Fox et al v. Kitsap County et al, No. 3:2006cv05698 - Document 127 (W.D. Wash. 2009)

Court Description: ORDER granting in part and denying in part 87 Individual Defendants' Motion for Partial Summary Judgment on Fox's Claims; granting in part and denying in part 94 Individual Defendants' Motion for Summary Judgment on Iskra's Claims; and granting in part and denying in part 97 King County's Motion for Summary Judgment, signed by Judge Ronald B. Leighton.(DN)

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Fox et al v. Kitsap County et al Doc. 127 1 HONORABLE RONALD B. LEIGHTON 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 TERESA FOX and EDWARD ISKRA, Case No. C06-5698RBL 11 Plaintiffs, 12 13 14 15 v. ORDER KITSAP COUNTY, a municipal corporation of the State of Washington; KEITH BARKOW; DERRICK CRAWLEY; CYNTHIA BAKER; and SCOTT P. RIDDELL, 16 Defendants. 17 18 THIS MATTER comes on before the above-entitled Court upon the Individual Defendants’ Motion 19 for Partial1 Summary Judgment on Plaintiff Fox’s Claims [Dkt. #87], the Individual Defendants’ Motion 20 for Summary Judgment on Plaintiff Iskra’s Claims [Dkt. #94], and Kitsap County’s Motion for Summary 21 Judgment Against Plaintiffs Fox and Iskra [Dkt. #97]. The Court has reviewed the defendants’ motions, 22 memoranda in support and declarations, the plaintiffs’ memoranda and declarations in opposition to the 23 motions, and the defendants’ reply memoranda, together with the entirety of the records and files herein.2 24 For the reasons stated, the Court GRANTS IN PART and DENIES IN PART defendants’ motions. I. FACTS 25 26 27 1 28 2 The individual defendants’ actually seek summary judgment on all of plaintiff Fox’s claims. As will be more thoroughly discussed later in this Order, this Court did not “scour the record in search of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (internal citation omitted). ORDER Page - 1 Dockets.Justia.com 1 A. 2 Organizational Structure. The Kitsap County Fire Marshal’s Office (“KCFMO”) is responsible for conducting fire 3 inspections, plan review, fire investigations, fire prevention education, and fire safety community 4 awareness. KCFMO is a division of the Kitsap County Department of Community Development, which is 5 one of the departments that reports to the Board of County Commissioners. During 2005, Cris Gears was 6 the County Administrator, Cindy Baker was the Director of Community Development, and Derrick 7 Crawley was the Fire Marshal.3 Mr. Crawley reported to Ms. Baker, and plaintiffs Teresa Fox and Edward 8 Iskra reported to Mr. Crawley. 9 B. 10 Plaintiff Teresa Fox. Ms. Fox began her employment with Kitsap County in 1994 and eventually transferred to the 11 KCFMO in 2000. [Declaration of Teresa Fox, p. 1, Dkt. #110 (“Fox Decl.”); Deposition of Teresa Fox, 12 Vol. I, pp. 7-8, attached to Plaintiffs Response to Individual Defendants Motions for Summary Judgment, 13 Dkt. #108 (“Fox Dep.”)]. Her job at the KCFMO was originally as an administrative assistant. The job 14 was later re-classified to program specialist. [Fox Dep., p. 8]. According to Ms. Fox her duties at the 15 KCFMO changed dramatically over time. When she began as an administrative assistant her job entailed 16 assisting the fire marshal with computerizing his records and developing policies and procedures for the 17 division. She then began reviewing permits, coordinating the permit process, and doing database 18 programming and database management. When she resigned her position, she was doing plan review, 19 developing the fire code permit program, and conducting inspections in the field. [Fox Dep., pp. 12-13]. 20 She described her position as a fire inspector trainee. [Id.]. 21 In August, 2004 Ms. Fox applied for a position as a Deputy Fire Marshal I in the KCFMO. [Fox 22 Decl., p. 1; Declaration of Penny Starkey, Exh. A, Dkt. #98 (“Starkey Decl.”)]. She was interviewed but 23 was not hired. Keith Barkow was hired for the position and began his employment with the County on 24 December 6, 2004. [Starkey Decl., para. 6, Exh. D]. 25 During the first week of Mr. Barkow’s employment, Ms. Fox alleges that he was “rude” to her as 26 27 28 3 Plaintiffs’ First Amended Complaint mistakenly names Keith Barkow as the Fire Marshal and indicates that Derrick Crawley was an “employee” of the KCFMO. [Dkt. #17]. Plaintiff Fox mistakenly declares that Crawley was Chief Deputy Fire Marshal during her employment [Fox Decl., p. 1], and the error is repeated in the Memorandum in Response to Kitsap County’s Motion for Summary Judgment [Dkt. #108, p. 1]. ORDER Page - 2 1 Ms. Fox was training Mr. Barkow on how to use the Firehouse Records Management System. [Fox Dep., 2 p. 43]. Ms. Fox indicates that on another occasion when Mr. Barkow was asking her and possibly another 3 KCFMO employee to order supplies, he “was practically yelling at us[] . . . he was very, very loud, and to 4 me that’s rude and unprofessional when you’re like, in somebody’s face and you’re very loud.” [Fox Dep., 5 p. 48]. She also indicates that Mr. Barkow informed her early on in their working relationship that she 6 should leave her job. [Fox Dep., p. 55] Ms. Fox came to believe that Mr. Barkow did not have the 7 qualifications that Derrick Crawley (the Fire Marshal) said he had and that were used to justify the decision 8 to hire Mr. Barkow instead of Ms. Fox. [Fox Dep., pp. 49-53]. She declares that an investigation of the 9 KCFMO commissioned by the County “determined that Mr. Barkow had lied about his qualifications both 10 on his application for his position and at a County Commissioner’s meeting.” [Fox Decl., p. 3].4 In mid-December 2004, Ms. Fox requested that she be allowed to attend the Northwest Fire 11 12 Conference training in Ocean Shores, Washington. [Starkey Decl., para. 7; Exh. H (Ms. Fox’s purported 13 charge of discrimination filed with the EEOC)]. Mr. Crawley did not act on the request. In early February, 2005 Ms. Fox filed two grievances alleging that Mr. Barkow was engaging in 14 15 intimidation, harassment, and violent behavior in the workplace and that Mr. Crawley failed to act on her 16 training request.5 Ms. Baker initially denied the grievances and, upon review, Mr. Gears affirmed the 17 denial. 18 19 20 21 22 23 24 25 26 27 28 4 In support of this statement the Fox Declaration states “See Diamond Report” with no citation to page numbers. Plaintiff’s counsel document dumped a 189-page report and evidently expects this Court to read the whole report and glean from it support for plaintiff’s statement. It is not the role of this Court “to scour the record in search of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275 (9th Cir. 1996) (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)). The Courts review of the Diamond Report on this point found only a reference that Mr. Barkow does not have ICC certification, but has the equivalent FCA certification. [Report of Deborah Diamond, attached to Plaintiffs’ Response to the Individual Defendants’ Motion for Summary Judgment, Dkt. #108, p. 64]. This Finding made by the investigator does not support the statement made in Ms. Fox’s Declaration and statements to the same effect throughout her deposition. 5 Plaintiff does not include the grievances in her responsive papers. In their moving papers, the County provided the rulings on the grievances. See Starkey Decl., Exhs. E and F. The rulings do not mention “sexual harassment”. ORDER Page - 3 1 Ms. Fox purportedly repeatedly complained to Mr. Crawley and Ms. Baker, and to a lesser extent 2 Mr. Gears and the Board of County Commissioners, about “fraud, waste, and abuse of the tax-payer’s 3 money” occurring at the KCFMO. [Fox Decl., pp. 2-3; Fox Dep., pp. 201-224]. The alleged fraud, abuse, 4 and waste involved the violations of county policies by others in the KCFMO including defendants 5 Crawley, Barkow and Riddell, and Deputy Fire Marshal John Gibson (not named as a defendant). These 6 employees improperly used County vehicles, showed up late for work and left early, abused overtime, 7 failed to perform required inspections, and failed to perform inspections competently. [Id.]. Ms. Fox also 8 alleged that Mr. Crawley had poor management skills, failed to properly manage the KCFMO, and did not 9 possess current fire inspector and fire investigator certifications required for the position of Fire Marshal. 10 [Id.]. She further alleged that Mr. Crawley enforced the annual leave call-in policy differently as between 11 her and others in the office. 12 From plaintiff Fox’s briefing, declaration, and deposition testimony it is difficult to discern exactly 13 when these complaints were made. Apparently, however, they were communicated to Mr. Crawley and 14 Ms. Baker in emails and in face-to-face discussions prior to June 2, 2005. Some of her complaints were 15 made known to Ms. Baker and Mr. Gears as part of the grievance procedure in the first half of 2005. Her 16 allegations were also part of her letter of resignation and were discussed in her exit interview in December, 17 2005.6 18 On June 2, 2005 Ms. Baker called a staff meeting for the employees of the KCFMO. At the 19 meeting, discussion was had about employees (presumably Ms. Fox and Mr. Iskra) complaining about 20 other employees. Ms. Fox interpreted the remarks of Ms. Baker to mean that she should “sit down and 21 shut up.” [Fox Dep., p. 83]. She believed as a result of that meeting she would be reprimanded if she 22 continued to complain. [Id.]. 23 Between September, 2005 and December, 2005 Ms. Fox alleges she and another female employee 24 were subjected to sexual harassment while employed at the KCFMO. There were several incidences of 25 unwelcome, offensive comments. On September 19, 2005, Mr. Barkow made a comment about a female 26 who worked at Woody’s Hotdog Stand. He said that he went out and did an inspection “and he didn’t 27 28 6 At trial, plaintiff will be required to present specific evidence detailing how and when such complaints were communicated to the defendants. ORDER Page - 4 1 even have to sleep with her.” [Fox Dep., p. 173]. On October 18, 2005 Mr. Barkow was standing in the 2 doorway to Mr. Crawley’s office and “they said something and what I heard was Brazilian bikini wax, butt 3 lift, and breast implants. They were talking something about a woman or women.” [Fox Dep., p. 109]. On 4 November 2, 2005, Mr. Barkow called KCFMO employee Barbara Williams “honey” and “baby”. [Fox 5 Dep., p. 173]. Mr. Barkow would also call Ms. Fox and Ms. Williams “girls” and would call people 6 “honey” and “babe” on the phone. [Fox Dep., p. 109]. In October or November, 2005, Mr. Barkow, “said 7 something to me about I had a twinkle in my eye and he was all in my face . . . then when I was leaving he 8 said something about my ass in front of other people.” [Fox Dep., p. 113]. And, lastly, Mr. Barkow said 9 that “if we had a normal secretary, you know, referring to me and my position as like I should be a normal 10 secretary. I found that to be demeaning and gender-based.” [Fox Dep., p. 110]. 11 On December 5, 2005 Ms. Fox attended the regular Monday team meeting. At the meeting Mr. 12 Crawley and Mr. Barkow became very hostile towards her. They were loud and yelling after she asked a 13 question about Mr. Barkow’s report. She indicates that “Derrick was probably coming across the table at 14 me, you know he was leaning towards me. I remember he was so pissed off his neck vein was bulging out 15 and, you know, I had seen this before with him.” [Fox Dep., pp. 91-93]. Ms. Fox resigned the next day, 16 December 6, 2005. 17 After Ms. Fox left the KCFMO, she obtained a restraining order against Scott Riddell based on a 18 series of hang up phone calls beginning in the fall or winter of 2006 and continuing into 2007. [Fox Dep., 19 pp. 137-139]. 20 C. 21 Plaintiff Edward Iskra. Mr. Iskra was hired as a Deputy Fire Marshal with the KCFMO in August, 1992. [Declaration of 22 Edward Iskra, p. 1, Dkt. #109 (“Iskra Decl.”)]. Prior to the incidents giving rise to this lawsuit, he was 23 promoted to Deputy Fire Marshal II. As a Deputy Fire Marshal II, Mr. Iskra had the additional duty of 24 conducting fire investigations together with all the responsibilities of a Fire Marshal I. Like Ms. Fox, Mr. 25 Iskra complained to Derrick Crawley and Cynthia Baker about the fraud, abuse, and waste occurring in the 26 KCFMO. [Iskra Decl., p. 1-3]. He made basically the same complaints Ms. Fox did. [Id.]. He attended 27 the June 2, 2005 meeting with Ms. Baker and came away from it much as did Ms. Fox. He believed that if 28 he continued to complain, that he would be reprimanded. [Iskra Decl., p. 2]. ORDER Page - 5 1 Sometime after Mr. Iskra started complaining to Mr. Crawley and Ms. Baker, Mr. Crawley ceased 2 talking to him. When Mr. Crawley had to speak with Mr. Iskra, presumably on work-related topics, he did 3 so “in a very stern, boisterous tone that raised the hair on the back of my neck and put me on the defense 4 right away.” [Deposition of Edward Iskra, p. 63, attached to Plaintiffs’ Response to Individual Defendants’ 5 Motions for Summary Judgment, Dkt. #108 (“Iskra Dep.”)]. Mr. Crawley began checking over Mr. 6 Iskra’s work; something that had not occurred prior to the complaints. [Id.]. Mr. Crawley also stopped 7 using Mr. Iskra as the lead when Crawley was out of the office and stopped replying to Mr. Iskra’s emails. 8 [Id.]. After plaintiffs’ complaints began, Mr. Crawley reacted by “siding with” an employee of lesser 9 experience, presumably Mr. Barkow. [Iskra Dep., pp. 63-64, 93]. During the fall of 2005 while Mr. Iskra 10 was on sick leave due to shoulder surgery, Mr. Crawley “talked bad about me” to Ms. Fox. [Iskra Dep., p. 11 64]. Crawley purportedly told Ms. Fox that Mr. Iskra failed to coordinate with the Kitsap County Sheriff’s 12 Office the return of a juvenile suspect from Montana. According to Mr. Iskra, the job of picking up a 13 suspect from out of state was not his job but was the job of the prosecutor’s office and the sheriff’s office. 14 [Id.]. 15 There were several other incidents. At a meeting on June 9, 2005, Mr. Crawley directed Mr. Iskra 16 to send an email to the chiefs of various fire districts and others apologizing for a previous email Mr. Iskra 17 had sent and which Mr. Crawley felt was inappropriate. Mr. Iskra initially refused to send the email. Mr. 18 Crawley “slapped” a written copy of an oral reprimand on Mr. Iskra’s desk and again told Mr. Iskra to 19 send the email. Mr. Iskra later sent the email but did not allow Mr. Crawley to review it prior to it being 20 sent. Mr. Crawley again “slapped that reprimand down on my desk and stuck it in my file.” [Iskra Dep., 21 pp. 64-65; Declaration of Amanda G. Butler, Exh. F, Dkt. #95 (“Butler Decl.”)]. Furthermore, Mr. 22 Crawley “snapped at me” when asking if Mr. Iskra had sent a copy to the property owner of an 23 enforcement letter to the owners of Henry Hardware, in Kingston. [Iskra Dep., p. 65]. Finally, there were 24 three incidences when Mr. Crawley and Mr. Iskra got in heated arguments where Mr. Crawley “got right 25 up in my face,” [Iskra Dep., pp. 66-68]. 26 On October 21, 2005, Mr. Iskra resigned his position with the County. [Butler Decl., Exh. A]. On 27 December 6, 2005 he filed a whistle-blower complaint with the Kitsap County Board of Commissioners. 28 [Attached as Exhibit 08-009 to Diamond Report, Dkt. #108]. As a result of that complaint, the County ORDER Page - 6 1 retained Deborah Diamond to do an investigation into the fraud, waste, and abuse in the KCFMO. The 2 results of Ms. Diamond’s investigation substantiated some, but not all, of Mr. Iskra’s and Ms. Fox’s 3 complaints. 4 None of the named defendants are currently employed by Kitsap County. 5 6 II. PLAINTIFFS’ COMPLAINT Based upon the above stated facts, plaintiffs filed suit in this Court on December 6, 2006. In their 7 First Amended Complaint filed May 23, 2007 [Dkt. #17], plaintiffs have brought claims under 42 U.S.C. 8 §1983, Title VII of the Civil Rights Act of 1964, and state common law. 9 Ms. Fox claims that her First and Fourteenth Amendment free speech rights were violated by all 10 defendants retaliating against her for speaking out on matters of public concern. She claims that all the 11 defendants violated Title VII by creating a hostile work environment, failing to train or promote her due to 12 her gender, and by retaliating against her for filing a grievance over the discrimination she experienced due 13 to her gender.7 As to all defendants, Ms. Fox claims that she was “constructively discharged in 14 contravention of public policy by retaliating against [her] for reporting fraud, waste and abuse by the 15 management of the KCFMO.” [Complaint, paras. 5, 6, Dkt. #17].8 Ms. Fox claims that all defendants 16 intentionally inflicted emotional distress upon her. And, finally, Ms. Fox claims that Defendant Scott 17 Riddell harassed and retaliated against her for whistle-blowing and accessing the courts. 18 Mr. Iskra also claims9 that his First and Fourteenth Amendment free speech rights were violated by 19 all defendants retaliating against him for speaking out on matters of public concern. He also claims that he 20 21 22 23 24 25 26 27 28 7 Because plaintiff did not provide the grievance, it is unclear whether she included sexual or gender based harassment in the grievance. See fn. 6. She does indicate, however, in her deposition that she included sexual harassment in the grievance. [Fox Dep., p. 125]. 8 Technically read, the complaint contains only a state common law claim of constructive discharge. See, e.g., Bennett v. Hardy, 113 Wn.2d 912 (1990). However, in plaintiffs’ briefs in response to all three summary judgment motions, Ms. Fox argues that she was constructively discharged in violation of Title VII. In doing so, Ms. Fox cites to a constructive discharge case brought under 42 U.S.C. §1983 alleging violations of due process, Huskey v. City of San Jose, 204 F.3d 893 (9th Cir. 2000), notwithstanding the fact that there are many published cases discussing constructive discharge under Title VII. The Court will consider the constructive discharge claim under all three theories: state common law, retaliation in violation of the First Amendment, and Title VII. 9 The Court previously dismissed Mr. Iskra’s claim of harassment and retaliation for whistle-blowing and accessing the court by Defendant Scott Riddell. [Dkt. #69]. ORDER Page - 7 1 was constructively discharged.10 2 Although the defendants moved for summary judgment on Mr. Iskra’s claims under Title VII, the 3 complaint raises no Title VII claim on behalf of Mr. Iskra nor does it contain any allegations which would 4 support a claim under Title VII. The plaintiff has not moved to amend his Complaint to add a claim under 5 Title VII. Mr. Iskra’s Declaration makes no mention of any facts which would support a Title VII claim 6 and plaintiff’s briefing points to nothing in the record which would support such a claim. However, in Mr. 7 Iskra’s deposition he states that he complained to Mr. Crawley that Ms. Fox was being treated unfairly. 8 Therefore, it appears he may be pursuing a claim that Mr. Iskra was retaliated against for supporting Ms. 9 Fox in her discrimination grievances. III. DISCUSSION 10 11 A. Summary Judgment Standard. 12 Summary judgment is appropriate when, viewing the facts in the light most favorable to the 13 nonmoving party, there is no genuine issue of material fact which would preclude summary judgment as a 14 matter of law. Once the moving party has satisfied its burden, it is entitled to summary judgment if the 15 non-moving party fails to present, by affidavits, depositions, answers to interrogatories, or admissions on 16 file, “specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 17 324 (1986). “The mere existence of a scintilla of evidence in support of the non-moving party’s position is 18 not sufficient.” Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). Factual 19 disputes whose resolution would not affect the outcome of the suit are irrelevant to the consideration of a 20 motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other 21 words, “summary judgment should be granted where the nonmoving party fails to offer evidence from 22 which a reasonable [fact finder] could return a [decision] in its favor.” Triton Energy, 68 F.3d at 1220. 23 B. Kitsap County’s Motion for Summary Judgment. 24 Kitsap County moves for summary judgment on several grounds. They will be discussed in turn. 25 1. 26 27 Plaintiffs have not shown that a policy, custom, practice, or that final policymaking authority exists to hold Kitsap County liable under 42 U.S.C. §1983 for Mr. Crawley and Ms. Baker’s alleged violations of Ms. Fox and Mr. Iskra’s free speech rights. A municipality may not be held liable for the torts of its employees unless they were acting pursuant 28 10 ORDER Page - 8 The legal basis of this claim is unclear. See fn. 8. 1 to an official policy or longstanding custom or practice. Botello v. Gammich, 413 F.3d 971, 978-979 (9th 2 Cir. 2005) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978), Bd. of County Comm’rs. v. 3 Brown, 520 U.S. 397, 403 (1997), Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986), and Webb v. 4 Sloan, 330 F.3d 1158, 1164 (9th Cir. 2003)). Liability also may attach “when the person causing the 5 violation has final policymaking authority.” Webb v. Sloan, 330 F.3d at 1164. “Final policymaking 6 authority may be granted by a state legislature or by officials who possess that authority.” Botello, 413 7 F.3d at 979. 8 9 Both plaintiffs admitted in their depositions that neither Mr. Crawley nor Ms. Baker were acting pursuant to an official policy, practice or custom when they allegedly violated plaintiffs’ free speech rights. 10 Plaintiffs do not even address this argument in their response to Kitsap County’s motion. Therefore, 11 Kitsap County’s motion as to this claim is GRANTED. Plaintiffs’ 42 U.S.C. §1983 claims against Kitsap 12 County are DISMISSED. 13 2. A jury could find that plaintiffs were constructively discharged. 14 “A constructive discharge occurs when a person quits his job under circumstances in which a 15 reasonable person would feel that the conditions of employment have become intolerable.” Draper v. 16 Coeur Rochester, 147 F.3d 1104, 1110 (9th Cir. 1998). In order to survive summary judgment on their 17 constructive discharge claims, plaintiffs “must show that there are triable issues of fact as to whether a 18 reasonable person in [their] position would have felt that [they] [were] forced to quit because of intolerable 19 and discriminatory working conditions.” Steiner v. Showboat Operating Co., 25 F.3d 1459, 1465 (9th Cir. 20 1994) (internal quotation omitted). “Whether working conditions were so intolerable and discriminatory as 21 to justify a reasonable employee’s decision to resign is normally a question for the jury.” Sanchez v. City 22 of Santa Ana, 915 F.2d 424, 431 (9th Cir. 1990). 23 Based on the facts as set forth in this Order,11 this Court cannot find that plaintiffs’ decisions to 24 resign were unreasonable as a matter of law. Kitsap County’s motion for summary judgment as to this 25 claim is DENIED. 26 27 28 11 ORDER Page - 9 The Court’s factual recitation is not intended to be exhaustive. 1 3. A reasonable jury could find that Kitsap County created a hostile working environment for Ms. Fox by allowing derogatory comments about her gender. 2 In order to prove her hostile working environment claim, Fox “must show that: 1) she was 3 subjected to verbal or physical conduct of a sexual nature, 2) this conduct was unwelcome, and 3) the 4 conduct was ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create 5 6 an abusive working environment.’” Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995) (quoting Ellison v. Brady, 924 F.2d 872, 875-76 (9th Cir. 1991)). “The working environment must be both 7 subjectively and objectively perceived as abusive.” Id. (citing Harris v. Forklift Sys. Inc., 510 U.S. 17, 23 8 (1993)). “However, even if a hostile working environment exists, an employer is only liable for failing to 9 remedy harassment of which it knows or should know.” Id. (citing Ellison, 924 F.2d at 881). 10 Based on the facts as set forth in this Order, a reasonable jury could find that Kitsap County 11 negligently allowed Mr. Barkow’s comments and failed to take remedial action. A reasonable jury could 12 find that the June 2, 2005 meeting conducted by Ms. Baker effectively denied Ms. Fox the ability to 13 complain to the County. Based upon the information before it, the Court cannot say as a matter of law 14 that Fox was or was not subject to conduct of a sexual nature or that her working conditions were altered 15 due to her gender. Likewise, the Court cannot say whether or not affirmative defenses will be available to 16 the County. 17 The scope and breadth of this claim will be determined after the Court has heard the evidence and 18 will be ultimately defined in the instructions given to the jury. Therefore, Kitsap County’s motion for 19 summary judgment as to this claim will be DENIED. 20 4. 21 22 Ms. Fox’s failure to promote claim was not filed with the EEOC within 300 days of the date she was denied the Deputy Fire Marshal I position. Ms. Fox had 300 days after the alleged unlawful activity to file a charge of discrimination with the 23 EEOC. 42 U.S.C. §2000(e)-5(e). The “failure to file an EEOC charge within the prescribed 300-day 24 period is not a jurisdictional bar, but it is treated as a violation of a statute of limitations, complete with 25 whatever defenses are available to such a violation, such as equitable tolling and estoppel.” Santa Maria v. 26 Pacific Bell, 202 F.3d 1170, 1176 (9th Cir. 2000). Mr. Barkow was hired for the position Ms. Fox applied 27 for and his first day of work was December 6, 2004. Ms. Fox knew on or before that date that she was not 28 selected. Furthermore, it is not clear that Ms. Fox was qualified for the position of Deputy Fire Marshall, ORDER Page - 10 1 [see Starkey Decl., para. 4] and that Mr. Barkow was not qualified or had lesser qualifications than Ms. 2 Fox. [See Starkey Decl., para. 5; see also fn. 5]. 3 As has been previously pointed out in this Order, plaintiff has failed to provide this Court with the 4 charge of discrimination filed with the EEOC nor with the agency’s right to sue letter. In plaintiff’s 5 response to the defendant’s motion on this issue, she does not directly address the 300-day requirement but 6 instead argues that the 90-day requirement for bringing suit after Notice of the Right to Sue should be 7 tolled in this case.12 She also indicates in her response that she filed her EEOC complaint after she resigned 8 on December 6, 2005. The only copy of a potential charge of discrimination before the Court was 9 provided by Kitsap County and it is dated November 23, 2005. [Starkey Decl., Exh. H]. Even if Ms. Fox 10 had filed her claim on November 23, 2005, it would not have been timely. November 23, 2005 is more 11 than 350 days from the date when the unlawful conduct occurred. It is therefore beyond the 300-day 12 requirement. Kitsap County’s motion for summary judgment on this claim is GRANTED. 13 5. Ms. Fox’s disperate treatment claims will not be dismissed on summary judgment. 14 In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court articulated a 15 framework for assessing the burdens and order of presentation of proof in a case alleging disparate 16 treatment. The plaintiff must initially establish a prima facie case. Id., at 802. Plaintiff “must show that 17 (1) she belongs to a protected class; (2) she was qualified for the position; (3) she was subjected to an 18 adverse employment action; and (4) similarly situated men were treated more favorably, or her position 19 was filled by a man.” Villiarimo v. Aloha Island Air, 281 F.3d 1054, 1062 (9th Cir. 2002). The Ninth 20 Circuit has consistently held that “[t]he burden of establishing a prima facie case of disparate treatment is 21 not onerous,” and “[a]t the summary judgment stage ‘the requisite degree of proof does not even need to 22 rise to the level of a preponderance of the evidence.’” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 23 1994) (internal citations omitted). 24 Unfortunately, plaintiff’s briefing leaves unclear at this stage of the proceedings whether Ms. Fox 25 has viable claims of disparate treatment due to the denial of reclassification and training, or in the way in 26 which the annual leave call in procedure was enforced as to her. However, granting summary judgment 27 28 12 This section of the brief was obviously cut and pasted from another brief and not proofread. The heading refers to a “Ms. Sutherland” who is not a party before this Court. ORDER Page - 11 1 now will not alter the length of the trial or change the way plaintiff presents her evidence in any meaningful 2 way. As with plaintiff’s hostile work environment claim, the existence or non-existence of these claims will 3 be determined by how the Court ultimately instructs the jury. Kitsap County’s motion for summary 4 judgment on these claims is DENIED. 5 6. The Court will not dismiss plaintiff’s claim for intentional infliction of emotional distress at this time. 6 In order to prevail on a claim of intentional infliction of emotional distress, or outrage, a plaintiff 7 must prove that defendants engaged in (1) extreme and outrageous conduct; (2) intentional or reckless 8 infliction of emotional distress; and (3) that plaintiff suffered severe emotional distress. Kloepfel v. Bokor, 9 149 Wn.2d 192, 195-96 (2003).13 After the evidence has been presented at trial, the Court will determine 10 whether to instruct the jury on this claim. Kitsap County’s motion for summary judgment on this claim is 11 DENIED. 12 C. Individual Defendants’ Motion for Summary Judgment on Plaintiff Teresa Fox’s Claims. 13 Defendants Keith Barkow, Derrick Crawley, Cynthia Baker, and Scott Riddell move for summary 14 judgment on Ms. Fox’s claims on several grounds. They will be discussed in turn. 15 1. The defendants are not individually liable under Title VII. 16 Plaintiffs have sued the named defendants in their “individual and official capacity” on all claims. It 17 is well-established that the statutory scheme of Title VII does not impose personal liability for employees. 18 19 See e.g. Greenlaw v. Garrett, 59 F.3d 994, 1001 (9th Cir. 1995) (citing Miller v. Maxwell’s Intern. Inc., 991 F.2d 583, 587-88 (9th Cir. 1993)). Defendants’ motion for summary judgment as to Fox’s Title VII 20 claims is GRANTED. 21 To the extent the defendants argue that their individual and collective actions did not violate Title 22 VII, those issues have been previously discussed and ruled on in this Order in the context of Kitsap 23 County’s motion for summary judgment. 24 25 26 27 28 13 The complaint at para. 5.5 only raises a claim that the defendants inflicted intentional emotional distress upon Ms. Fox. However, in the prayer for relief section of the complaint at para. 5, p. 8, damages are sought for the intentional infliction of emotional distress as to both plaintiffs. Plaintiffs’ response to Kitsap County’s motion only discusses Ms. Fox’s claim, however. The Court expects counsel for the plaintiffs to clear up this obvious discrepancy prior to trial at the pretrial conference. ORDER Page - 12 1 2. Defendants Crawley and Baker are not entitled to qualified immunity on Ms. Fox’s First Amendment retaliation claim. 2 Defendants Mr. Crawley and Ms. Baker move for summary judgment on Ms. Fox’s First 3 Amendment retaliation claim asserting that they are protected by qualified immunity. Pursuant to the 4 qualified immunity doctrine, “government officials performing discretionary functions generally are 5 shielded from liability for civil damages insofar as their conduct does not violate clearly established 6 statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 7 457 U.S. 800, 818,(1982). In analyzing a qualified immunity defense, the Court must determine first, 8 whether a constitutional right would have been violated on the facts alleged, taken in the light most 9 favorable to the party asserting the injury; and then, whether the right was clearly established when viewed 10 in the specific context of the case. Saucier v. Katz, 533 U.S. 194, 201 (2001). “The relevant dispositive 11 inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable 12 officer that his conduct was unlawful in the situation he confronted.” Id. The privilege of qualified 13 immunity is an immunity from suit rather than a mere defense to liability, and like absolute immunity, it is 14 effectively lost if a case is erroneously permitted to go to trial. Id. 15 The Supreme Court has recently held “that the Saucier protocol should not be mandatory in all 16 cases . . . [but] it is often beneficial.” Pearson v. Callahan, 129 S. Ct. 808, 818 (2009). In this case it is 17 beneficial to first determine whether a constitutional right was violated before moving to the second 18 question of whether the right was clearly established. 19 a. The required elements of Ms. Fox’s First Amendment retaliation claim. 20 In order to sustain a First Amendment retaliation claim, a public employee must show (1) the 21 employee engaged in constitutionally protected speech, (2) the employer took adverse employment action 22 against the employee, and (3) the employee’s speech was a substantial or motivating factor in the adverse 23 24 action. Posey v. Lake Pend Oreille School Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (quoting Freitag v. Ayers, 468 F.3d 528, 543 (9th Cir. 2006). 25 b. Ms. Fox’s speech was constitutionally protected. 26 To address the first step in the qualified immunity analysis, the Court must determine whether the 27 first element of plaintiff’s First Amendment retaliation claim has been met. Under Posey, this analysis now 28 requires a three-step inquiry. Posey, 546 F.3d at 1130. First, the district court must determine “whether ORDER Page - 13 1 the expressions in question were made by the speaker ‘. . . upon matters of public concern.’” Garcetti v. 2 Ceballos, 547 U.S. 410, 416 (2006) (quoting Connick v. Myers, 461 U.S. 138, 146-47 (1983)). Second, 3 the Court must apply the Pickering balancing test14 and consider “whether the state lacked adequate 4 justification for treating the employee differently from any other member of the general public[.]” Id., at 5 1130-31 (internal quotation marks omitted) (citing Pickering v. Board of Education, 391, U.S. 563, 568 6 (1968)). If the Court answers both questions yes, “only then should the Court consider whether the 7 plaintiff spoke as a private citizen or a public employee.” Id., at 1131. This final question of the three part 8 inquiry is a mixed question of fact and law. Id., at 1129. (i) 9 Ms. Fox’s complaints about fraud, waste, and abuse in the KCFMO raised matters of public concern. 10 The Ninth Circuit has stated “that misuse of public funds, wastefulness, and inefficiency in 11 managing and operating government entities are matters of inherent public concern.” Johnson v. 12 13 Multnomah County, 48 F.3d 420, 425 (9th Cir. 2995) (citing Roth v. Veteran’s Admin., 856 F.2d 1401, 1405 (9th Cir. 1988). Ms. Fox complained to her supervisors about the misuse of county vehicles, 14 employees showing up late and leaving early, abuse of overtime, failure to perform inspections, 15 incompetent inspections, and mismanagement of the KCFMO. Although Ms. Fox was personally 16 dissatisfied with her job and her treatment at the KCFMO, the complaints about fraud, waste and abuse at 17 the agency fit well within the type of communications found by courts to be of public concern. Id.; see 18 also Connick, 461 U.S., at 148. 19 (ii) 20 Ms. Fox’s interest outweighs the County’s interest under the Pickering balancing test. 21 This Court must next balance Ms. Fox’s interests in “commenting upon matters of public concern” 22 with the “interest of the State, . . . in promoting the efficiency of the public services it performs through its 23 employees.” Pickering, 391 U.S., at 568. The Court must ultimately decide “whether the state lacked 24 ‘adequate justification for treating the employee differently from any other member of the general 25 public[.]’” Posey, 546 F.3d at 1131 (quoting Garcetti, 547 U.S., at 418). 26 27 28 14 The Pickering balancing test requires a court to evaluate and balance“the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Education, 391 U.S. 563, 568 (1968). ORDER Page - 14 1 The defendants do not address this question in their motion, and the plaintiff, of course, does not 2 address the issue either. Pointing out alleged fraud, waste, and abuse is speech on important matters of 3 public concern. Although the defendants have an interest in an efficiently run Fire Marshall’s Office, in this 4 case Ms. Fox’s interests in commenting on fraud, waste, and abuse outweighs the defendants’ interest in 5 promoting an efficient office operation. From reading the record in this case the Court can surmise that the 6 KCFMO was not an enjoyable place to work during 2004-2005. Although a majority of Ms. Fox’s 7 comments were directed at the alleged dysfunction in the office, and much of the alleged dysfunction may 8 be attributable to Ms. Fox’s and Mr. Iskra’s complaints, the Court cannot say that these comments were 9 the overriding cause of the dysfunction in the office. The defendants should also be concerned about 10 alleged fraud, waste, and abuse in the KCFMO and should not ignore those complaints or retaliate against 11 the speaker. Therefore, the defendants have not shown an “adequate justification for treating [Ms. Fox] 12 differently from any member of the general public.” Id. 13 14 Because the Court has answered the first two questions affirmatively, the Court will address the final question. 15 (iii) There exists a disputed issue of material fact as to whether Ms. Fox’s job duties involved reporting fraud, waste, and abuse to the County. 16 17 The final inquiry into whether Ms. Fox’s speech was protected asks “whether the plaintiff spoke as 18 a private citizen or a public employee.” Id. Under Posey, this issue involves a mixed question of fact and 19 law. Id., at 1129. Neither party has briefed this issue, but it appears to the Court that issues of material 20 fact exist with regard to her job duties as a County employee and whether or not it was her responsibility 21 to report fraud, waste, abuse, and mismanagement in the KCFMO. See e.g., Posey, 546 F.3d at 1125 22 (“Posey counters that no aspect of his job description required him to ‘report wrongdoing by 23 administrators or co-workers . . ..’”). 24 (iv) A reasonable jury could find that Ms. Fox suffered an adverse employment action and that her speech was a substantial or motivating factor. 25 As has been previously pointed out in this Order, a reasonable jury could determine that Ms. Fox 26 was denied training and reclassification, and that the annual leave call in policy was enforced against her in 27 a discriminatory way. They could also find that she was constructively discharged. The jury could find 28 that a causal link existed based on the June 2, 2005 meeting with Ms. Baker. ORDER Page - 15 1 On the facts as alleged and taken in the light most favorable to her, Ms. Fox has established a 2 violation of a constitutional right. 3 c. 4 The right to speak out about fraud, waste, and abuse was clearly established. In order to determine whether the right was clearly established the Court is to “survey the legal 5 landscape” at the time of the alleged misconduct. Trevino v. Gates, 99 F.3d 911, 916 (9th Cir. 1996). It 6 was well-established at the time of the conduct in question that legal protection was recognized for public 7 employees who speak out on matters of public concern. Roth, 856 F.2d 1401. Whether or not this speech 8 was made primarily pursuant to plaintiff’s employment or whether it was intended to bring a matter of 9 concern to the public is an issue yet to be resolved. Plaintiff has presented facts, when viewed in the light 10 most favorable to her, that support her position that the actions taken against her constituted a violation of 11 her First Amendment rights, and that the law regarding speaking out on matters of public concern was 12 established at the time of the conduct in question. While the Court is aware of, and agrees with, the 13 purpose for qualified immunity protection, for the reasons discussed above, the defendants’ motion for 14 summary judgment on qualified immunity as to Ms. Fox is DENIED. 15 3. Barkow and Riddell are not state actors for the purposes of 42 U.S.C. §1983. 16 To establish a prima facie case under 42 U.S.C. §1983, a plaintiff must demonstrate that (1) the 17 action complained of occurred “under color of law,” and (2) the action resulted in a deprivation of a 18 constitutional right or a federal statutory right. McDade v. West, 223 F.3d 1135, 1139 (9th Cir. 2000) 19 (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds by Daniels v. Williams, 20 474 U.S. 327, 330-31 (1986)). A person acts under color of state law if he “exercise[s] power ‘possessed 21 by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state 22 law.’” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 23 (1941)). Plaintiff does not respond to this argument and a review of the argument demonstrates that it has 24 merit. There is nothing to show that Barkow and Riddell, plaintiffs’ co-workers, had the authority required 25 to act under state law. Defendants’ motion for summary judgment on this claim is GRANTED. 26 Furthermore, plaintiff Fox will be expected to provide at or before the pretrial conference in this 27 case a state law basis for her claims that Mr. Riddell harassed and retaliated against her for whistle-blowing 28 activity and/or for bringing the instant lawsuit. ORDER Page - 16 1 2 3 D. Individual Defendants’ Motion for Summary Judgment of Plaintiff Edward Iskra’s Claims. Defendants Keith Barkow, Derrick Crawley, Cynthia Baker, and Scott Riddell move for summary judgment on Mr. Iskra’s claim on several grounds. They will be addressed in turn. 4 1. 5 To the extent that Mr. Iskra has stated a claim under Title VII,15 and for the reasons set forth in this 6 Order as to Ms. Fox’s Title VII claims,16 defendants’ motion for summary judgment as to Mr. Iskra’s Title 7 VII claims is GRANTED. 8 2. The individual defendants are not liable under Title VII. Defendants Crawley and Baker are not entitled to qualified immunity on Mr. Iskra’s First Amendment retaliation claim. 9 The Court has analyzed the applicability of qualified immunity to the facts of this case and will not 10 repeat it here.17 Mr. Iskra alleges that he spoke out about the same fraud, abuse, and waste as did Ms. Fox 11 while employed in the KCFMO. Although Mr. Iskra testified in his deposition that it was part of his duty 12 “as an ethical employee” to report illegal behavior, his belief does not control whether or not he was 13 speaking as a private citizen or public employee. [Iskra Dep., pp. 72-72]. Defendants Crawley and Baker’s 14 motion for summary judgment on qualified immunity as to Mr. Iskra’s claims is DENIED. 15 3. Barkow and Riddell are not state actors for the purposes of 42 U.S.C. §1983. 16 For the reasons set forth in this Order as to Ms. Fox’s 42 U.S.C. §1983 claims against Mr. Barkow 17 and Mr. Riddell,18 defendants Barkow and Riddell’s motion for summary judgment on Iskra’s 42 U.S.C. 18 §1983 claims is GRANTED. 19 IV. CONCLUSION 20 The Court is acutely aware that this motion has been pending over thirty days; however, these 21 motions would have been ruled on much earlier had plaintiffs’ counsel spent the necessary time researching 22 and briefing the issues and pointing to specific pages in an excerpted record supporting plaintiffs’ 23 arguments. Providing complete depositions with few direct citations to page numbers and dumping on the 24 25 15 See Section II., supra. 16 See Section III.C.1., supra. 17 See Section III.C.2., supra. 18 See Section III.C.3., supra 26 27 28 ORDER Page - 17 1 Court the 189-page Diamond Report with the citation “See Diamond Report” is not helpful and will not be 2 tolerated in the future. 3 At the pretrial conference, plaintiffs’ counsel will be expected to clarify what claims are being 4 pursued at trial and to provide answers to the questions raised by defendants’ motions and left unanswered 5 in plaintiffs’ briefing as set forth in this Order. 6 7 V. ORDER 1. Kitsap County’s Motion for Summary Judgment [Dkt. #97] is GRANTED as to plaintiffs’ 8 42 U.S.C. §1983 claim and Title VII failure to promote claim. The motion is DENIED in 9 all other respects. 10 2. Individual Defendants Motion for Summary Judgment on Plaintiff Fox’s Claims [Dkt. #87] 11 is GRANTED as to Plaintiff’s Title VII claims and 42 U.S.C. §1983 claims as to Barkow 12 and Riddell. The motion is DENIED in all other respects. 13 3. Individual Defendants Motion for Summary Judgment on Plaintiff Iskra’s Claims [Dkt. #94] 14 is GRANTED as to Plaintiff’s Title VII claims and 42 U.S.C. §1983 claims as to Barkow 15 and Riddell. The motion is DENIED in all other respects. 16 IT IS SO ORDERED. 17 Dated this 20th day of February, 2009. A 18 19 RONALD B. LEIGHTON UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 ORDER Page - 18

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