Beahm v. City of Bremerton et al, No. 3:2009cv05048 - Document 57 (W.D. Wash. 2010)

Court Description: ORDER DENYING IN PART AND GRANTING IN PART CITY DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, granting in part and denying in part 21 Motion for Summary Judgment. Signed by Judge Robert J. Bryan. (JL)

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Beahm v. City of Bremerton et al Doc. 57 THE HONORABLE ROBERT J. BRYAN 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 9 10 11 12 13 14 15 ANN BEAHM, ) ) Plaintiff, ) ) v. ) ) ) CITY OF BREMERTON, et al., ) ) Defendants. ) ) ) ) No. C09-5048 RJB ORDER DENYING IN PART AND GRANTING IN PART CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 16 17 This matter comes before the Court on City Defendants’ Motion for Summary 18 Judgment (Dkt. 21). The Court has considered the pleadings filed in support of and in 19 opposition to the motion and the remainder of the file herein. 20 21 22 I. PROCEDURAL HISTORY: On January 16, 2009, Plaintiff Ann Beahm filed a Complaint in Pierce County Superior Court against Defendants City of Bremerton, Kitsap County, Paul Lucas, Michael 23 24 25 26 Mecham, Angela Woods, Phil Williams, Robert Elsen, Maryellen Babbit, Sheree Jankowski and Detective Rodney Harker. Dkt. 1. In her Complaint, Plaintiff states claims for Defamation, Interference with a Contractual Relationship and Interference with a Business ORDER Page 1 Dockets.Justia.com 1 Expectancy, Malicious Prosecution, Wrongful Termination, Intentional Infliction of 2 Emotional Distress, Federal Age Discrimination, Retaliation, Section 1983 Acting Under the 3 Color of State Law to Extort, and Section 1983 Due Process Violations. Dkt. 33. On January 4 28, 2009, Defendants removed the case to this Court under 28 U.S.C. § 1441(b) due to 5 6 7 8 9 10 11 Federal Question jurisdiction. Dkt. 1. On December 18, 2009, all parties stipulated to a dismissal with prejudice of Defendant Kitsap County (Dkt. 17), and the Court granted this dismissal. Dkt. 18. On January 28, 2010, all parties stipulated to a dismissal with prejudice of Defendant Michael Mecham (Dkt. 19), and the Court granted this dismissal. Dkt. 20. On February 9, 2010, the remaining Defendants (collectively known as the “City 12 Defendants”) filed this Motion for Summary Judgment. Dkt. 21. The Motion for Summary 13 14 Judgment seeks dismissal for all of Plaintiff’s claims because the City Defendants argue that 15 they had a lawful reason to terminate Plaintiff, namely this Plaintiff was paid for hours that 16 she did not actually work. Dkt. 21. 17 18 19 On March 1, 2010, Plaintiff filed her Response to Defendant’s Motion for Summary Judgment. Dkt. 33. She argues that summary judgment should not be granted because there are issues of fact remaining and the case should be presented to a jury. Dkt. 33. Plaintiff filed 20 21 22 many exhibits and declarations with her Response, and some of pleadings were refiled as much as three times as duplicates. See Dkt. 45. These voluminous and duplicate pleadings 23 made it difficult for this Court to prepare this Order, and Plaintiff’s counsel should be 24 cautioned to be careful in filing documents. 25 26 On March 5, 2010, the City Defendants filed a Reply to Plaintiff’s Response to Defendants’ Motion for Summary Judgment. Dkt. 44. In this Reply, the City Defendants ORDER Page 2 1 contend that within the pleadings submitted by the Plaintiff there is no evidence that 2 “defendants inaccurately reported her arrival and departure from work.” Dkt. 44 at 1. The City 3 Defendants argue that for this reason their motion for summary judgment should be granted. 4 Dkt. 44. 5 II. RELEVANT FACTS: 6 A. Plaintiff’s Employment with City of Bremerton: 7 8 9 10 11 In 1977, Plaintiff began working for the City of Bremerton as an Office Assistant in the City’s Accounting Division. Dkt. 24. In 1983, Plaintiff was transferred to the City’s Police Department as an Office Assistant Senior. Dkt. 24. In 1999, Plaintiff transferred to the Engineering Division, which is a division of the Department of Public Works and Utilities 12 (“PW&U”), as an Office Assistant Senior. Dkt. 24. Plaintiff worked at the Engineering 13 14 Division for the City of Bremerton until August 16, 2007, when she was terminated for 15 allegedly getting paid for hours that she did not actually work. Dkt. 21. Plaintiff contends that 16 this reason was merely pre-text for discrimination. Dkt. 1. 17 18 19 While employed with the City of Bremerton, Plaintiff was represented by the Local Teamsters Union. Dkt. 29; Dkt. 34-1. Plaintiff’s immediate supervisor was City Engineer Michael Mecham. Dkt. 34-1. During her employment with the City of Bremerton, Plaintiff 20 21 22 23 “never received a single counseling, reprimand or disciplinary action for not living up to [her] responsibilities.” Dkt. 34-1. Plaintiff’s job duties included scheduling and formatting “agenda bills” for meetings, 24 preparing payroll records to be delivered to Human Resources Division for processing, and 25 providing backup for Angela Woods, an Office Assistant II, which included answering 26 telephone calls and assisting customers at the front counter. Dkt. 29; Dkt. 35-1. The ORDER Page 3 1 Engineering Department expected Plaintiff and Ms. Woods to coordinate their breaks, lunch 2 times and vacation so that one of them would be in the office at all times. Dkt. 29. 3 Over time Plaintiff’s coworkers in the Engineering Department, including Ms. Woods, 4 began to notice that Plaintiff was not in the office during core working hours. Dkt. 23; Dkt. 5 6 25; Dkt. 27; Dkt. 47; Dkt. 49; Dkt. 50; Dkt. 51; and Dkt. 52 Plaintiff’s coworkers found it 7 strange that she was out of the office so frequently, even when they factored in Plaintiff’s sick 8 leave and vacation time,. Dkt. 23; Dkt. 25; and Dkt. 27. Plaintiff’s coworkers began to 9 complain about the frequency at which Plaintiff was not at her desk and would jokingly ask 10 11 “Where’s Ann?” Dkt. 23; Dkt. 25; Dkt. 27; Dkt. 49; and Dkt. 52. The Engineering Department employees, including Plaintiff, were represented by a 12 union, and they had core hours that they were generally required to work, which were from 13 14 8:00 a.m. to 4:00 p.m. on weekdays. Dkt. 22. Engineering Department employees could 15 deviate from this schedule slightly, but usually only under a special arrangement. Dkt. 22. 16 Plaintiff states that she would begin her work day around 7:00 or 7:30 a.m. and would leave 17 around 4:00 p.m. Dkt. 22. Plaintiff asserts that on days she would start at 7:00 a.m. she would 18 19 take an hour lunch, while on days she started work at 7:30 a.m. she would take only a half hour lunch. Dkt. 22. 20 21 22 The Engineering Department’s policy was that if an office employee needed to work overtime, at home, on weekends or a shift that was not within the core hours, the employee 23 was required to get approval from a supervisor. Dkt. 29 at 2. In cases where the employee 24 worked more than eight hours a day, the employee was required to get permission from a 25 supervisor before doing so and record the extra hours worked either as overtime or earned 26 compensatory time. Dkt. 29 at 2. Overtime is paid at time and a half, and earned ORDER Page 4 1 compensatory time is time that can be used for leave on a later date. Dkt. 29. Plaintiff 2 contends that she often took work home or worked on her own time in order to finish her job 3 duties and, for most of those times that she took work home, Plaintiff took compensatory time 4 so that the City of Bremerton would not have to pay her overtime. Dkt. 34-1. Plaintiff states 5 6 when she needed to deviate from those hours she would make arrangements with Mr. 7 Mecham, her supervisor. Dkt. 22; Dkt. 29. Plaintiff asserts that there were several occasions 8 where she had to work late but could not reach Mr. Mecham to get approval beforehand. Dkt. 9 22. On the other hand, Mr. Mecham states that it was extremely rare for Plaintiff’s job duties 10 11 to require her to take work from home, leave the office, or work on the weekends. Dkt. 29. Mr. Mecham recalls only a couple of occasions, in 2006 or 2007, where Plaintiff was 12 authorized to take work home. Dkt. 29; Dkt. 35-7. 13 14 15 B. Ms. Jankowski’s Calendar Tracking Plaintiff’s Time at Work: In November 2006, Sheree Jankowski, an Engineering Technician, decided to 16 informally track how much time Plaintiff was actually in the office “just out of pure 17 curiosity.” Dkt. 27; Dkt. 35-3. Ms. Jankowski recorded Plaintiff’s arrival to and departure 18 19 from the office on a paper calendar in her office. Dkt. 27. Ms. Jankowski states that if she did not see when Plaintiff arrived or left, she would ask Ms. Woods or Robert Elsen, who was an 20 21 22 Engineer Technician, if they knew when; if they did not know Plaintiff’s arrival or departure, Ms. Jankowski would leave that day blank on her calendar or mark it with a “?” mark if she 23 was unsure. Dkt. 27. Ms. Jankowski’s hours were from 7:30 a.m. to 4:00 p.m. Dkt. 35-3. Ms. 24 Jankowski admits she did not know Plaintiff’s core hours. Dkt. 35-3. 25 26 Mr. Elsen states that he participated by keeping track of Plaintiff’s time in the office. Dkt. 35-5. Mr. Elsen asserts that he would look out his office window and see if Plaintiff’s car ORDER Page 5 1 was in the parking lot and then report back to Ms. Jankowski for her to mark on the calendar. 2 Dkt. 35-5. Lynn Horish, a former Engineering Department employee, states that during the 3 time that Ms. Jankowski was tracking Plaintiff’s time in the office, Ms. Horish would 4 typically see Plaintiff’s car in the parking lot when she arrived in the morning. Dkt. 34-3. Ms. 5 6 7 Horish’s working hours were from 7 a.m. to 4 p.m. Dkt. 34-3. Ms. Horish states that she would usually go upstairs to the Engineering Division 8 usually three or four times a day and she always saw Plaintiff at her desk or talking to Mr. 9 Mecham. Dkt. 34-3. 10 11 On January 14, 2007, Plaintiff fell on ice in front of the Engineering Division and injured her neck and hip. Dkt. 34-1. Plaintiff reported this incident to Paul Lucas, 12 Administrative Analyst for PW&U, who encouraged her to file a Labor and Industry Claim, 13 14 which Plaintiff did. Dkt. 34-1. Plaintiff maintains that this fall resulted in physician 15 appointments, medical testing and physical therapy, which caused her to be out of the office. 16 Dkt. 34-1. Bill Davis, an engineer, stated that he noticed Plaintiff was frequently out of the 17 office, but “assumed she was taking leave for health-related reasons due to a past accident.” 18 19 Dkt. 47. Ms. Jankowski states that she did not intend to give this information to management or 20 21 22 “to use it against [Plaintiff] in any way.” Dkt. 27. Ms. Jankowski asserts that at first she did not tell anyone about her decision to track Plaintiff’s whereabouts, but then later told Ms. 23 Woods and Mr. Elsen about it in order to get their assistance in tracking Plaintiff’s time in the 24 office. Dkt. 27. 25 26 On March 1, 2007, Ms. Jankowski gave a copy of the calendar to Maryellen Babbit, an Engineering Technician and the Union Steward within the Engineering Department. Dkt. 27; ORDER Page 6 1 Dkt. 35-3. Ms. Jankowski states that she gave Ms. Babbit the calendar because Ms. Babbit 2 asked Ms. Jankowski if she had any information showing what times Plaintiff had been in the 3 office. Dkt. 35-3; Dkt. 27; Dkt. 28. Ms. Babbit contends that Ms. Jankowski and Mr. Elsen 4 came to her and expressed their concern about Plaintiff’s hours because they had seen the 5 6 7 8 9 10 11 “lead balances,” which are the balances at the end of each pay period that show sick leave and vacation; this conversation lead to Ms. Babbit’s request for a copy of the calendar. Dkt. 35-7. Shortly after getting the calendar, Ms. Babbit informed Paul Lucus, Administrative Analyst for PW&U, that she and other employees in the Engineering Division were concerned that Plaintiff frequently did not work her entire shift. Dkt. 28. Ms. Babbit states that Mr. Lucas handles the disciplinary actions for the Public Works Department including the 12 “follow-through,” the investigation and sits in on disciplinary hearings. Dkt. 35-7. Jane 13 14 Rebelowski, one of Plaintiff’s co-workers, contends that the Plaintiff had a contentious 15 relationship with Ms. Babbit. Dkt. 35-1. Ms. Rebelowski alleges that Ms. Babbit told that 16 “she shouldn’t trust [the Plaintiff], and that Plaintiff had refused to join the union and pay 17 union dues.” Dkt. 35-1. Ms. Babbit states that she did not go talk to Mr. Mecham, Plaintiff’s 18 19 supervisor, about the calendar or her concerns about Plaintiff’s whereabouts. Dkt. 35-3. Mr. Mecham states that no one approached him with concerns about Plaintiff’s hours and, if 20 21 22 anyone had, he would have spoken to Plaintiff about it. Dkt. 35-7. In April 2007, Mr. Lucas spoke with Phil Williams, Director of Public Works and 23 Utilities for the City of Bremerton, about Plaintiff allegedly getting paid for time she did not 24 work. Dkt. 35-1; Dkt. 32. Mr. Lucas contends that Mr. Williams told him to “dig deeper, dig 25 into it.” Dkt. 35-1. Mr. Williams states that he told Mr. Lucas that “he should get payroll 26 documents and look into the employee’s concerns to see if they have any merit.” Dkt. 32. ORDER Page 7 1 2 3 Mr. Lucas states that he first examined the payroll sheets from November 2006 to April 2007 and compared the dates where there was a question of whether the Plaintiff worked that time. Dkt. 35-1 at 13. Mr. Lucas states that he checked the alarm information 4 records for the PW&U building in order to see if Plaintiff was working late or starting work 5 6 early by arming or disarming the alarm system. Dkt. 28. Mr. Lucas states that even under the 7 most conservative estimate Plaintiff reported 184.75 hours that she did not in fact work. Dkt. 8 28. Mr. Lucas declares that he never checked, prior to Plaintiff’s suspension, with Mr. 9 Mecham, Plaintiff’s supervisor, to determine what her schedule was or whether Plaintiff was 10 11 allowed to take work home. Dkt. 35-1. Mr. Williams states that after Mr. Lucas’s initial investigation he decided to conduct a formal investigation and put Plaintiff on Administrative 12 Leave. Dkt. 32. 13 14 Plaintiff filed voluminous pleadings in order to show that other Engineering 15 Department employees would frequently take long breaks or use on-the-job time for personal 16 projects or calls. Linda Shafer, one of Plaintiff’s co-workers, contends that Mr. Elsen would 17 frequently take long personal calls at the office and that Mr. Lucas slept in his office. Dkt. 34- 18 19 2. Ms. Rebelowski states that Mr. Lucas would sleep in his office. Dkt. 35-1. Ms. Horish contends that the “entire engineering staff takes long breaks and lunches and goes home early, 20 21 22 especially on Fridays, so it’s commonplace for people to be gone in Engineering.” Dkt. 34-4. Ms. Horish states that she thought that to single out the Plaintiff was “kind of ludicrous” 23 because the entire department was “doing that.” Dkt. 34-4. Ms. Rebelowski contends that Ms. 24 Jankowski and Ms. Woods would frequently use their work computer for personal projects. 25 Dkt. 35-1. Ms. Rebelowski asserts that Mr. Elsen would have personal telephone 26 conversations at work, would read the newspaper and would watch television in the ORDER Page 8 1 conference room on occasion. Dkt. 35-1. Ms. Rebelowski contends that other employees 2 within the Engineering Division had what they called “Real Estate Club” where they would 3 spend time on the job discussing potential real estate deals and would look at real estate 4 listings on City computers. Dkt. 35-1. 5 C. Plaintiff’s Suspension and Subsequent Termination: 6 7 On May 18, 2007, Plaintiff received a telephone call from Managing Engineer Larry 8 Matel. Dkt. 34-1. Plaintiff states that in this call Mr. Matel told Plaintiff that Mr. Williams 9 wanted to meet her in his office. Dkt. 34-1. When Plaintiff went into Mr. Williams’ office, 10 11 Mr. Williams, Mr. Lucas, Assistant City Attorney Ken Bagwell and John Witte, whose position was not mentioned, were present. Dkt. 34-1. Plaintiff states that Mr. Williams 12 informed her that there had been some payroll discrepancies and that Plaintiff was being 13 14 placed on Administrative Leave pending further investigation. Dkt. 34-1. Plaintiff contends 15 that this claim surprised her. Dkt. 34-1. Mr. Lucas admits that Plaintiff was never counseled 16 that there were issues with her hours prior to her suspension or termination from the 17 Engineering Department or spoke with her supervisor Mr. Mecham. Dkt. 35-1. 18 19 On May 18, 2007, Mr. Mecham learned that Plaintiff was placed on Administrative Leave while an investigation was pending concerning Plaintiff’s reports on the hours she 20 21 22 worked. Dkt. 29. At this time, Mr. Williams interviewed Mr. Mecham. Dkt. 29; Dkt. 32. Mr. Williams also interviewed Ms. Babbit. Dkt. 23; Dkt. 32. Ms. Babbit states that she told Mr. 23 Williams that she “had noticed that [Plaintiff] had been out of the office more than [she] 24 would have expected.” Dkt. 23. Mr. Lucas states that Ms. Babbit’s “cubicle is removed from 25 where she would be able to physically see [Plaintiff’s] coming and goings on a regular basis.” 26 Dkt. 35-1. ORDER Page 9 1 2 3 Mr. Williams also interviewed Mr. Elsen. Dkt. 25; Dkt. 32. Mr. Elsen states that he told Mr. Williams that he noticed Plaintiff was out of the office frequently and that Ms. Jankowski would ask him when Plaintiff arrived or departed. Dkt. 25. Ms. Jankowski was 4 also interviewed by Mr. Williams, who told him that she had kept a calendar of Plaintiff’s 5 6 arrival and departure from work. Dkt. 27; Dkt. 32. Mr. Williams states that on July 19, 2007, he sent Plaintiff a proposed termination 7 8 letter. Dkt. 32. Mr. Williams contends that in that letter he informed Plaintiff that a pre- 9 disciplinary hearing was scheduled for July 25, 2007, and that Plaintiff could respond to the 10 charges in person or by letter. Dkt. 32. Mr. Williams states that Plaintiff’s attorney, Clayton 11 12 Longacre, requested a continuance of the pre-disciplinary hearing and the hearing was rescheduled to August 10, 2007.1 Dkt. 32. Plaintiff contends that she requested a continuance 13 14 15 because she needed an opportunity to gather the items requested and time to review the materials. Dkt. 36-1. On August 2, 2007, Plaintiff’s physician, Dr. Arunas T. Banionis, wrote a letter stating 16 17 18 19 that Plaintiff was being treated for depression and anxiety and “that it would be reasonable to request a least a four-week postponement of this hearing” in order for new medication to take effect. Dkt. 36-1. Plaintiff’s attorney, Mr. Longacre, sent Dr. Banionis’s letter to the City of 20 21 Bremerton and requested a continuance on August 8, 2007. Dkt. 36-1. On August 9, 2007, Assistant City Attorney Ken Bagwell declined to continue 22 23 Plaintiff’s pre-disciplinary hearing, because “while the doctor believes that [Plaintiff] may be 24 25 26 1 The Court recognizes that Mr. Longacre is Plaintiff’s attorney in this present action and is unsure what implication Mr. Longacre’s involvement as a witness in the investigation and hearing process will have on his ability to continue to act as counsel in this case if this proceeds to trial. ORDER Page 10 1 able to make a better presentation several weeks from now, the doctor does not state that she 2 is incapable of attending the scheduled pre-disciplinary hearing.” Dkt. 36-1. 3 On August 10, 2007, Plaintiff’s attorney, Mr. Longacre, sent another letter in which he 4 argues for a continuance and states that Plaintiff cannot attend because her physician “will not 5 6 7 allow her to undergo the stress of a hearing with you,” and that Plaintiff has not had access to all the evidence to be used against her. Dkt. 36-1. 8 Mr. Williams maintains that Plaintiff did not respond either in person or in writing to 9 the August 10 pre-disciplinary hearing and that he sent her a Notice of Discipline informing 10 11 her that she has been formally terminated on August 17, 2007. Dkt. 32. Plaintiff did not appeal her Notice of Discipline. Dkt. 24. 12 D. Criminal Charges against Plaintiff: 13 Mr. Williams states that after his internal investigation of Plaintiff he met with 14 15 Assistant City Attorney Ken Bagwell and Human Resources manager Carol Conley. Dkt. 32. 16 Mr. Williams contends that Mr. Bagwell told him that Plaintiff’s conduct could be criminal. 17 Dkt. 32. Mr. Williams maintains that he was surprised by this statement and did not intend or 18 19 expect his investigation into Plaintiff’s hours to be turned into a criminal investigation. Dkt. 32. 20 21 22 On June 6, 2007, Detective Rodney Harker was assigned to investigate Plaintiff for theft. Dkt. 26. Detective Harker states that he met with Captain Burchett, City Attorney Ken 23 Bagwell, Phil Williams and Paul Lucus, and that Mr. Williams and Mr. Lucas had conducted 24 an initial investigation into Plaintiff’s alleged theft. Dkt. 26. 25 26 Detective Harker states that he reviewed a “document prepared by Paul Lucas that compared the hours [Plaintiff] reported she worked with the hours that her co-workers ORDER Page 11 1 observed her at work.” Dkt. 26. Detective Harker asserts that he prepared two different 2 comparisons of the hours worked by Plaintiff. Dkt. 26. Detective Harker maintains that on the 3 first comparison of Plaintiff’s reported hours and the calendar kept by Ms. Jankowski he 4 found that Plaintiff reported working 153 hours more than she actually worked. Dkt. 26. 5 6 Detective Harker contends that on his second more conservative comparison, which gave 7 Plaintiff the benefit of the doubt, Plaintiff reported working 112.75 hours she did not actually 8 work. Dkt. 26. 9 10 11 Detective Harker contends that during the investigation he learned that Plaintiff may have been disciplined ten years earlier for similar behavior in the Police Department. Dkt. 26. Detective Harker states that he interviewed Sergeant Kevin Crane on June 14, 2007. Dkt. 26. 12 Detective Harker asserts that during this interview he learned that coworkers reported that 13 14 Plaintiff was out of the office a lot, and confronted her about it. Dkt. 26. Detective Harker 15 states that she allegedly responded that she was working outside the office for Captain Craig 16 Rogers or working at home. Dkt. 26. Detective Harker maintains that Sergeant Crane said that 17 he kept track of Plaintiff’s time on a calendar and later turned that calendar over to the union 18 19 representative. Dkt. 26. Detective Harker interviewed Captain Rogers who stated that Sergeant Crane did provide him with a calendar but he believed that the incident was hard to 20 21 22 prove and that Plaintiff put in for a transfer. Dkt. 26. Detective Harker states in his report that he checked with Mr. Lucas who looked in 23 Plaintiff’s personnel file and found no record of discipline after the Police Department 24 investigation. Dkt. 26. Furthermore, Captain Rogers stated in a November 23, 1998 memo to 25 Roy Alloway that after “[a] review of payroll records, time sheets and personal documents 26 along with several interviews were made and reviewed and it has been determined that this ORDER Page 12 1 conduct [Plaintiff allegedly reporting hours she did not work] has been exonerated.” Dkt. 36- 2 4. Detective Harker states that he “was not aware” that Captain Rogers had sent a letter 3 completely exonerating Plaintiff. Dkt. 45. 4 Detective Harker states that on June 20, 2007, he called Plaintiff and tried to get an 5 6 7 interview with her, and she responded that she wanted to talk to her lawyer first. Dkt. 26. Detective Harker asserts that he submitted the Certificate of Probable Cause and his 8 report to the Kitsap County Prosecuting Attorney’s Office on June 27, 2007. Dkt. 26. 9 Detective Harker contends that he “was not pressured or in any way influenced by any City 10 employee, including members of the Police Department, to conduct a criminal investigation 11 or [to] forward the results of [his] investigation to the prosecuting attorney’s office.” Dkt. 26. 12 On August 3, 2007, Plaintiff was charged with Second Degree Theft in Kitsap District 13 14 15 Court. Dkt. 34-1. On August 30, 2007, Plaintiff appeared in District Court where she did not accept an 16 offer to participate in the Felony Diversion program and the case was moved to Kitsap 17 Superior Court. Dkt. 34-1. 18 19 On September 11, 2007, Plaintiff was charged with Theft in the Second Degree in Superior Court. Dkt. 34-1. 20 21 22 On October 1, 2007, Plaintiff was arraigned in Superior Court and was placed in handcuffs in front of the entire court room, was taken down the hall for a “pat down,” and was 23 then taken to the jail area where she was told to remove her jewelry, shoes and jacket and 24 another “pat down” was conducted. Dkt. 34-1. Plaintiff had her fingerprints and photograph 25 taken and was placed in a jail cell, where she states that she “sat crying for about an hour.” 26 Dkt. 34-1. Plaintiff states that this “incident caused her a great deal of humiliation, fear, ORDER Page 13 1 nightmares and anguish.” Dkt. 34-1. On Plaintiff’s arraignment documents, it states that the 2 “Court finds Probable Cause.” Dkt. 45 at 4. 3 On January 4, 2008, the Kitsap County Prosecutor’s Office reviewed Plaintiff’s case 4 and the charges were amended to First Degree Theft in Kitsap County Superior Court. Dkt. 5 6 7 34-1. On May 2, 2008, the Kitsap County Superior Court case against the Plaintiff was 8 dismissed and re-filed in Kitsap County District Court as misdemeanor charges of four counts 9 of Third Degree Theft. Dkt. 34-1. 10 11 Plaintiff states that on December 2, 2008, “all charges were Dismissed against [her] because she proved the charges against her were false.” Dkt. 34-1. It is unclear from the 12 record why the charges against Plaintiff were dismissed. 13 E. Mr. Williams’ Conversation with Ms. Rebelowski: 14 15 Ms. Rebelowski contends that, sometime during the first two-weeks of August, Mr. 16 Williams called Ms. Rebelowski into his office and asked her if she would talk to Plaintiff 17 because Mr. Williams knew that they were friends. Dkt. 35-1. Ms. Rebelowski states that in 18 19 their conversation they allegedly discussed the fact that “there is no way that [Ms. Jankowski] could see anybody coming up the stairs or going in the hallway, until they passed her desk.” 20 21 22 Dkt. 35-1 at 3. Ms. Rebelowski asserts that she and Mr. Williams also discussed whether Mr. Elsen 23 could hear when Plaintiff would come up and down the stairs at work, and Ms. Rebelowski 24 states that she told Mr. Williams that it was unlikely that Mr. Elsen could identify footsteps 25 because he frequently had his telephone calls on speaker phone and listened to the radio. Dkt. 26 35-1. Ms. Rebelowski contends that Mr. Williams told her that Mr. Lucas did a “thorough ORDER Page 14 1 investigation” and that when Plaintiff “worked at the police department, his investigation 2 shows [Plaintiff] stealing time from the police department, and the only reason that [Plaintiff] 3 was not fired is that she found somebody in the engineering department at the same pay grade, 4 who was willing to switch positions, so she switched.” Dkt. 35-1. 5 6 Ms. Rebelowski states that Mr. Williams asked her to go and speak with the Plaintiff 7 and to let the Plaintiff know that if she “just repays the city for the small portion that we can 8 prove, the Kitsap County Prosecutor’s Office can probably make this case go away.” Dkt. 35- 9 1. Ms. Rebelowski maintains that Mr. Williams told her that “the Kitsap County Prosecutor’s 10 Office is well-known for their strong prosecution of people stealing public funds,” and that he 11 would “consider it a personal favor if [she] went and talked to [Plaintiff], and asked her if she 12 would consider this, and we can just make this all go away.” Dkt. 35-1. Ms. Rebelowski 13 14 states that ten minutes after their conversation ended and she left Mr. Williams’ office she 15 was on her way to Plaintiff’s home, and Mr. Williams called her and asked if she was going to 16 talk to Plaintiff. Dkt. 35-1. Ms. Rebelowski states that she replied that she was on her way 17 over. Dkt. 35-1. Plaintiff states that Ms. Rebelowski did come speak with her and her husband 18 19 that evening. Dkt. 34-1. Ms. Rebelowski asserts that Plaintiff said “there’s no way, why would I do that, why would I pay for something I didn’t do.” Dkt. 35-1. 20 21 22 F. Kitsap Sun Publishes Newspaper Article on Plaintiff’s Termination: After Plaintiff’s termination and on September 16, 2007, a newspaper article titled 23 “City Worker Accused of Felony Theft” was published in the Kitsap Sun. Dkt. 36-1; Dkt. 34- 24 1. The article states that “[a] 30-year Bermerton employee was charged with second-degree 25 theft in Kitsap County Superior Court for allegedly getting paid by the city for hours she 26 didn’t work.” Dkt. 36-1. The article identifies Plaintiff by name in the sub-heading of the ORDER Page 15 1 article. Dkt. 36-1. Plaintiff argues that if someone were to conduct an internet search on her 2 name “Ann Beahm” and “Bremerton, WA” the article is the first search result. Dkt. 36-1. The 3 City Defendants deny any responsibility or contribution to the newspaper article. Dkt. 44 at 7. 4 Ms. Horish contends that Mr. Lucas wanted everyone to know about Plaintiff’s 5 6 alleged theft. Dkt. 34-3. Ms. Horish asserts that Mr. Lucas told someone to copy the article 7 and to give it to Mr. Williams and that “he made sure everyone in the office knew.” Dkt. 34-4. 8 Ms. Horish contends that Mr. Lucas “made copies [of the article] for upstairs too.” Dkt. 34-4. 9 Ms. Horish maintains that Mr. Lucas seemed to imply that Plaintiff deserved to be arrested 10 and charged with theft and that he may have used the phrase “it took a long time coming.” 11 Dkt. 34-4. Ms. Horish states that Mr. Lucas would talk in his office about how Plaintiff was 12 “dishonest” and then would quickly shut the door. Dkt. 34-4. Ms. Horish asserts that Mr. 13 14 Lucas would also talk around the office to other employees about how “dishonest” Plaintff 15 was and how he could not wait until the news article would come out. Dkt. 34-4. Ms. Horish 16 alleges that she would over hear Mr. Lucas and Mr. Williams discussing Plaintiff’s past 17 trouble with the Police Department and that Plaintiff “was guilty and she got caught.” Dkt. 18 19 34-4. Ms. Horish states that Mr. Lucas would also repeat this claim to Mr. Mecham. Dkt. 344. Ms. Horish maintains that Mr. Lucas continued to talk once or twice about the accusations 20 21 22 at the Police Department even after the charges against Plaintiff were dropped. Dkt. 34-4. Linda Fulton, an Engineering Department employee who was hired on in May 2007, 23 states that she overhead conversations about Plaintiff even after her termination. Dkt. 36-1. 24 Specifically, Ms. Fulton contends that she overheard Ms. Woods, Ms. Jankowski, Kathy (her 25 last name is unknown) and Mr. Elsen discuss Plaintiff’s alleged theft. Dkt. 36-1. Ms. Fulton 26 declares that she only overheard “vague” information about the ongoing case. Dkt. 36-1. ORDER Page 16 1 G. Plaintiff’s Replacement is Ms. Woods: 2 3 Upon Plaintiff’s suspension, Ms. Wood was immediately put into Plaintiff’s position on a temporary basis, even though Ms. Horish states that she volunteered to take on Plaintiff’s 4 payroll duties because she was concerned that Ms. Woods would be “working outside of 5 6 classification.” Dkt. 34-3. Ms. Horish also states that there was talk around the office that Ms. 7 Woods would be a “shoe-in” [sic] for Plaintiff’s position. Dkt. 34-3. Ms. Horish contends that 8 Ms. Woods came to talk to Mr. Lucas, who kept his door open during this conversation, and 9 called Rob Tomlinson, a Human Resources Civil Service Officer, on speakerphone and Mr. 10 Tomlinson said that there were 20 applicants for Plaintiff’s position but Ms. Woods “would 11 be in the top five and there would be no problem, she’d be a shoe-in [sic] for the job.” Dkt. 12 34-3. 13 14 Charlotte Belmore, Human Resources Analyst for the City of Bremerton, states that 15 the process used to fill Plaintiff’s former position was the standard process. Dkt. 48 at 2. This 16 process includes advertising the position and all applicants were required to submit an 17 application and test for the position. Dkt. 48 at 2. Two City employees who have similar 18 19 positions outside the PW&U Department scored the applications. Dkt. 48 at 2. The City Service Officer “tallied the application score” after proficiency and oral examinations and 20 21 22 23 24 25 26 created an Eligible Register for the position. Dkt. 48. Ms. Belmore states that Ms. Woods “ranked number one, so her name was among the three applicants forwarded to Mr. Williams.” Dkt. 48. Mr. Mecham states that the City of Bremerton opened the Office Assistant Senior position vacated by Plaintiff’s termination in 2007. Dkt. 53. Mr. Mecham maintains that he “was involved in the hiring process, but not until the Human Resources Department provided ORDER Page 17 1 the Public Works and Utilities Department with the top three applicants for the position.” Dkt. 2 53. Mr. Mecham contends that he “was asked to interview all three applicants and to provide 3 Phil Williams with a recommendation of who should be offered the position.” Dkt. 53. Mr. 4 Mecham states that the top three applicants included two city employees, who did not work in 5 6 the Engineering Department, and Ms. Woods. Dkt. 53. Mr. Mecham asserts that he and the 7 two other City employees assisting in the interviews determined that Ms. Woods was the best 8 candidate. Dkt. 53. Mr. Mecham states that Mr. Lucas was not involved in the hiring process 9 in any manner. Dkt. 53. 10 11 H. Mr. Lucas and Mr. Williams Allegedly Discriminated Against Plaintiff: Plaintiff initially met Mr. Lucas when she transferred to the PW&U Department in 12 January 1999. Dkt. 34-1. Plaintiff asserts that not long after meeting Mr. Lucas she noticed 13 14 that Mr. Lucas “appeared to be interested in the younger women who worked for the city.” 15 Dkt. 34-1. Plaintiff’s relationship with Mr. Lucas was described as contentious; specifically, 16 Ms. Rebelowski states that Mr. Lucas disliked how Plaintiff would question Mr. Lucas and 17 other engineers as to how they would turn in items for “agenda bills.” Dkt. 35-1. Ms. 18 19 Rebelowski contends that Mr. Lucas had “a vendetta against [the Plaintiff].” Dkt. 35-1. It appears that Mr. Lucas had some knowledge of the issue of Plaintiff’s hours in the 20 21 22 Police Department. Mr. Lucas wrote in a Memorandum for the Record that “[t]he perception of payroll discrepancies was first brought to my attention shortly after [Plaintiff] reported 23 from the Police Department,” and that he could not remember who told him but he “was told 24 that she had left Police because of an investigation into payroll discrepancies.” Dkt. 36-3. 25 Mr. Lucas states that shortly after Plaintiff came to work in the Engineering 26 Department Steve Kindred, an Office Assistant in that department, “mentioned to [him] many ORDER Page 18 1 times that [Plaintiff] was in and out a lot, taking longer breaks than she should, taking longer 2 lunch breaks than she should, and he was – told [Mr. Lucas] he was going to keep a log of her 3 comings and goings.” Dkt. 35-1. Mr. Lucas asserts that Mr. Kindred left his employment with 4 the City before he gave Mr. Lucas any log of Plaintiff’s time. Dkt. 35-1. Mr. Lucas admits he 5 6 7 8 9 10 11 never spoke with Mr. Mecham, or any other supervisor, concerning Mr. Kindred’s concern that Plaintiff was out of the office a lot. Dkt. 35-1. Ms. Shafer, who was an Office Assistant II in the Engineering Department, states that three or four months after she began her employment with the Engineering Division Mr. Lucas called Ms. Shafer into his office and “launched into an attack on [Plaintiff].” Dkt. 34-2; Dkt. 34-1. Ms. Shafer contends that Mr. Lucas asked if she had “noticed [Plaintiff] coming 12 late or leaving early” or if she had “noticed [Plaintiff] making extensive personal phone calls 13 14 or being on E-mail.” Dkt. 34-2. Ms. Shafer alleges that Mr. Lucas told her that “other 15 employees had never been able to get along with her, people who had been in [Ms. Shafer’s] 16 position, and that she had always saddled them with her work.” Dkt. 34-2. Ms. Shafer asserts 17 that Mr. Lucas asked her to report to him if Plaintiff behaved inappropriately. Dkt. 34-2. Ms. 18 19 Shafer states that she told Mr. Lucas that his request was “completely unprofessional” and refused. Dkt. 34-2. 20 21 22 In 2006, Mr. Lucas asked Ms. Woods to keep track of Plaintiff’s coming and goings. Dkt. 34-1. Ms. Woods states that she declined this task because she was uncomfortable with it 23 as a new employee still on probation. Dkt. 34-1; Dkt. 35-2. Ms. Woods states that Mr. Lucas 24 asked her a second time whether she would track Plaintiff’s time and Ms. Woods said that she 25 would not. Dkt. 35-2. Ms. Woods asserts that she did not speak with Mr. Mecham who was in 26 her chain of command about Plaintiff’s time away from the office or Mr. Lucas’s request to ORDER Page 19 1 keep track of Plaintiff’s time. Dkt. 35-2. Ms. Horish states that Plaintiff and Ms. Woods were 2 having trouble getting along and that Ms. Woods would speak to Mr. Lucas frequently. Dkt. 3 34-3. 4 Ms. Shafer asserts that Mr. Lucas helped Kelsey Donleycott, a former PW&U 5 6 employee, secure a job within the department by rewriting a job description to fit Ms. 7 Donleycott’s abilities after she allegedly failed the city-administered test for the position. Dkt. 8 34-2. Ms. Shafer states she believes that Mr. Lucas was trying to get Ms. Donleycott hired, 9 but she was unsure if Mr. Lucas’s motivation was because Ms. Donleycott was a younger 10 11 woman. Dkt. 34-2. Ms. Horish states that Ms. Donleycott is twenty-nine years old. Dkt. 34-3. Ms. Horish states that Mr. Lucas tried “to get [Ms. Donleycott] and [Ms. Shafer] 12 promoted for quite some time,” and that he sought outside help to help them rewrite their 13 14 15 resumes. Dkt. 34-3. Ms. Rebelowski also states that Mr. Lucas would “brag” that he was responsible for getting Ms. Donleycott a promotion. Dkt 35-1. 16 Ms. Shafer states that Mr. Lucas kept Ms. Horish on a “very short leash,” while Ms. 17 Donleycott was allowed a flexible schedule. Dkt. 34-2. Ms. Shafer contends that Mr. Lucas 18 19 allowed Ms. Donleycott to “pretty much get away with murder,” while Ms. Horish was “very afraid of…getting in trouble all the time.” Dkt. 34-2. Ms. Shafer states that she got “the 20 21 22 impression that [this] was an age issue, but [she] never said anything to anybody.” Dkt. 34-2. Ms. Shafer alleges that Mr. Lucas’s mistreatment of Ms. Horish was because of her age, but 23 Ms. Shafer admits she never heard Mr. Lucas make any statements to Ms. Horish about her 24 age. Dkt. 34-2. Ms. Shafer contends that also involved in this allegedly inequitable treatment 25 was Mr. Williams and Gene Sampley (whose position is not identified). Dkt. 34-2. 26 ORDER Page 20 1 2 3 Ms. Horish asserts that Mr. Williams “is a very busy man,” and that he “relies on his managers to provide him information.” Dkt. 34-3. Ms. Horish contends that Mr. Williams and Mr. Lucas had a close working relationship and that she “believe[s] [that Mr. Williams] 4 believed everything that [Mr. Lucas] said and every evidence that [Mr. Lucas] provided.” Dkt. 5 6 7 34-3. Ms. Horish asserts that the City of Bremerton would discriminate against older women 8 by taking assignments away from the older women and giving the assignments to younger 9 women, inviting younger women to special meetings, or being friendlier to the younger 10 11 women. Dkt. 34-3. Ms. Horish contends that both Mr. Lucas and Mr. Williams treated her differently because of her age. Dkt. 34-3. Ms. Horish alleges that “[t]hey have given a lot of 12 [her] work away to younger people.” Dkt. 34-3. Ms. Horish contends that she believes that 13 14 15 older female employees are pushed out the door to retirement or “just to get rid of them in some way” in order to replace the older women with younger women. Dkt. 34-3. 16 Ms. Rebelowski states that she believed that Mr. Lucas wanted to replace Plaintiff 17 with Ms. Woods because of “the harsh way he would speak to [Plaintiff], and his constant 18 19 talking of how great [Ms. Woods] was, and the inordinate amount of time he spent at [Ms. Woods’s] desk.” Dkt. 35-1. Ms. Rebelowski contends that Mr. Lucas was “so excited” when 20 21 22 Ms. Woods interviewed for her previous position and “would comment on how beautiful her clothes were.” Dkt. 35-1 Ms. Rebelowski states that Mr. Lucas “was flirting with [Ms. 23 Woods].” Dkt. 35-1. Ms. Rebelowski asserts that Mr. Lucas “likes compliant young women.” 24 Dkt. 35-1. 25 Plaintiff filed a claim with the EEOC in December 2007. Dkt. 44 at 2. 26 I. Plaintiff Continues to Seek Other Employment: ORDER Page 21 1 2 3 Plaintiff alleges that she has been unable to get other employment because she “was wrongfully terminated.” Dkt. 22. Plaintiff states that she believes that some of the companies where she applied for employment have contacted the City of Bremerton and likely the City 4 gave “poor responses.” Dkt. 22. Plaintiff also states that on the applications for employment 5 6 she has had to indicate that she has been terminated from her former position. Dkt. 22. 7 Plaintiff asserts that she has applied for employment for over a year with “at least three 8 employers a week” without any success of finding a job. Dkt. 22. 9 III. ANALYSIS: 10 Summary judgment is proper only if the pleadings, the discovery and disclosure 11 materials on file, and any affidavits show that there is no genuine issue as to any material fact 12 and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56 (c). The 13 14 moving party is entitled to judgment as a matter of law when the nonmoving party fails to 15 make a sufficient showing on an essential element of a claim in the case on which the 16 nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). 17 There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a 18 19 rational trier of fact to find for the non moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (non-moving party must present specific, significant 20 21 22 probative evidence, not simply “some metaphysical doubt.”). See also Fed.R.Civ.P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence 23 supporting the claimed factual dispute, requiring a judge or jury to resolve the differing 24 versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. 25 Service Inc. v. Pacific Electrical Contractors Association, 809 F.2d 626, 630 (9th Cir. 1987) 26 The determination of the existence of a material fact is often a close question. The ORDER Page 22 1 court must consider the substantive evidentiary burden that the nonmoving party must meet at 2 trial – e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254, 3 T.W. Elect. Service Inc., 809 F.2d at 630. The court must resolve any factual issues of 4 controversy in favor of the nonmoving party only when the facts specifically attested by that 5 6 party contradict facts specifically attested by the moving party. The nonmoving party may 7 not merely state that it will discredit the moving party’s evidence at trial, in the hopes that 8 evidence can be developed at trial to support the claim. T.W. Elect. Service Inc., 809 F.2d at 9 630 (relying on Anderson, supra). Conclusory, non specific statements in affidavits are not 10 11 sufficient, and “missing facts” will not be “presumed.” Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990). 12 A. Defamation 13 14 The four elements of a prima facie case of defamation are: "falsity, an unprivileged 15 communication, fault, and damages." LaMon v. Butler, 112 Wn.2d 193, 197 (1989). A 16 plaintiff can defeat a summary judgment motion on the issue of defamation by presenting 17 “specific, material facts” sufficient to support the existence of each element; namely, (1) 18 19 falsity of the communication; (2) lack of privilege; (3) fault; and (4) damages. Mohr v. Grant, 153 Wn.2d 812, 821-22 (2005). The falsity prong is satisfied with evidence that a statement 20 21 22 is provably false or leaves a false impression. Mohr, 153 Wn.2d at 825. In a defamation by omission case, defamation plaintiffs must show that the statement left a false impression that 23 would be contradicted by the inclusion of omitted facts. Id. at 827. Evidence that favorable 24 facts or facts that should or could have been included is insufficient to demonstrate falsity. Id. 25 26 ORDER Page 23 1 2 3 Plaintiff alleges that individual City Defendants made several defamatory statements about her honesty. Dkt. 33. Plaintiff presents enough to support her contention that these statements are arguably false. 4 City Defendants argue that they are entitled to qualified privilege, which exists “when 5 6 it concerns a matter in which the publisher has an interest and is made to another who it is 7 reasonably believed has a corresponding interest.” Messerly v. Asamera Minerals, Inc., 55 8 Wn. App. 811, 817-18 (1989) overruled on other grounds by Swanson v. Liquid Air Corp., 9 118 Wash.2d 512 (1992). City Defendants state that “[c]ourts have applied this privilege to 10 communications between coworkers, reporting another employee’s misconduct.” Dkt. 21. 11 Although it is likely that some of these statements were made during the course of the 12 investigation, the facts are disputed as to which defendant made what allegedly defamatory 13 14 statements and when the defendants made these statements; specifically, Plaintiff argues that 15 some defendants made statements about her after her employment with the City had been 16 terminated. For this reason, qualified privilege may not apply to all statements. Therefore, the 17 Court should not grant summary judgment on the issue of defamation. Factual issues about 18 particular statements will be governed by the rules of evidence as to admissibility. 19 B. Interference with Business Relationship 20 21 22 23 24 25 26 A claim of tortious interference with a contractual relationship or business expectancy has five elements: (1) the existence of a valid contractual relationship or business expectancy; (2) that defendants had knowledge of that relationship; (3) an intentional interference inducing or causing a breach or termination of the relationship or expectancy; (4) that defendants interfered for an improper purpose or used improper means; and (5) resultant damage. Pacific Northwest Shooting Park Ass'n v. City of Sequim, 158 Wn.2d 342, 351 (2006). ORDER Page 24 1 2 3 As to the first element, “Washington law has not yet addressed the question of whether a public employee enjoys a contractual relationship or business expectancy in future employment.” See 16A Wash. Prac. Series § 22.2, Interference with contractual relations-- 4 Overview (2009). Here, Plaintiff was an employee of the City, and she arguably had an 5 6 7 interest in her continued employment with the City; and the City Defendants do not appear to dispute this. 8 Plaintiff alleges two instances of tortious interference with a valid contractual 9 relationship or business expectancy. Plaintiff argues that the first claim concerns when City 10 11 employees, including Ms. Babbit, Ms. Jankowski, Mr. Elsen, Ms. Woods and Mr. Lucas, allegedly interfered with her continuing employment with the City of Bremerton. Dkt. 33. 12 City Defendants contend that “a plaintiff must show that the interferor was an 13 14 intermeddling third party; a party to the relationship cannot be held liable for tortuous 15 interference,” and that the City’s employees as its agents are cannot be held liable. See 16 Vasquez v. State , Dept. of Social and Health Services, 94 Wn. App. 976, 989 (1999). 17 However, Plaintiff cites to Eserhut v. Heister, 52 Wn. App. 515 (1989), which states that an 18 19 employee could bring an individual claim against coworkers for intentional interference with a contractual relationship. 20 21 22 It is unclear from the record whether Plaintiff brings this claim against the City Defendants as individuals, but in the interest of fairness and determining an outcome on the 23 merits, the Court will assume that the Plaintiff does name the City Defendants as individuals. 24 Here, the City Defendants argue that they are the employer’s agents and cannot be held liable 25 under this claim; however, the court in Vasquez only stated that there were insufficient facts 26 to hold the individual employees liable in that case, and the court did not state that other co- ORDER Page 25 1 workers cannot be liable for tortious interference with an existing employment contract. See 2 Vasquez,94 Wn. App. at 990. 3 In this case, issues of fact exist whether the City Defendants intentionally interfered 4 with Plaintiff’s continued employment with the City for an improper purpose. Defendants 5 6 argue that they did not intentionally interfere with Plaintiff’s continuing employment with the 7 City, but merely recorded and reported what they thought was wrongdoing. Dkt. 44 at 13. 8 However, Plaintiff provided evidence to show a genuine issues of material fact whether City 9 Defendants intentionally interfered with her employment and whether it was for an improper 10 purpose . See Dkt. 34-1; Dkt. 34-2, Dkt. 34-3 and Dkt. 35-1. For this reason, City Defendants’ 11 motion for summary judgment on Plaintiff’s first claim of tortious interference with a 12 contractual relationship should not be granted. 13 14 Plaintiff’s second claim concerns the same individuals, and Detective Harker and Mr. 15 Williams. Dkt. 33. Plaintiff argues that these defendants “distorted” her employment record, 16 which has prevented her from securing other employment after her termination. Dkt. 33. 17 Although Plaintiff makes broad allegations that her record has prevented her from securing 18 19 other employment, these allegations are not explicit enough to establish a claim for interference with business expectancy; specifically, Plaintiff does not identify the existence of 20 21 22 valid business expectancy, other than the fact that she has submitted applications with many potential employers. See Dkt. 22 (Plaintiff states that potential employers have likely 23 contacted the City of Bremerton, which has probably given “poor responses.”). The Court 24 should grant the City Defendants’ motion for summary judgment on Plaintiff’s second claim 25 of tortious interference with business expectancy, because Plaintiff failed to meet show a 26 valid business expectancy. ORDER Page 26 1 2 3 C. Malicious Prosecution To maintain an action for malicious prosecution, the claimant must allege and prove (1) that the prosecution claimed to have been malicious was instituted or continued by the 4 defendant; (2) that there was want of probable cause for the institution or continuation of the 5 6 prosecution; (3) that the proceedings were instituted or continued through malice; (4) that the 7 proceedings terminated on the merits in favor of the plaintiff, or were abandoned; and (5) that 8 the plaintiff suffered injury or damage as a result of the prosecution. Peasley v. Puget Sound 9 Tug & Barge Co., 13 Wn.2d 485, 497, 125 P.2d 681 (1942); see also Hanson v. City of 10 11 Snohomish, 121 Wn.2d 552, 558, 852 P.2d 295 (1993). “(M)alice and want of probable cause constitute the gist of a malicious prosecution action,” and the burden of proof rests on the 12 plaintiff. Hanson, 121 Wn.2d at 558; Peasley, 13 Wn. 2d at 498-99. The method of determining 13 14 15 16 17 probable cause is If it clearly appears that the defendant, before instituting criminal proceedings against the plaintiff, made to the prosecuting attorney a full and fair disclosure, in good faith, of all the material facts known to him, and that the prosecuting attorney thereupon preferred a criminal charge and caused the arrest of the accused, probable cause is thereby established as a matter of law and operates as a complete defense to a subsequent action by the accused. … 18 19 20 Bender v. City of Seattle, 99 Wn.2d 582, 593-94 (1983) citing Peasley, 13 Wn. 2d at 499-500, In this case, the City Defendants argue that there is no evidence that the prosecution 21 was instituted or continued by Ms. Woods, Ms. Jankowski, Mr. Elsen or Ms. Babbit. Dkt. 21. 22 Specifically, these defendants argue that they did not know that there would be a criminal 23 prosecution of the Plaintiff or that any information they provided would be turned over to the 24 police during the criminal investigation. Dkt. 21. Although Plaintiff alleges that they were 25 involved in prosecution because “their internet hits on the Superior Court docket records 26 ORDER Page 27 1 reveal that…they were very interested in the criminal charges against” Plaintiff, curiosity in 2 the proceedings is not sufficient to show that they “instituted or continued” prosecution of the 3 Plaintiff. Dkt. 33. 4 Although Plaintiff argues that Mr. Lucas and Mr. Williams had more involvement in 5 6 the criminal charges than the other PW&U employees, it is unclear whether they instituted or 7 continued criminal proceedings against Plaintiff. Specifically, Mr. Lucas provided Detective 8 Harker with a document that compared Plaintiff’s hours at the office with the time she 9 worked, and both Mr. Lucas and Mr. Williams were present at the initial meeting with 10 11 Detective Harker. Dkt. 26. However, Detective Harker’s appears to have made a full and fair disclosure to the 12 Kitsap County Prosecuting Attorney’s Office in his Certificate of Probable Cause, because he 13 14 conducted a reasonable investigation and relied upon the evidence provided to him. See Dkt. 15 26. Although Plaintiff contends that Detective Harker was reckless in that he did not include 16 in his Certificate of Probable Cause Captain Rodger’s letter exonerating Plaintiff ten years 17 earlier in the Police Department of similar alleged conduct, Plaintiff offered no evidence that 18 19 Detective Harker had knowledge of that letter and he appears to have relied in good faith on his interview with Captain Rodgers. Dkt. 45. Detective Harker tried to interview Plaintiff, and 20 21 22 it appears that Plaintiff never agreed to an interview, with or without her attorney, with Detective Harker. Dkt. 26. It appears that Detective Harker made a full and fair disclosure of 23 all the material facts known to him. For this reason, there is no want of probable cause to 24 bring criminal charges against Plaintiff and an essential element of this claim is absent. The 25 City Defendants’ motion for summary judgment on the issue of malicious prosecution is 26 granted. ORDER Page 28 1 2 3 D. Intentional Infliction of Emotional Distress To recover under Washington state law for emotional distress inflicted by intentional or reckless conduct, a plaintiff must plead and prove the elements of the tort of outrage. 4 Keates v. Vancouver, 73 Wn. App. 257, 263 (1994). The elements of the tort of outrage are 5 6 (1) extreme and outrageous conduct; (2) intentional or reckless infliction of emotional 7 distress; and (3) actual result to the plaintiff of severe emotional distress. Dicomes v. State, 8 113 Wn.2d 612, 630 (1989). The conduct must be so outrageous in character, and so extreme 9 in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, 10 11 and utterly intolerable in a civilized community. Grimsby v. Samson, 85 Wn.2d 52, 59 (1975) citing Restatement (Second) of Torts §46 (1965). “Whether conduct is sufficiently outrageous 12 is ordinarily a question for the jury, but initially it is the responsibility of the court to 13 14 15 16 17 18 19 determine if reasonable minds could differ on whether the conduct was so extreme as to result in liability” Keates, 73 Wn. App. at 263 citing Dicomes, 113 Wn.2d at 630. City Defendants contend that Plaintiff cannot make meet the standards for a claim of intentional infliction of emotional distress because the City Defendants’ conduct is not “extreme and outrageous” because the City was reasonable in the manner in which it terminated Plaintiff. Dkt. 21; see Dicomes v. State, 113 Wn.2d 612, 630 (1989) (when an 20 21 22 employer is reasonable in the manner in which it terminates an employee, the court will dismiss the claim.) Plaintiff argues that the City Defendants’ conduct was “extreme and 23 outrageous”; specifically, Plaintiff points to the City Defendants’ behavior, including (1) City 24 Defendants allegedly repeated false accusations about Plaintiff including that she was 25 dishonest, (2) Mr. Williams allegedly “warned [Plaintiff] what she would face if she didn’t 26 capitulate to his demands that she throw her hands up in defeat, pay them money, and go ORDER Page 29 1 away quietly,” and (3) Plaintiff was publically humiliated by a “perp-walk” through the 2 Kitsap County Superior Courthouse. Dkt. 33. 3 Although the City Defendants’ alleged behavior, if true, is not commendable, it does 4 not meet the threshold of extreme and outrageous behavior that Washington law demands; 5 6 specifically, the City Defendants’ behavior does not go beyond all possible bounds of 7 decency, and reasonable minds would not differ on this issue. Therefore, the Court should 8 grant the City Defendants’ motion for summary judgment on the issue of intentional infliction 9 of emotional distress. 10 11 E. Age Discrimination The City Defendants seek to dismiss Plaintiff’s claim of age discrimination under the 12 Age Discrimination in Employment Act of 1991 (“ADEA”), because she cannot prove that 13 14 15 her age was the “but-for” cause of her termination from the City of Bremerton. Dkt. 21. ADEA 29 U .S.C. § 621, et seq., makes it unlawful for an employer to discriminate 16 against any employee “because of” that individual’s age. Id. § 623(a). “[A] plaintiff bringing a 17 disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the 18 19 evidence, that age was the ‘but-for’ cause of the challenged adverse employment action.” Gross v. FBL Financial Services, Inc., 577 U.S. ----, 129 S.Ct. 2343, 2352 (2009). The 20 21 22 23 24 25 26 Supreme Court held in Gross that Title VII’s burden-shifting framework does not apply in ADEA cases, because Title VII recognizes mixed motive cases and the ADEA does not. Id. at 2348-52. The Court views the facts in the light most favorable to the nonmoving party, Plaintiff in this case. Plaintiff alleges that Mr. Lucas and Mr. Williams discriminated against her because she was an older woman. Dkt. 33. Plaintiff presents enough evidence to survive ORDER Page 30 1 summary judgment on this issue because there is a genuine dispute as to material fact whether 2 Plaintiff’s age was the “but-for” cause of her termination. Specifically, Mr. Lucas was 3 involved in the initial investigation into Plaintiff’s hours and had requested that other 4 employees keep track of Plaintiff’s time in the past, and several witnesses state that Mr. Lucas 5 6 favored younger women in the Department and appeared to have a vendetta against Plaintiff. 7 See Dkt. 34-1, Dkt. 34-2; Dkt. 34-3; and Dkt. 35-1. Furthermore, it is disputed whether Mr. 8 Lucas had some hand in selecting Ms. Woods, a younger female, to ultimately replace 9 Plaintiff. See Dkt. 34-3. Because material facts are in dispute, the Court should not grant the 10 City Defendants’ motion for summary judgment on this issue. 11 F. Wrongful Discharge 12 There are four elements to analyze for a wrongful discharge in violation of public 13 14 policy claim: (1) the existence of a clear public policy (the clarity element), (2) discouraging 15 the conduct in which Plaintiff engaged would jeopardize the public policy (the jeopardy 16 element), (3) the public-policy-linked conduct caused the dismissal (the causation element), 17 and (4) there must not be an overriding justification for the dismissal (the absence of 18 19 justification element). Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 941 (1996). Plaintiff alleges that she has a valid claim for wrongful discharge because she was 20 21 22 terminated because of her age. Dkt. 33. Washington State recognizes that it is an unfair employment practice to discriminate in employment against an individual who is 40 years of 23 age or older. See RCW 49.44.090(1). Because Plaintiff’s Wrongful Discharge claim ties to her 24 cause of action under the ADEA, this Court should not grant City Defendants’ motion for 25 summary judgment on this issue because issues of fact are disputed. 26 ORDER Page 31 1 G. Extortion 2 3 Plaintiff alleges that City Defendants acting under the color of state law attempted to extort her. Dkt. 1. Although a federal criminal statute, 18 U.S.C. § 1951, criminalizes 4 extortion, there must be a private right of action to enforce the underlying federal statute in 5 6 order to seek redress under § 1983. See Keaukaha-Panaewa Comm. V. Hawaiian Homes, 739 7 F.2d 1467, 1470-71 (9th Cir. 1984). The federal statute criminalizing extortion does not 8 establish a private right of action on its own. See 18 U.S.C. § 1951; Robinson v. Overseas 9 Military Sales Corp., 21 F.3d 502, 511 (2nd Cir. 1994). 10 11 Plaintiff argues that Washington State has a statute criminalizing extortion, RCW 9A.56.130, which gives the Plaintiff a private cause of action. Dkt. 33. Plaintiff states that 12 “[t]he city defendants ignore the fact that the extortion claim is brought as a Sec. 1983 Acting Under Color of State Law Claim. [Plaintiff’s] right to bring a civil action over the loss of her job, and the actions of city defendants getting her terminated are a due process property right as set forth in the above section. This is not about an extortion claim on its own, but a civil rights action against Phil Williams and the City.” 13 14 15 16 Dkt. 33. 17 No private right of action exists under the federal extortion statute alone, and 18 19 Washington’s criminal statute does not appear to establish a private civil right of action. See 20 RCW 9A.56.130. Under Washington’s criminal statute, only a government entity can 21 criminally charge Mr. Williams for his alleged statements about repayment. Id. It appears that 22 23 no private civil Washington state law claim exists for extortion because Plaintiff states as much – “[t]his is not about an extortion claim on its own.” Dkt. 33. Indeed, Mr. Williams’ 24 25 26 statements about repayment appear to be an offer of settlement rather than an attempt to extort funds. ORDER Page 32 1 2 3 For these reasons, Plaintiff’s extortion claim against the City Defendants should be dismissed. This Court will analyze Mr. Williams’ statements under a separate Due Process analysis. 4 H. Due Process 5 6 Plaintiff argues that she was deprived of her liberty interests in future employment 7 without due process. A liberty interest is infringed if (1) “the government dismisses an 8 employee based on a charge that calls into question his good name, honor or integrity”, or (2) 9 “if the government imposes a stigma or other disability that forecloses the employee’s 10 11 freedom to take advantage of other employment opportunities.” Giles v. Department of Social & Health Servs., 90 Wn.2d 457, 461, 583 P.2d 1213 (1978), cited in Ritter v. Board of 12 Commr's, 96 Wn.2d 503, 510, 637 P.2d 940 (1981). Plaintiff contends that she was dismissed 13 14 15 16 17 18 19 on an allegation of dishonesty and that these allegations have foreclosed her freedom to take advantage of other employment opportunities. Dkt. 33. “A public employee's property interest in continued employment is created and defined by state law, and is protected by the due process clauses of the state and federal constitutions.” Sneed v. Barna, 80 Wn. App. 843, 849 (1996) citing Olson v. University of Washington, 89 Wn.2d 558, 563, 573 P.2d 1308 (1978). The City Defendants do not argue 20 21 22 that Plaintiff lacks a property interest in her employment with the City. Dkt. 21; Dkt. 44 Under Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487 23 (1985), the Due Process Clause requires that an individual be given an opportunity for a 24 hearing before he is deprived of any significant property interest. The Ninth Circuit has stated 25 that the pre-termination hearing does not need to be elaborate, but some kind of hearing must 26 be afforded to the employee prior to termination. Clements v. Airport Authority of Washoe ORDER Page 33 1 County, 69 F.3d 321, 322-23 (9th Cir. 1995) citing Loudermill, 470 U.S. at 544-45. The 2 essential elements of this pre-termination hearing must be notice and an opportunity to 3 respond. Loudermill, 470 U.S. at 544-45. 4 Plaintiff argues that she was denied due process because (1) she was not given access 5 6 to her computer files, (2) she was not given the City’s evidence against her, (3) the hearing 7 she was offered was inherently unfair, and (4) the City did not grant her a second continuance 8 of her hearing despite a letter from her physician, which requested that Plaintiff’s hearing be 9 delayed for four-weeks in order for Plaintiff’s new anti-anxiety medication to take effect. Dkt. 10 11 33. Despite the fact that the continuance was not granted, Plaintiff did not appeal the Notice of Discipline letter dated August 17, 2007. Dkt. 24. 12 City Defendants respond that Plaintiff had ample opportunity to respond before her 13 14 termination, either in person or in writing, but she failed to do so. City Defendants state that 15 they were not required by the Due Process Clause to provide Plaintiff with any discovery 16 prior to this hearing. Dkt. 44. Despite that the City did not grant her a continuance, Plaintiff 17 had an opportunity to respond in writing before her termination and declined to respond in 18 19 writing. Furthermore, Plaintiff did not appeal her Notice of Discipline. Therefore, Plaintiff was afforded the required Due Process before her termination. The Court should grant the 20 21 City Defendants’ Motion for Summary Judgment on the issue of Due Process. I. Retaliation 22 23 In order for a plaintiff to make a prima facie case of retaliation, Plaintiff must show 24 that (1) she was engaged in a protected activity, (2) her employer subjected her to an adverse 25 employment action, and (3) a causal link exists between the protected activity and the adverse 26 ORDER Page 34 1 action. Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000) citing Steiner v. Showboat 2 Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994). 3 In this case, Plaintiff argues that her EEOC claim filed in December 2007 was a 4 protected activity. Dkt. 33. Plaintiff argues that the City Defendants retaliated against her by 5 6 “continuing the criminal proceedings against her.” Dkt. 33. City Defendants assert that she 7 fails to make out a prima facie case of retaliation because Plaintiff did not suffer an adverse 8 employment action. Specifically, City Defendants argue that Plaintiff’s employment was 9 terminated in August 2007 well before she filed her EEOC claim in December. Dkt. 44. 10 11 On its face a criminal investigation does not appear to be an adverse employment action, and, even if it was, Plaintiff offers no evidence of a causal link between her EEOC 12 complaint and the ongoing criminal proceedings because the City Defendants had no control 13 14 15 over the criminal prosecution once it was turned over to the Kitsap County Prosecutor. For this reason, Plaintiff’s retaliation claim against the City Defendants should be dismissed. Therefore, it is hereby, ORDERED that City Defendants’ Motion for Summary 16 17 18 19 Judgment (Dkt. 21) is DENIED IN PART and GRANTED IN PART as follows: • • 20 21 22 • • 23 • 24 • 25 • 26 City Defendants’ Motion for Summary Judgment on the issue of Defamation is DENIED, City Defendants’ Motion for Summary Judgment on the issue of Tortious Interference with a Contractual Relationship is DENIED, City Defendants’ Motion for Summary Judgment on the issue of Tortious Interference with a Business Expectancy is GRANTED, City Defendants’ Motion for Summary Judgment on is the issue of Malicious Prosecution is GRANTED, City Defendants’ Motion for Summary Judgment on the issue of Intentional Infliction of Emotional Distress is GRANTED, City Defendants’ Motion for Summary Judgment on the issue of Age Discrimination is DENIED, City Defendants’ Motion for Summary Judgment on the issue of Wrongful Discharge is DENIED, ORDER Page 35 1 • 2 • 3 • 4 • 5 6 • 7 8 • City Defendants’ Motion for Summary Judgment on the issue of Extortion is GRANTED, City Defendants’ Motion for Summary Judgment on the issue of Due Process is GRANTED, City Defendants’ Motion for Summary Judgment on the issue of Retaliation is GRANTED, Plaintiff’s claims for Tortious Interference with a Business Expectancy, Malicious Prosecution, Intentional Infliction of Emotional Distress, Extortion, Due Process and Retaliation are DISMISSED. The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party’s last known address. Dated this 22nd day of March 2010. 10 A 11 ROBERT J. BRYAN United States District Judge 9 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER Page 36

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