Joetta Rupert v. Kennewick Irrigation District ( 2014 )

FILED
OCT. 14,2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
JOETTA RUPERT, an individual, ) No. 31950-4-111
)
Appellant, )
)
v. )
) UNPUBLISHED OPINION
KENNEWICK IRRIGATION DISTRICT, a )
public entity, )
)
Respondent. )
BROWN, J. - Joetta Rupert appeals the summary judgment dismissal of her
claims against Kennewick Irrigation District (KID) for retaliatory discharge in violation of
the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW, and wrongful
termination in violation of public policy. She contends the trial court erred because it
failed to find remaining genuine issues of material fact regarding retaliation, and failed to
rule as a matter of law she had established the jeopardy and causation elements
necessary for her wrongful termination claim. We disagree with Ms. Rupert, and affirm.
No. 31950-4-111
Rupert v. Kennewick Irrigation Dist.
FACTS
KID hired Ms. Rupert in June 2003 as an administrative assistant in its real
estate department and a few years later promoted her to department manager. She
was an at-will employee reporting directly to the KID Board.
KID utilized an endowment fund for the proceeds from the sale of KID real
property. KID had adopted a policy for the use of the endowment fund, which the board
repealed in 2006. Then, the fund was called a reserve fund worth about $15 million.
Ms. Rupert became uncomfortable with how the reserve fund was used. She believed
the board was not meeting its fiduciary duties and became concerned about
inconsistent investment report information prepared by KID's treasurer. Ms. Rupert
brought her concerns to the board. She reported to Board President John Jaksch that
certain investments were being cashed out instead of being reinvested and transferred
to the operations account without board approval. During the relevant annual
inspections, no discrepancies were found by the state auditor. Nevertheless, based on
Ms. Rupert's concerns, the board hired an outside auditor to perform an independent
audit for 2006-2009. Ms. Rupert conferred with the outside auditor. The audit results,
confirming some of Ms. Rupert's concerns, were shared with the Board in May 2010.
The outside auditor, however, did not find any missing funds.
In November 2009, KID hired a new district manager, Charles Freeman.
Communication immediately broke down between Mr. Freeman and Ms. Rupert. She
felt this breakdown was because she was a woman.
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In March 2010, the board reassigned Ms. Rupert's supervisory responsibilities on
the Red Mountain properties to Scott Revell, planning department manager. Ms. Rupert
felt this was in response to her raising concerns about the legality of leasing properties
on Red Mountain for longer than a one year period.
On March 6, 2010, Ms. Rupert presented the board her easement
recommendations for certain KID-owned property. Board member, Patrick McGuire,
disagreed and, according to Ms. Rupert, became angry and hostile towards her and
successfully suggested to other board members that they vote against her proposal.
The same day, board members and managers attended a retreat where Ms. Rupert
claims both President Jaksch and board member, Gene Huffman, made comments
about not wanting to sit next to her.
On June 17,2010, Ms. Rupert informed Mr. Huffman she needed to speak to Mr.
Freeman about work problems she was having with Mr. Revell. Mr. Huffman allegedly
told Ms. Rupert not to contact Mr. Freeman because he had been "burned before" and
"was not comfortable being alone with [a] woman." Clerk's Papers (CP) at 238.
In July 2010, Ms. Rupert notified the board that she would be attending a
personal injury trial for a prior automobile accident she was involved in and would be out
of the office. Ms. Rupert used sick leave for the week she was off. On July 15, 2010,
Ms. Rupert met with Mr. Huffman for over two and a half hours to complain about what
she perceived as the unprofessional practice of not having direct contact with Mr.
Freeman. Ms. Rupert alleges when she offered her hand to say goodbye, Mr. Huffman
immediately grabbed it and brought her close to him, hugging her tightly and rubbed his
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chest against hers without her consent. At this same meeting, Mr. Huffman broached
the topic of how Ms. Rupert was going to claim her time off from work for the personal
injury trial. Ms. Rupert told Huffman she was going to use her accrued sick leave
benefits and inquired as to whether this was an issue, offering to use personal or
vacation time instead. According to Ms. Rupert, Mr. Huffman told her using sick leave
was "acceptable and fine." CP at 194. Manager Freeman, however, notified her by
e-mail that her request to use her sick leave was denied. According to Ms. Rupert she
JlJ
responded, '''No problem, go ahead and change it. CP at 285.
On July 20,2010, the board notified Ms. Rupert it was placing her on paid
administrative leave "pending an investigation of the charge that you attempted to use
sick leave for time off to attend a personal injury trial." CP at 313.
On July 27,2010, KID terminated Ms. Rupert's employment. President Jaksch
later declared during 2009 and 2010, he "became increasingly concerned of [Ms.
Rupert's] performance and of the costs associated with the Real Estate Assets
Department that she managed." CP at 124. The board decided these concerns in
addition to the recent inappropriate use of sick leave warranted termination.
Ms. Rupert sued KID for discrimination, hostile work environment, retaliation in
violation of WLAD, wrongful termination in violation of public policy under the Local
Government Whistleblower Protection Act (LGWPA), chapter 42.41 RCW, and failure to
pay wages. Ms. Rupert was aware of KID's whistleblower policy, but she did not avail
herself to it. The parties settled the wage claim before the trial court summarily
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dismissed her remaining claims. Ms. Rupert appeals solely the dismissal of her WLAD
retaliation and wrongful discharge in violation of public policy claims.
ANALYSIS
The issue is whether the trial court erred in summarily dismissing Ms. Rupert's
claims for WLAD retaliation and wrongful termination in violation of public policy. She
contends she met her prima facie burden on both causes of action.
We review summary judgment orders de novo, performing the same inquiry as
the superior court. Hisle v. Todd Pac. Shipyards Corp., 151 Wash. 2d 853, 860, 93 P.3d
108 (2004). The superior court properly grants summary judgment when no genuine
issue of material fact remains and the moving party is entitled to judgment as a matter
of law. Morin v. Harrell, 161 Wash. 2d 226, 230, 164 P.3d 495 (2007) (citing CR 56(c».
In a summary judgment motion, the moving party's burden is to demonstrate
summary judgment is proper. Atherton Condo. Apartment-Owners Assoc. Bd. of Dirs.
v. Blume Dev. Co., 115 Wn.2d 506,516,799 P.2d 250 (1990). We consider all the
facts submitted and the reasonable inferences from them in the light most favorable to
the nonmoving party. Id. We resolve any doubts about the existence of a genuine
issue of material fact against the party moving for summary judgment. Id. "Summary
judgment is appropriate only if, from all the evidence, reasonable persons could reach
but one conclusion." Lilly v. Lynch, 88 Wash. App. 306, 312, 945 P.2d 727 (1997).
First, regarding retaliation in Washington, an employer generally may terminate
at-will employees with or without cause. Bulman v. Safeway, Inc., 144 Wn.2d 335,340,
27 P.3d 1172 (2001). The WLAD, however, prohibits retaliation against a party
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asserting a claim based on a perceived violation of his civil rights or participating in an
investigation into alleged workplace discrimination. RCW 49.60.210(1).
To establish a prima facie retaliation case, a plaintiff must show (1) he or she
engaged in statutorily protected activity, (2) his or her employer took adverse
employment action against him or her, and (3) a causal link between the activity and the
adverse action. Short v. Battle Ground Sch. Dist., 169 Wn. App. 188,205,279 P.3d
902 (2012). All three must be established to survive summary judgment. Id. Because
Ms. Rupert's employment was terminated, we focus on whether Ms. Rupert engaged in
statutorily protected activity and if so, whether that activity was causally linked to her
termination.
An employee engages in WLAD-protected activity when he or she opposes
employment practices forbidden by antidiscrimination law or other practices he or she
reasonably believed to be discriminatory. Short, 169 Wash. App. at 205. It is not
necessary the complained about activity be actually unlawful because '''[a]n employee
who opposes employment practices reasonably believed to be discriminatory is
protected by the 'opposition clause' whether or not the practice is actually
discriminatory.'" Graves v. Dep'tofGame, 76 Wash. App. 705, 712, 887 P.2d 424 (1994)
(internal quotation marks omitted) (quoting Gifford v. Atchison, Topeka & Sante Fe Ry.,
685 F.2d 1149, 1157 (9th Cir.1982». Absent some reference to the plaintiffs protected
status, a general complaint about an employer's unfair conduct does not rise to the level
of protected activity under WLAD. Alonso v. Qwest Commc'ns Co., 178 Wash. App. 734,
753-54,315 P.3d 610 (2013) (citing Graves, 76 Wash. App. at 712)}. "'To determine
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whether an employee was eng~ged in protected opposition activity, the court must
balance the setting in which the activity arose and the interests and motives of the
employer and employee.'" Estevez v. Faculty Club of Univ. of Wash., 129 Wn. App.
774,798,120 P.3d 579 (2005) (quoting Kahn v. Salerno, 90 Wash. App. 110, 130,951
P.2d 321 (1998».
Ms. Rupert's complaints were not specific or formally made. Moreover, she
initially did not claim the actions were discriminatory. Instead, she complained solely
about workplace issues, not harassment or discrimination. She expressed professional
concern to Mr. Huffman about being unable to meet with Mr. Freeman because it
interfered with her work, even though Mr. Huffman told her Mr. Freeman "had been
burned before" by female employees and was not comfortable being alone with them.
CP at 238. Ms. Rupert deposed she did not recall the entirety of the conversation but
recalled her displeasure that business was being hampered because of two managers
not being able to communicate. Ms. Rupert admitted she did not report this
conversation to anyone in management. Ms. Rupert claims Mr. Huffman tried to give
her a hug as she left a meeting and she thought that was sexual harassment. But,
again, this was unreported.
Ms. Rupert fails to show she engaged in statutorily protected activity or persuade
us genuine material fact issues remain. She did not complain to any supervisor or to
the human resource department of activity that was forbidden by WLAD. Her
complaints were centered on financial issues related to the reserve fund and
unprofessional treatment, not gender based discrimination issues. Ms. Rupert did not
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make complaints under Alonso or Estevez fairly considered as opposition to
employment. practices forbidden by anti-discrimination law or other practices she
reasonably believed to be discriminatory. Short, 169 Wash. App. at 205.
Considering her failure to establish the first factor in a retaliation claim, Ms.
Rupert's claim necessarily fails. Nevertheless we note Ms. Rupert fails to show prima
facie causation. Ms. Rupert must demonstrate retaliation for her oppositional conduct
was a "substantial factor" motivating KI D's adverse employment action. Burchfiel v.
Boeing Corp., 149 Wash. App. 468, 482, 205 P.3d 145 (2009). Close proximity in time
between the adverse employment action and the protected activity, along with evidence
of satisfactory work performance, can suggest an improper motive. Campbell v. State,
129 Wash. App. 10, 23, 118 P.3d 888 (2005). The record shows KID had become
dissatisfied for some time with Ms. Rupert's performance, her department was over
budget, and she took sick leave contrary to KID's sick leave policy. Ms. Rupert does
not show retaliation was a substantial factor motivating KID's adverse employment
action.
In sum, we conclude the court properly granted summary judgment in favor of
KID on her WLAD retaliation claim.
Second, wrongful discharge in violation of public policy is an intentional tort, a
narrow exception to the termination-at-will employment relationship. Worley v.
Providence Physician Servs. Co., 175 Wash. App. 566, 573, 307 P.3d 759 (2013). This
narrow claim is recognized in four areas: "'(1) where the discharge was a result of
refusing to commit an illegal act, (2) where the discharge resulted due to the employee
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performing a public duty or obligation, (3) where the [discharge] resulted because the
employee exercised a legal right or privilege, and (4) where the discharge was premised
on employee "whistleblowing" activity.'" Piel v. City of Federal Way, 177 Wash. 2d 604,
609-10,306 P.3d 879 (2013) (quoting Dicomes v. State, 113 Wash. 2d 612, 618, 782 P.2d
1002 (1989) (citations omitted)). Ms. Rupert relies on the fourth area, whistleblowing.
To establish a claim for wrongful discharge in violation of public policy, the
plaintiff must prove an eXisting clear public policy (clarity element), discouraging the
conduct in which the employee engaged would jeopardize the public policy Oeopardy
element), and the policy-linked conduct caused the dismissal (causation element).
Korslund v. DynCorp Tri-Cities Services, Inc., 156 Wash. 2d 168, 178, 125 P.3d 119
(2005). At issue here is the jeopardy and causation elements.
In order to establish the jeopardy element, the plaintiff must show other means of
promoting the public policy are inadequate. Cudney v. ALSCO, Inc., 172 Wash. 2d 524,
530,259 P.3d 244 (2011). Protecting the public is the policy that must be promoted, not
protecting the employee's individual interests. Id. at 538. In other words, the test of
whether a tort claim for wrongful termination in violation of public policy is viable is if
other means are inadequate to promote the public policy.
Here, the LGWPA provides an administrative process for adjudicating
whistleblower complaints. Local governments are required to establish policies and
procedures for reporting improper governmental action and for protecting employees
who provide information in good faith from retaliation. RCW 42.41.030-.040. The law
provides for a hearing before an independent administrative law judge, who may grant
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relief including reinstatement, back pay, injunctive relief, and attorney fees and costs.
RCW 42.41.040(5)-(7). The administrative law judge may also impose a civil penalty of
up to $3,000 personally upon the retaliator and recommend that the person found to
have retaliated be suspended with or without payor dismissed. RCW 42.41.040(8).
Our Supreme Court has provided guidance in determining whether these whistleblower
protections are adequate to safeguard the public policy of protecting whistleblowers.
The plaintiffs in Korslund claimed they were wrongfully terminated for reporting
safety violations, mismanagement, and fraud at the Hanford Nuclear Reservation. The
court held that because the federal Energy Reorganization Act (ERA) provided an
administrative process for adjudicating whistleblower claims and provided for
reinstatement, back pay, and other compensatory damages, an adequate remedy
existed protecting the public interest. Korslund, 156 Wash. 2d at 182-83.
In Cudney, the plaintiff claimed he was discharged after reporting his supervisor
was drinking on the job and had driven a company vehicle while intoxicated. The court
held the Washington Industrial Safety and Health Act (WISHA) provided a sufficient
administrative remedy, and state laws, on driving while intoxicated, adequately
protected the public. Cudney, 172 Wash. 2d at 527.
But, in Piel, the court held the administrative remedies available through the
Public Employment Relations Commission (PERC) under chapter 41.56 RCW, were
inadequate, on their own, to fully vindicate public policy when a public employer
discharges a public employee for asserting collective bargaining rights.
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Unlike Korslund and Cudney, Piel involved a prior case holding PERC remedies
failed to fully address the broader public interests involved because it protected
personal contractual rights solely. Piel, 177 Wash. 2d at 616-17 (quoting Smith v. Bates
Technical Coli., 139 Wash. 2d 793, 809, 991 P.2d 1135 (2000)). And unlike Korslund and
Cudney, Piel involved a statute declaring PERC remedies supplement others and must
be liberally construed to accomplish their purpose. Piel, 177 Wash. 2d at 617 (quoting
RCW 41.56.905). In those circumstances, the Piel court recognized a private common
law tort remedy as necessary to fully vindicate public policy. Id. The Piel decision
analyzed a single issue, U[a]re the remedies available to a public employee under
chapter 41.56 RCW adequate as a matter of law, such that the employee may not
assert a tort claim for wrongful discharge in violation of public policy?" 177 Wash. 2d at
609. The Piel court found the "limited statutory remedies under chapter 41.56 RCW do
not foreclose more complete tort remedies for wrongful discharge." Id. at 616.
Importantly, the Piel court specifically held its decision "does not require retreat
from [Korslund or Cudney]." 177 Wash. 2d at 616. The Piel court noted the administrative
schemes at issue in Korslund and Cudney were not previously found to be inadequate
to protect public policy and, unlike PERC, did not include a provision stating the
"provisions of this chapter are intended to be additional to other remedies and shall be
liberally construed." Id. at 617 (quoting RCW 41.56.905). The Piel court recognized
Korslundfound the ERA to have "comprehensive remedies," including back pay,
compensatory damages, and attorney and expert witness fees. Id. at 613 (citing
Korslund, 156 Wash. 2d at 182). Piel further recognized that Cudney found the remedies
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available under the WISHA to be "more comprehensive than the ERA and. .. more
than adequate." Id. (citing Cudney, 172 Wn.2d at 533). Accordingly, if a statutory
scheme has language and remedies analogous to those at issue in Korslund or
Cudney, the scheme is distinguished from Piel and has comprehensive remedies to
protect the public interest.
Here, the LGWPA provides remedies of reinstatement, back pay, injunctive relief,
costs, reasonable attorneys' fees, and civil penalties and does not contain a provision
providing "provisions of this chapter are intended to be additional to other remedies and
shall be liberally construed" as was the case in Piel. 177 Wash. 2d at 617 (quoting RCW
41.56.905). Ms. Rupert argues the LGWPA protections are inadequate because she
cannot get compensatory damages. But, "[t]he other means of promoting the public
policy need not be available to a particular individual so long as the other means are
adequate to safeguard the public policy." Hubbard v. Spokane County, 146 Wash. 2d 699,
717, 50 P.3d 602 (2002). Moreover, "the tort of wrongful discharge is not designed to
protect an employee's purely private interest ... rather, the tort operates to vindicate
the public interest in prohibiting employers from acting in a manner contrary to
fundamental public policy." Smith v. Bates Technical Coli., 139 Wash. 2d 793, 801, 991
P.2d 1135 (2000). The question here, as it was in Korslund, is "whether other means of
protecting the public policy are adequate so that recognition of a tort claim in these
circumstances is unnecessary to protect the public policy." Korslund, 156 Wash. 2d at
183. In this case, we conclude they are.
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This case is like Worley v. Providence Physician Servs. Co., 175 Wash. App. 566,
574-76,307 P.3d 759 (2013) that was based on a similar whistleblower provision. This
court held the employee's wrongful discharge in violation of public policy claim failed
because whistleblower protections available under the Washington health care act,
RCW 43.70.075, adequately promoted workplace safety, ensured compliance with the
accepted standard of care, and prevented fraudulent billing in the health care industry.
In sum, because the LGWPA provides adequate remedies of reinstatement, back
pay, injunctive relief, costs, reasonable attorneys' fees, and civil penalties, and because
the statutory scheme in this case is different than the statutory scheme in Piel, Ms.
Rupert cannot establish the jeopardy element of a wrongful discharge in violation of
public policy claim. Without this element her claim fails. Nevertheless, we not for
reasons similar to her retaliation claim, she also cannot establish the causation element.
Given all, the trial court properly dismissed this claim in summary judgment.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Brown, J.
WE CONCUR:
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