Toni Tardif, V. Bellevue College, Terry Hatcher & Leni Karr ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
TONI TARDIF, an individual,
DIVISION ONE
Appellant,
No. 82802-9-I
v.
UNPUBLISHED OPINION
BELLEVUE COLLEGE, a
Washington public community
college; TERRY HATCHER, an
individual; LENI KARR, an individual,
Respondents.
DWYER, J. — While enrolled as a student at Bellevue College, Toni Tardif
submitted an altered version of her instructor’s written evaluation of her
performance in a clinical practicum course. Tardif now appeals from the trial
court’s summary judgment dismissal of her lawsuit against Bellevue College and
two of its faculty members arising from administrative disciplinary proceedings
addressing her actions. The trial court did not err by granting summary
judgment. Accordingly, we affirm.
I
Toni Tardif enrolled in Bellevue College’s DUTEC (Diagnostic Ultrasound
Technology) program in 2016.1 The DUTEC program offers two years of
1 Diagnostic Ultrasound Technology uses energy in the form of ultrasound to diagnose
pathology and assess fetal well-being.
No. 82802-9-I/2
academic and clinical proficiency training in ultrasound patient services and
related diagnostic techniques. The first year takes place primarily in the
classroom. In the second year, clinical proficiency programs occur at hospitals
throughout the area. The second year consists of two sections (known as “first
rotation” and “second rotation”). Once students reach the necessary level of
competency during the first rotation, they move to the second rotation. The
DUTEC 240 Clinical Practicum is designed to help students demonstrate that
they have become capable of performing accurate diagnostic studies on patients
without direct supervision by the time they have completed their training and are
ready to graduate.
In September 2017, Tardif commenced her clinical instruction and training
at Providence St. Peters Hospital in Olympia. Tardif’s performance during the
first quarter was unsatisfactory, and it became necessary for her to continue her
clinical training at a different location. In February 2018, three weeks after the
second quarter had already started, Tardif resumed her clinical training at St.
Anthony Hospital in Gig Harbor. Tardif’s performance improved and, by May
2018, she had attained a first rotation competency level. Because Tardif needed
more time to reach the skill level needed to graduate, her clinical supervisors
agreed to extend her program completion date to December 2018 if necessary.
Jenny McBroom, supervisor of the ultrasound department at Seattle
Children’s Hospital, offered Tardif a staff position contingent on her graduation
from the DUTEC program. Tardif had informed McBroom that she was on track
and scheduled to graduate at the end of summer quarter 2018. Tardif’s initial
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start date in August 2018 was deferred until September 2018 as she was not yet
ready to be released for graduation.
On September 6, 2018, Tardif met with clinical instructor Lital Solomon to
review and discuss Solomon’s final evaluation of her performance in DUTEC
240. Prior to the meeting, Solomon had scanned and e-mailed a partially
completed version of Tardif’s evaluation to DUTEC clinical coordinator Leni Karr.
The evaluation included Solomon’s conclusion that “Toni’s competency level is
conditional due to the fact that Jenny McBroom has agreed to continue the
training of Toni for a period of 3 to 6 months if needed.”2 Solomon’s assessment
of Tardif’s competency level as conditional “meant that she had not yet
demonstrated the level of skill necessary to successfully start working with
patients independently without close supervision,” as required to complete her
clinical program and pass DUTEC 240.
During the meeting between Tardif and Solomon, Tardif was upset about
this statement and insisted that Solomon delete it. Solomon refused to do so,
explaining that “it reflected my professional opinion which I was obligated to
provide.” Solomon suggested that Tardif take the evaluation home and think
about it overnight, but Tardif did not want to stop the discussion even after
Solomon stated that she needed to leave. Solomon had nothing else to add, so
she said “whatever” and left. Tardif altered the evaluation form by using white-
out correction fluid to remove the unwanted statement. Tardif then signed the
altered evaluation, scanned it, and e-mailed it to Solomon.
2 According to McBroom, Seattle Children’s Hospital provides ongoing professional
training for its technicians, which is significantly different from clinical instruction for students.
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The following day, Solomon asked Tardif whether there was anything
more she wished to discuss before Solomon submitted the final evaluation form
to Bellevue College. Tardif replied that she did not have any additional
comments and that she was happy with her final grade. Solomon was surprised
but relieved that Tardif appeared to have accepted her evaluation. Solomon
forwarded the altered evaluation via e-mail to Karr and to Terry Hatcher, chair of
the DUTEC program. Karr then telephoned Solomon to discuss the evaluation.
During the course of their conversation, Karr and Solomon discovered that
Solomon’s statement regarding Tardif’s conditional competency was missing
from the version of the evaluation that Tardif had signed.
On September 13, 2018, Karr, Hatcher, and Leslie Heizer Newquist3 met
with Tardif to ask for her understanding of what had occurred. Tardif initially
denied that she had altered the evaluation. When Tardif was asked to produce
the original document showing that Solomon’s comment had been whited out,
she admitted that she did it but claimed that Solomon was present and had
authorized her to do so. A few days later, Tardif sent apology e-mails
acknowledging that altering the evaluation was “fundamentally the wrong process
to get comments changed” and that she was “willing to accept the consequences
of [her] actions.”
On September 10, 2018, Tardif started working as an ultrasonographer at
Seattle Children’s Hospital. McBroom thought that Tardif had graduated from
DUTEC. One week later, Hatcher informed McBroom that Tardif had not yet
3 Leslie Heizer Newquist serves as Bellevue College’s Dean of the Health Sciences,
Education and Wellness Institute.
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finished her clinical instruction and had not yet graduated. McBroom promptly
terminated Tardif’s employment on the ground that she had not graduated and
therefore did not meet the minimum qualifications of the position.
II
On September 17, 2018, Karr submitted an Academic Dishonesty Report
to Bellevue College’s Office of Student Conduct alleging that Tardif had
submitted an altered final evaluation for her DUTEC 240 course. Megan Kaptik,
acting in her capacity as Manager of Student Conduct, initiated a disciplinary
action against Tardif by issuing a Notice of Student Conduct Allegations pursuant
to Bellevue College’s Student Conduct Code. On September 21, Kaptik met with
Tardif and her “support person” for a disciplinary meeting to discuss the
allegations, hear her response, and review possible consequences. Tardif
explained her actions by claiming that when Solomon said “whatever,” and got up
to leave, Tardif “thought that was an indication that I could white it out” and that
Solomon “saw me whiting it out as she was packing up.” However, at a follow-up
meeting on September 27, Solomon denied authorizing Tardif to alter the
evaluation and confirmed that she was unaware that this had occurred until she
spoke with Karr on September 7.
On October 1, 2018, Kaptik issued a letter of discipline finding Tardif
responsible for violating three provisions of the Bellevue Student Code: (1)
Academic Dishonesty - Fabrication, in violation of WAC 132H-125-030(1)(c); (2)
Other Dishonesty, in violation of WAC 132H-125-030(2)(a); and (3) Ethics
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Violation, in violation of WAC 132H-125-030(20).4 Kaptic sanctioned Tardif with
disciplinary probation until July 1, 2019 and a deferred disciplinary sanction of
one quarter. The letter of discipline notified Tardif of her right to appeal the
disciplinary action with Bellevue College’s conduct review officer within 21 days
of the decision.
On October 21, 2018, Tardif timely appealed the disciplinary sanction,
thereby triggering a Brief Adjudicative Proceeding (BAP). On November 5, Dr.
Kristen Jones, Bellevue College’s Provost for Academic and Student Affairs,
conducted the BAP in her capacity as Conduct Review Officer and issued a
written decision on November 16. Dr. Jones upheld Kaptic’s determination that
Tardif violated WAC 132H-125-030(2)(a), which prohibits acts of dishonesty
including “alteration . . . of any college document.” Dr. Jones concluded that
by ending the conversation with “whatever,” Solomon indicated to
Respondent that the issues Respondent had raised about the Note
were not important to her. This expression of indifference toward
issues related to the Note, however, cannot reasonably be
interpreted as Solomon granting Respondent permission to remove
the Note.
Dr. Jones also noted that Tardif acknowledged that her action was “a
violation of [Bellevue College] and program rules.” However, Dr. Jones found
Tardif not responsible for Academic Dishonesty – Fabrication in violation of WAC
132H-125-030(1)(c) and Ethics Violation WAC 132H-125-030(20). Based on
these determinations, Dr. Jones voided Kaptic’s original sanction and instead
4 Bellevue College Student Conduct Code, chapter 132H-125, was repealed effective
January 17, 2019, and recodified as chapter 132H-126.
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imposed a written reprimand stating that “continuation of the same or similar
behavior may result in more severe disciplinary action.”
Tardif appealed the BAP decision to Bellevue College President Girard
Weber on December 6, 2018. Because he did not respond within 20 days, the
appeal was deemed denied pursuant to WAC 132H-125-250(4). Nevertheless,
on February 19, 2019, President Weber notified Tardif that he saw “no reason to
overturn” the decision. The notice informed Tardif that she could appeal
Bellevue College’s disciplinary decision in superior court by filing a petition for
judicial review. Tardif did not do so.
III
As a result of her misconduct, Tardif received a failing grade in DUTEC
240. In a letter to Tardif dated October 2, 2018, Hatcher noted that Tardif had
“altered [her] final evaluation” and that “the outcome for cheating is a zero on that
evaluation.” Because “[f]ailing a course or cheating, is grounds for dismissal,”
Hatcher dismissed Tardif from the DUTEC Program.
Tardif formally initiated a grade dispute procedure by appealing her
DUTEC 240 failing grade with Dean Newquist. On January 28, 2019, Newquist
issued a written decision pursuant to Bellevue College’s Student Dispute
Resolution Procedure stating that she did not find a sufficient basis to override
the failing grade. Newquist noted that her investigation of the matter
corroborated Dr. Jones’s findings and conclusions that Tardif’s “unauthorized
alteration of the document constitutes a submission of a falsified college
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No. 82802-9-I/8
document” and that her failing grade was “not arbitrary and capricious or
unlawful.”
Tardif appealed Dean Newquist’s decision to the Student Academic
Grievance Committee (SAGC). After meeting with Tardif, Karr, and Kaptic on
March 12, 2019, the SAGC issued Recommendations and Findings of Fact. The
SAGC found that Tardif committed “Academic Dishonesty – Fabrication”5 and
that she violated the “Legal, Moral and Ethical Behavior and Cheating Policy” of
the DUTEC Student Handbook Policy. The SAGC recommended that Tardif’s
failing grade should stand. However, noting that Solomon’s evaluation was
incomplete when she gave it to Tardif, the SAGC recommended invalidating her
dismissal from the DUTEC program and giving her an opportunity to complete
her training provided that she comply with certain conditions.
As the final step in the academic grievance procedure, Dr. Jones reviewed
the SAGC’s Recommendations and Findings of Fact. On March 28, 2019, after
considering Tardif’s complaint, supporting statements, and other correspondence
and materials related to her appeal, Dr. Jones issued a written decision stating
that she agreed with the SAGC’s recommendations.
In June 2019, Hatcher e-mailed Tardif to ask whether she was ready to
begin her retraining. Tardif did not respond. On January 21, 2020, Tardif filed a
lawsuit against Bellevue College, Hatcher, and Karr (collectively Bellevue
College). Tardif pleaded claims of breach of contract, tortious interference with a
5 The SAGC incorrectly stated that Dr. Jones concluded that Tardif was responsible for a
violation of “Academic Dishonesty-Fabrication.” In fact, Jones determined that Tardif was
responsible for a violation of “Other Dishonesty.”
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contract, and negligence. Bellevue College thereafter moved for summary
judgment. On June 3, 2021, the trial court granted summary judgment in favor of
Bellevue College and dismissed all of Tardif’s claims. The order of dismissal
specified that collateral estoppel precluded relitigation of Bellevue College’s final
decisions in Tardif’s disciplinary and grade dispute appeals. On August 5, 2021,
the trial court granted Tardif’s motion for entry of judgment regarding the
defendants’ cost bill and entered judgment against Tardif. Tardif appeals.
IV
Tardif first argues that the trial court erred in concluding that collateral
estoppel barred relitigation of the factual issues underlying Bellevue College’s
disciplinary and grade dispute decisions. We disagree, and conclude that
summary judgment dismissal was proper on this basis.
“We review summary judgment orders de novo, considering the evidence
and all reasonable inferences from the evidence in the light most favorable to the
nonmoving party.” Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015).
We will affirm a summary judgment order only “if there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.”
Woods View II, LLC v. Kitsap County, 188 Wn. App. 1, 18, 352 P.3d 807 (2015).
We also review de novo whether collateral estoppel bars relitigation of a
particular issue. LeMond v. Dep’t of Licensing, 143 Wn. App. 797, 803, 180 P.3d
829 (2008).
“The doctrine of collateral estoppel is well known to Washington law as a
means of preventing the endless relitigation of issues already actually litigated by
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the parties and decided by a competent tribunal.” Reninger v. Dep’t of Corr., 134
Wn.2d 437, 449, 951 P.2d 782 (1998). Courts often apply collateral estoppel
when an issue was adjudicated by an administrative agency in an earlier
proceeding. Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299,
307, 96 P.3d 957 (2004). The party asserting collateral estoppel must establish
that “(1) the issue decided in the earlier proceeding was identical to the issue
presented in the later proceeding; (2) the earlier proceeding ended in a judgment
on the merits; (3) the party against whom collateral estoppel is asserted was a
party to, or in privity with a party to, the earlier proceeding; and (4) application of
collateral estoppel does not work an injustice on the party against whom it is
applied.” Christensen, 152 Wn.2d at 307. “‘Washington courts focus on whether
the parties to the earlier proceeding had a full and fair hearing on the issue.’”
Hadley v. Maxwell, 144 Wn.2d 306, 311, 27 P.3d 600 (2001) (quoting Neff v.
Allstate Ins. Co., 70 Wn. App. 796, 801, 855 P.2d 1223 (1993)). In considering
whether collateral estoppel applies to an administrative decision, we additionally
consider “‘(1) whether the agency acting within its competence made a factual
decision; (2) agency and court procedural differences; and (3) policy
considerations.’” Shoemaker v. City of Bremerton, 109 Wn.2d 504, 508, 745
P.2d 858 (1987) (quoting State v. Dupard, 93 Wn.2d 268, 275, 609 P.2d 961(1980)).
Tardif argues that the first factor is not present herein because her
complaint for money damages is entirely distinct from the disciplinary and grade
matters addressed in Bellevue College’s administrative proceedings. To the
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No. 82802-9-I/11
contrary, regardless of the relief sought, Tardif’s complaint turns on factual issues
that were decided in the prior proceedings: (1) whether Bellevue College
improperly saddled her with additional course and graduation requirements by
determining that her competency level was conditioned on additional clinical
training and (2) whether she had permission to alter her evaluation. The first
factor applies.
As to the second factor, Tardif argues that there was no final judgment on
the merits because Bellevue College was not acting in a judicial capacity and the
parties did not have an opportunity to litigate.6 She emphasizes the relative
informality of Bellevue College’s administrative proceedings as compared to
litigation in a court of law. However, Bellevue College is an “agency” and its
administrative proceedings are defined as “adjudicative proceedings.” RCW
34.05.010(1), (2). These proceedings afforded Tardif the essence of due
process—notice, an opportunity to be heard, and multiple levels of appellate
review. Tardif was allowed to have an attorney (although she apparently chose
not to), call witnesses, submit documents, and ask questions. The final decisions
were rendered by professionals acting within their competence who applied
established codes and procedures and issued written findings and conclusions.
And because Tardif did not seek judicial review of these orders, even after being
notified of its availability, they became the final resolution of the factual issues
addressed therein.
6 Tardif does not dispute that the parties were in privity.
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Regarding the fourth factor, Tardif argues that applying collateral estoppel
will work an injustice because it will deny her the opportunity to litigate in court.
Addressing this standard requires us to “consider whether ‘the party against
whom the estoppel is asserted [had] interests at stake that would call for a full
litigational effort.’” Weaver v. City of Everett, 4 Wn. App. 2d 303, 421 P.3d 1013(2018) (alteration in original) (quoting 14 LEWIS H. ORLAND & KARL B. TEGLAND,
WASHINGTON PRACTICE: TRIAL PRACTICE, CIVIL § 373, at 763 (5th ed. 1996)), aff’d,
194 Wn.2d 464, 450 P.3d 177 (2019).
Our Supreme Court’s opinion in Weaver v. City of Everett, 194 Wn.2d 464,
450 P.3d 177 (2019), is instructive. In Weaver, a firefighter contracted
melanoma and filed an application for temporary disability benefits for the five
weeks of work he missed while recovering from surgery. His claim consisted
solely of $10,000 in lost wages. Weaver, 194 Wn.2d at 469. The Department of
Labor and Industries found that the melanoma was not work related and denied
the claim. Weaver, 194 Wn.2d at 470. Weaver appealed to the Industrial
Insurance Appeals Board. An administrative law judge (ALJ) affirmed the
Department’s denial of Weaver’s claim, and the Board denied Weaver’s petition
for review. Weaver, 194 Wn.2d at 470.
Three years later, after the melanoma at issue in his first claim had spread
to his brain, Weaver filed a permanent disability claim seeking pension benefits
worth over $2 million, which the Department denied. Weaver, 194 Wn.2d at 471.
On appeal, the ALJ concluded that the claim was precluded by collateral
estoppel, the Board denied Weaver’s petition for review, and the superior court
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No. 82802-9-I/13
affirmed. This court reversed, and our Supreme Court agreed, holding that
collateral estoppel “would work an injustice and contravene public policy”
because “the substantial disparity of relief between Weaver’s temporary and
permanent disability claims kept Weaver from fully and vigorously litigating the
issue at the temporary disability claim stage.” Weaver, 194 Wn.2d at 473.
Unlike in Weaver, the significant interest at stake herein—her academic
and professional standing—remained the same in both proceedings.7 Bellevue
College’s administrative proceedings afforded Tardif the opportunity to litigate the
issue of whether extraneous requirements were imposed upon her and whether
she had permission to alter the evaluation. She had sufficient motivation to do
so. Tardif unilaterally decided not to seek judicial review of these orders.
Applying collateral estoppel at this point does not work an injustice. Tardif could
have sought judicial review. She did not. It was her own decision to deny herself
her “day in court.” She cannot now relitigate the settled issues in this lawsuit.
V
Tardif additionally contends that genuine issues of material fact preclude
summary judgment dismissal of her claims for breach of contract, tortious
interference with a contract, and negligence. We disagree.
A
To prevail in a breach of contract action, “the plaintiff must prove that a
valid agreement existed between the parties, the agreement was breached, and
7 Unlike the claimant in the Weaver matter, who faced payment of expert witness bills in
an amount greatly exceeding the initial $10,000 claim amount, 4 Wn. App. 2d at 310 n.2, Tardif
did not face huge out-of-pocket expenses in order to pursue her claim of administrative error.
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No. 82802-9-I/14
the plaintiff was damaged.” Univ. of Wash. v. Gov’t Emps. Ins. Co., 200 Wn.
App. 455, 467, 404 P.3d 559 (2017). Tardif’s breach of contract claim alleged
that “Bellevue College materially breached its agreement with [her] by adding
course requirements that were not in the student handbook, course catalog,
course syllabus, or any other written document forming the contract between the
parties.” This is so, she contends, because Hatcher and Karr “added a three to
six months training program from Seattle Children’s Hospital as a condition to
[her] final evaluation and course DUTEC 240.”
But Tardif has not shown the existence of a genuine issue of material fact
regarding Solomon’s determination that her competency level was “conditional”
because “she had not yet demonstrated the level of skill necessary to
successfully start working with patients independently without close supervision,”
as required to complete her clinical program and pass DUTEC 240. Bellevue
College did not owe Tardif a contractual duty to permit her to graduate without
her achieving the minimum required level of clinical competency. Rather than
imposing an additional requirement, Bellevue College determined that Tardif
needed more time to meet established program requirements. Tardif’s claim
fails.
B
Tardif next argues that the trial court erred in dismissing her tortious
interference claim. To establish tortious interference with a contractual
relationship or business expectancy, a plaintiff must prove five elements: “‘(1)
[T]he existence of a valid contractual relationship or business expectancy; (2)
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No. 82802-9-I/15
that defendants had knowledge of that relationship; (3) an intentional interference
inducing or causing a breach or termination of the relationship or expectancy; (4)
that defendants interfered for an improper purpose or used improper means; and
(5) resultant damage.’” Tacoma Auto Mall, Inc. v. Nissan N. Am., 169 Wn. App.
111, 132, 279 P.3d 487 (2012) (alteration in original) (quoting Leingang v. Pierce
County Med. Bureau, Inc., 131 Wn.2d 133, 157, 930 P.2d 288 (1997)).
Tardif argues that Bellevue College intentionally and improperly interfered
with her valid contractual expectancy in employment at Seattle Children’s
Hospital. This is so, she contends, because she met the standards of academic
performance established in the published course descriptions and syllabus, and
Bellevue College acted arbitrarily and capriciously by making her ability to pass
DUTEC 240 conditional upon further training by her employer.
Courts may consider arbitrary and capricious actions as evidence of
improper means. Greensun Grp., LLC v. City of Bellevue, 7 Wn. App. 2d 754,
773, 436 P.3d 397 (2019). “‘Arbitrary and capricious refers to willful and
unreasoning action, taken without regard to or consideration of the facts and
circumstances surrounding the action.’” Greensun, 7 Wn. App. 2d at 774
(internal quotation marks omitted) (quoting Singh v. Covington Water Dist., 190
Wn. App. 416, 424, 359 P.3d 947 (2015)). Solomon’s determination that Tardif
needed more time and practice to achieve the level of clinical competency
needed to graduate was not improper. Also not improper was Hatcher’s decision
to assign Tardif a failing grade in DUTEC 240 based on her misconduct. Tardif
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did not graduate, and therefore did not meet the minimum qualifications of the
job, because of her own actions.
C
Tardif next argues that genuine issues of material fact preclude summary
judgment on her negligence claim. “A negligence claim requires the plaintiff to
establish (1) the existence of a duty owed, (2) breach of that duty, (3) a resulting
injury, and (4) a proximate cause between the breach and the injury.” Behla v.
R.J. Jung, LLC, 11 Wn. App. 2d 329, 334, 453 P.3d 729 (2019). Whether a duty
exists is a question of law. Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43,
48, 914 P.2d 728 (1996).
Tardif asserts that Bellevue College breached its duty by failing to protect
her from “academic evaluation that is arbitrary, prejudiced, or capricious”
pursuant to WAC 132H-126-020(1)(c). She claims that this breach resulted from
the imposition of extra course requirements that were not imposed on other
students. As previously discussed, Tardif presents no evidence that Bellevue
College imposed additional course requirements. Rather, she needed additional
time to complete established graduation requirements. More fundamentally, the
proximate cause of Tardif’s alleged damages was her own misconduct in altering
the evaluation. This claim also fails.
Affirmed.
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WE CONCUR:
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