Thoma v. Spokane City of et al, No. 2:2012cv00156 - Document 181 (E.D. Wash. 2014)
Court Description: ORDER Granting 171 Defendant's Renewed Motion for Summary Judgment and Closing File. Signed by Judge Salvador Mendoza, Jr. (PL, Case Administrator)
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1 2 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 4 5 6 BRADLEY N. THOMA, a single person, Plaintiff, 7 10 ORDER GRANTING DEFENDANTS' RENEWED MOTION FOR SUMMARY JUDGMENT AND CLOSING FILE v. 8 9 No. CV-12-0156-SMJ CITY OF SPOKANE, a municipal corporation in and for the State of Washington; and ANNE E. KIRKPATRICK, a single person, 11 Defendants. 12 I. 13 INTRODUCTION 14 Before the Court, without oral argument, is Defendants’ Renewed Motion 15 for Summary Judgment, ECF No. 171. Previously, the Court granted summary 16 judgment dismissing all but Plaintiff’s retaliation and vicarious liability claims. 17 Defendants now move for summary judgment on the remaining claims. The 18 Court, having reviewed the pleadings and file in this matter, is fully informed and 19 for the following reasons grants Defendants’ motion. 20 // ORDER - 1 II. 1 2 A. Factual History 1 Plaintiff Bradley Thoma, began working for the City of Spokane Police 3 4 BACKGROUND Department (“SPD”) on October 1, 1989. 5 On the evening of September 23, 2009, Plaintiff was involved in an off-duty 6 vehicle accident. He was arrested and charged with driving under the influence 7 and failure to remain at the scene of the accident. On September 24, 2009, 8 Defendant City of Spokane (“City”) placed Plaintiff on administrative leave and 9 initiated an internal investigation. 10 During the prosecution on the criminal charges, Plaintiff sought a deferred 11 prosecution in which he was evaluated and, on October 9, 2009, diagnosed by 12 Colonia Clinic with moderate alcohol dependence. ECF Nos. 79-10 & 91-1. On 13 November 13, 2009, the Spokane County District Court entered an Order 14 deferring prosecution. As part of that deferred prosecution agreement, Plaintiff 15 was required to obtain an Ignition Interlock Driver’s License (“IIL”), which 16 limited him to driving only vehicles equipped with an ignition interlock device 17 (“IID”). At the time of the November 13, 2009 Order deferring prosecution, 18 Washington State law allowed, but did not require, employers to issue a “waiver” 19 20 1 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 - 2 1 (referred to by statue as a “declaration”) of the IID requirement on employer- 2 owned vehicles used during working hours. 3 During the City’s internal investigation, on November 9, 2009, Plaintiff’s 4 Spokane Police Guild representative advised Defendants that Plaintiff “was 5 evaluated and determined to have an alcohol problem.” ECF No. 79-8, at 19. 6 This was the “first time [Plaintiff] had informed [his] employer of [his] 7 alcoholism.” ECF No. 79-5, at 47:17-19. The parties agree that “[p]rior to 8 Plaintiff’s arrest for DUI, there was no record in Plaintiff’s personnel, civil 9 service, or medical files of any report that Plaintiff had any issue with alcohol 10 abuse.” ECF No. 72 at 4 & 19; ECF No. 113. 11 On December 9, 2009, Defendant Police Chief Anne Kirkpatrick provided 12 Plaintiff with a Notice of Intent to Terminate, pursuant to Cleveland Bd. of Educ. 13 v. Loudermill, 470 U.S. 532 (1985). The Notice explained that driving was a 14 required essential function of Plaintiff’s job that Defendant Kirkpatrick believed 15 Plaintiff was unable to perform because he was required to maintain an IID on any 16 vehicle he drove. 17 reasonable to place an IID on a police vehicle and that she did not believe it was 18 reasonable to waive the IID requirement. On December 11, 2009, Plaintiff filed a 19 complaint with the Human Rights Commission (“HRC”). 20 // ORDER - 3 Defendant Kirkpatrick further explained that it was not 1 On December 14, 2009, Plaintiff’s physician Dr. Mark Hart faxed a short, 2 hand-written letter to Defendants in which he stated that he had diagnosed 3 Plaintiff with alcoholism and suggested accommodations. Whatever Plaintiff’s 4 alcohol consumption may have been up to that time, he had always been able to 5 perform his job duties as a police officer. Plaintiff was never intoxicated while at 6 work for the SPD. Plaintiff reported that drinking caused him to drink with 7 friends instead of going to the gym, caused him to spend less time with his 8 daughter, but did not affect his ability to go to work. 9 During the December 17, 2009 Loudermill hearing Defendants declined to 10 equip Plaintiff’s vehicle with an IID or to sign a waiver allowing Plaintiff to 11 operate a police vehicle without an IID. Instead, Defendant Kirkpatrick offered to 12 put Plaintiff in non-commissioned layoff status for two years, the time he was 13 required to have an IIL, during which he would be placed at the top of the Civil 14 Service list for other jobs with the City for which he may be qualified. As part of 15 the offer, at the conclusion of the two-year period, he would become reemployed 16 with the City as a fully-commissioned Detective, rather than as a Sergeant, as 17 discipline for his conduct leading to the criminal charges. 18 Defendants’ offer. Plaintiff rejected 19 On December 21, 2009, Defendants terminated Plaintiff’s employment and 20 issued a Termination of Employment Letter on December 30, 2009, finding that ORDER - 4 1 the accommodations requested by Plaintiff had been evaluated but rejected as 2 unacceptable and unreasonable. 3 (“Guild”) field a grievance on behalf of Plaintiff. That same day, the Spokane Police Guild 4 On October 18, 2010, the Guild filed an unfair labor practices claim against 5 the SPD. On January 5, 2011, the City and the Guild drafted an agreement 6 between the City and the Guild to resolve the discipline grievance and read the 7 agreement over the phone to Plaintiff. The Guild did not sign the agreement. 8 ECF No. 79-17. 9 Around January 2011, the SPD became aware that the law changed 10 reducing driving restrictions for DUI deferred sentences from two years to one 11 year. 12 On July 7, 2011, the HRC and the City began considering a settlement. In 13 December 2011, the HRC, City, and Plaintiff discussed the terms of a settlement 14 agreement in which Plaintiff would dismiss his HRC complaint, Guild grievance, 15 and lawsuit in consideration for reinstatement as Detective with payment of back 16 wages at a Sergeant’s pay rate. In February 2012, these terms were reduced to a 17 written Settlement Agreement between Plaintiff, City, and the HRC. See ECF No. 18 1, at App. C. The Settlement Agreement had an integration clause which stated: 19 20 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 ORDER - 5 complaint, which is not included in this agreement, shall be binding or valid. 1 2 ECF No. 1, at App. C. Importantly, the agreement was “contingent on approval 3 by the Spokane City Council and [would] become effective upon approval by the 4 Washington State Human Rights Commission.” Id. The Settlement Agreement 5 was signed by Plaintiff, Mayor Condon, and an assistant city attorney. 6 On February 22, 2012, the HRC informed the parties that it would not 7 approve the Settlement Agreement. On February 27, 2012, the City Council voted 8 unanimously to reject the Settlement Agreement. The same day, Plaintiff sent a 9 letter to the City notifying Defendants that Plaintiff had withdrawn his HRC 10 Complaint and offered a new settlement agreement containing the same terms as 11 the previous agreement but not including the HRC as a party. No representative 12 of the City signed or accepted the newly proposed settlement agreement. Plaintiff 13 filed the instant action the next day. 14 B. Procedural History 15 On February 28, 2012, Plaintiff filed suit in Spokane County Superior Court 16 alleging eleven different claims, including violation of due process under 42 17 U.S.C. § 1983 and violations of the Americans with Disabilities Act (ADA), 42 18 U.S.C. § 12101 et seq., and the Washington Law Against Discrimination 19 (WLAD), RCW Chapter 49.60. ECF No. 1. On March 15, 2012, Defendants 20 removed the lawsuit to this Court pursuant to 28 U.S.C. §§ 1331 and 1441(b)-(c). ORDER - 6 1 Id. A telephonic scheduling conference was held on June 19, 2012, ECF No. 12, 2 and a jury trial was set for April 14, 2014, ECF No. 14. 3 On February 4, 2013, Plaintiff moved for partial summary judgment, asking 4 the Court to find, as a matter of law, that Plaintiff was “disabled” within the 5 meaning of both the ADA and WLAD. ECF No. 17. Plaintiff contemporaneously 6 filed a motion to seal eleven of the exhibits. ECF No. 21. On April 3, 2013, the 7 Court granted in part and denied in part Plaintiff’s Motion to Seal, and denied 8 Plaintiff’s Motion for Partial Summary Judgment. ECF No. 32. 9 On November 25, 2013, Defendants filed for summary judgment. ECF No. 10 71. At the February 20, 2014 hearing, Plaintiff withdrew his Fifth (Emotional 11 Distress), Sixth (Negligence), Seventh (Outrage), and Eleventh (Equitable 12 Estoppel) Claims. On February 28, 2014, the Court granted summary judgment 13 dismissing Plaintiff’s breach of contract and promissory estoppel claims. ECF 14 No. 160. On March 3, 2014, the Court granted summary judgment dismissing 15 Plaintiff’s wrongful withholding of wages claim. ECF No. 164. Then, on June 16 30, 2014, the Court granted summary judgment dismissing Plaintiff’s disability 17 discrimination and due process claims and granted Defendants leave to refile to 18 brief the vicarious liability and retaliation claims. ECF No. 167. On July 8, 2014, 19 Defendants renewed their request for summary judgment on Plaintiff’s vicarious 20 liability and retaliation claims. ORDER - 7 III. 1 2 A. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Legal Standard 3 Summary judgment is appropriate if the “movant shows that there is no 4 genuine dispute as to any material fact and the movant is entitled to judgment as a 5 matter of law.” Fed. R. Civ. P. 56(a). Once a party has moved for summary 6 judgment, the opposing party must point to specific facts establishing that there is 7 a genuine dispute for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If 8 the nonmoving party fails to make such a showing for any of the elements 9 essential to its case for which it bears the burden of proof, the trial court should 10 grant the summary judgment motion. Id. at 322. “When the moving party has 11 carried its burden under Rule [56(a)], its opponent must do more than simply 12 show that there is some metaphysical doubt as to the material facts. . . . [T]he 13 nonmoving party must come forward with ‘specific facts showing that there is a 14 genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 15 U.S. 574, 586-87 (1986) (internal citation omitted) (emphasis in original). When 16 considering a motion for summary judgment, the Court does not weigh the 17 evidence or assess credibility; instead, “the evidence of the non-movant is to be 18 believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. 19 Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). When considering the summary 20 judgment motion, the Court 1) took as true all undisputed facts; 2) viewed all ORDER - 8 1 evidence and drew all justifiable inferences therefrom in non-moving party’s 2 favor; 3) did not weigh the evidence or assess credibility; and 4) did not accept 3 assertions made that were flatly contradicted by the record. See Scott v. Harris, 4 550 U.S. 372, 380 (2007); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 5 (1986). 6 B. Discussion 7 Defendants have renewed their filing for summary judgment seeking 8 dismissal of Plaintiff’s Ninth Claim (Retaliation) and Fourth Claim (Vicarious 9 Liability). ECF No. 171. The Court addresses each claim in turn. 10 1. 11 RCW 49.60.210(1) forbids employers from discharging or otherwise 12 discriminating against an employee in retaliation for opposing practices forbidden 13 by the WLAD. To avoid summary judgment, Plaintiff must first establish a prima 14 facie case of retaliation: 1) the employee engaged in a statutorily protected 15 activity, 2) the employer took adverse employment action against him, and 3) 16 there was a causal link between the protected activity and the adverse action. 17 Milligan v. Thompson, 110 Wn.App. 628, 638 (2002). Once a prima facie case is 18 established, the burden then shifts to the employer to show a legitimate purpose 19 for the adverse employment action. Id. If the employer shows a legitimate 20 ORDER - 9 Ninth Claim: Retaliation 1 purpose, the burden shifts back to the employee to show that this legitimate reason 2 was pretextual. Id. 3 Here, Plaintiff fails to demonstrate a prima facie case of retaliation. While 4 Plaintiff was subject to an adverse employment action, there is no causal link 5 between that adverse action and any statutorily protected activity. 6 statutorily protected activity, Plaintiff points to his Loudermill hearing and request 7 for accommodations. Plaintiff states that the “record is clear Sgt. Thoma raised 8 his disability of alcoholism during his Loudermill hearing and requested 9 accommodations that would allow him to remain employed during a time his 10 driver’s license was encumbered.” ECF No. 178 at 4. While this statement 11 misconstrues the purpose and legal requirements of a reasonable accommodation, 12 which is to accommodate a disability and not the collateral consequences of 13 violating the laws that Plaintiff had sworn to uphold as a police officer, the Court 14 has already found no discriminatory practices occurred. 15 Additionally, it was not until after Defendants notified Plaintiff of an intent to 16 terminate, and after his Loudermill hearing, that Defendants offered to place him 17 on a two-year leave if he executed a release and waived any civil claims, which 18 would include the then existing, December 11, 2009 Human Rights Complaint. 19 Such an offer to settle the existing dispute, regardless of Plaintiff’s desire to 20 consult with an attorney, does not evidence retaliation when that offer is not ORDER - 10 For a ECF No. 167. 1 timely accepted before Defendants moved forward with termination. See, e.g., 2 Hotchkiss v. CSK Auto, Inc., 949 F. Supp. 2d 1040 (E.D. Wash. 2013) (rejecting 3 argument that settlement offer was anything more than an effort to resolve a 4 dispute). Accordingly, there is no protected activity and no improper causal 5 connection between Plaintiff’s rejection of the settlement offer and his resulting 6 termination. 7 Regardless, even if Plaintiff could make a prima facie case for retaliation, 8 Defendants have demonstrated a legitimate reason for terminating Plaintiff, which 9 Plaintiff has not shown to be pretextual. This Court has already found that “the 10 record makes clear that Plaintiff was terminated for his alcohol related misconduct 11 not his alcoholism” and that “Plaintiff was terminated because of the collateral 12 consequences of his decision to operate a motor vehicle while intoxicated and to 13 enter into a deferred prosecution agreement.” ECF No. 167 at 12. This Court 14 found “[t]his is a legitimate, nondiscriminatory reason for termination” and 15 Plaintiff failed to “demonstrate any . . . pretext.” 16 Plaintiff’s Ninth Claim, Retaliation, fails as a matter of law. 17 // 18 // 19 // 20 / ORDER - 11 Id. at 13. Accordingly, 1 2. Fourth Claim: Vicarious Liability 2 As all of Plaintiff’s other substantive claims have been dismissed as a 3 matter of law, there no longer exists a substantive claim remaining for Defendants 4 to be found vicariously liable. 5 dismissed. Accordingly, the vicarious liability claim is 6 Accordingly, IT IS HEREBY ORDERED: 7 1. Defendants’ Renewed Motion for Summary Judgment, ECF No. 171, is GRANTED. 8 9 2. The Clerk’s Office is directed to enter JUDGMENT for Defendants. 10 3. All pending motions are DENIED AS MOOT. 11 4. All pending deadlines and hearings are STRICKEN. 12 5. The Clerk’s Office shall CLOSE this file. 13 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order 14 15 and provide copies to all counsel. DATED this 26th day of August 2014. y g 16 __________________________ ______________________ _ SALVADOR MENDOZA JR ALVADOR MENDOZA, JR. A United States District Judge 17 18 19 20 C:\Users\monica_villanueva\Desktop\Orders\grant.msj.lc1.docx ORDER - 12
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