Mark Frisby, Appellant-cross Resp v. Seattle University, Respondent-cross App ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MARK A. FRISBY, No. 79321-7-I
Appellant-Cross Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
SEATTLE UNIVERSITY, a Washington
non-profit corporation, and J.J., a single
individual,
Respondent-Cross Appellant,
LEACH, J. — Mark Frisby appeals an order of partial summary judgment and
the order of dismissal that resulted in the dismissal of some of his claims against
Seattle University with prejudice, and others without prejudice but barred by the
statute of limitations. Seattle University appeals the denial of a motion for
summary judgment. Frisby does not demonstrate any issue of material fact about
his claim that Seattle University did not comply with Washington State law when it
terminated him for cause. He also does not show the trial court abused its
discretion when it dismissed his remaining claims without prejudice because he
did not comply with the case scheduling order. And, this court generally does not
review denials of summary judgment motions unless the request presents a pure
question of law. So, we affirm.
FACTS
Seattle University (SU) hired Mark Frisby as head tennis coach in 2008. In
Citations and pincites are based on the Westlaw online version of the cited material.
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2014, Frisby signed an employment agreement extending his contract to 2018.
J.J. joined the women’s tennis team on a scholarship in 2013.
Frisby also operated a tennis camp at Sun Valley Resort. He hired J.J. to
work as a counselor at the camp in the summer of 2014. J.J. injured herself in the
fall of 2013. After J.J. did poorly during the 2014 fall season, Frisby began warning
J.J. that she risked losing her spot on the team.
On January 14, 2015, J.J. told the SU Athletic Department that Frisby
engaged in incidents of sexual harassment and retaliation against her. On January
16, 2015, SU put Frisby on administrative leave while the school investigated the
alleged misconduct. The athletic director, Bill Hogan, told Frisby he was relieved
of his duties pending the investigation, and during that time, he was not to
communicate with or coach student athletes.
The school appointed Andrea Katahira, its Human Resource Compliance
and Deputy Title IX Coordinator, to conduct the investigation. Before working at
SU, Katahira worked as an investigator for the State Human Rights Commission
for three years, as an investigator for the Seattle Office of Civil Rights for less than
one year, and at the University of Washington as an investigation/ resolution
specialist for over 10 years. Her work with the University of Washington included
investigation of sexual harassment accusations.
Katahira investigated whether Frisby’s alleged acts of sexual harassment
and retaliation violated the University’s policy on sexual harassment as described
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in its Human Resources Policy Manual (HR Manual). 1 The manual stated,
Sexual harassment…includes, but is not limited to, unwelcome
sexual advances, requests for sexual favors, and other behavior of a
sexual nature when…[s]uch conduct has the purpose or effect of
unreasonably interfering with an individual's work or academic
performance or creates an intimidating, hostile, or offensive working
or educational environment.
The manual described examples of “[c]onduct and behaviors
prohibited by the University's Sexual Harassment Policy.”
A pattern of conduct (not legitimately related to the subject matter of
a course) that causes discomfort or embarrassment, including
• Verbal or written comments of a sexual nature;
• Sexually explicit statements, questions, jokes, or anecdotes;
• Touching, patting, hugging, brushing against a person's body, or
repeated or unwanted staring;
• Remarks about sexual activity, experience, or orientation;
• Remarks of a sexual nature about an individual's body, clothing,
or physical appearance…
The manual stated that retaliation was prohibited.
Individuals who report a complaint of alleged sexual
harassment may not be reprimanded or discriminated against in any
way for initiating an inquiry or complaint in good faith. Further, the
laws pertaining to sexual harassment make it unlawful to retaliate or
to take reprisal in any way against anyone who has articulated a
concern about sexual harassment or has participated or cooperated
in the investigation of a complaint.
Katahira interviewed Frisby, Mark Hooper, the assistant head coach of the
tennis teams, J.J., and
1 According to Katahira’s report, J.J. “brought forth allegations regarding the
Assistant Head Coach of the Women’s and Men’s Tennis Teams.” But,
“[b]ecause the allegations overlapped and involved many of the same facts
and witnesses, one investigation was conducted regarding both
complaints.”
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10 employees within the Athletics Department, 1 employee in Human
Resources, 8 (of the 8 remaining) student athletes on the Women's
Tennis Team, 1 student athlete on the Men's Tennis Team, 1 former
student athlete of the Women's Tennis Team, and 1 individual who
worked with the Complainant and Respondent during the relevant
time period.
She also reviewed “documentation provided by the Complainant and
Respondent, [and] other relevant documentation obtained during the course of the
investigation.”
At her initial interview with Frisby on February 2, 2015, Katahira “reviewed
the Complainant’s allegations with him, and provided him the opportunity to
respond.” Katahira asked Frisby “to share anything else, not directly asked about,
that he believed was relevant to the investigation or thought important for the
investigator to know as part of the investigation.” She also said he could ask
questions. They met again on March 5, and Katahira gave Frisby “the opportunity
to respond to additional information obtained during the course of the investigation,
as well as the opportunity to provide any additional information and clarification.”
Frisby took notes at these meetings.
According to Frisby, he and his counsel were told absolutely nothing about
the specifics of what was alleged.
Eventually I was told-during my interview-that the allegation
involved misconduct in Sun Valley but I was given no date, no time,
no place. I was prohibited from having my attorney present at my
interview with the investigator. I was given no discovery materials,
investigation materials, witness statements or anything else during
the process. After inquiry my lawyer was told there would be no
hearing, no witnesses at a hearing, no cross examination, no tribunal
and no fact finder.
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After completing her investigation, Katahira wrote a report summarizing her
findings and conclusions. Katahira investigated four categories of behavior
relating to J.J.’s sexual harassment allegations. She found, that more likely than
not, Frisby engaged in three of the four.
First, she found J.J.’s assertion credible that Frisby made repeated
comments about J.J. “loving boys” and/or “knowing a lot of boys” during the 2013
and 2014 academic year. She based this finding “on credible accounts of multiple
witnesses… [the] overall credibility of [J.J.] and overall lack of credibility of Mr.
Frisby.”
She also found it was more likely than not that Frisby made comments about
J.J.’s appearance on two separate occasions, and in one instance, made intimate
physical contact of a sexual nature with her in the summer of 2014 when she was
employed as a camp counselor. She based this finding on J.J.’s credibility and
Frisby’s lack of credibility.
Finally, Katahira found it was more likely than not J.J. told “Frisby she was
‘uncomfortable with his way towards her,’ and told him not to make further
comments related to boys, her boyfriend, or her appearance, and not to ‘touch [her]
in that way’ again.” She based this on J.J.’s credibility, the lead camp counselor’s
statement that J.J. told Frisby to stop, and Frisby’s lack of credibility.
Katahira found insufficient support for J.J.’s claim that Frisby “encouraged
relationships between the camp counselors and older, male Sun Valley clients
specifically, including Tony.”
Katahira concluded that, more likely than not, Frisby engaged in
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inappropriate actions toward J.J. that were “unwelcome…undesirable and
offensive [and their] impact created an intimidating and hostile environment.” As
a result, Frisby violated SU’s nondiscrimination and sexual harassment policies.
She found insufficient evidence to support the claim that Frisby engaged in
retaliation. She concluded that his suggestion that J.J. would not remain on the
team were consistent with concerns about her level of commitment, lack of
demonstrated effort, “lack of putting in ‘extra time’”, and Frisby’s concerns about
her physical condition. She based this conclusion, in part, on the witness support
for the concerns raised by Frisby. But, she concluded that given the context, it
was reasonable for J.J. to perceive Frisby’s warnings as retaliatory.
Katahira also investigated whether Frisby’s actions while on administrative
leave constituted insubordination. She found the university provided clear written
and verbal notice of the prohibition on contacting student athletes during Frisby’s
administrative leave. She found it more likely than not that Frisby engaged in four
types of insubordinate actions. First, he placed a team travel list on his office door
the day after he was placed on leave. Second, he was involved with text
communications sent by his wife to student athletes. Third, he was involved in the
placement of a second travel list on the door and the addition of another player to
the “away” roster, and he more likely than not “played a role” in this new student
being added to the Boise trip. Finally, he communicated with a coach from another
university about an upcoming match. She concluded these actions “all of which
took place after his notification of the original complaint and placement on paid
administrative leave” demonstrated that “Frisby failed to adhere to the University’s
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direction.” He “willfully disregarded” Hogan’s instructions and “compromised the
integrity of the investigation.” She concluded that Frisby engaged in
insubordination.
After reviewing the file and meeting the athletic director, vice president of
SU, and the human resources manager collectively, determined that Frisby
violated SU’s nondiscrimination and sexual harassment policies through his
conduct toward J.J., and he had willfully disregarded the directive to refrain from
coaching or communicating with students while on administrative leave. Hogan
decided to terminate Frisby because each violation alone was a serious act of
misconduct that justified termination under the employment agreement.
In his letter terminating Frisby’s employment, Hogan summarized Katahira’s
conclusion that more likely than not Frisby’s actions “created an intimidating and
hostile educational environment for J[.]J[.] based on sex, and thus, limited her
ability to participate in and receive benefits and opportunities in the University’s
tennis program.” Based on this, he concluded Frisby’s “conduct is a violation of
the University’s Nondiscrimination and Sexual Harassment policies and [Frisby’s]
Department of Athletics Head Coach Employment Contract.” Hogan’s letter also
summarized the report’s finding that Frisby’s actions during the investigation
willfully disregarded [the] directive to [him] upon notification; compromised the
integrity of the investigation; potentially influenced witnesses; complicated and
lengthened the investigation; and could reasonably be viewed as retaliatory toward
J[.]J.” Because of this, Hogan concluded that this conduct was “insubordinate”
and “a violation of university policy and [Frisby’s] Department of Athletics Head
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No. 79321-7-I/8
Coach Employment Contract.”
In his letter, Hogan stated that in his “judgment that [Frisby’s] actions [were]
a material breach of [his] Employment Contract and constitute[d] ‘cause’ for
termination under Sections 7(a)(c)(d) and (e) of that agreement.” According to
Hogan’s letter, Frisby’s “actions in violation of the university’s Sexual Harassment
Policy” and his “conduct after being notified of the complaint [were] serious acts of
misconduct. [They] were not reflective of the moral and ethical standards that are
expected of a Head Coach at Seattle University.”
Frisby appealed to the provost. The provost gave Frisby the opportunity to
meet so he could provide the provost with any additional information he wanted
considered. Frisby’s attorney declined. The provost upheld the termination
decision and it became effective on May 14, 2015.
On April 3, 2017, Frisby filed a complaint against SU for breach of contract
based on the employment agreement and breach of promises of specific treatment
based on the sexual harassment investigation procedure described in the HR
Manual. SU moved for summary judgment. The trial court granted Frisby’s motion
to continue SU’s motion for summary judgment.
On October 24, 2018, the trial court granted SU’s motion for summary
judgment as to Frisby’s breach of contract and wrongful withholding of wages
claim. It found no genuine issue of material fact or legal insufficiency of the
evidence for the following for cause elements: arbitrary, capricious, or illegal
reason, adequate investigation, substantial evidence, or a basis reasonably
believed to be true. But, the court denied SU summary judgment on the issue of
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No. 79321-7-I/9
the HR Manual. It concluded that, as a matter of law, SU was required to comply
with the procedure described in the HR Manual for handling sexual harassment
and sexual misconduct complaints when it pursued termination for cause.
Because the court found a genuine issue of material fact about whether SU
complied with the manual’s procedure, and whether SU breached a promise for
specific treatment in specific situations, it denied summary judgment on that issue.
On October 29, 2018, SU submitted a letter asking the trial court to waive
the alternative dispute resolution (ADR) requirement in its case scheduling order
and allow the case to proceed to trial because Frisby never provided SU with a
written settlement demand required by the scheduling order and needed for ADR.
That same day, the court sent an email to counsel reminding them that the case
was noncompliant with the court’s case scheduling order and was not being
prepared for trial, and it was at risk of dismissal on the scheduled trial date in two
weeks.
Frisby asked for CR 54(b) certification or, in the alternative, for
reconsideration of its summary judgment decision. The trial court denied both. On
November 13, 2018, the trial court dismissed the case without prejudice because
the parties had not complied with the case scheduling order.
Both Frisby and SU appealed. Frisby asked this court to consider his
appeal because the statute of limitations barred refiling his claims dismissed
without prejudice. A commissioner of this court decided that he properly appealed
under RAP 2.2(a)(1) and/ or RAP 2.2(a)(3).
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STANDARD OF REVIEW
This court reviews summary judgment orders de novo. 2 Summary judgment
is appropriate if, after viewing the evidence in the light most favorable to the
nonmoving party, there remains no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. 3
This court reviews a trial court's order dismissing a case and imposing terms
for noncompliance with court orders for abuse of discretion. 4 A court abuses its
discretion when it makes a manifestly unreasonable decision or bases it on
untenable grounds or reasons. 5
ANALYSIS
Frisby claims the trial court should not have dismissed his claim that SU
lacked adequate cause to fire him. Frisby also contends the trial court should not
have dismissed his remaining claims without prejudice because the parties failed
to comply with a scheduling order. SU contends the trial court should have
dismissed with prejudice Frisby’s claim that SU did not follow its HR Policy Manual.
Discharge for Cause
Frisby contends the record shows a genuine issue of material fact about
whether SU improperly dismissed him for cause.
2Life Designs Ranch, Inc. v. Sommer, 191 Wash. App. 320, 327, 364 P.3d
129 (2015).
3 Life Designs Ranch Inc., 191 Wash. App. at 327.
4 Apostolis v. City of Seattle, 101 Wash. App. 300, 303, 3 P.3d 198 (2000).
5 State v. Stenson, 132 Wash. 2d 668, 701, 940 P.2d 1239 (1997).
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No. 79321-7-I/11
Frisby’s employment agreement governed his termination. “The usual rules
of contract interpretation govern interpretation of an employee contract.” 6 Frisby’s
agreement required the University have cause to fire Frisby. “Cause” under
section 7 of the employment agreement included the following.
(a) A material breach, as determined by the University, of this
Agreement by Employee;
(c) Any serious act of misconduct by Employee, including but not
limited to, a felony or other unlawful conduct, fraud, dishonesty, theft
or misappropriation of University property, moral turpitude,
insubordination, or any act injuring, abusing, or endangering others;
(d) Any act that, in the sole good faith judgment of the University,
brings Employee or the University into public disrepute, contempt,
embarrassment, scandal, or ridicule, or that negatively impacts the
reputation or high moral or ethical standards of the University;
(e) Violation of any law, policy, rule, regulation, constitutional
provision, bylaw or interpretation thereof of the University . . . which
violation may, in the sole good faith judgment of the University, reflect
adversely upon the University or its athletic program…
According to the agreement, “‘Cause’ sufficient to satisfy the provisions of this
section shall be determined by the Director or University President or his
designee.”
The contract gave SU the authority to determine cause. The evidence
before SU at the time it fired Frisby included Katahira’s report and the
documentation and interviews she used in her analysis.
Katahira concluded that, more likely than not, Frisby engaged in
inappropriate actions toward J.J. that were “unwelcome…undesirable and
offensive [and their] impact created an intimidating and hostile educational
6 Nye v. University of Washington, 163 Wash. App. 875, 882, 260 P.3d 1000,
(2011).
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environment.” She concluded that Frisby violated SU’s nondiscrimination and
sexual harassment policies.
Katahira also found Frisby’s actions that “took place after his notification of
the original complaint and placement on paid administrative leave” demonstrated
that “Frisby failed to adhere to the University’s direction,” “willfully disregarded”
Hogan’s instructions and “compromised the integrity of the investigation.” She
concluded that Frisby engaged in insubordination.
At a minimum, Katahira’s findings supported SU’s determination that Frisby
committed insubordination under section 7(c) of the contract. Because the
University determines what constitutes a material breach of the employment
agreement, and the Director and the Provost concluded that Frisby’s actions
constituted a material breach, SU’s decision to terminate Frisby for cause met the
requirements of section 7(a) of the employment contract. 7
Frisby asserts that SU’s decision was unlawful, arbitrary and capricious,
unsupported by substantial evidence and not based on SU’s reasonable belief that
Frisby’s actions created cause for his dismissal.
Washington State courts review an employer’s termination of an employee
for cause to ensure that the employer acted based upon a “fair and honest cause
7SU terminated Frisby for cause based on its conclusion that his actions
triggered Sections 7 (a)(c)(d) and (e) of the employment agreement.
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or reason, regulated by good faith.”8 Under Baldwin, 9 “a discharge for ‘just cause’
is one which is not for any arbitrary, capricious, or illegal reason and which is based
on facts (1) supported by substantial evidence and (2) reasonably believed by the
employer to be true.” This analysis applies to contracts that include specific
grounds for dismissal. 10 “[T]he issue is whether at the time plaintiff was dismissed
defendant reasonably, in good faith, and based on substantial evidence believed
plaintiff had done so.” 11
SU relied upon Katahira’s report to determine that cause existed to fire
Frisby. Katahira’s determination of insubordination relied upon witness testimony
and documents identifying multiple actions by Frisby where he “contacted” and
“coached” students via his wife in violation of SU’s directive against this behavior
during administrative leave. This report provided substantial evidence of “just
cause” that SU reasonably relied upon. SU did not fire Frisby based upon an
arbitrary, capricious, or illegal reason. 12 SU complied with Washington State law
and the employment agreement when it terminated Frisby for cause.
Frisby asserts the contract did not give SU sole discretion to terminate his
employment. But, the contract provided “‘Cause’ sufficient to satisfy the provisions
8 Baldwin v. Sisters of Providence in Washington, Inc., 112 Wash. 2d 127, 139,
769 P.2d 298 (1989). SU contends this court should not follow Baldwin, because
this case involves a private employment agreement between Frisby and the school
and not an implied contract under an employee handbook. But, it cites to no cases
suggesting the Baldwin standard does not apply in cases with express written
agreements defining cause for termination.
9 112 Wash. 2d at 139.
10 Gaglidari v. Denny’s Restaurants, Inc., 117 Wash. 2d 426, 438, 815 P.2d
1362 (1991).
11 Gaglidari, 117 Wash. 2d at 438.
12 Because insubordination alone is sufficient to support SU’s decision, we
do not analyze its alternative basis for firing Frisby.
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of [Section 7] shall be determined by the Director or University President or his
designee.” So, Frisby’s argument fails.
Frisby also contends that Washington State law does not allow an employer
to retain sole discretion to determine whether cause exists for termination. He
claims that SU was required to exercise its authority “consistent with Frisby’s
reasonable expectations.” He asserts the athletic director’s letter telling Frisby not
to contact players was not a “rule” and he could not reasonably anticipate his
actions during the administrative leave would result in termination of his
employment. We disagree.
The athletic director’s letter provided clear instructions to Frisby. His
employment contract included insubordination as a cause for termination.
Undisputed evidence shows he did not follow the athletic director’s written
instructions. So, he could reasonably anticipate that not complying with his
employer’s direction could result in his termination for cause.
Frisby also asserts that SU relied on an inadequate investigation that it
could not in good faith rely upon to terminate him for cause. To discharge its duty
of good faith, “the employer should conduct an objectively reasonable investigation
to ascertain the facts”13 before firing an employee for cause.
SU hired Katahira to conduct the investigation. Katahira had experience in
conducting this type of investigation. She interviewed J.J., Frisby and many other
witnesses. She provided Frisby the opportunity to respond to other witness
testimony. She analyzed documentary evidence, such as texts between Frisby’s
13 Gaglidari, 117 Wash. 2d at 459.
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wife and the players, and evidence Frisby provided regarding the flipping-off
motorists incident. Katahira described the evidence, drew findings, and explained
her conclusions. She explicitly weighed the credibility of Frisby and J.J. and based
her conclusion on reasons identified in the report. Frisby fails to show any genuine
issue of fact about the sufficiency of the investigation.
Frisby provides the following reasons for why the investigation was
insufficient.
• The investigator failed to obtain evidence concerning the extent
of the financial impact that J[.]J[.]'s removal from the team would
have on her.
• The investigator considered all evidence of J[.]J[.]'s powerful
motive for fabrication to be irrelevant.
• The investigator considered all evidence of Frisby's fifty year
history of good character, integrity and upright behavior to be
irrelevant.
• The investigator failed to pursue information concerning J[.]J[.]'s
history of deceit and manipulative behavior, and then gave no
weight to the evidence that she did obtain.
• When interviewing other team members, the investigator wanted
to hear nothing about J[.]J[.]'s background and the team
members' experience with her in Sun Valley... Instead, it
appeared…that "the investigator had her mind made up." …
conclusion about [another] interview with the investigator was
similar. "The investigator was clearly biased against Coach
Frisby."
• In determining that Frisby had committed "insubordination,"
investigator unreasonably exaggerated the significance of the
communications with team members, and failed to consider the
circumstances that made those communications necessary.
These assertions rely upon conclusory statements by Frisby and the team
members, and for most of them, Frisby fails to cite to the record. Conclusory facts
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presented by the nonmoving party will not defeat summary judgment. 14 And, an
appellant must include reference to the record for each factual statement he
makes. 15 Frisby’s assertions do not establish any issue of material fact. 16
HR Manual
SU asserts that the trial court erred in denying SU’s motion for summary
judgment on Frisby’s claim that the school owed him specific treatment in specific
situations through the HR Manual’s sexual harassment procedure. This court
normally does not review a denial of a request for summary judgment when the
trial court finds disputed issues of material fact. 17 Here, the trial court found there
were disputed issues of fact. So, we decline to review this issue.
Dismissal for Failure to Comply with Court Order
Frisby also challenges the trial court’s dismissal of his remaining claims for
failure to follow a scheduling order.
KCLR 4(g)(1) states, “Failure to comply with the Case Schedule may be
grounds for imposition of sanctions, including dismissal, or terms.” KCLR 16(b)
also required the parties in this case to “participate in a settlement conference or
other alternative dispute resolution process conducted by a neutral third party.”
14 Grimwood v. Univ. of Puget Sound, Inc., 110 Wash. 2d 355, 359-60, 753
P.2d 517 (1988), abrogated on other grounds by Mikkelsen v. Pub. Util. Dist. No.
1 of Kittitas County, 189 Wash. 2d 516, 528, 532, 404 P.3d 464 (2017).
15 RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wash. 2d
801, 809, 828 P.2d 549 (1992).
16 Frisby claims SU violated GR 14.1. But, he does not explain why he
expects this court to reprimand parties for these citations in their briefing.
17 City of Redmond v. Hartford Accident & Indem. Ins. Co., 88 Wash. App. 1,
667, 943 P.2d 665 (1997).
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That did not happen in this case. When a party disregards a court’s order “without
reasonable excuse or justification” the act “is deemed willful.” 18
The trial court warned the parties on October 24, 2018 that if they did not
comply with the ADR requirement in the scheduling order, or obtain a waiver of the
requirement from the court, the case was out of compliance with the case
scheduling order. On October 29, 2018, the trial court sent the parties a “final
reminder” that the case was noncompliant with its scheduling order, was not being
prepared for trial, and under KCLR 4(g) and KCLR 16(b)(4) was at risk of dismissal
on November 13, 2018, which was the date scheduled for trial. On November 13,
the trial court dismissed the case without prejudice under KCLR 4(g).
The record makes clear the court reminded the parties twice they had not
complied with the scheduling order’s ADR requirement. And, Frisby does not
dispute that he failed to provide SU with the written settlement demand required
by the order and needed for mediation. He does not dispute the court warned the
parties it might dismiss the case because they had not complied with the
scheduling order.
Frisby suggests “the record evidences no weighing or consideration of any
kind by the trial court before entry of the dismissal order.” But, the record
establishes the trial court warned the parties twice they had not complied with its
order. Frisby also asserts that the trial court was required to make written findings.
But, the record is sufficient for this court to review the trial court’s decision. Frisby
does not suggest otherwise.
18Rivers v. Wash. State Conference of Mason Contractors, 145 Wash. 2d 674,
698, 41 P.3d 1175 (2002).
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Frisby also assigns error to the trial court’s denial of his motion for
reconsideration and his motion for certification under CR 54(b). But, he fails to
provide an argument to support these challenges, so we do not address them. 19
CONCLUSION
We affirm. Frisby does not establish any genuine issue of material fact
about his claim that SU did not comply with Washington State law when it
terminated him for cause. Frisby also fails to establish the trial court abused its
discretion by dismissing his remaining claims without prejudice for failure to comply
with its scheduling order after repeated reminders of the consequences of
noncompliance.
WE CONCUR:
19
Norcon Builders, LLC v. GMP Homes VG, LLC, 161 Wash. App. 474, 486,
254 P.3d 385 (2011).
18