Daniel Vargas v. City of Asotin ( 2018 )

FILED
APRIL 24, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
DANIEL VARGAS, )
) No. 35093-2-III
Appellant, )
)
v. )
)
CITY OF ASOTIN, ) UNPUBLISHED OPINION
)
Respondent. )
FEARING, J. — Daniel Vargas sues his former employer, the city of Asotin, for
wrongful discharge from employment in violation of public policy. He appeals from
summary judgment dismissal of his cause of action. We affirm the dismissal because of a
lack of evidence that any reporting by Vargas of wrongful conduct of the city police chief
caused his discharge.
No. 35093-2-III
Vargas v. City of Asotin
FACTS
Since we address the City of Asotin’s summary judgment motion, we view the
facts in the light most favorable to Daniel Vargas. Vargas started his career as a law
enforcement officer in California in 2000. In California, he served as a deputy for the
Contra Costa County’s Sheriff’s Office.
On January 4, 2012, Daniel Vargas assumed a position as a police officer with the
city of Asotin. Vargas worked as one of two officers along with Asotin Police Chief
William Derbonne. During the opening months of Vargas’ tenure, the two officers
maintained an amicable relationship.
Later Chief William Derbonne’s and Daniel Vargas’ relationship deteriorated
when Vargas concluded that Derbonne exploited his position of power with the city of
Asotin to Derbonne’s personal benefit. In a declaration filed in response to a summary
judgment motion, Vargas averred:
I knew that he [Derbonne] was operating an illegal gun business
from the police department, using City of Asotin funds to transport, ship,
and deliver fire arms from his personal business. I knew that he had a gun
license that was registered to the City of Asotin attorney, listed as a store
front. I knew that William Derbonne was using his fire arms dealer license
to purchase items for the City of Asotin while receiving “Kick Backs” from
the vendors he purchased items from.
I knew that he was killing wildlife during the night . . . . I knew that
the way the evidence room was run was illegal, as was the way the
Department collected evidence. There was no chain of custody involved,
which possibly allowed innocent individuals to be found guilty.
Clerk’s Papers (CP) at 127-28. According to Vargas, Derbonne also shot a wild
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Canadian goose and ordered Vargas to dispose of the fowl.
Daniel Vargas testified that he conveyed Chief William Derbonne’s illicit acts to
four separate authorities. Vargas claimed he reported Derbonne to the city of Asotin’s
staff for killing the goose, to the FBI for failing to implement evidence protocols, to the
Bureau of Alcohol, Tobacco, Firearms and Explosives for commingling his personal gun
enterprise with his duties as Asotin Police Chief, and to the Washington State Patrol for a
fight at City Hall. He does not identify the staff member or members of Asotin to whom
he reported Derbonne.
Daniel Vargas claims that William Derbonne knew that Vargas had complained to
a higher authority and, consequently, acted paranoid. Bill Guinn, an officer in training at
the time, noticed Vargas and Derbonne’s relationship sour. In a declaration, Guinn
testified:
Sometime around April 2013, things got extremely bad between
[Vargas] and [Derbonne]. [Derbonne] spent a lot of time talking to me
about [Vargas] and how [Vargas] was reporting him for things like illegally
killing a goose, illegally selling guns from the city vehicles and property
and other things such as the evidence room. [Derbonne] also told me he
knew that [Vargas] had gone to a council member and reported him and
that he had also gone to the mayor for the same reason. [Derbonne] would
regularly tell me he knew [Vargas] was reporting him and trying to get him
in trouble. He made no attempt to hide how troubled he was with this.
CP at 92.
Bill Guinn noted that William Derbonne remarked to Guinn on a previous
occasion that either himself, meaning Derbonne, or Daniel Vargas needed “to go.” CP at
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92. Guinn also recalled riding in an automobile with Derbonne when Derbonne ordered
Guinn to repeat aloud whatever rumors Guinn had heard Vargas spread about Derbonne.
Guinn felt Derbonne exerted pressure on him to file a negative report about Vargas.
On March 26, 2013, William Derbonne arrived at Asotin City Hall and demanded
to speak with City Councilman Anthony Rogers. Councilman Rogers and his wife met
Derbonne in the main entryway to City Hall. After Councilman Rogers entered the foyer,
Derbonne locked the City Hall doors, which action caused Rogers concern. Derbonne
interrogated Rogers and his wife regarding whether either had spoken to Daniel Vargas
recently. Derbonne momentarily positioned his hand on his pistol in a threatening
manner while standing in front of the doorway. A nervous Councilman Rogers told
Derbonne: “get the [f]uck out of the [o]ffice.” CP at 82. Derbonne then called Asotin
Mayor Vikki Bonfield to determine if she was present in her office. Rogers overheard a
voice on the phone say that Mayor Bonfield was in her office, and, as a result, Derbonne
left. Councilman Rogers and Chief Derbonne have not communicated since. Vargas
witnessed no portion of the altercation at City Hall.
The day after the confrontation between Councilman Anthony Rogers and Chief
William Derbonne, Rogers called Daniel Vargas and asked Vargas how to garner a
protection order. Vargas reported the confrontation to the Asotin County Sheriff’s Office
and the Washington State Patrol.
Deana Portluck, a deputy city clerk for Asotin, testified that she noticed Chief
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William Derbonne conducting gun sales on city property. Portluck overheard Derbonne
tell an unidentified individual that he shot a goose and Daniel Vargas disposed of the
carcass. Portluck retold one of her interactions with Derbonne:
I tried to walk into the office and the door was locked. I knocked
and [Derbonne] let me in and I realized that [Derbonne] and Ellen
Boatman, another city employee, were having a conversation about
[Vargas]. I asked [Derbonne] what was wrong and [Derbonne] said that
[Vargas] needed to stop bad mouthing him, and I told [Derbonne] that
[Vargas] wasn’t badmouthing him, that he seemed upset, had asked me
what I thought he should do and that I’d told [Vargas] to talk to the mayor
about the goose. [Derbonne] kept saying that [Vargas] “needs to go” before
he starts telling everybody, and that he’d heard through the grapevine that
[Vargas] already had. [Derbonne] stormed out.
CP at 99.
According to William Derbonne, Daniel Vargas uttered disparaging comments
toward Derbonne while employed by the city of Asotin. Derbonne “orally counseled”
Vargas on multiple occasions for “‘trash-talking.’” CP at 47. Derbonne concluded that
Vargas’ comments and behavior denigrated the image of the Asotin Police Department
and created unnecessary friction between Asotin’s only two police officers. Derbonne
lacked knowledge of any complaints about him sent by Vargas to the Bureau of Alcohol,
Tobacco, Firearms, and Explosives, the Federal Bureau of Investigation, and the
Washington State Patrol.
On March 29, 2013, William Derbonne and Mayor Vikki Bonfield met with
Daniel Vargas to discuss a recent complaint from Bill Guinn of Vargas’ ongoing “trash
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talking,” incidents of insubordination, and Vargas’ failure to complete required reports.
Derbonne did not seek to terminate Vargas’ employment before the meeting. At the
beginning of the meeting, Chief Derbonne tendered to Vargas a personnel action form.
The personnel action form served notice to Vargas of his unacceptable professional
behavior and a warning of insubordinate behavior. Vargas refused to accept the form and
became irate. He asked to be placed on administrative leave.
During the March 29 meeting, Daniel Vargas acknowledged to Derbonne and
Mayor Bonfield that he “trash talked” and that he had no intention of stopping. Tensions
between Vargas and Derbonne peaked during the meeting, and Mayor Bonfield asked
Vargas how to resolve the conflict. Vargas replied that he would only communicate with
Derbonne via e-mail.
In his declaration, Daniel Vargas avowed that Chief William Derbonne’s behavior
at City Hall prompted Vargas’ combative behavior, during the March 29 meeting with
Mayor Vikki Bonfield and Chief Derbonne:
I knew that William Derbonne locked employees inside City Hall,
being armed and under the color of authority, and engaged in a verbal
argument during which at one point he put his hand on his Department-
issued firearm.
CP at 128. Vargas left the March 29 meeting with an understanding that he had been
placed on paid administrative leave.
Daniel Vargas counseled with an attorney, who then mailed Asotin Mayor Vikki
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Bonfield a letter to inquire of when Vargas’ administrative leave would end. On April 8,
2013, Mayor Bonfield sent Vargas a letter that informed him that he had been terminated
from employment because Vargas expressed an unwillingness to discuss resolution to the
discord with Chief William Derbonne.
In a declaration, Mayor Vikki Bonfield testified about her decision to terminate
Daniel Vargas from employment after the March 29 meeting:
Prior to this meeting, Chief Derbonne never mentioned terminating
Mr. Vargas’s employment to me, nor did I consider that to be a conceivable
option. . . .
....
. . . Termination of employment was not the course of action that
either the Chief or I preferred; however, I had every reason to believe that
Mr. Vargas would continue to engage in the undesirable insubordination
and negative commentary (Mr. Vargas admitted that he trash talks all the
time “that is me”), and also understood that Mr. Vargas refused to
communicate with his only fellow police officer only via email. Under
these circumstances, I concluded that in the interests of public safety and
the efficiency of the police department, I had no alternative other than
termination of Mr. Vargas’s employment.
. . . At no time prior to my meeting with Mr. Vargas was I aware that
he had made a formal complaint to any outside agency. Further, as I had no
knowledge of these complaints until after Mr. Vargas’s employment was
terminated, I could not and did not advise Chief Derbonne of any of these
alleged complaints. Finally, as I had no knowledge of these complaints
until after Mr. Vargas’s employment was terminated, they played no part
whatsoever in my decision to terminate his employment.
CP at 33-34.
Officer Bill Guinn testified in his declaration:
There is no doubt whatsoever in my mind why [William Derbonne]
fired [Vargas]. He did so to try and stop [Vargas] from getting him in
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trouble or ruining the good thing [Derbonne] had going.
CP at 92. Councilman Anthony Rogers swore in his declaration:
It does not surprise me that the mayor, Vicki Bonfield, wouldn’t ask
too many questions if [William Derbonne] wanted to fire [Vargas]. I do not
know why, but she seemed to do everything he told her to do and give him
anything he asked for. Those two were very close.
CP at 97.
PROCEDURE
On November 27, 2013, Daniel Vargas filed a complaint alleging wrongful
discharge against the City of Asotin. Vargas claims Mayor Vikki Bonfield terminated
him because Vargas reported the illegal behavior of William Derbonne.
The City of Asotin deposed Daniel Vargas on December 2, 2014. The city’s
counsel repeatedly questioned Vargas regarding evidence of any knowledge that Mayor
Vikki Bonfield or Chief William Derbonne learned of any reports he forwarded about
Derbonne’s conduct to third parties. Vargas admitted he could not identify any evidence
showing Mayor Bonfield’s knowledge of any of the reports. The following colloquy
occurred between Asotin’s counsel and Vargas during the deposition:
Q. Let me rephrase it a little bit. As you sit here today, can you tell
me, beyond your presumption, whether Mr. Derbonne was aware you had
that conversation with Ms. Bonfield about the gun sales?
A. I have no evidence, no, sir.
Q. As you sit here today, do you know whether Chief Derbonne was
aware of your contact with the Spokane office of the ATF about his gun
sales?
A. Yes, sir.
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Q. All right. And how do you know he was aware of that?
A. She. The agent, she told me that she would be contacting him,
and that maybe he just didn’t understand the paperwork.
Q. All right. So, Ms. Young told you she would be contacting -
A. Uh-huh.
Q. — Mr. Derbonne?
A. Yes, sir.
Q. All right. In what conversation was that?
A. It was in conversation number two.
Q. Do you know if she ever contacted Mr. -
A. Evidence-wise? No, not evidence-wise. Presumptive-wise? Yes.
Q. As you sit here today, do you know whether Mr. Derbonne ever
became aware that you had these conversations with the FBI?
A. Again, you’re going to ask for evidence. No, I have no solid
evidence. Did he? Absolutely.
Q. And when you say he absolutely did, that’s based upon your
presumption?
A. I guarantee you the ATF agent contacted him and advised him or
gave him a hint on who reported, absolutely.
Q. What I need to know is whether you can point me to any evidence
that establishes that the FBI agent had that conversation with Mr.
Derbonne, or whether you’re just assuming that happened.
A. When we finish the deposition later, I will provide with you that
evidence. Because I am more than certain.
Q. But right now—
A. Right now, no, sir.
Q. So, let me make sure my record’s clear.
A. Yes, sir.
Q. As you sit here today, you can’t say—Strike that.
As you sit here today, you can’t point me to any evidence that
establishes that Mr. Derbonne was aware prior to April 5th, 2013, that you
had had these conversations with the FBI?
A. I have no evidence for you today, no.
Q. All right.
A. I was told by him that he received complaints, and so he was
going to slow things down. And that’s how I knew that she had made
contact with him.
Q. All right. Mr. Derbonne told you that he had received
complaints?
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A. Yes, sir.
Q. And did he tell you from whom he received those complaints?
A. He said — No. He didn’t provide me any names.
Q. Did he — Well, tell me what you recall him saying.
A. That was just it. And he did. He stopped selling guns from his
patrol car for a while. I’d say a couple months. You know, maybe three
months. He slowed it completely down.
And the reasoning behind that was that, so I knew she had talked to
him at that point.
....
Q. All right. Do you recall anything else he said, other than he had
received —
A. No.
Q. — complaints from the ATF, and that as a result, he was going to
slow down his sales?
A. No, sir.
....
As you sit here today, can you point me to any evidence that you
believe establishes that [William] Derbonne was aware of your phone call
to Deputy Snyder prior to your termination [regarding a complaint to the
Washington State Patrol]?
A. I’m not sure who talked to [William] Derbonne. [William]
Derbonne knew that I reported it the day I received a phone call. But that’s
going to be through deposition of Dan Hally and everybody else. He knew.
....
Q. All right. As you sit here today, can you point me to any
evidence that you believe establishes that [William] Derbonne was aware
prior to April 5th, 2013, that you had made phone calls to the Washington
State Patrol regarding the City Hall incident?
A. No, sir.
CP at 61-70.
For each report that Daniel Vargas claimed to have forwarded to a regulatory body
about Chief William Derbonne, Asotin’s counsel questioned Vargas, during the
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deposition, with similar questions. Vargas repeatedly responded that he could not
identify any evidence showing Mayor Vikki Bonfield knew of his reports of misconduct.
The City of Asotin filed a summary judgment motion to dismiss Daniel Vargas’
complaint in December 2016, more than three years after the filing of the complaint. In
response to the City of Asotin’s summary judgment motion, Vargas forwarded no
percipient evidence of Mayor Bonfield’s knowledge of any report he forwarded. The
trial court granted Asotin’s motion.
LAW AND ANALYSIS
Under familiar principles, this court reviews an order for summary judgment de
novo. Keck v. Collins, 184 Wash. 2d 358, 370, 357 P.3d 1080 (2015). We must determine
whether “the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.” Parkin v.
Colocousis, 53 Wash. App. 649, 653, 769 P.2d 326 (1989) (quoting CR 56(c)). Summary
judgment is appropriate “if reasonable minds could reach only one conclusion on that
issue, based upon the evidence presented, construed in a light most favorable to the non-
moving party.” Hurlbert v. Gordon, 64 Wash. App. 386, 393, 824 P.2d 1238 (1992).
An adverse party may not rest on mere allegations or denials of a pleading, but a
response must identify specific facts showing a genuine issue for trial. CR 56(e). The
nonmoving party may not rely on speculation, argumentative assertions, or in having its
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affidavits considered at face value. Seven Gables Corp. v. MGM/UA Entm’t Co., 106
Wash. 2d 1, 13, 721 P.2d 1 (1986).
Daniel Vargas asserts the common law tort of wrongful discharge in violation of
public policy against his former employer, the city of Asotin. Vargas claims the city
retaliated against him by terminating him from employment for reporting the misconduct
of Chief William Derbonne.
Washington has adopted a four-part test that a plaintiff must prove in order to
impose liability on his or her employer: (1) the existence of a clear public policy (the
clarity element), (2) that discouraging the conduct in which the plaintiff engaged would
jeopardize the public policy (the jeopardy element), (3) that the public policy linked
conduct caused the dismissal (the causation element), and (4) that the defendant has not
offered an overriding justification for termination of the plaintiff (the absence of
justification element). Anica v. Wal-Mart Stores, Inc., 120 Wash. App. 481, 495, 84 P.3d
1231 (2004); Gardner v. Loomis Armored, Inc., 128 Wash. 2d 931, 941, 913 P.2d 377
(1996). The City of Asotin relies on both the causation and overriding justification
elements. We resolve the appeal only on causation.
The public policy exception to the tort of wrongful discharge is narrow, such that
the employee holds the burden of proving the dismissal violates a clear mandate of public
policy. Rickman v. Premera Blue Cross, 184 Wash. 2d 300, 309, 358 P.3d 1153 (2015);
Thompson v. St. Regis Paper Co., 102 Wash. 2d 219, 232, 685 P.2d 1081 (1984). Because
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the exception is narrow, courts must apply it cautiously to avoid allowing the exception
to swallow the general rule that employment is terminable at will. Sedlacek v. Hillis, 145
Wash. 2d 379, 390, 36 P.3d 1014 (2001); Anica v. Wal-Mart Stores, Inc., 120 Wash. App. at
495 (2004).
The employee must establish specific and material facts to support each element of
his prima facie case. Hiatt v. Walker Chevrolet Co., 120 Wash. 2d 57, 66, 837 P.2d 618
(1992). If the plaintiff fails to establish each element of his or her prima facie case, the
defendant is entitled to judgment as a matter of law. Fulton v. Department of Social &
Health Services, 169 Wash. App. 137, 148, 279 P.3d 500 (2012).
A necessary element to establish a cause of action for retaliation is the employer’s
knowledge of the employee’s reporting. See Anica v. Wal-Mart Stores, Inc., 120 Wn.
App. 481. In recognition of the difficulty of proving motive, the employee may show
knowledge by circumstantial evidence, since the employer is not apt to announce
retaliation as his motive. Wilmot v. Kaiser Aluminum and Chemical Corp., 118 Wash. 2d
46, 69, 821 P.2d 18 (1991). Daniel Vargas presents some evidence that Chief William
Derbonne knew of Vargas’ complaints to third parties of Derbonne’s conduct.
Nevertheless, Vargas fails to provide any evidence showing Mayor Vikki Bonfield had
knowledge, circumstantial or direct, of complaints that Vargas filed regarding William
Derbonne. The undisputed evidence shows that Vikki Bonfield rendered the decision to
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fire Vargas. Therefore, since Vargas fails to establish the causation element required to
make a prima facie case, summary judgment was appropriate.
In her declaration, Mayor Vikki Bonfield denied any knowledge of Daniel Vargas’
reporting of misconduct of Chief William Derbonne. Mayor Bonfield insisted that she
fired Vargas because of his unwillingness to discuss solutions with William Derbonne.
The City of Asotin questioned Daniel Vargas repeatedly during his deposition about what
evidence or facts he might possess to prove that Bonfield knew of reports made by
Vargas prior to Vargas’ termination from employment. Vargas had no evidence to show
such a nexus.
Daniel Vargas contends the hostile behavior between Councilman Anthony
Rogers and William Derbonne at City Hall on March 26 confirms that Derbonne told
Mayor Vikki Bonfield about Vargas’ complaints. We disagree. A host of other reasons
could explain the March 26 confrontation. Rogers does not testify that he told Bonfield
of any allegations asserted by Vargas about Derbonne’s misbehavior. The testimony may
establish that Derbonne and Mayor Bonfield conversed behind a closed door, but we have
no admissible evidence of the content of the conversation. We cannot base a decision on
speculation as to the content.
We decline to join our dissenting sister in applying subordinate bias liability
because Daniel Vargas did not assert this theory of liability before the superior court and
does not forward this theory before this reviewing court. Generally, issues not raised in
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the trial court may not be raised for the first time on appeal. RAP 2.5(a); State v. Nitsch,
100 Wash. App. 512, 519, 997 P.2d 1000 (2000). Also, we deem an issue not briefed on
appeal to be waived. Kadoranian v. Bellingham Police Department, 119 Wash. 2d 178,
191, 829 P.2d 1061 (1992); Hall v. Feigenbaum, 178 Wash. App. 811, 817, 319 P.3d 61
(2014). We also should not base a ruling on a new theory without affording the City of
Asotin the opportunity to brief and address the theory. RAP 12.1(b).
The Washington Supreme Court has never adopted subordinate bias liability. We
also find no decision that applies subordinate bias liability to a wrongful discharge in
violation of a public policy claim. Nevertheless, most other jurisdictions have adopted
this basis for liability in military, union advocacy, gender, and racial discrimination cases,
and this court has reasonably and expertly adopted the theory in some of such settings.
Boyd v. State, 187 Wash. App. 1, 349 P.3d 864 (2015); City of Vancouver v. Public
Employment Relations Commission, 180 Wash. App. 333, 325 P.3d 213 (2014). We
assume our high court will follow in various settings, including in cases asserting the tort
of wrongful discharge in violation of public policy. Still, we question the viability of
subordinate bias liability under the undisputed facts on review.
In subordinate bias liability cases, a biased subordinate, who lacks decision
making power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger
a discriminatory employment action. City of Vancouver v. Public Employment Relations
Commission, 180 Wash. App. at 351. Subordinate bias liability recognizes that the biased
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subordinate does not personally “pull the trigger” on the adverse employment decision,
but the subordinate’s animus sets in motion the events that culminate in the adverse
employment action. City of Vancouver v. Public Employment Relations Commission, 180
Wash. App. at 351. Because the employer has delegated some authority in the subordinate
over the employee, which authority may influence employment decisions, the employer
may be held liable if the subordinate’s bias leads to an adverse employment decision
regardless if the decisionmaker lacks the prohibited animus. City of Vancouver v. Public
Employment Relations Commission, 180 Wash. App. at 351.
Subordinate bias liability does not hold the employer automatically liable if a
subordinate with supervisory authority holds a bias against the employee. City of
Vancouver v. Public Employment Relations Commission, 180 Wash. App. at 354-56. If a
recommendation of the subordinate has little effect on the employer’s decision or if the
employer reaches an independent decision, the subordinate’s animus did not cause the
adverse employment decision. City of Vancouver v. Public Employment Relations
Commission, 180 Wash. App. at 354. The employee bears the burden of proving causation
under subordinate bias liability. City of Vancouver v. Public Employment Relations
Commission, 180 Wash. App. at 356-57.
Mayor Vikki Bonfield fired Daniel Vargas after a March 29, 2013 meeting among
Chief William Derbonne, Vargas, and Bonfield. During the meeting, the trio discussed a
recent complaint from police officer Bill Guinn of Vargas’ ongoing “trash talking,”
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incidents of insubordination, and Vargas’ failure to complete required reports. Vargas
grew irate and refused to recognize any unacceptable professional behavior. Still he
acknowledged that he trash talked and declared he had no intention of stopping. Mayor
Bonfield asked Vargas how to resolve the conflict between Derbonne and Vargas.
Vargas replied that he would only communicate with Derbonne via e-mail.
In one sense, Daniel Vargas’ reporting of Chief William Derbonne’s unlawful
behavior to outside entities precipitated Vargas’ termination from employment. In other
words, the advancement of public policy presents as a “but for” cause of the firing. But
the employee must show that the animus of the subordinate constituted a “substantial
factor” in the termination. Allison v. Housing Authority of the City of Seattle, 118 Wash. 2d
79, 81, 821 P.2d 34 (1991). The undisputed facts show that Mayor Vikki Bonfield lacked
knowledge of any reporting by Daniel Vargas. Vargas’ failure to discuss with Bonfield a
reasonable solution to the hostility within the police department, Vargas’ failure to accept
any responsibility for unprofessional behavior, and Vargas’ pledge to continue trash
talking may constitute sufficient independent grounds for the firing of Vargas that break
the chain of causation from the animus that developed between Derbonne and Vargas
because of any reporting of misconduct. We would want to grant the City of Asotin a full
opportunity to explore the ramifications of subordinate bias liability before reversing
summary judgment.
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CONCLUSION
We affirm the summary judgment dismissal of Daniel Vargas' suit for wrongful
termination in violation of public policy.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Fea~)
:1 - s
I CONCUR:
Siddoway, J. U
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No. 35093-2-111
PENNELL, A.CJ. (dissenting)-This case asks whether a supervisor's
9iscriminatory animus can be imputed to a final decision-maker who fires an employee.
As noted by the majority, Daniel Vargas has proffered at least some evidence that his
supervisor, Asotin Police Chief William Derbonne, was aware Mr. Vargas had engaged
in whistleblowing activities prior to Mr. Vargas's termination. Mr. Vargas has also
proffered evidence that Chief Derbonne was angered by Mr. Vargas's complaints and
desired Mr. Vargas be fired. Nevertheless, the majority concludes Mr. Vargas cannot
make out a claim for retaliatory discharge because Mr. Vargas has not pointed to any
evidence showing the ultimate decision-maker, Asotin Mayor Vikki Bonfield, was aware
of Mr. Vargas's whistleblowing activities. The majority thus concludes that Mr. Vargas
lacks evidence demonstrating that his protected conduct caused the termination.
I disagree. Mr. Vargas has submitted sufficient proof that Chief Derbonne's
retaliatory animus was connected to Mayor Bonfield's termination decision through a
theory of proximate cause known as "subordinate bias" or "cat's paw" liability. Under
this theory, liability attaches when an employment decision is influenced by a biased
subordinate, regardless of whether the employer's final decision-maker holds any
personal bias or is aware of the subordinate's bias. Because Mr. Vargas has submitted
facts in support of subordinate bias or cat's paw liability, I would reverse the trial court's
summary judgment order.
No. 35093-2-III
Vargas v. City ofAsotin (Dissent)
Elements of wrongful discharge in violation of public policy
The common law tort of wrongful discharge in violation of public policy has
traditionally been limited to four scenarios: "(1) where employees are fired for refusing to
commit an illegal act; (2) where employees are fired for performing a public duty or
obligation, such as serving jury duty; (3) where employees are fired for exercising a right
or privilege, such as filing workers' compensation claims; and (4) where employees are
fired in retaliation for reporting employer misconduct, i.e., whistleblowing." Rose v.
Anderson Hay & Grain Co., 184 Wn.2d 268,276, 358 P.3d 1139 (2015) (quoting
Gardner v. Loomis Armored Inc., 128 Wash. 2d 931, 936, 913 P.2d 377 (1996)).
When a plaintiffs wrongful discharge allegations fall into one of the four
traditional scenarios, then the elements of the tort claim are guided by the Supreme
Court's decision in Thompson v. St. Regis Paper Co., 102 Wash. 2d 219, 685 P.2d 1081
(1984). Becker v. Cmty. Health Sys., 184 Wash. 2d 252, 258-59, 359 P.3d 746 (2015).
Under the Thompson standard, a plaintiff must show that he or she may have bee~
terminated for reasons that contravene public policy. Thompson, 102 Wash. 2d at 232.
If this is satisfied, the burden shifts to the employer to prove dismissal was for other
reasons. Id. at 232-33. It is only when a plaintiffs circumstances fall outside the
traditional four types of a wrongful discharge scenario that a "more refined" analysis,
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No. 35093-2-111
Vargas v. City ofAsotin (Dissent)
pursuant to the factors articulated by Professor Henry H. Perritt Jr., 1 becomes relevant.
Becker, 184 Wash. 2d at 259.
Because Mr. Vargas has made a whistleblower allegation, his claims fall under the
Thompson standard. Mr. Vargas must therefore show causation between his alleged
whistle blowing and the City of Asotin' s termination decision. Wilmot v. Kaiser
Aluminum and Chemical Corp., 118 Wash. 2d 46, 68-69, 821 P.2d 18 (1991). However,
establishing causation is "not an all or nothing proposition." Rickman v. Premera Blue
Cross, 184 Wash. 2d 300,314,358 P.3d·l 153 (2015). Mr. Vargas need not show his
whistleblowing activities were the sole basis for the City's termination decision. Id. It is
enough that he show his whistleblowing was a substantial factor, motivating the City's
decision to discharge him from employment. Id. In addition, because proof of an
employer's true motivation can be difficult to obtain, a plaintiff such as Mr. Vargas can
make an initial showing of causation by establishing his employer knew of his
whistleblowing and then issued a termination decision. See Wilmot, 118 Wash. 2d at 69.
Consistent with the Thompson standard, if Mr. Vargas can establish a prima facie
case of causation, then the burden shifts to the City to prove Mr. Vargas was discharged
1
The four Perritt elements of a public policy tort are: ( 1) a plaintiff must prove the
existence of a clear public policy, (2) the plaintiff must prove that discouraging his or her
conduct would jeopardize public policy, (3) the plaintiff must prove that his or her
protected conduct caused dismissal, and (4) the employer must not be able to offer an
overriding justification for the dismissal. HENRY H. PERRITT JR., WORKPLACE TORTS:
RIGHTS AND LIABILITIES§ 3.5, at 64 (1991).
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No. 35093-2-111
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for reasons other than whistleblowing. Alternatively, the City may avoid liability by
showing that "despite [Mr. Vargas]'s public-policy-linked conduct," it had an overriding
justification for the termination. See Rickman, 184 Wash. 2d at 314 (quoting Gardner, 128
Wash. 2d at 947).
Mr. Vargas has established evidence of causation
As noted by the majority, Mr. Vargas has produced evidence that his supervisor,
ChiefDerbonne, was aware of Mr. Vargas's whistleblowing. Specifically, the record
includes a declaration from an Asotin reserve police officer, Bill Guinn, who asserts that
ChiefDerbonne admitted knowing Mr. Vargas "was reporting" him for illegal conduct
involving wild game and firearms. Clerk's Papers (CP) at 92. 2
The record also indicates Mr. Vargas's whistleblowing angered Chief Derbonne
and led him to desire Mr. Vargas's termination. Reserve Officer Guinn maintains
that ChiefDerbonne was "relentless" in his complaints about Mr. Vargas. Id. at 91.
ChiefDerbonne expressed concern to Officer Guinn that Mr. Vargas was trying to get
Derbonne. in trouble and "someone needed to go," meaning either Derbonne or Vargas.
Id. at 92. From Officer Guinn's declaration, it can be inferred that Derbonne knew
about at least some of Mr. Vargas's whistleblowing activities and that Derbonne wanted
2 It does not matter that Chief Derbonne failed to specify which agencies had
received reports from Mr. Vargas. Any type of reporting, including an internal
complaint, can constitute whistleblowing. See, e.g., Rickman, 184 Wash. 2d at 305-06
(whistleblowing can be limited to an internal grievance).
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No. 35093-2-III
Vargas v. City ofAsotin (Dissent)
Mr. Vargas fired as a result.
Despite evidence of ChiefDerbonne's knowledge and retaliatory animus, the
majority reasons Mr. Vargas's complaint cannot proceed because ChiefDerbonne was
not the one who fired Mr. Vargas. That person was Mayor Vikki Bonfield. As pointed
out by the majority, Mr. Vargas has not uncovered any evidence indicating Mayor
Bonfield was aware of Mr. Vargas's whistleblowing activities prior to his termination.
Nor is there any evidence that Mayor Bonfield personally shared ChiefDerbonne's
retaliatory animus.
I disagree with the majority's conclusion that Mayor Bonfield's lack of direct
knowledge shields the City from Mr. Vargas's claims. Mr. Vargas has stated a valid
retaliation claim under· a theory of causation that Division Two of our court has dubbed
"subordinate bias liability." City of Vancouver v. Pub. Emp 't Relations Comm 'n, 180
Wash. App. 333, 351-52, 325 P.3d 213 (2014); Boydv. State, 187 Wash. App. 1, 20,349 P.3d
864 (2015). 3 Subordinate bias liability is based on agency principles. It applies when a
subordinate, such as a mid-level supervisor, harbors bias against an employee and has
3 As noted by the majority, the parties have not briefed the issue of subordinate
bias liability. Instead, they both proceed under the assumption that Mr. Vargas can
establish liability by proving either ChiefDerbonne or Mayor Bonfield knew about Mr.
Vargas's whistleblowing activities. Given the parties have not asked the court to
differentiate between Derbonne's knowledge and that of Bonfield, I would not fault Mr.
Vargas for failing to brief the issue of subordinate bias liability. By decoupling
Derbonne and Bonfield's knowledge, the majority has resolved this case against Mr.
Vargas in a manner that was not briefed or requested.
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No. 35093-2-111
Vargas v. City ofAsotin (Dissent)
been delegated some sort of power or influence that triggers an employer's ultimate
termination decision. City of Vancouver, 180 Wash. App. at 351. Under a theory of
subordinate bias liability, an employer's decision-maker need not be aware of the
subordinate's animus. Nor must the subordinate's influence be the sole cause of the
employer's decision. It is, instead, enough that the subordinate's discriminatory-charged
influence was a substantial factor in the ultimate employment decision. Id. at 356. This
can happen when a subordinate's influence "sets in motion the events that culminate in
the adverse employment action." Id. at 351.
Division Two's analysis of subordinate bias liability is based on the United States
Supreme Court's decision in Staub v. Proctor Hospital, 562 U.S. 411, 131 S. Ct. 1186,
179 L. Ed. 2d 144 (2011 ). Staub referred to subordinate bias liability as "cats paw"
liability4 and found the theory of liability applicable to establishing proximate cause in an
employment discrimination case.
4
"The term 'cat's paw' originated in the fable, 'The Monkey and the Cat,' by Jean
de La Fontaine. As told in the fable, the monkey wanted some chestnuts that were
roasting in a fire. Unwilling to bum himself in the fire, the monkey convinced the cat to
retrieve the chestnuts for him. As the cat carefully scooped the chestnuts from the fire
with his paw, the monkey gobbled them up. By the time the serving wench caught the
two thieves, no chestnuts were left for the unhappy cat." JULIE M. COVEL, THE SUPREME
COURT WRITES A FRACTURED FABLE OF THE CAT'S PAW THEORY IN STAUB V. PROCTOR
HOSPITAL [STAUB v. PROCTOR HOSPITAL, 131 s. CT. 1186 (2011)], 51 Washburn L.J. 159
(2011) (footnotes omitted). "[T]he monkey represents a supervisor, motivated by a
discriminatory bias, who uses the employer or the employer's decision-maker to take
adverse action against an employee. The cat represents an unbiased decision-maker who
unknowingly disciplines an employee because of the supervisor's bias." Id. at 160
(footnotes omitted).
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No. 35093-2-111
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The facts in Staub are helpful to understanding the Supreme Court's causation
analysis. Mr. Staub was a member of the United States Army Reserve, which sometimes
caused him to take time off of work. Staub was eventually fired and then filed suit,
claiming discrimination based on his military status. Even though there was no evidence
that the individual who fired Staub harbored any such bias, Staub argued for liability
because his supervisors had clearly exhibited bias and those supervisors had an influence
ort his employer's ultimate termination decision. Staub, 562 U.S. at 415. The Supreme
Court agreed with Staub' s theory of liability. The Court wrote that "if a supervisor
performs an act motivated by antimilitary animus that is intended by the supervisor to
cause an adverse employment action, and if that act is a proximate cause of the ultimate
employment action, then the employer is liable" for discrimination. 5 Id. at 422 (footnote
omitted). The S.taub Court recognized that there may be multiple proximate causes of the
final employment decision. Id. at 420. But that does not mean an employee cannot state
a claim. It is only when an employer's ultimate termination decision is unrelated to the
influence of biased supervisors that the employer will escape liability. Id. at 421.
Our state Supreme Court has never explicitly discussed subordinate bias or cat's
paw liability, but the theory was implicit in the court's decision in Allison v. Housing
5The statutory basis for discrimination was the Uniformed Services Employment
and Reemployment Rights Act of 1994. 38 U.S.C. §§ 4301-35. This provision prohibits
adverse employment actions if an employee's membership in the uniformed services "is a
motivating factor in the employer's action." 38 U.S.C. § 431 l(c)(l).
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No. 35093-2-III
Vargas v. City ofAsotin (Dissent)
Authority ofSeattle, 118 Wash. 2d 79, 821 P .2d 34 ( 1991 ). The facts of Allison make this
plain. Ms. Allison raised complaints about age discrimination during her employment
with the Seattle Housing Authority. Shortly after lodging the complaints, Ms. Allison's
relationship with her supervisor soured and she began receiving less favorable
performance evaluations. A new supervisor subsequently joined the housing authority
and, due to budget cuts, was tasked with workforce reduction. The new supervisor
opted to base the layoff decisions on prior performance evaluations and productivity.
Ms. Allison was one of the individuals laid off. She subsequently filed suit for retaliatory
discharge. Although Ms. Allison lacked evidence that the new supervisor harbored
discriminatory animus or was aware of Ms. Allison's tensions with the previous
supervisor, the Supreme Court held Ms. Allison had submitted sufficient proof of
causation. Id. at 97-98.
By recognizing Ms. Allison could state a retaliation claim against her employer,
without proof of any personal bias on the part of the employer's decision-maker, our high
court sanctioned the applicability of subordinate bias or cat's paw liability. As the court
explained, Ms. Allison presented a valid theory "that her supervisor ... 'set up' Allison
to be selected for layoff through, for example, giving her poor performance evaluations."
Id. at 97. The court thus recognized that when a biased supervisor sets up an employee
for termination by a final decision-maker, the employer cannot escape liability by
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No. 35093-2-111
Vargas v. City ofAsotin (Dissent)
pleading ignorance or lack of bad faith. Instead, in such circumstances, the employee has
alleged a viable claim of discrimination.
Applying the theory of subordinate bias or cat's paw liability to this case, it is
apparent ChiefDerbonne initiated the chain of events that ultimately resulted in Mr.
Vargas's termination. A meeting was held on March 29, 2013, so that Chief Derbonne
could present Mr. Vargas with a personnel action form. The form was prepared by Chief
Derbonne and contained the Chiefs complaints about Mr. Vargas's insubordinate
behavior. Mayor Bonfield attended the March 29 meeting and discussed those problems
with Mr. Vargas and ChiefDerbonne, which the mayor described as Mr. Vargas's "trash-
talking" and "refusal to take direction." CP at 33-34. There is no indication that Mayor
Bonfield had direct knowledge of Mr. Vargas's problems prior to the March 29 meeting.
Instead, it is apparent that Mayor Bonfield's knowledge came from ChiefDerbonne. In
addition, by her comments, Mayor Bonfield indicated that she had conferred with Chief
Derbonne about Mr. Vargas's employment status. Specifically, Mayor Bonfield declared
that "[t]ermination of employment was not the course of action that either the Chief or I
preferred." Id. at 34. The only way Mayor Bonfield would have known of Chief
Derbonne' s purported preferences was if she had consulted with him.
ChiefDerbonne's actions were sufficient to impute his bias to Mayor Bonfield.
Although Mayor Bonfield's termination decision did not rest entirely on the information
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No. 35093-2-III
Vargas v. City ofAsotin (Dissent)
obtained from ChiefDerbonne, it was a substantial factor. Mayor Bonfield has declared
that she dismissed Mr. Vargas because she "had every reason to believe that Mr. Vargas
would continue to engage in the undesirable insubordination and negative commentary."
Id. In other words, based on Mayor Bonfield's interactions with Mr. Vargas at the
March 29 meeting, Mayor Bonfield concluded that ChiefDerbonne's complaints about
Mr. Vargas were not remediable. Under Mayor Bonfield's analysis, one simply cannot
separate ChiefDerbonne's allegations against Mr. Vargas from the final termination
decision. Mr. Vargas has therefore made a sufficient showing that his termination was
caused by anti-whistleblower animus.
The City's evidence of independent justification does not justify summary
judgment
Because Mr. Vargas has presented prima facie evidence that he was terminated
in violation of public policy, the burden shifts to the City to establish an alternate
justification for its actions. To meet this burden, the City has proffered a complete denial
of Mr. Vargas's claims. Contrary to Reserve Officer Quinn's assertions, Chief Derbonne
denies he was aware of Mr. Vargas's whistleblowing activities. According to Chief
Derbonne, his dissatisfaction with Mr. Vargas stemmed from Mr. Vargas's poor attitude
and insubordination. Because ChiefDerbonne claimed to be unaware of Mr. Vargas's
whistle blowing, he has declared that Mr. Vargas's complaints played no part in his
decision to issue the March 29 personnel action form.
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No. 35093-2-111
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The facts presented by the City are sufficient to thwart any motion by Mr. Vargas
for summary judgment. But this does not mean the City is entitled to summary judgment.
Instead, a jury should decide which set of facts are true, and whether Mr. Vargas's
discharge was the result of discrimination or some other reason. Boyd, 187 Wash. App.
at 21.
Despite its clear denial of Mr. Vargas's causation claim, the City argues it
should be awarded summary judgment because it had an overriding justification for
Mr. Vargas's termination. Specifically, the City points to the untenable situation
created by Mr. Vargas when he said during the March 29 meeting that he would only
communicate with ChiefDerbonne through e-mail. According to the City, Mr. Vargas's
behavior undermined public safety and the efficiency of the police department.
The City's position is misplaced. The "overriding justification" defense applies
only in cases like Gardner where causation is not in dispute. 128 Wash. 2d at 947. The
issue in such cases is not whether the plaintiffs protected conduct was a substantial
factor in an adverse employment decision. It is instead whether the employer's basis for
termination was sufficiently compelling to override the employee's public-policy related
behavior. Id. at 947-49. This is an issue oflaw, to be resolved by the court. See id. at
942 ("[T]he overriding justification element enables this court to weigh properly [the
employer's] argument, which claims [its] workplace rule should trump any public
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No. 35093-2-111
Vargas v. City ofAsotin (Dissent)
policies furthered by [the employee]'s actions.") (emphasis added). In the current case,
there is no indication the City's public safety concerns were so dire that they justified
terminating an employee who had engaged in protected whistleblowing activities. Given
this state of the record, the City cannot escape a jury trial by claiming an overriding
justification. Because the City has merely disputed Mr. Vargas's proof of causation, the
case should go to trial.
Conclusion
Employees claiming unlawful retaliation are at a "distinct disadvantage ...
because they must prove causation without the benefit of the employer's own knowledge
of the reason for the discharge." Allison, 118 Wash. 2d at 96. This disadvantage ought not
to be exacerbated by allowing employers to avoid liability through creation of a firewall
between final decision-makers and the supervisors who not only lay the groundwork for
employment decisions, but also may harbor discriminatory animus. See City of
Vancouver, 180 Wash. App. at 359. Instead, an employer's decisions should be analyzed
holistically to discern whether discrimination has occurred under a theory of subordinate
bias or cat's paw liability.
Because Mr. Vargas has proffered sufficient facts indicating his supervisor's
discriminatory animus influenced the ultimate decision to discharge him from his
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No. 35093-2-III
Vargas v. City ofAsotin (Dissent)
employment with the City of Asotin, I would reverse the trial court's summary judgment
order and remand for trial. I therefore dissent.
Pennell, A.CJ.
13