial. 11 the nonmoving party fails to make such a showing for any of the 12 elements essential to its case for which it bears the burden of proof, 13 the trial court should grant the summary judgment motion. 14 “When the moving party has carried its burden under Rule [56(a)], its 15 opponent must do more than simply show that there is some metaphysical 16 doubt as to the material facts. 17 forward with ‘specific facts showing that there is a genuine issue for 18 trial.’” 19 574, 586-87 (1986) (internal citation omitted) (emphasis in original). 20 When considering a motion for summary judgment, the Court does not 21 weigh the evidence or assess credibility; instead, “the evidence of 22 the non-movant is to be believed, and all justifiable inferences are 23 to be drawn in his favor.” 24 242, 255 (1986). 25 // 26 / ORDER - 7 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If Id. at 322. . . . [T]he nonmoving party must come Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. Anderson v. Liberty Lobby, Inc., 477 U.S. 1 B. Discussion First, as required by the Court’s Scheduling Order, ECF No. 14, 2 3 Plaintiff filed notice 4 completed he would continue to pursue all of his original eleven 5 claims. 6 affirmative defense they planned to pursue at trial. 7 November 25, 2013, Defendants filed for summary judgment on all of 8 Plaintiff’s eleven claims. 9 Plaintiff withdrew his Fifth (Emotional Distress), Sixth (Negligence), ECF No. 68. on November 22, 2013, that with discovery The same day, Defendants filed notice of each ECF No. 69. On However, at the February 20, 2014 hearing, 10 Seventh (Outrage), and Eleventh (Equitable Estoppel) Claims. 11 The Court addresses the remaining claims in turn. 12 1. Second Claim: Breach of Contract 13 Defendant moves for summary judgment on Plaintiff’s breach of 14 contract claim. 15 agreement was reached in a conversation in 2011, and was later reduced 16 to writing in February 2012 to the Settlement Agreement. 17 argues 18 Agreement created an enforceable contract between Plaintiff and the 19 City. 20 that Plaintiff maintains that an enforceable settlement either Washington the follows conversation the in objective 2011 or the manifestation 21 contracts. 22 692, 69 (1998). 23 manifest their mutual assent. 24 Dist. No. 12 v. City of Yakima, 122 Wn2d 371, 388 (1993). 25 agreements 26 Stottlemyre v. Reed, 35 Wn. App. 169, 171 (1983). ORDER - 8 Plaintiff Settlement test for Wilson Court Ltd. P’ship v. Tony Maroni’s, Inc., 134 Wn2d are For a contract to form, the parties must objectively governed by Yakima County (W. Valley) Fire Prot. general principles of Settlement contract law. Here, the Court finds that no enforceable contract existed. 1 In 2 December 2011, the HRC, City, and Plaintiff discussed a settlement 3 agreement in which Plaintiff would dismiss his HRC complaint, Guild 4 grievance, and lawsuit in consideration for reinstatement as Detective 5 with payment of back wages at a Sergeant’s pay rate. 6 6. 7 Agreement between Plaintiff, City, and the HRC. 8 App. C. 9 stated: See ECF No. 95- In February 2012, these terms were reduced to a written Settlement See ECF No. 1, at The Settlement Agreement had an integration clause which This agreement comprises the entire agreement of the parties with respect to the above-referenced complaints. No other agreement, statement, or promise made by any party with respect to this complaint, which is not included in this agreement, shall be binding or valid. 10 11 12 13 ECF No. 1, at App. C. 14 integration 15 there were no other agreements between the parties. 16 agreement was the requirement that it was “contingent on approval by 17 the Spokane City Council and will become effective upon approval by 18 the 19 acknowledged that at the time he signed the Settlement Agreement he 20 “underst[ood] 21 Rights Commission approved it.” 22 on February 22, 2012, the HRC informed the parties that it would not 23 sign the Settlement Agreement. 24 City Council voted unanimously to reject the Settlement Agreement. 25 Accordingly, no enforceable agreement existed because the necessary 26 approval of both the HRC and City Council did not occur. clause, Washington ORDER - 9 objectively State that Plaintiff signed this agreement with the it Human would indicating Rights not that Plaintiff Commission.” become effective believed Included in this Id. until ECF No. 79-5, at 71: 8-11. Plaintiff the Human However, Furthermore, on February 27, 2012, the Even if a 1 valid contract existed between the City and Plaintiff at the time 2 Plaintiff 3 approval 4 precedent, which when such approval did not occur, any performance 5 under the agreement was excused. 6 (1964) 7 precedent to specific performance where the contract provided that the 8 offer was made subject to written consent); Restatement (Second) of 9 Contracts § 224 (1981) (A condition is “an event, not certain to 10 occur, which must occur, unless its non-occurrence is excused, before 11 performance under a contract becomes due.”). 12 clear that the only proposed contract was the agreement reduced into 13 writing in the Settlement Agreement, signed by Plaintiff and Mayor 14 Condon, which would reinstate Plaintiff on the terms established in 15 December 2011, upon the approval of HRC and the City Council. 16 approval did not occur meaning a contract either was not formed, or 17 alternatively, any performance did not become due. by Mayor the (holding HRC that Condon and signed City obtaining the Council Settlement were Agreement, necessary the conditions See Ross v. Harding, 64 Wn.2d 231 written consent was a condition Therefore, the record is Such Accordingly, Defendant’s motion as to Plaintiff’s Second Claim 18 19 and of Relief, breach of contract, is granted. 20 2. Tenth Claim: Promissory Estoppel / Implied Contract 21 Defendant’s also move for summary judgment on Plaintiff’s claim 22 of promissory estoppel and implied contract. 23 he 24 resigned his employment in Alaska in order to resume his position with 25 SPD. 26 establish: reasonably relied upon the promise of Plaintiff maintains that reinstatement when he To succeed on a claim of promissory estoppel Plaintiff must ORDER - 10 (1) [a] promise that (2) the promisor should reasonably expect to cause the promisee to change his position and (3) that does cause the promisee to change his position (4) justifiably relying upon the promise, in such a manner that (5) injustice can be avoided only by enforcement of the promise. 1 2 3 4 5 Bakotich v. Swanson, 91 Wn App. 311, 319 (Wash. Ct. App. 1998) (citing 6 Klinke v. Famous Recipe Fried Chicken, Inc., 94 Wn.2d 255, 259 n.2 7 (1980)). 8 required, and Plaintiff acknowledged, that the reinstatement depended 9 upon the independent decision of two other organizations, the HRC and However, City as Council. discussed the 11 organization rejected the agreement he would not be reinstated. 12 the time Plaintiff resigned his employment in Alaska the condition of 13 approval by HRC and the City Council had not been satisfied. 14 such 15 reliance was unjustified. 16 Wash.App. 552, 559-560 (conditional promise can serve as basis of 17 estoppel claim only if condition is satisfied prior to action taken in 18 reliance on that promise); Havens v. C & D Plastics, Inc., 124 Wash.2d 19 158, 181 (1994) (“Ordinarily, whether reliance was justifiable is a 20 question 21 conclusion, 22 Defendant’s motion as to Plaintiff’s Tenth Claim of Relief, promissory 23 estoppel and implied contract, is granted. 24 // 25 // 26 / of ORDER - 11 fact, Court but summary finds only one knew possible that Agreement the the Plaintiff Settlement 10 facts, Accordingly, above, if either conclusion At Under - any See Pacific Cascade Corp. v. Nimmer, 25 when reasonable judgment is minds could appropriate.”). reach but one Accordingly, 1 3. 2 As Remaining Claims to the remaining claims of disability discrimination, 3 violation of due process, vicarious liability, wrongful withholding of 4 wages, and retaliation, the Court continues to take Defendant’s Motion 5 for Summary Judgment under advisement. IV. 6 7 Accordingly, IT IS CONCLUSION HEREBY ORDERED: Defendants’ Motion for 8 Summary Judgment, ECF No. 71, is GRANTED IN PART (Plaintiff’s Second, 9 Fifth, Sixth, Seventh, Tenth, and Eleventh Claims) and TAKEN UNDER 10 11 12 13 ADVISEMENT IN PART (remainder). IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and provide copies to all counsel. DATED this 28th day of February 2014. 14 s/ Edward F. Shea EDWARD F. SHEA Senior United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 Q:\EFS\Civil\2012\0156.order.msj.contract.lc2.docx ORDER - 12
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