David Martin v. Gonzaga University ( 2017 )

FILED
SEPTEMBER 7,2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
DAVID MARTIN, a single person, ) No. 34103-8-111
)
Appellant, )
)
V. ) PUBLISHED OPINION
)
GONZAGA UNIVERSITY, )
)
Respondent, )
)
CHRIS STANDIFORD AND "JANE )
DOE" STANDIFORD, a marital )
community, )
)
Defendants. )
FEARING, C.J. -David Martin sues his former employer, Gonzaga University, for
discharge in employment in violation of public policy and for a violation of a statute
allowing an employee access to his personnel file. We affirm a summary judgment
dismissal of the wrongful discharge claim. Martin fails to present evidence to support the
fourth element of the claim, that element being the absence of an overriding justification
for Gonzaga University to fire Martin. The undisputed facts, including Martin's own
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words, establish insubordination. We reverse the summary judgment dismissal of
Martin's claim that the university denied him access to his personnel file on the ground
that Gonzaga University failed to provide testimony that it produced all of the file to
Martin.
Few decisions delineate the nature of the overriding justification element of the
wrongful discharge in violation of public policy cause of action. We devote pages to
define and demarcate the element.
FACTS
This lawsuit arises from the employment of David Martin at Gonzaga University's
Rudolf Fitness Center (RFC). Because the trial court granted Gonzaga University's
summary judgment motion, we recite the facts in a light most favorable to David Martin,
although we also include some of the university's evidence.
Spokane's Jesuit school, Gonzaga University, opened the Rudolf Fitness Center in
2003 for use by students, faculty, and staff. A basketball fieldhouse and a pool, among
other facilities, occupy the fitness center. During the summer months, the university rents
the fitness center to other organizations such as youth camps and leagues. The
university's Athletics Department oversees the fitness center.
At unknown dates before Gonzaga University's hire of David Martin in 2008,
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university students sustained injuries when playing basketball and striking bare concrete
walls behind the basketball hoops in the Rudolf Fitness Center. Injuries included
concussions, head trauma, broken bones, dislocated shoulders, and lacerations. No
protective padding covered the walls. Basketball courts at other Gonzaga University
facilities included padding on the walls.
Beginning in 2004, Gonzaga University Athletics Department staff discussed
affixing prophylactic padding to the basketball court walls at the Rudolf Fitness Center.
No code requirement or National Collegiate Athletic Association regulation requires the
use of pads. Nevertheless, in 2004, Senior Associate Athletics Director Chris Standiford
instructed Assistant Athletics Director Jose Hernandez to hire a risk management
consultant to assess the need for pads along the walls of the basketball courts. The
Athletics Department later declined to follow the consultant's recommendation to install
pads. The university then estimated the cost of the padding as $30,000.
During a deposition in this lawsuit, Assistant Athletics Director Jose Hernandez
testified that he "believed" that Senior Associate Athletics Director Chris Standiford
rendered the 2004 decision rejecting installation of protective pads. Clerk's Papers (CP)
at 66. In 2007, Hernandez again engaged a consultant to assess the need for safeguarding
pads and the costs of the pads. After the second assessment, Hernandez recommended to
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his supervisor, Assistant Athletics Director Joel Morgan, that Gonzaga University install
the pads. The Athletics Department again declined to install the recommended pads.
Hernandez does not know whether Morgan or Standiford made the decision. Morgan
recalled no such recommendation.
Gonzaga University hired plaintiff David Martin on January 2, 2008, to work as an
assistant director of the Rudolf Fitness Center. In addition to his wages, Martin received
other benefits, including health insurance and free tuition. Martin utilized his tuition
benefit and enrolled in Gonzaga's master's degree program for sports administration.
When David Martin gained employment at the Rudolf Fitness Center, the fitness
center's employees included Assistant Athletics Director Jose Hernandez, Associate
Director Shelly Radtke, and Assistant Directors Andrew Main and Kerri Conger.
Hernandez also enjoyed the title of University assistant athletics director. The
university's Athletics Department's chain of command encompassed the Rudolf Fitness
Center's employees. We have already mentioned some of the supervisor's names and
titles. The fitness center's associate and assistant directors initially reported to the
center's Assistant Athletics Director Hernandez. Later, Associate Director Shelly Radtke
directly supervised David Martin. Hernandez reported to Gonzaga University Assistant
Athletics Director Joel Morgan. Morgan reported to university Senior Associate Athletics
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Director Chris Standiford. Standiford reported to Mike Roth, director of Athletics.
After David Martin's hire, Gonzaga University students continued to sustain
injuries while playing basketball in the Rudolf Fitness Center and striking concrete walls
while running full speed. For several years, David Martin requested that Gonzaga
University install protective padding on the fieldhouse walls behind the basketball hoops,
although we lack evidence as to the number of times and the dates of the requests. Martin
recalled one request during his second year of employment after a student sustained
serious injuries while playing basketball. Martin forwarded a concern to his supervisor,
Jose Hernandez, and the pair discussed the need to install padding to help minimize the
risk of injuries. Martin deemed that Gonzaga University held a legal obligation to
maintain a safe environment for students and employees. He worried about blood and
other bodily fluids spilled during accidents could create pathogen hazards. In response to
Martin's expression of concern, Fitness Center Assistant Athletics Director Hernandez
informed Martin that requests for protective padding could only be made once a year at
the budget meeting.
In a deposition, Jose Hernandez confirmed that David Martin spoke to him about
installing pads. According to Hernandez, Martin repeatedly and passionately spoke about
the need for wall padding.
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According to David Martin, before he raised this safety concern to Jose
Hernandez, he received a raise for good work performance. Thereafter, Martin received
no pay raises despite receiving complimentary performance evaluations. David Martin
does not present records to support these assertions.
During the employment of David Martin, other Rudolf Fitness Center employees
expressed concerns about the lack of protective wall padding in the basketball courts.
According to Associate Director Shelly Radtke and Assistant Director Andrew Main, all
Athletics Department staff discussed the lack of padding on the walls of the Rudolf
Fitness Center. Neither Radtke nor Main identified a supervisor to whom either raised a
safety concern about the walls.
One or more supervisors of David Martin periodically reviewed his job
performance. Martin testifies that supervisors never advised him of any work
performance deficiencies. Records show, however, that Martin received below average
ratings for his interpersonal skills, problem solving, professional development, and
leadership responsibilities on his April 28, 2011 performance review. The review noted
that Martin's overall performance "was below the quality and standard that he is capable
of." CP at 128. The review further read:
[Martin's] inconsistent performance kept him from meeting the basic
job requirements. ·Throughout the academic year, at times he would
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displayed [sic] great work ethics and at other times he would not. This up
and down behavior and conduct was a surprise and uncharacteristic of him.
CP at 128. In addition, the review commented that Martin did an excellent job
developing and implementing a training program for lifeguards. No supervisor signed the
April 2011 performance review.
Rudolf Fitness Center Assistant Athletics Director Jose Hernandez and David
Martin exchanged e-mails following the April 28, 2011 performance review. In one
e-mail, Hernandez posed two questions to Martin. Hernandez asked Martin how the latter
could improve his performance to advance the interests of the fitness center. The second
question asked Martin how other Rudolf Fitness Center staff needed to change or
improve. Martin's response focused on his desire to develop a pool program, his
dissatisfaction with resistance to change from others, and a lack of teamwork among staff.
Martin did not mention any student safety concerns related to the lack of protective
padding in the basketball courts.
In a document dated August 16, 2011, an anonymous author, perhaps Jose
Hernandez, summarized in writing David Martin's April 2011 review. The document
lacks a header. The author identified four deficiencies in Martin's work performance and
correlating expectations and goals. The four highlighted deficits were a lack of
interpersonal and professional communication skills with coworkers, a lack of teamwork,
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abrasive and insensitive written communications, and a neglect of job responsibilities.
After David Martin's April 28, 2011 performance review, Rudolf Fitness Center
Assistant Athletics Director Jose Hernandez counseled Martin daily about his job
performance, his need to follow protocol, and his interpersonal skills. According to
Hernandez,
[Martin] was a young man just removed from college at the time
who was a challenge to work with. Mr. Martin did not like structure and
felt like he could get the job done his own way .... Mr. Martin was very
arrogant and simply did not want to get along with people.
CP at 120. Hernandez eventually consulted with Gonzaga University's Human Resources
Office regarding Martin's job performance issues. Heather Murray, associate director of
human resources, testified in a declaration that Hernandez continually coached Martin to
take direction and follow protocol. Senior Associate Athletics Director Chris Standiford
observed that David Martin resented Jose Hernandez being Martin's supervisor.
According to Rudolf Fitness Center Associate Director Shelly Radtke, who
supervised David Martin, Martin lacked tact with employees and students and yelled at
her on several occasions. Assistant Director Andrew Main testified that Martin lacked
interpersonal skills. Main testified that Martin "liked to do things his own way, even if
there were procedures in place that he was supposed to follow." CP at 170. Martin
acknowledged he experienced difficulty with Rudolf Fitness Center Assistant Director
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Kerri Conger because of attitudinal differences.
As part of David Martin's thesis project for his masters' program, Martin wrote a
proposal to continue use of the Rudolf Fitness Center pool and use funds raised from
enjoyment of the pool to purchase protective wall padding for the basketball courts. We
assume that the Gonzaga University administration considered closing the pool, but no
direct evidence confirms such. Martin wished the university to maintain a pool on
campus for students. The record does not include Martin's written proposal.
David Martin submitted his pool and padding proposal to Rudolf Fitness Center
Assistant Athletics Director Jose Hernandez and asked if he could submit the proposal to
Senior Associate Athletics Director Chris Standiford. Standiford oversaw the fitness
center budget. According to Martin, Hernandez granted him permission. During
discovery, Hernandez denied that he granted Martin permission to share his proposal with
Standiford. Hernandez testified that "[h]e cannot stop [David Martin] from going over
there [to Standiford] and talking to our associate athletics director, but that is not the
proper procedure, proper way to do it." CP at 7 5.
On February 29, 2012, David Martin sent his pool and padding proposal to Senior
Associate Athletics Director Chris Standiford through an e-mail entitled "Future Pool
Proposal." CP at 115. Martin requested a meeting with Standiford to discuss "a very
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specific plan, along with other ideas, on how to generate revenue to keep the pool
operational and buy time for the future." CP at 115. Martin's cover e-mail did not
mention student safety concerns resulting from the lack of protective padding in the
basketball courts. Standiford responded to Martin on February 29:
Unfortunately my schedule will not allow for a meeting before my
departure tomorrow. It is more organizationally appropriate for you to
provide Jose [Hernandez] with the proposal for consideration. If you
already done this, and Jose supports the proposal, I would suggest he meet
with Joel [Morgan] for further consideration and deliberation.
I have asked Joel, and by extension Jose, that we do an analysis and
program[ m]atic review that demonstrates the relative vitality and
necessity of the aquatic component as part of the Rudolf Fitness Center.
Hopefully your work helps expedite that project as it is the most time
sensitive. The response to that question is the primary focus and sole
request at this time. The answer will lead to greater discussion and
instruct us to what parameters and goals we can construct for that
discussion and in response to Plant's concerns about the viability of
further operation of the pool complex.
Thanks for your work to date and that which still lies ahead.
CP at 114. Martin replied after work hours:
I am aware that this is a time sensitive matter. In the politest
possible way ... according to our organizational layout in the Policies and
Procedures Manual, pg. 6, there is no such line of communication or
organization hierarchy established for the RFC [Rudolf Fitness Center] staff
to follow. I have Jose's consent in this matter and I understand that you are
an extremely busy individual, I wouldn't be asking for your time if I didn't
plan on using it to the fullest. Imagine this as a "golden ticket" idea.
Something that I don't want others corrupting or taking credit for. I would
ask that you please meet with me and hear my thoughts on this matter. If it
needs to wait until after you return, then so be it, but I have worked hard on
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this and would appreciate your audience, and your audience alone.
CP at 114 (alteration in original). Standiford concluded that Martin, with this latest
message, sought to generate additional income for himself contrary to Gonzaga
University's mission. Following the Leap Day e-mail exchange, Chris Standiford
contacted Jose Hernandez and Joel Morgan and asked them to contact human resources
regarding David Martin.
According to David Martin, Chris Standiford directed him to forward the thesis
proposal to Jose Hernandez for Hernandez to make the presentation in order to kill the
proposal through administrative inaction. Hernandez lacked the knowledge and ability to
make the presentation.
Rudolf Fitness Center Assistant Athletics Director Jose Hernandez scheduled a
meeting for the following day, March 1, 2012, among Assistant Athletics Director Joel
Morgan, David Martin, and Hernandez. Hernandez arranged the meeting in order to
express disappointment to Martin for his disobeying the direction of Chris Standiford and
l to deliver Martin a letter of expectation. When Hernandez informed Martin of the
I.. meeting, Martin responded: "'You cannot make me go.'" CP at 121. Hernandez advised
Martin to attend because his employment standing would otherwise worsen.
David Martin attended the March 1 meeting. Martin argued and interrupted Jose
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Hernandez throughout the meeting. Martin repeatedly asked why his e-mail to Chris
Standiford was inappropriate. Hernandez told Martin that Martin disregarded a direct
order from Standiford when Standiford instructed Martin to submit his proposal to
Hernandez and Morgan. Hernandez read to Martin a prepared statement. Joel Morgan
demanded that Martin release his proposal to him, but Martin refused.
At the conclusion of the March 1 meeting, Jose Hernandez and Joel Morgan told
David Martin that he would receive a letter of expectation and the two would evaluate his
performance over the next week. Martin asked to leave the meeting. After the meeting
concluded, Associate Director of Human Resources Heather Murray, who did not attend
the meeting, assumed the responsibility for drafting the letter of expectation.
Within ten minutes after departing the March 1 meeting, David Martin located
Rudolf Fitness Center Associate Director Shelly Radtke and requested to leave work
early. According to Radtke, Martin approached her "hotter than a pistol" and yelled:
"I need you to grant me permission to leave .... I can't be here. I
have to get out of here and you need to document this."
CP at 163. Martin, who was scheduled to close the Rudolf Fitness Center that night,
wished Fitness Center Assistant Director Andrew Main to substitute for him. Martin told
Main that he was "[n]ot in a good state of mind." Main offered to close the facility for
him. CP at 170. Martin did not seek permission from Jose Hernandez to leave work
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early.
On March 1, Shelly Radtke texted Jose Hernandez to notify him that David Martin
asked to leave early and, in an effort to avoid confrontation, she agreed. After receiving
the text, Hernandez called Radtke, who relayed that a visibly upset Martin had already left
the Rudolf Fitness Center. Hernandez and Morgan went to the fitness center to speak
with Main. Main told them that Martin said: "Joel is upset I went over his head and Jose
is a push over." CP at 216. Consequently, Morgan consulted with Heather Murray
concerning Martin's actions during and after the meeting. Morgan and Murray agreed
that Martin should be placed on administrative leave until further notice. According to
Hernandez, the university placed Martin on administrative leave because he abandoned
his duties and advised Shelly Radtke to tell Hernandez of his early absence.
On March 2, 2012, Jose Hernandez notified David Martin that Gonzaga University .
placed him on paid administrative leave. Hernandez instructed Martin that the terms of
his leave forbad him to contact anyone at Gonzaga University except human resources
staff and Hernandez.
David Martin states that, before his termination from employment, he was
wrongfully accused of leaking information to The Gonzaga Bulletin, a Gonzaga
University student publication. Martin does not identify the accuser or the date of the
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accusation. Martin attached, to his declaration, a copy of a May 10, 2012 Gonzaga
Bulletin article, entitled "Gym safety questioned as employee fired." CP at 38-39. We
wonder if the attachment contains the entire article. Our copy of the article does not
mention the dismissal of Martin or anyone else from employment. The article quotes
"Martin" without mentioning his first name or position with the fieldhouse. CP at 39.
The article also mentions Martin's "proposal," but does not identify the proposal. CP at
39. The article reads, in part:
According to Martin, the issue of pads is brought up once a year at a
meeting with facilities. He says he has been told multiple times that the
gym meets requirements and code.
Martin said that in writing his proposal he was not so much worried
about the threat of a lawsuit as he was about the safety of the clients using
the facilities at the RFC.
CP at 39.
In an important passage in Jose Hernandez's deposition, the following colloquy
occurred:
Q. Did you ever share with Mr. Standiford that you believed that Mr.
Martin was leaking information about the pads with a reporter with The
Bulletin, the student publication?
A. I don't believe saying that.
Q. Did you ever believe that Mr. Martin was responsible for sharing
information that led to the articles shown in Exhibit 1?
A. I don't ... I'm not in a position to just say that he did.
Q. I'm not asking you whether you're in the position. Did you
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personally believe that Mr. Martin was sharing information with a reporter
from The Bulletin?
A. Not necessarily.
Q. What do you mean "not necessarily?"
A. That I don't believe that.
Q. Did you have any thoughts that he might have shared this
information with The Bulletin and the reporter?
A. Well, I can tell you this: One of the reporters told me that, in a
group, he overheard Mr. Martin talking about it.
Q. So did that cause you to believe that maybe Mr. Martin was the
person who was sharing information with the reporter?.
A. Not necessarily.
Q. Did you ever share this conversation with Mr. Standiford or talk
to him about Mr. Martin being the person giving information to the
reporter?
A. Not exactly. I mean, why would I say something that I personally
didn't know?
CP at 76-77 (alteration in original).
On March 5, 2012, David Martin called Julia Bjordahl, the executive assistant to
Thayne McCulloh, president of Gonzaga University. Martin requested a meeting with
McCulloh to present a proposal. Bjordahl, at the direction of McCulloh, told Martin to
follow the chain of command within the Athletics Department.
A persistent David Martin followed his conversation with Julia Bjordahl with an e-
mail message on March 6. Because David Martin asserts that Gonzaga University
terminated his employment for raising safety concerns over the lack of wall padding, we
recite the entire e-mail that Martin wrote to Bjordahl:
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Julia:
Here is the proposal for Dr. McCulloh. I should first be clear that I
I have put my job in jeopardy because of how much I care about the student.
Many universities have their rec[reation] center fall under Student Life, not
Athletics. Our Athletic Department deals specifically with the student-
athlete and often forget[s] everyone deserves equal opportunity. I see
firsthand, every day, the student's desires and voice not being heard. This
a
proposal is a way to amplify their voice and provide better, safer
environment for them to be a part of. I believe they deserve the highest
level of service we can provide, and I know from the past 4 years of work
that we aren't close to that. This proposal encompasses the necessary
improvements needed. I have additional notes, budgetary information, and
am currently working on another long term plan for when the pool is no
longer financially viable and have begun a backup plan for when we need
more space in the fitness center to accommodate a larger enrollment. I have
seen areas that need attention and have voiced my concerns for our lack of
future planning, and at times safety, to my direct supervisor Jose
Hernandez over the past 4 years. This proposal is my vision, which I
believe coincides with the President's, for what the fitness center and
student experience should be for years to come. I have presented my idea in
my Masters programs (Sports Administration) and have been working
alongside one of my professors to help consider my options. We had a
feeling that it would not be easily accepted and that proposing any new
change would meet it's [sic] obstacles. Everyone I have presented this idea
to has loved it, but since there is a dollar amount attached to it, I want to
make sure it goes where it's needed and not directly into a budget that we
have no control over.
These funds are intended to provide for the student experience, for
our own team growth and to create a wonderful work environment where
I
our student staff can be better prepared for the future.
Thank you for your time.
CP at 100 (emphasis added). To repeat, we lack a copy of David Martin's written thesis
proposal. The e-mail to Bjordahl mentions no safety concerns related to the lack of
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padding in the basketball courts.
Julia Bjordahl replied to the March 6 e-mail by reiterating to David Martin the
policy of vetting the proposal with the next individual in the chain of command, who
Bjordahl believed to be Athletics Director Mike Roth. Bjordahl forwarded her e-mail
exchange to Mike Roth, who in tum forwarded the communication to Heather Murray,
Dan Berryman, and Chris Standiford.
On March 7, 2012, a student sustained a serious head injury from running into the
bare concrete wall in the Rudolf Fitness Center basketball court. An ambulance rushed
the student to the hospital. The student suffered a concussion and required stitches.
On March 8, 2012, Gonzaga University terminated David Martin's employment.
The termination letter stated that the university terminated Martin's employment for his
failure to correct past performance issues identified in his April 2011 performance review
and insubordination. According to David Martin, in a meeting wherein he was fired,
Chris Standiford told him that one of the reasons for his termination was the belief that
Martin gave information about student injuries taking place at the Rudolf Fitness Center
to the Gonzaga University student newspaper. According to Chris Standiford, Gonzaga
University did not fire Martin because of Martin's complaints about the lack of padding
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I on the basketball court walls. Standiford declares that the university fired Martin for his
I lack of professionalism and his insubordination that began as early as 2011.
On March 30, 2012, David Martin sent a six-page letter to Gonzaga University
President Thayne McCulloh and Athletics Director Mike Roth. The message complained
that, during his employment, he saw "a lack of responsiveness to safety issues at the
Rudolf Fitness Center (RFC)." CP at 102. He again touted his pool plan, and, after his
introductory paragraph, stated that his plan included:
1. Increased communication between athletic staff members who
oversee RFC operations/expenditures and the staff who run the RFC. This
would include monthly or quarterly joint staff meetings so that information
could flow between our two groups. One safety concern for example,
athletics could provide advanced notice of scheduled maintenance activities
such as refinishing Fieldhouse floors so that RFC employee schedules could
be adjusted to avoid prolonged exposure to flumes. These meetings would
also allow RFC staff to bring emergent issues to the attention of multiple
athletic staff members so that knowledge flowed up the chain of command
rather than to a singular person who normally ignores it, or gets back to us
far too late. Emergent safety concerns such as CPR/AED [cardiopulmonary
resuscitation/automated external defibrillator] certification, to which less
than 5 percent of the entire athletic department is certified (I witnessed this
at our all department staff meeting in August when we took a poll. Only
Steve Delong and I raised our hands[.] [T]his is out of 100+ people.)
2. Greater utilization of the swimming pool to generate funds so that
the RFC staff could address emergent safety issues. The perception, and
reality, is that repeated requests for safety improvements have gone
unaddressed under the current organizational structure. To remedy this I
proposed teaching WSI, CPR/AED & First Aid and Lifeguarding classes,
for which I am certified, so that the RFC does not have to "butt heads" over
purchases and that safety issues could be resolved rather than prolonged.
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Even now we don't have the resources to replenish first aid kits before
critical items are exhausted. My proposal would have generated a
MINIMUM of $21,000 dollars in the first semester, with the potential for
$40,000/semester by the beginning of 2014. This money would go backto
where it belongs, i.e., immediate student needs. Under the proposal we
could have paid for our own protective equipment in the gym and not have
to fight those in the chain of command to justify funding our safety
prov1s1ons.
3. An organizational restructuring so that the RFC and its manager,
in this case Jose Hernandez, have some autonomy, including disciplinary
actions, and reporting to a more appropriate supervisor than someone
overseeing "facilities." Facilities is not the appropriate department
overseeing student based programming. The RFC is so low on the chain of
command our staff is powerless to do our job safely and correctly, leading
to increased university liability and continuing student injuries. It is
important that I make you aware that our repeated safety concerns have
fallen on deaf ears. This is what prompted me to write the proposal in the
first place.
CP at 102.
David Martin's March 30 epistle thereafter described his hostile meeting with Joel
Morgan and Jose Hernandez, his suspension from employment, the need to directly
present his proposal to those higher on the chain of command, universal praise of his
plan, and fear that others would take credit for the plan. Martin continued:
I am an honest person. But what happened to me was very unfair, it
undermined my credibility with the university, and what's worse ...
stripped me of years of friendship. I believe my termination was the result
of a fabricated rumor to cover up the wrongful intimidation of a student
who was looking to investigate the lack of padding on the walls of the
Fieldhouse. As I mentioned earlier his investigative story was coincidental
with my repeated attempts at getting protective padding for the students. I
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want you to know this, I DID NOT LEAK ANY INFORMATION TO THE
BULLETIN. I have been falsely accused of this and erroneously terminated
for it.
The punishable offense in all of this was the intimidation tactics that
were used on the student. These intimidation tactics were used to keep this
student from publishing his story and are prohibited under Gonzaga's
Personnel Policies. Additionally the student writer was threatened that ifhe
should publish the story he and The Bulletin would be denied access to
future stories involving athletics. A few days later Jose attempted to
apologize to the student in an attempt to keep him from reporting Joel's
threats. If Chris Standiford had not told me of this rumor during my
termination meeting as part of his "You have been insubordinate in the
past" speech, I would have never pieced this together. How can I be
terminated for a rumor?
I am loyal. Loyal to my friends, loyal to my boss, and loyal to my
employer. I make every effort to do things the right way. I was a boy scout.
I was brought up by a Gonzaga alum, class of '78. I was raised to respect
others and put people before one's self. This is why I take student safety
and university liability very seriously, and by firing me a very dangerous
message is sent to both students and RFC staff members. First, it's the
notion that Gonzaga doesn't care about the student's safety and that
somehow money is better spent elsewhere. Last, it's the "rat in a maze"
concept. Bring an idea forth, and you're punished, try and do anything to
draw attention to your cause and you're punished. Pretty soon the message
is don't think outside the box. Productivity and [i]nnovation should be
rewarded, not punished. President McCulloh talks all the time about this
way of thinking and making Gonzaga a better place for the student; I was
only trying to carry out his message.
So, the question you should be asking yourself now is why did Joel
respond the way that he did?
Evidently, sometime before I brought my plan forward to Jose a
student from the GU [B]ulletin interviewed Jose about why there are no
pads under the basketball hoops in the intramural courts. Coincidentally
one of the examples I used in pitching my plan to Jose as to why we need
increased communication between athletics and RFC staff is that our
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repeated requests for pads have been denied. (I have mended more than my
share of impact injuries from students hitting the wall during intramural
basketball, and my pitch is that if RFC staff could be heard by more than
one member of the athletic staff, i.e., Joel, then they might be able to get the
safety items that the facility needs).
So who made the decision to terminate and why?
I believe I was terminated by Chris based on Joel's unfounded
allegations. Also, I was terminated the day after a student suffered a serious
head injury by hitting the "pad-less" wall under the basketball hoops on the
intramural courts. Coincidence? I think not.
CP at 103-05 (alterations in original). David Martin ended his letter by proposing that
Gonzaga University adopt his plan, rehire him, and give him a promotion.
Following David Martin's termination in 2012, the Athletics Department requested
a third assessment of the need for protective padding on the basketball court walls. Joel
Madsen, a risk manager at Gonzaga, recommended that protective pads be installed.
Chris Standiford approved the installation of the protection pads and the university
installed the pads in the Rudolf Fitness Center. The pads cost $18,000.
After David Martin's termination from employment and at Martin's request,
Gonzaga University provided Martin with a copy of his personnel file. In addition to an
employee's personnel file, Gonzaga maintains an employee relations file. Gonzaga does
not disclose whether it supplied Martin with a copy of his employee relations file.
After having received records from Gonzaga University, David Martin penned this
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letter to the university:
Thank you for your prompt response to my request for a complete
copy of my personnel file. This letter confirms receipt of my file by
certified mail on April 4, 2012 and its contents which are as follows:
[list of documents]
Additionally, during each of my evaluations (2008, 2009 and 2010) I
was required to sign acknowledging receipt of my supervisor's analysis of
my work performance. I signed each of the evaluations I was given in
2008, 2009 and 2010; however, I do not recall having been given an
evaluation in 2011. If there is a 2011 evaluation with my signature please
send a copy of it for my records.
Finally, are there any additional documents that I should be aware of
in my personnel file?
Thank you for your time.
CP at 211.
PROCEDURE
David Martin filed this lawsuit, against Gonzaga University, alleging that the
university terminated his employment in violation of public policy for raising concerns
about the lack of wall padding for the basketball court. Martin also alleged that Gonzaga
University violated its statutory obligations when it declined to provide him with a
complete copy of his personnel file following his discharge.
After extensive discovery, Gonzaga University filed a summary judgment motion
seeking dismissal of David Martin's two causes of action. When opposing the summary
judgment motion, Martin filed his own declaration. Among other testimony, Martin
22
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No. 34103-8-111
Martin v. Gonzaga University
posited in his declaration that "the only way to address the safety concerns for the
students was to make sure that my [his] proposal and insistence that pads be installed was
to bring it to the top." CP at 34.
In support of Gonzaga University's motion, Heather Murray, an employee in the
university's Human Resources Office, signed a declaration. A paragraph in the
declaration tersely responds to David Martin's action that the university failed to produce
his personnel file. Murray averred:
There are two separate files which are kept on employees: the
employee relations file and a personnel file.
CP at 167. The trial court granted Gonzaga University summary judgment on both of
Martin's claims.
LAW AND ANALYSIS
Summary Judgment
I
We summarize familiar principles of summary judgment jurisprudence. Summary
judgment should be granted if the evidence establishes there is no genuine issue of
material fact and that the moving party is entitled to judgment as a matter of law. CR
56(c); Rujfv. County of King, 125 Wn.2d 697, 703, 887 P.2d 886 (1995). To succeed on
a summary judgment motion, the moving party must first show the absence of an issue of
material fact. Ingersoll v. DeBartolo, Inc., 123 Wn.2d 649, 654, 869 P.2d 1014 (1994).
23
1
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I No. 34103-8-III
Martin v. Gonzaga University
A material fact is one in which the outcome of the litigation depends in whole or in part.
Morris v. McNicol, 83 Wn.2d 491,494,519 P.2d 7 (1974). The court must construe all
facts and reasonable inferences in the light most favorable to the nonmoving party.
Lybbertv. Grant County, 141 Wn.2d29,34, 1 P.3d 1124(2000). Onappealofsummary
judgment, the standard of review is de novo and the appellate court performs the same
inquiry as the trial court. Lybbert v. Grant County, 141 Wn.2d at 34.
In summary judgment procedure, the moving party must first show the absence of
an issue of material fact. Ingersoll v. DeBartolo, 123 Wn.2d at 654. The burden then
shifts to the nonmoving party. Ingersoll v. DeBartolo, 123 Wn.2d at 654. To survive
summary judgment, the nonmoving party must set forth specific facts that rebut the
moving party's contentions and that posit a genuine issue as to a material fact. Seiber v.
Poulsbo Marine Center, Inc., 136 Wn. App. 731, 736-37, 150 P.3d 633 (2007). The
nonmoving party may not rely on speculation or argumentative assertions, nor may it have
its affidavits considered at face value. Seiber v. Poulsbo Marine Center, Inc., 136 Wn.
App. at 736. If the nonmoving party fails to offer sufficient evidence of an element
essential to her case, the trial court should grant summary judgment. Hines v. Data Line
Systems, Inc., 114 Wn.2d 127, 148, 787 P.2d 8 (1990).
Wrongful Termination
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No. 34103-8-111
Martin v. Gonzaga University
We address David Martin's claim of wrongful discharge in violation of public
policy first. On appeal, David Martin contends that he presented sufficient evidence to
raise a genuine issue of material fact as to whether Gonzaga University fired him for
raising safety concerns over the lack of protective wall padding in the Rudolf Fitness
Center. We disagree. At a minimum, Gonzaga University presents uncontroverted facts
that defeat the fourth element of the cause of action, the absence of an overriding
justification.
In general, employees can quit or be fired for any reason under Washington state
common law. Gardner v. Loomis Armored Inc., 128 Wn.2d 931,935,913 P.2d 377( 1996). Courts, however, have created certain exceptions to the terminable-at-will
doctrine. Gardner v. Loomis Armored Inc., 128 Wn.2d at 935. One of these exceptions
provides that employees may not be discharged for reasons that contravene public policy.
Gardner V. Loomis Armored Inc., 128 Wn.2d at 935.
Washington courts permit public policy tort actions in four situations: (1) when the
employer fires an employee for refusing to commit an illegal act, (2) when the employer
fires an employee for performing a public duty or obligation, such as serving on jury duty,
(3) when an employer fires an employee for exercising a legal right or privilege, such as
filing a workers' compensation claim, and (4) when an employer fires an employee in
25
No. 34103-8-III
Martin v. Gonzaga University
retaliation for reporting employer misconduct. Gardner v. Loomis Armored Inc., 128
Wn.2d at 936; Dicomes v. State, 113 Wn.2d 612,618, 782 P.2d 1002 (1989). Martin
argues his case falls under the fourth category.
The Washington Supreme Court in Gardner v. Loomis Armored Inc., 128 Wn.2d at
941 (1996), adopted four elements, formulated by law professor Henry H. Perritt, Jr., that
an employee must meet to satisfy a wrongful discharge in violation of public policy
action: (1) the existence of a clear public policy (the clarity element), (2) discouraging the
conduct in which the employee engaged would jeopardize the public policy (the jeopardy
element), (3) the public-policy-linked conduct caused the dismissal (the causation
element), and (4) the employer must not be able to offer an overriding justification for the
dismissal (the absence of justification element). Rickman v. Premera Blue Cross, 184
Wn.2d 300,310,358 P.3d 1153 (2015); Gardner v. Loomis Armored Inc., 128 Wn.2d at
941. Gonzaga University argues that David Martin fails to present a factual question with
regard to all four elements.
Clarity Element
The employee carries the burden initially of proving the existence of a clear public
policy. Gardner v. Loomis Armored Inc., 128 Wn.2d at 941. The courts insist that the
public policy at issue be judicially or legislatively recognized, emphasizing that the tort is
26
No. 34103-8-111
Martin v. Gonzaga University
a narrow exception to the at-will doctrine and must be limited only to instances involving
very clear violations of public policy. Dicomes v. State, 113 Wn.2d at 617. In
determining whether a clear mandate of public policy is violated, courts should inquire
whether the employer's conduct contravenes the letter or purpose of a constitutional,
statutory, or regulatory provision or scheme. Dicomes v. State, 113 Wn.2d at 617. Prior
judicial decisions may also establish the relevant public policy. Dicomes v. State, 113
Wn.2d at 617. The question of what constitutes a clear mandate of public policy is one of
law. Dicomes v. State, 113 Wn.2d at 617.
David Martin claims Gonzaga University fired him for advocating the addition of
padding to basketball court walls and for speaking to the Gonzaga University student
press about accidents resulting from the lack of padding. Martin identifies student safety
as the public policy he advocated. In tum, he cites to RCW 49.17.010 and RCW
49.12.010, which declare safe and healthy working conditions to be in the public interest
and in the public welfare. He promotes WAC 296-823-100, which seeks to protect
workers from exposure to blood and blood-borne pathogens. Martin identifies RCW
28B.112.005, which aims to prevent sexual violence and provide comfort and resources
to victims of sexual assault and stalking. Finally, he mentions Gardner v. Loomis
Armored Inc., 128 Wn.2d at 941 (1996), which notes a broad public policy to protect life
27
No. 34103-8-111
Martin v. Gonzaga University
and limb.
We question the relevance of David Martin's cited statutes, regulation, and
decisional law. The beneficiaries ofRCW 49.17.010, RCW 49.12.010, and WAC 296-
823-100 are workers, not students. RCW 28B.112.005 addresses sexual violence, not
sports safety. Gardner v. Loomis Armored Inc. concentrates on criminal statutes and
David Martin does not contend Gonzaga University violated any criminal law.
We need not spend further time exploring statutes, regulations, or decisions to
discern a public policy to protect college and university students from athletic injuries and
blood-borne pathogens, however. During oral argument, Gonzaga University conceded
that student safety constitutes a public policy. The univer~ity acknowledged that, if David
Martin pursued student safety, he advanced a public policy. Wash. Court of Appeals oral
argument, Martin v. Gonzaga University, No. 34103-8-111 (May 4, 2017), at 15:45 to
16:30 (on file with court). Therefore, Gonzaga University's contention that Martin fails
to satisfy the first element is more that David Martin never advocated student safety,
rather than student safety being unrelated to Washington public policy.
We discern issues of fact as to whether David Martin advocated student safety. He
presented testimony that he spoke to Jose Hernandez, if not others, about the need to
procure padding for the basketball court walls. Jose Hernandez characterized Martin as
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No. 34103-8-111
Martin v. Gonzaga University
passionate about the necessity of pads. The Gonzaga Bulletin interviewed Martin on this
topic because of numerous, including serious, injuries to students.
Gonzaga University also argues that David Martin advocated his own selfish
interests, rather than the public interest. Washington law distinguishes between employee
conduct motivated by purely private interests and conduct motivated by a concern for the
welfare of the general public. Dicomes v. State, 113 Wn.2d at 620 (1989); Thompson v.
St. Regis Paper Co., 102 Wn.2d 219,232,685 P.2d 1081 (1984). We agree that
undisputed facts establish that Martin, in part, sought to forward his own interests. At
times, Martin focused on his pool proposal more than student safety and wanted full
credit for the proposal. Nevertheless, the law does not preclude recovery under the tort of
wrongful discharge when the employee sought to further his own welfare in addition to
the public welfare. Issues of fact lie as to whether Martin also sought to benefit students
and the university at large.
Jeopardy Element
The jeopardy element of the tort of wrongful discharge in violation of public
policy has undergone modifications in recent years. Rickman v. Premera Blue Cross, 184
Wn.2d 300 (2015); Rose v. Anderson Hay & Grain Co., 184 Wn.2d 268, 358 P.3d 1139(2015); Becker v. Community Health Systems, Inc:, 182 Wn. App. 935, 332 P.3d 108529
No. 34103-8-111
Martin v. Gonzaga University
(2014), aff'd, 184 Wn.2d 252,359 P.3d 746 (2015). In Rickman, Rose, and Becker, the
Supreme Court returned to the original formulation of the element as requiring a plaintiff
to prove either his or her conduct directly related to the public policy or the conduct was
necessary for the effective enforcement of that policy. Rickman v. Premera Blue Cross,
184 Wn.2d at 31 O; Gardner v. Loomis Armored, Inc., 128 Wn.2d at 945. When a direct
relationship holds between the employee's conduct and the public policy, the employer's
discharge of the employee for engaging in that conduct inherently implicates the public
policy. Rose v. Anderson Hay & Grain. Co., 184 Wn.2d at 284.
In Rose v. Anderson Hay & Grain Co., 184 Wn.2d at 281 (2015), our Supreme
Court disavowed the former rule that a plaintiff must establish the inadequacy of other
remedies in the alternative to a civil suit for damages in order to meet the jeopardy
element of the tort for wrongful discharge against public policy. The high court thereby
overruled Hubbard v. Spokane County, 146 Wn.2d 699, 50 P.3d 602 (2002); Cudney v.
ALSCO, Inc., 172 Wn.2d 524, 259 P.3d 244 (2011), and Korslund v. DynCorp Tri-Cities
Services, Inc., 156 Wn.2d 168, 125 P.3d 119 (2005). No longer does the existence of
other nonexclusive statutory remedies preclude a plaintiff from recovery. Rose v.
Anderson Hay & Grain Co., 184 Wn.2d at 274 (2015).
Although Gonzaga University claims that David Martin failed to establish the
30
No. 34103-8-111
Martin v. Gonzaga University
jeopardy element of the public policy tort, the university presents no argument to defeat
the application of the element. We hold that Martin presents an issue of fact to survive
summary judgment as to the jeopardy element. David Martin sought to address safety
concerns. His expression of his concerns directly related to the public policy of safety of
university students. Terminating or otherwise punishing an employee who shares
concerns about unsafe conditions directly jeopardizes the public policy interest in
ensuring safety.
Causation Element
Causation in a wrongful discharge claim is not an all or nothing proposition.
Rickman v. Premera Blue Cross, 184 Wn.2d at 314 (2015). The employee need not
attempt to prove the employer's sole motivation was retaliation. Wilmot v. Kaiser
Aluminum and Chemical Corp., 118 Wn.2d 46, 70, 821 P.2d 18 (1991 ). Instead, the
employee must produce evidence that the actions in furtherance of public policy were a
cause of the firing, and the employee may do so by circumstantial evidence. Rickman v.
Premera Blue Cross, 184 Wn.2d at 314. This test asks whether the employee's conduct
in furthering a public policy was a substantial factor motivating the employer to discharge
the employee. Rickman v. Premera Blue Cross, 184 Wn.2d at 314.
Ordinarily, the prima facie case must, in the nature of things, be shown by
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No. 34103-8-III
Martin v. Gonzaga University
circumstantial evidence, since the employer is not apt to announce retaliation as his
motive. Wilmot v. Kaiser Aluminum and Chemical Corp., 118 Wn.2d at 69. Proximity in
time between the public-policy-linked conduct and the firing coupled with evidence of
satisfactory work performance and supervisory evaluations may be persuasive in
establishing causation. Wilmot v. Kaiser Aluminum and Chemical Corp., 118 Wn.2d at
69. Whether a plaintiff satisfied the causation element is a question of fact. Havens v.
C&D Plastics, Inc., 124 Wn.2d 158, 177-79, 876 P.2d 435 (1994).
We recognize an issue of fact as to whether Gonzaga University terminated David
Martin's employment because of his advocacy of student safety. Martin testified that
Chris Standiford told him that one of the reasons for the firing was the rumor that Martin
afforded the student newspaper information about student injuries. Martin did not assert
this factual claim for the first time in this suit. In his March 3 0, 2012, letter to Gonzaga
University President Thayne McCulloh and Athletics Director Mike Roth, Martin
mentioned his termination being based in part on rumors of his conveyance of evidence of
student injuries. Reasonable inferences from the evidence support a finding that the
university fired Martin not simply for speaking to the press, but also because the content
of his leak concerned padding in the fieldhouse.
Gonzaga University characterizes David Martin's theory of the leaking rumor as
32
No. 34103-8-111
Martin v. Gonzaga University
supposition. Nevertheless, for purposes of a summary judgment motion, we must accept
Martin's testimony as the truth. Based on this testimony, the man likely most responsible
for the firing of Martin conceded a reason was advocating the safety of students.
Gonzaga University also contends that the undisputed facts show that David Martin never
raised a concern about the walls in the Rudolf Fitness Center until after his firing.
Overwhelming evidence, including the deposition testimony of Jose Hernandez, counters
this contention.
Gonzaga Univer_sity also emphasizes that the facts establish that other employees
for more than five years also discussed the need for wall padding. The university never
fired any of the other employees for raising this concern. We recognize these accentuated
facts as compelling, but the facts should be argued to the trier of fact, when other
evidence supports David Martin's complaints as a cause of his employment termination.
We also note the absence of evidence that another employee spoke to the school
newspaper about the need for the padding.
Finally, Gonzaga University highlights other legitimate reasons that support David
Martin's firing. We will consider facts supporting those reasons under the element of an
overriding justification.
33
No. 34103-8-111
Martin v. Gonzaga University
Overriding Justification Element
We move to the final of the four elements of the tort of wrongful discharge in
violation of public policy, the absence of another justifiable reason for termination from
employment. In the context of this appeal, the fourth component looms as the most
difficult to resolve. In order to methodically address this element, we pose the following
eight questions mainly legal in nature. First, which party carries the burden of showing
overriding justification? Second, must the overriding justification motivate the employer
in firing the employee for the employer to avoid liability? Third, if the answer to the
second question is affirmative, must the overriding justification supersede the unlawful
reason for firing in regards to what motivated the employer? Stated differently, must the
employer be more motivated by the overriding justification than the public policy
violating reason for termination? Fourth, what reasons for termination from employment
qualify as an overridingjustification? In this appeal, we ask whether insubordination
qualifies as an overriding justification. Fifth, must the overriding justification supersede
the unlawful reason for the firing in importance under the law or under public policy?
This fifth question asks if the court measures and weighs the relative strengths of the
overriding justification and the violated public policy. Sixth, if the answer to the fifth
question is in the affirmative, does the court compare the public policy with the employer
34
No. 34103-8-111
Martin v. Gonzaga University
justification in the abstract or does the court consider the importance of the public policy
and employer justification within the context of the facts in the case? Seventh, is the
element of overriding justification an element for the court as a matter of law to resolve
or for the trier of fact to decide? Eighth and the ultimate question, does David Martin
present an issue of fact with regard to the overriding justification element that survives
Gonzaga University's summary judgment motion?
We find no easy answer to most of our eight questions such that the Supreme
Court may wish to accept review to clarify the overriding justification element. Most, if
not all, Washington decisions since the seminal case of Gardner v. Loomis Armored, Inc.,
128 Wn.2d 931 (1996), note the absence of an overriding justification as an element of
wrongful discharge in violation of public policy. Nevertheless, only Gardner and Wahl v.
Dash Point Family Dental Clinic, Inc., 144 Wn. App. 34, 181 P.3d 864 (2008) discuss the
element in any depth. Foreign case law helps little because only Guam, Ohio, and Utah
have adopted Henry H. Perritt, Jr.' s, four elements of the tort of wrongful discharge in
violation of public policy, including the overriding justification element. Becker v.
Community Health Systems, Inc., 182 Wn. App. at 963 (2014). Whether a fourth
jurisdiction, Iowa, has adopted the four-part analysis is questionable because the state
may subsume the alternative or overriding justification element into the third element of
35
No. 34103-8-111
Martin v. Gonzaga University
causation. Raymond v. U.S.A. Healthcare Center-Fort Dodge, LLC, 468 F. Supp. 2d
1047, 1057 (N.D. Iowa 2006); Fitzgerald v. Salsbury Chemical, Inc., 613 N.W.2d 275,
282 (Iowa 2000). Ohio courts have issued oodles of cases, some published and many
unpublished, that discuss briefly the overriding justification, and, thus, we occasionally
mention Ohio law. -
Before answering the eight questions, we state and restate the rule of overriding
justification. The "absence of justification" element examines whether the employer can
offer an overriding justification for the discharge from employment despite the
employee's conduct furthering public policy. Gardner v. Loomis Armored, Inc., 128
Wn.2d 931 ( 1996). Stated marginally different, the "absence of justification" element
examines whether the employer has an overriding reason for terminating the employee
despite the employee's public-policy-linked conduct. Gardner v. Loomis Armored, Inc.,
128 Wn.2d at 947. The fourth element of the public policy tort acknowledges that some
public policies, even if clearly mandated, are not strong enough to warrant interfering
with an employer's personnel management. Gardner v. Loomis Armored Inc., 128 Wn.2d
at 947.
Our first question asks which party carries the burden of proof for the element of
overriding justification. Washington cases read that the employee in a wrongful
36
No. 34103-8-III
Martin v. Gonzaga University
discharge suit must fulfill four elements, one of which is the "absence of justification"
element. Rickman v. Premera Blue Cross, 184 Wn.2d at 310 (2015); Gardner v. Loomis
Armored Inc., 128 Wn.2d at 941. This statement of the rule suggests that the plaintiff
employee carries the burden of proving a negative, the nonexistence of another legitimate
reason for his or her firing. Nevertheless, some cases declare that justification for a
discharge is an affirmative defense. Blinka v. Washington State Bar Association, 109
Wn. App. 575, 588-89, 36 P.3d 1094 (2001). According to these cases, once a plaintiff
fulfills the clarity element and a question of fact remains as to the jeopardy and causation
elements, the burden shifts to the employer to show an overriding justification for the
employee's discharge. Rickman v. Premera Blue Cross, 184 Wn.2d at 314; Hubbardv.
Spokane County, 146 Wn.2d at 718 (2002).
The Washington rule in wrongful discharge cases may eventually follow the rules
of persuasion in employment discrimination and retaliation cases. According to
Brownfield v. City of Yakima, 178 Wn. App. 850, 873, 316 P.3d 520 (2013):
An employee claiming discrimination must first prove a prima facie
case of discrimination and, if he or she does so, then the burden shifts to the
employer to present evidence suggesting a nondiscriminatory reason for
[the termination]. If the employer sustains its burden, the employee must
then demonstrate that the reasons given by the employer are pretext for
discrimination.
(Alteration in original) (internal quotation marks and citations omitted); See also Renz v.
37
No. 34103-8-111
Martin v. Gonzaga University
Spokane Eye Clinic, PS, 114 Wn. App. 611, 618, 60 P.3d 106 (2002). Accordingly, the
employer may carry the burden of producing some evidence of an overriding justification,
at which time the burden returns to the employee to prove by a preponderance of evidence
that the employer's stated reason is a pretext or the stated reason does not override the
public policy violated by the discharge. Rickman v. Premera Blue Cross, one of a triad of
recent high court decisions, does not discuss whether the burden returns to the employee
once the employer posits an overriding justification.
We need not identify the bearer or resolve the nature of the burden of proof
because, no matter who carries the burden and the extent of the burden, we hold that
Gonzaga University is entitled to summary judgment on the justification element.
Imposing the burden of proof on the employer does not necessarily mean the employer
may not gain summary judgment on the element. A defendant, even an employer in an
employment case, may gain summary judgment by establishing an uncontroverted
affirmative defense. Thornton v. Federal Express Corp., 530 F.3d 451, 457-58 (6th Cir.
2008); Fitzgerald v. Salsbury Chemical, Inc., 613 N.W.2d at 282.
We next visit the second question of whether the employer must be motivated by
the overriding justification when discharging the employee from employment in order to
avoid liability. This question becomes relevant if facts show that Gonzaga University
38
No. 34103-8-111
Martin v. Gonzaga University
knew of the insubordination of David Martin, but fired David Martin only because of his
advocacy of student safety. Under these facts, the individual or individuals terminating
Martin's employment knew about, but cared nothing about, the insubordination of Martin
and only wished to retaliate against Martin because of his raising safety concerns or
speaking to the student newspaper. We answer the second question in the negative. The
university may avoid liability if insubordination constitutes a justifying reason under the
law and overrides the advocacy of safety concerns regardless of whether insubordination
motivated the firing.
We secure our decision, freeing the employer from showing the overriding
justification prompted its decision to fire, primarily on the "after-acquired evidence"
doctrine. This doctrine precludes or limits an employee from receiving remedies for
wrongful discharge if the employer later discovers evidence of wrongdoing that would
have led to the employee's termination had the employer known of the misconduct. Lodis
v. Corbis Holdings, Inc., 192 Wn. App. 30, 60, 366 P.3d 1246 (2015), review denied, 185
Wn.2d 1038, 377 P.3d 744 (2016); Janson v. North Valley Hospital, 93 Wn. App. 892,
900,971 P.2d 67 (1999). If the employer may limit its liability with evidence of
insubordination discovered after the termination from employment, the employer should
be able to limit its liability with evidence known at the time of the discharge, even if the
39
No. 34103-8-111
Martin v. Gonzaga University
employer only utilized public policy defying grounds. We discern no reason to
distinguish the two factual scenarios for purposes of employer liability. Under each
circumstance, the employee's misconduct retrospectively substantiated the termination.
Absolving the employer from showing the alternative justification to be a
motivating factor may conflict with the causation element. Under our holding, the
employer still prevails even if the public policy was a substantial factor in the firing, and
the third element only requires proof that the employee's furtherance of public policy
constituted a substantial factor in the discharge. The overriding justification element
assumes.that an unlawful reason for the firing was a substantial factor, but another
predominant reason also justified the termination.
A federal court, applying Iowa law, recognized the four element Henry H. Perritt
Jr. test, including the fourth element of overriding justification. Raymond v. US.A.
Healthcare Center-Fort Dodge, LLC, 468 F. Supp. 2d at 1058-59. Nevertheless, the
court collapsed the overriding justification element into the causation element. The court
reasoned that whether or not the employer had adequate alternative justifications for its
action is necessarily relevant to whether or not the adverse action against the plaintiff was
"caused" by the plaintiffs protected activity.
The Raymond court's reasoning conflicts with our determination that the
40
No. 34103-8-111
Martin v. Gonzaga University
overriding justification need not be a motivating factor. Nevertheless, we observe that the
Washington Supreme Court holds fast to Gardner's and Perritt's four elements of
wrongful discharge in violation of public policy, including the overriding justification
element. Rickman v. Premera Blue Cross, 184 Wn.2d 300 (2015); Rose v. Anderson Hay
& Grain Co., 184 Wn.2d 268 (2015); Becker v. Community Health Systems, Inc., 184
Wn.2d 252 (2015). Since the overriding justification element must be met in addition to
the element of causation, even if advocating a public policy was a substantial cause of the
termination, the employer avoids liability if another reason justified termination from
employment. The employee showing retaliation as a substantial factor may not suffice.
Otherwise, Washington would not insist on the fourth discrete element of overriding
justification.
Since we conclude that the overriding justification need not motivate the
employer's firing of the employee, we do not answer the third question regarding whether
the employer must be more motivated by the overriding justification than the public
policy violating reason for termination to prevail. We move to the fourth question of
what reasons for employment termination qualify as an overriding justification. We focus
first on the word ''justification" and will focus later on the word "overriding." Gonzaga
University justifies the firing of David Martin by his insubordination when he forwarded
41
No. 34103-8-111
Martin v. Gonzaga University
his pool proposal to officials above his chain of command in violation of an order, he
abandoned his job because of anger resulting from a scolding, and he contacted university
officials in violation of his leave of absence.
Washington courts have not defined or presented a list of what constitutes a
"justification" for purposes of ending an employee's employment despite public policy
concerns. We rely on the law in other employment case settings and, in part, in other
states. The anti-retaliation law does not immunize the employee from discharge for past
or present inadequacies, unsatisfactory performance, or insubordination. Hulme v.
Barrett, 480 N.W.2d 40, 43 (Iowa 1992). An employee is bound to obey the direct order
of his or her employer or risk being discharged for insubordination. Empiregas, Inc. of
Kosciusko v. Bain, 599 So. 2d 971, 974 (Miss. 1992). Insubordination is defined as a
willful disregard of express or implied direction or a defiant attitude. Dixon v. Stoam
Industries, Inc., 216 S.W.3d 688, 693 (Mo. Ct. App. 2007). A refusal to comply with a
lawful and reasonable directive to attend a meeting may constitute insubordination.
Custom Hardware Engineering & Consulting, Inc. v. Dowell, 919 F. Supp. 2d 1018,
1034-35 (E.D. Mo. 2013). One Washington decision recognizes that insubordination, in
the form of failing to submit to a physical examination, constitutes justifiable cause to fire
an employee, despite a claim of employment discrimination. Brownfield v. City of
42
No. 34103-8-III
Martin v. Gonzaga University
Yakima, 178 Wn. App. at 873-75 (2013).
Henry H. Perritt, Jr., identifies the fourth element of the public policy tort as the
lack of an "overriding legitimate business justification." Henry H. Perritt, Jr. The Future
of Wrongful Dismissal Claims: Where Does Employer Self Interest Lie?, 58 U. CIN. L.
REV. 397, 399 (1989) (emphasis added). Ohio decisions also insert the word "business"
when expressing the element. Jaber v. FirstMerit Corp., 2017-0hio-277, _ N.E.3d
_,(Ct.App.); Vitatoe v. Lawrence Industries, Inc., 153 Ohio App. 3d 609, 795 N.E.2d
125, 132-33 (2003); Wiegerig v. Timken Co., 144 Ohio App. 3d 664, 761 N.E.2d 118, 125
(2001). Washington's statement of the rule does not incorporate the expression
"business." Gardner v. Loomis Armored, Inc., 128 Wn.2d 931 ( 1996); Rickman v.
Premera Blue Cross, 184 Wn.2d 300 (2015); Rose v. Anderson Hay & Grain Co., 184
Wn.2d 268 (2015); Becker v. Community Health Systems, Inc., 184 Wn.2d 252 (2015).
One might argue that, because of the omission of the term "business," Washington
law requires the employer to advance a societal or public interest rationalization, rather
than a selfish economic reason, to satisfy the final element of overriding justification. We
disagree. Our Washington Supreme Court evinces a devotion to Perritt's formulation of
the tort. The employer's justification will almost always be based on economic needs. In
Gardner, the Supreme Court mentioned that some public policies are not strong enough
43
No. 34103-8-111
Martin v. Gonzaga University
to warrant interfering with an "employers' personnel management." Gardner v. Loomis
Armored Inc., 128 Wn.2d at 947. The Gardner court considered the employer's need for
insurance, a selfish business need, as a justification, although the need qid not override
the relevant public policy.
The undisputed facts establish that David Martin persistently and self-interestedly
promoted himself and his thesis that sought to keep open a pool in the Rudolf Fitness
Center. The saving of the pool did not advance any public policy. While promoting this
pool, he repeatedly disobeyed directives from his superiors to follow a chain of command.
He heatedly left a meeting and then abandoned his duties to close the center. While on
leave, he disobeyed a directive not to contact employees of Gonzaga University other than
the employees in the Human Resource Office and Jose Hernandez. He telephoned and
e-mailed the Gonzaga University president, through the president's assistant. Martin's
earlier job performance evaluations showed him to lack interpersonal and professional
communication skills with coworkers, issue abrasive and insensitive written
communications, and neglect job responsibilities. Martin resented supervision. David
Martin presents no testimony that counter these facts. Martin's own written
communications establish these facts.
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Martin v. Gonzaga University
We hold that insubordination is a qualifying justification for purposes of element
four of the tort of wrongful discharge in violation of public policy. We also conclude that
the undisputed facts establish insubordination by David Martin.
We move to the fifth question of whether the justification must supersede the
unlawful reason for the firing in importance under the law or under public policy in order
to succeed as an overriding justification. To repeat, this fifth question asks if the court
measures and weighs the policy strength between the overriding justification and the
violation of the public policy. We answer in the affirmative.
We observe that the overriding justification may not be insubordination by
refusing to obey an order to engage in unlawful conduct, since the employer should not
have given the order. Lins v. Children's Discovery Centers ofAmerica, Inc., 95 Wn.
App. 486,494, 976 P.2d 168 (1999). For example, Gonzaga University could not claim
an alternative justification if it fired David Martin for disobeying an order to hush with
regard to a safety hazard. But David Martin's insubordination went further.
The "absence of justification" element examines whether the employer has an
overriding reason for terminating the employee despite the employee's public-policy-
linked conduct. Gardner v. Loomis Armored, Inc., 128 Wn.2d at 947 (1996). In the lay
dictionary, "overriding" means "[m]ore important than any other considerations."
45
No. 34103-8-111
Martin v. Gonzaga University
OXFORD ENGLISH DICTIONARY ONLINE,
https://en.oxforddictionaries.com/definition/overriding (last visited Aug. 30, 2017). This
justification element acknowledges that some public policies, even if clearly mandated,
are not strong enough to warrant interfering with employers' personnel management.
Gardner v. Loomis Armored, Inc., 128 Wn.2d at 947 (1996).
The only Washington decision addressing in depth the element of overriding
justification is the seminal decision of Gardner v. Loomis Armored, Inc., 128 Wn.2d 931.
Loomis Armored fired Kevin Gardner after he abandoned his armored car to rescue a
female branch bank manager chased by a man with a knife. Loomis' policy precluded
any armored car driver from leaving the car unattended. The Supreme Court held the
firing violated Washington's fundamental policy of preservation of life. Loomis argued,
however, that it possessed an overriding reason for terminating the employee despite the
employee's public policy linked conduct. Loomis cited an incident when an armored car
driver exited the truck in response to his partner being robbed. The robber shot and killed
the driver. Loomis also worried about robbers counterfeiting an attack in order to lure the
driver out of the truck. Finally, Loomis noted that its insurance policy may not cover a
loss if a driver leaves a truck unattended.
The Gardner court wrote that it must balance the public policies raised by Kevin
46
No. 34103-8-111
Martin v. Gonzaga University
Gardner against Loomis Armored' s legitimate interest in maintaining a safe workplace
and determine whether those public policies outweighed Loomis' concerns. Gardner
advanced the Good Samaritan principle as a sufficient policy to override Loomis'
justification. The court rejected a broad reading of the Biblical admonition because an
employer's interests, however legitimate, would be subjugated to a plethora of employee
excuses. A delivery person could stop to aid every motorist with car trouble, no matter
how severe the consequences to the employer in terms of missed delivery deadlines.
Nevertheless, the narrow public policy encouraging citizens to rescue persons from life
threatening situations clearly evinced a fundamental societal interest of greater
importance than the Good Samaritan doctrine. The waiver of most criminal and tort
penalties stemming from conduct necessarily committed in the course of saving a life
illustrated the value attached to such acts of heroism. Since society placed the rescue of a
life above constitutional rights and above the criminal code, such conduct rose above a
company's work rule.
The only other Washington decision addressing the overriding justification
element is Wahl v. Dash Point Family Dental Clinic, Inc., 144 Wn. App. 34 (2008). The
trial court, in a bench trial, ruled in favor of employee Candace Wahl on her wrongful
discharge in violation of public policy claim. Wahl presented testimony that her dentist
47
No. 34103-8-III
Martin v. Gonzaga University
boss fired her for failing to accept his sexual advances. On appeal, the boss, Don Moore,
argued he held an overriding justification for the termination from employment. He
contended Wahl's performance was substandard and that he gave Wahl several
reprimands concerning her poor performance. This court affirmed the trial court
judgment in favor of Wahl, since the evidence showed that the claim of substandard
performance was a pretext and Moore wrote the letters of reprimand after the firing.
Based on Gardner v. Loomis Armored, Inc., 128 Wn.2d 931 (1996), we hold that
the court must weigh the importance of the public policy asserted by the employee and the
justification for firing advanced by the employer. Gardner unfortunately provides no
guidance as to a comparison and measurement of the strength of the public policy and the
employer justification.
Our sixth question is whether we compare the strength of the public policy with
the overriding justification in the abstract or whether we measure the weight of both
within the context of the facts of the appeal. If we kept our analysis in the ab~tract, we
would ponder the theoretical importance of student safety compared to an employer's
interest in dismissing an insubordinate employee. We might conclude that student safety
supersedes the employer's interest in an obedient employee. Nevertheless, a different
outcome might ensue ifwe consider all of the facts concerning David Martin's conduct
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No. 34103-8-111
Martin v. Gonzaga University
and his relationship with Gonzaga University in light of the values of student safety and a
cooperative employee.
We decide to assess the comparative worth of student safety and a subordinate
worker within the context of the case's circumstances. Student safety and
insubordination exist in degrees, such that the context is important. When assessing the
overriding justification in Gardner v. Loomis Armored, Inc., 128 Wn.2d 931 ( 1996) and
Wahl v. Dash Point Family Dental Clinic, Inc., 144 Wn. App. 34 (2008), the Washington
courts analyzed the specific facts of the case in light of the public policy and employer
justification. In Gardner, when assessing whether the saving of human lives overrode the
employer's goals of employee safety, safekeeping of large sums of money, and insurance
coverage, the Supreme Court noted peculiar facts of the case. Those facts included Kevin
Gardner's partner being present inside the bank and Loomis Armored failing to identify
the terms of its insurance policy.
Our seventh question requires us to probe whether the weighing of the public
policy and the employer justification should be performed by the court as a matter of law
or by the trier of fact. Ohio decisions declare that the clarity and jeopardy elements of the
Perritt test are questions of law to be determined by the court, while the causation and
overriding justification elements are factual issues to be decided by a jury. Jaber v.
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No. 34103-8-111
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FirstMerit Corp., 2017-0hio-277, _ N.E.3d _(Ct.App.); Trayer v. Estate of
Klopfenstein, 2015-0hio-5048, 53 N.E.3d 851, 855 (Ct. App.); Wiegerig v. Timken Co.,
144 Ohio App. 3d 664, 761 N.E.2d 118, 125 (2001).
We question the Ohio rule. We know of no Washington decision that directs a
jury to measure the strength of a public policy, let alone compare that strength to private
interests. We note that courts typically reserve to themselves the task of weighing the
legal importance of policies and interests, including within the setting of constitutional
rights. City of Bellevue v. Lee, 166 Wn.2d 581,585,210 P.3d 1011 (2009) (due process);
American Legion Post #149 v. Department of Health, 164 Wn.2d 570, 608-09, 192 P.3d
306 (2008) (equal protection); TS. v. Boy Scouts ofAmerica, 157 Wn.2d 416,425, 138
P.3d 1053 (2006) (First Amendment associational rights); Roth v. Veteran's
Administration of Government of United States, 856 F.2d 1401, 1407 (9th Cir. 1988)
(public employee's right to free speech). We doubt the ability of a jury oflaypeople to
balance legal polices with private interests. In Gardner v. Loomis Armored, Inc., 128
Wn.2d 931 (1996), the Supreme Court conducted its own weighing of the public policy
furthered by the employee's conduct and the employer's interests. The court held,
presumably as a matter oflaw, that the policy of saving another's life superseded the
employer's policy of employee safety.
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No. 34103-8-III
Martin v. Gonzaga University
We observe that, assuming the fulfillment of the overriding justification element is
for the court, the court may still need to conduct a factual hearing before completing its
decision. Nevertheless, we need not resolve whether the court should solely analyze the
overriding justification element in all cases and whether a factual hearing is desired for
this appeal. We withhold from trial the weighing of the public and employer interests in
this appeal because of the unchallenged evidence of noteworthy insubordination by David
Martin.
We have several times previously answered the eighth and final question of
whether David Martin presents sufficient evidence to defeat Gonzaga University's
summary judgment motion. Our conclusion that the overriding justification need not
have motivated the employer when terminating the employee simplifies answering this
final question. We affirm the trial court on the basis that David Martin presents no issues
of fact defeating Gonzaga University's overriding justification.
The facts before the court present two lines of conduct of David Martin that
sometimes intertwined yet presented distinct grounds for the termination of Martin's
employment. On the one hand, Martin sought to procure padding for the basketball walls
in order to promote student safety. Student safety is an important public policy.
Nevertheless, the evidence is vague and often disputed as to when and how Martin
51
No. 34103-8-III
Martin v. Gonzaga University
advocated the padding. In the days before his termination from employment, the record
shows no advocacy of safety for students. Other employees also alerted the
administration to the danger of the unpadded walls. Others may not have expressed
safety concerns to the Gonzaga Bulletin, but the Bulletin published its article after the
dismissal of Martin from employment. The university consulted an expert, who
recommended the addition of padding. The university eventually installed the padding.
The undisputed facts establish that David Martin promoted himself and his thesis
that sought to keep a pool in the Rudolf Fitness Center open. The saving of the pool did
not advance any public policy. Martin did not wish to conform to a chain of command
when espousing his proposal because he thought only he could properly present his
proposal and he did not want anyone to steal his golden ticket. While promoting this
pool, he repeatedly disobeyed directives from his superiors. When told to attend a
meeting to discuss his disobedience, Martin belligerently protested the need to appear.
When counseled regarding his disobedience, he heatedly left the meeting, abandoned his
duties, and insisted that a co-employee complete his tasks. While on leave, he disobeyed
a directive not to contact other employees of Gonzaga University. He persisted on
contacting the Gonzaga University president. He refused to heed the presidential
assistant's direction to follow protocol.
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No. 34103-8-111
Martin v. Gonzaga University
David Martin's earlier job performance evaluations showed him to lack
interpersonal and professional communication skills with coworkers, issue abrasive and
insensitive written communications, and neglect job responsibilities. His conduct
immediately preceding his dismissal confirmed these observations. Martin resented
supervision. After his discharge, he contacted Gonzaga University's president and
athletics director and, instead of apologizing for insubordination, he criticized his
superiors, lectured about restructuring the Athletics Department, and suggested he be
promoted. A business and a university cannot effectively function when an employee
continually and angrily flaunts the directives of his supervisor and interrupts the
university president to advocate the employee's interests. Even if Gonzaga University
officials sought to retaliate against David Martin for his raising of safety concerns, the
undisputed facts confirm that an overriding justification validated the dismissal from
employment.
Personnel File
David Martin brings a second cause of action. He contends that Gonzaga
University failed to provide him, when requested, a complete copy of his personnel file in
violation ofRCW 49.12.250.
RCW 49.12.240 and .250 control. The former statute reads:
53
No. 34103-8-111
Martin v. Gonzaga University
Every employer shall, at least annually, upon the request of an
employee, permit that employee to inspect any or all of his or her own
personnel file(s).
The latter statute declares, in relevant part:
(1) Each employer shall make such file(s) available locally within a
reasonable period of time after the employee requests the file(s).
RCW 49.12 does not define "personnel file."
Gonzaga University, in support of affirming the trial court's ruling, argues that it
satisfied David Martin's request by making the file available to him. Nevertheless, the
facts presented by the university do not confirm this contention. Heather Murray, an
employee of the university tersely declared: "There are two separate files which are kept
on employees: the employee relations file and a personnel file." CP at 167. The
declaration does not verify that the university permitted Martin access to any papers or
any file. In April 2012, David Martin wrote a letter to Gonzaga University that confirmed
he received some documents. Nevertheless, the letter also asked if Martin received all of
the papers in his personnel file. The record shows no response from the university.
Heather Murray's declaration raises more questions than it answers. The questions
include: Why does the university keeps two separate files? What types of documents are
placed in the respective files? Do documents in both files impact the employee's
employment status? Did Gonzaga University maintain two distinct files for David
54
No. 34103-8-III
Martin v. Gonzaga University
Martin? From what file or files did the documents received by David Martin come? If
the university withheld access to some documents found in either or both files, on what
grounds did the university justify the withholding?
Gonzaga University, as the movant, bears the initial burden of showing the
absence of an issue of material fact. Ingersoll v. DeBartolo, Inc., 123 Wn.2d at 654(1994). When, because of unanswered factual questions, this court cannot determine
whether genuine issues of material fact require a trial, this court will vacate any summary
judgment order and remand for further proceedings. Kilcullen v. Calbom & Schwab,
PSC, 177 Wn. App. 195, 202, 312 P.3d 60 (2013). We follow this principle and vacate
the summary judgment order dismissing David Martin's personnel file claim.
Our dissenting brother would resolve the personnel file cause of action on the basis
that RCW 49.12.240 and .250 does not permit a private action. The dissenter may be
correct, but we choose to avoid this thorny question if possible.· We also choose to
sidestep the question of what constitutes a "personnel file" for purposes of RCW 49 .12.
If Gonzaga University can show that it produced all requested records, we circumvent the
two questions. We also note that, at the least, contrary to the dissenter's analysis, the
employee may be able to gain the remedy of production of the records through court
action.
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No. 34103-8-111
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CONCLUSION
We affirm the trial court's summary judgment order dismissing David Martin's
claim of wrongful discharge in violation of public policy. Undisputed facts establish that
Gonzaga University possessed an overriding justification to terminate Martin's
employment. We vacate and remand for further proceedings the summary judgment order
dismissing Martin's claim that Gonzaga University failed to produce all of his personnel
file on his request.
~ s_
Fearing, C .J. d' '
56
1
No. 34103-8-111
PENNELL, J. (concurring) - I agree there are material issues of fact regarding
David Martin's personnel file claims. I also agree Gonzaga University is entitled to
summary judgment on Mr. Martin's wrongful termination claim. However, I disagree as
to the basis. I find summary judgment appropriate because Mr. Martin has not alleged
sufficient facts on causation.
Mr. Martin argues he was fired for voicing safety complaints about the need for
padding on the gymnasium walls. Specifically, he claims he was punished for raising the
issue with Gonzaga's Senior Associate Athletics Director Chris Standiford and President
Thayne McCulloh. The record does not support this claim.
Mr. Martin is unable to point to any evidence demonstrating he contacted
Mr. Standiford or Dr. McCulloh about gymnasium padding. Instead, Mr. Martin's e-mail
communications focused on his proposal for a swimming pool. In his initial e-mail to
Mr. Standiford, Mr. Martin said the "ultimate goal" of the proposal he wished to push
with the administration was to "keep a pool on campus for the students." Clerk's Papers
at 115. He mentioned nothing about gymnasium padding or student safety. Although
Mr. Martin referenced student safety in his e-mail to Dr. McCulloh, he did not suggest he
was concerned about gymnasium safety, as opposed to the swimming pools.
Mr. Martin claims he wanted Mr. Standiford and Dr. McCulloh to review his
written pool proposal, which discussed the issue of gymnasium padding. That may be.
No. 34103-8-III
Martin v. Gonzaga Univiversity (Concurrence)
But Mr. Martin never provided Mr. Standiford or Dr. McCulloh his proposal. Instead, he
submitted e-mails asking for an opportunity to pitch his proposal to the administration.
See Appellant's Reply Br. at 4. When one of Mr. Standiford's designees, Joel Morgan,
demanded to see a copy of Mr. Martin's pool proposal, Mr. Martin refused to provide it.
Apparently, Mr. Martin wanted to keep the proposal confidential so that others would not
get credit for his ideas.
Like Mr. Standiford, Dr. McCulloh, and Mr. Martin, we have not seen Mr.
Martin's pool proposal. A copy is not in the record. It is therefore impossible for us to
assess whether the written proposal would have adequately raised gymnasium safety
concerns 1 to qualify as a public safety complaint had it been shared. Mr. Martin's
assurances that the pool proposal raised safety concerns about lack of gymnasium
padding is not sufficient to link Mr. Martin's advocacy efforts with a matter of public
policy.
The lead opinion recognizes the paucity of evidence linking Mr. Martin's concerns
about gymnasium padding to his termination. Nevertheless, the opinion claims summary
judgment is not appropriate on this element of Mr. Martin's claim because, according to
Mr. Martin, Mr. Standiford referenced Mr. Martin's leaks about gymnasium injuries to
1
It could well be that the proposal merely mentioned that the revenue from Mr.
Martin's pool proposal could be used for deferred maintenance, such as gymnasium
padding. This type of reference could hardly be interpreted as a student safety complaint.
2
No. 34103-8-111
Martin v. Gonzaga Univiversity (Concurrence)
the press during Mr. Martin's termination meeting. Even taking Mr. Martin's claim as
true, this fact does not support Mr. Martin's causation claim.
The issue of whether Mr. Martin was punished for leaking information to the press
is different from whether Gonzaga retaliated against Mr. Martin for raising student. safety
concerns. The governing public policy concerns are different. Mr. Martin has never
argued it would be against public policy for Gonzaga to restrict Mr. Martin's ability to
l speak to the press. In addition, the factual implications of the two types of claims are
l
l different. Retaliation for leaking does not imply retaliation for raising the subject matter
I
II of the leak. Even if Mr. Standiford was upset with Mr. Martin for talking to the press
about student injuries, this does not mean Mr. Standiford also wished to punish Mr.
Martin for making internal complaints. The proffered facts about retaliation for press
leaks simply do not lend support to Mr. Martin's claims about retaliation for raising
student safety concerns.
No facts in the record indicate Mr. Standiford knew Mr. Martin was trying to raise
gymnasium safety issues to himself or to Dr. McCulloh prior to Mr. Martin's termination.
Given this circumstance, Gonzaga is entitled to summary judgment on the issue of
causation.
Pennell, J.
3
No. 34103-8-III
KORSMO, J. (dissenting in part)- I agree with both the lead and concurring
opinions that summary judgment was properly granted to Gonzaga University. The
university did establish that Mr. Martin was terminated due to insubordination, and he
also failed to establish that the gymnasium safety issue was the cause for his termination.
However, I disagree with the decision of my colleagues to remand the personnel file issue
to superior court. That claim is not yet justiciable.
The legislature did not create a judicial cause of action when it enacted RCW
49 .12.240 and .250 governing personnel files. 1 Neither statute indicates that an employee
has immediate recourse to the courts. The two provisions are part of the Industrial
Welfare chapter of the Revised Code of Washington. Enforcement authority under that
chapter is vested with the Director of the Department of Labor and Industries (DLI).
RCW 49.12.033; RCW 43.22.270(5).
DLI, in turn, has enacted a series of regulations to enforce the various provisions
of chapter 49 .12 RCW. See Chapter 296-126 WAC. The provision primarily relevant to
1
A companion provision limits application of these statutes. The statutes do not
apply in criminal cases and in civil cases where the records are not otherwise
discoverable. RCW 49.12.260.
No. 34103-8-III
Martin v. Gonzaga University
this issue is WAC 296-126-050 that requires employers to keep records on their
employees for three years after termination of employment and also requires the
employer to make the file available for inspection by the employee at a reasonable time. 2
DLI has enforcement authority. WAC 296-126-226. The first sentence of that provision
states: "The department shall investigate the complaint of any individual alleging that
these standards have been violated. " 3
For many reasons, this claim does not belong in court. DLI, not the courts, is the
first line defender of the rights provided in chapter 49.12 RCW and chapter 296-126
WAC. For Mr. Martin to present this issue to a court, he first would have to ask DLI to
investigate and exercise its authority. He does not appear to have done so. He thus has
no way of moving from the administrative system to the court system.
Even if he had made the request of DLI and that agency pursued its administrative
remedies, it is doubtful Mr. Martin's position could have prevailed. It does not appear
that the information Mr. Martin is seeking (employee evaluations) is information that an
employer has any obligation to maintain, let alone share with an employee, under this
regulation. WAC 296-126-050(1). Gonzaga likewise is under no obligation to have
2
The contents of the file include the employee's name, address and occupation,
dates of employment, the wage rate, the number of hours worked, and the amount paid
each pay period. WAC 296-126-050(1). Presumably this working definition would
govern the issue of what constitutes a "personnel file" under the statute.
3 The remainder of the provision explains when criminal sanctions apply.
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No. 34103-8-111
Martin v. Gonzaga University
retained this information this long. Id. It also appears that the remedy is simply to allow
Mr. Martin to look at the files. WAC 296-126-050(2).
Nothing in the statutes or the associated administrative code suggests that Mr.
Martin's personnel file claim currently is justiciable. We should not accidentally create a
new cause of action by remanding this issue to superior court. The trial judge correctly
dismissed the claim at summary judgment.
Accordingly, I dissent from the decision to remand the personnel files issue.
3