John Boespflug, Appellant/cross V Wa State Dept. Of L & I, Respondent/cross

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
JOHN BOESPFLUG, an individual, ) No. 83301-4-I
)
Appellant, )
)
v. )
)
STATE OF WASHINGTON, )
DEPARTMENT OF LABOR )
AND INDUSTRIES, ) UNPUBLISHED OPINION
)
Respondent. )
)
VERELLEN, J. — John Boespflug appeals the summary judgment order
dismissing his claims of whistleblower retaliation under RCW 42.40.050. This
appeal presents an issue of first impression, whether we should apply the
McDonnell Douglas1 burden-shifting scheme to a summary judgment of a claim of
whistleblower retaliation under RCW 42.40.050(1)(a) or whether we should apply
the statute’s rebuttable presumption standard under section .050(2). But because
the outcome is the same under either standard, we need not decide this issue.
To avoid summary judgment on a whistleblower retaliation claim, the
employee must establish a prima facie case of retaliation: that the employee
engaged in a protected activity, that the employer took an adverse action, and that
1 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.
Ed. 2d 668 (1973).
No. 83301-4-I/2
the protected activity caused the adverse action. After the employee establishes a
prima facie case of retaliation, under section .050(2), the burden shifts back to the
employer to prove that there were “justified reasons” for the adverse action and
that “improper motive” was not a substantial factor. Similarly, but not identically,
under the McDonnell Douglas standard, the burden of production shifts back to the
employer to show that there were “legitimate reasons” for the adverse action.2 If
the employer is successful, the burden of production shifts back to the employee
to show that the employer’s reasons were pretextual.3
Here, Boespflug establishes a prima facie showing that he is a
whistleblower. There are questions of fact whether the failure by the Department
of Labor & Industries (the Department) to provide him an ergonomic evaluation
before assigning him a newer vehicle was a reprisal or retaliatory action, whether
his whistleblower status caused his vehicle reassignment without an ergonomic
evaluation, whether the Department’s failure to conduct an ergonomic evaluation
was “justified,” and whether improper motive was not a substantial factor. And
even if we apply the McDonnell Douglas burden-shifting scheme, Boespflug
establishes that there are questions of fact regarding whether the Department’s
motivation in failing to conduct an ergonomic evaluation was pretextual.
Because Boespflug fails to establish that his other alleged acts of
retaliation, present genuine issues of material fact under either the McDonnell
2 Id. at 802.
3 Id. at 797.
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No. 83301-4-I/3
Douglas burden-shifting scheme or the rebuttable presumption of section .050(2),
the trial court properly granted summary judgment in favor of the Department as to
those alleged acts of retaliation.
Therefore, we affirm in part and reverse in part.
FACTS
Many of the underlying facts are undisputed. In 1987, John Boespflug was
hired as an electrical inspector and compliance officer for the Department. As an
electrical inspector, Boespflug’s job was to ensure that electrical installations were
safe and satisfied the minimum safety codes. Boespflug was assigned to
inspection area 4 in the vicinity of Bonney Lake. In 2014, Jeffrey Ault became
Boespflug’s supervisor.
In February 2015, Janet Morris, the regional administrator for the
Department, received a complaint from Rian Gorden, the owner of ERS Group
LLC, expressing his dissatisfaction with Boespflug’s failure to call ahead before
arriving at inspection sites.
Later that month, Boespflug inspected a site in which Kraft Electric was
installing a new circuit for a tanning bed. After Boespflug’s inspection, he wrote
warning citations to Kraft Electric. A few months later, Ault deleted Boespflug’s
citations.
In March 2015, Boespflug inspected a Pacific Air Systems installation. As a
result of the inspection, Boespflug wrote various citations to Pacific Air. That May,
Ault sent Boespflug an e-mail stating that he had received complaints from various
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No. 83301-4-I/4
contractors and requested that Boespflug follow standard work procedures and
call ahead before arriving at inspection sites. In July, Boespflug received a call
from Lauren Hines, a permit technician with the City of Bonney Lake, who
informed him that Pacific Air had changed its corporate business license and
therefore, the citations Boespflug issued were “moot.”4 In April 2016, Bob Matson,
another inspector, told Boespflug that Ault deleted the citations he issued to Kraft
Electric in 2015.
On April 21, 2016, Boespflug filed a complaint (whistleblower complaint
number 1), with Nancy Kellogg, an assistant attorney general for the Department,
expressing his dissatisfaction with Ault’s handling of the citations he issued to Kraft
Electric and Pacific Air.
In May 2016, Dixie Shaw, the human resources liability and prevention
manager for the Department, investigated the allegations Boespflug made against
Ault, which related to Ault’s alleged favoritism of “certain customers and
contractors.”5
That June, Boespflug reinspected an ERS Group installation at an existing
mobile home for a new accessory dwelling unit. Boespflug noted that the
installation was “far from being in compliance” and issued nine corrections to ERS
Group.6 About a month later, the original inspector told Boespflug that the lead
4 CP at 1319.
5 CP at 188.
6 CP at 2100.
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No. 83301-4-I/5
electrical inspector, Michael Hulbert, asked him to “make [Boespflug’s] inspection
go away.”7
In August, Ault received another complaint about Boespflug’s failure to call
ahead before arriving at an inspection site. That September, Ault sent Morris an
e-mail asking her advice on how to ensure that Boespflug follows standard work
procedures when he “flatly refuses” to call ahead before arriving at inspection
sites.8
On September 6, 2016, Boespflug filed a complaint (whistleblower
complaint number 2) with Cynthia Baxley-Raves, the Department’s personal
liaison to the state auditor, expressing his concerns with Ault’s handling of the
citations he issued to ERS Group. The next day, Baxley-Raves interviewed
Boespflug. During the interview, Boespflug expressed his dissatisfaction with
management, noting that Morris “has a difficult management style” and that Ault “is
not competent.”9
A month later, Shaw completed her investigation. Shaw concluded that
there was “a lack of direct evidence” supporting Ault’s alleged “favorable
treatment” but recommended that the allegations be reviewed by a technical
specialist within the electrical program.10 Soon after, Rob Mutch, a technical
7 Id.8 CP at 112.
9 CP at 186.
10 CP at 200.
5
No. 83301-4-I/6
specialist with the Department, provided a review of the inspection and suggested
that various corrections be made to the citations Boespflug issued to ERS Group.
On October 26, 2016, Ault submitted a performance evaluation of
Boespflug. In the evaluation, Ault stated that Boespflug was “above the office
average” in conducting inspections, but noted that Boespflug needed to follow
standard work procedures by “making access calls” before visiting inspection sites
and “charging trip fees” for inspections.11 On October 31, Morris reviewed
Boespflug’s performance evaluation.
Around this time, Boespflug inspected the City of Bonney Lake’s Fennel
Creek sewage lift station. As a result of this inspection, Boespflug wrote two
corrections. At the direction of Stephen Thornton, the chief of the electrical
program, Ault subsequently deleted Boespflug’s corrections.
In November 2016, Ault attended a conference with the state auditor’s
office for a complaint that was filed against him for showing “favoritism to certain
customers.”12 That month, Ault discovered that Boespflug was the complainant.
Between November and December 2016, Ault sent various e-mails to
Boespflug asking him to follow standard work procedures, noting specifically that
Boespflug failed to charge a trip fee when inspecting McCoy Electric’s electrical
installation and that he failed to correct various errors in the citations he issued to
ERS Group.
11 CP at 120.
12 CP at 103.
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No. 83301-4-I/7
On December 9, 2016, Boespflug filed a complaint with the Washington
State Human Rights Commission (whistleblower complaint number 3) regarding
Ault’s handling of the citations Boespflug wrote to the City of Bonney Lake’s
Fennel Creek sewage lift station. In January 2017, Ault sent Boespflug an e-mail
stating that he would be receiving a newer vehicle with snow tires. The
Department did not conduct an ergonomic evaluation before assigning Boespflug
his newer vehicle.
That February, Boespflug filed a complaint with the state auditor’s office
(whistleblower complaint number 4) expressing his concerns that a “Department
employee [was] instructing electrical inspectors to approve installations that are
not up to code.”13 That month, Boespflug’s inspection area was relocated from
inspection area 4, to inspection area 5, in the vicinity of Eatonville where
Boespflug resided. Boespflug did not object to the inspection area relocation.
Boespflug sued alleging whistleblower retaliation under chapter 42.40
RCW. In June 2020, the trial court issued its oral decision granting summary
judgment in favor of the Department. Boespflug filed a motion for reconsideration.
In July, Boespflug filed a notice of appeal.
That August, the trial court granted Boespflug’s motion for reconsideration
in part, stating that Boespflug’s vehicle reassignment presented issues of material
fact sufficient to proceed to the jury. The Department moved to vacate the trial
court’s order on reconsideration because Boespflug’s appeal was already pending.
13 CP at 1557.
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No. 83301-4-I/8
Neither party sought the permission of this court to allow the entry of the order on
reconsideration. In September 2020, the trial court granted the Department’s
motion to vacate its order on reconsideration.
Boespflug appeals the summary judgment dismissing his claims.
ANALYSIS
I. Whistleblower Retaliation and the McDonnell Douglas Framework
As a preliminary matter, this case presents an issue of first impression,
whether the proper framework for analyzing a whistleblower retaliation claim on
summary judgment is the rebuttable presumption standard in the whistleblower
retaliation statute, RCW 42.40.050, or under the McDonnell Douglas burden-
shifting scheme.
Inherent in any actionable claim for retaliation are three concepts: (1) a
protected activity, (2) an adverse action, and (3) a causal relationship between the
protected activity and the adverse action.14 As a consequence of this causal
requirement, the employer or the agency must have knowledge or suspicion of the
protected activity.15 These concepts inherent to retaliation take the form of
elements required for a plaintiff to establish a prima facie case of retaliation.16
Specifically, they are the elements of a statutory cause of action for whistleblower
retaliation under chapter 42.40 RCW.
14 See RCW 42.40.050. Without a causal relationship, an action for
retaliation would take the form of strict liability.
15 RCW 42.40.050.
16 Id.8
No. 83301-4-I/9
In the area of discrimination, our courts have adopted the McDonnell
Douglas burden-shifting scheme “[w]here a plaintiff lacks direct evidence” of the
discrimination.17 Under the McDonnell Douglas standard, a “plaintiff bears the
initial burden of establishing a prima facie case,” but once the plaintiff has satisfied
their initial burden, there is “a presumption of discrimination.”18 Specifically, “[i]f
the plaintiff satisfies the McDonnell Douglas burden of production requirements,
the case proceeds to trial, unless the judge determines that no rational fact finder
could conclude that the action was discriminatory,”19 thereby making it easier on a
plaintiff who may not have direct evidence of the discrimination.
The only published decision addressing a claim of whistleblower retaliation
and the McDonnell Douglas burden-shifting scheme is Milligan v. Thompson.20
But in Milligan, an employee asserted a claim under the Washington Law Against
Discrimination, specifically, RCW 49.60.210, discrimination against a person
opposing unfair practices.21 The employee claimed that his employer “retaliated
against him by denying him the chance to work on Indian related issues.”22
Consistent with all claims made under chapter 49.60 RCW, the court adopted the
McDonnell Douglas standard and noted that to establish a prima facie case of
17 Scrivener v. Clark Coll., 181 Wn.2d 439, 445, 334 P.3d 541 (2014).
18 Id. at 446.
19 Id.
20 110 Wn. App. 628, 42 P.3d 418 (2002).
21 Id. at 638.
22 Id.
9
No. 83301-4-I/10
retaliatory discrimination on summary judgment, the employee must establish:
“(1) he engaged in a statutorily protected activity, (2) [the employer] took [an]
adverse employment action against him, and (3) there is a causal link between the
activity and the adverse action.”23 The court also concluded that “[t]he burden-
shifting scheme is the same [for retaliation claims] as for discrimination claims.”24
The court’s approach in Milligan is consistent with our unpublished
decisions adopting the McDonnell Douglas burden-shifting scheme to claims of
whistleblower retaliation under RCW 42.40.050, the statute at issue here.25 But no
23
Id. (citing Francom v. Costco Wholesale Corp., 98 Wn. App. 845, 862,
991 P.2d 1182 (2000)).
24Id. (citing Wilmont v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 68-
69, 821 P.2d 18 (1991)).
25 Notably, RCW 42.40.050(1)(a) expressly provides for a remedy under
chapter 49.60 RCW. In Woodbury v. City of Seattle, this court recognized the
relationship between the statutes, stating that “Chapter 42.40 RCW is the
analogous whistle-blower protection statute for state government, as opposed to
local government, employees. Chapter 49.60 RCW, Washington’s law against
discrimination, states that it includes whistleblowers as defined in chapter 42.40
RCW.” 172 Wn. App. 747, 752, 292 P.3d 134 (2013) (citing RCW 42.40.050); see
Budsberg v. Trause, No. 46658-8-II, slip op. at 7 n.1 (Wash. Ct. App. Nov. 17,
2015) (unpublished), http://courts.wa.gov/opinions/pdf/D2%2046653-8-
II%20Unpublished%20Opinion.pdf (“Although Milligan addresses the standard for
establishing a prima facie case for retaliation for opposing discriminatory practices
under RCW 49.60.210, this standard is equally applicable to whistleblower
retaliation because a whistleblower claim is derived from the same statute”);
Mendoza de Sugiyama v. State Dep’t of Transp., No. 45087-9-II, slip op. at 9
(Wash. Ct. App. Feb. 10, 2015) (unpublished), http://courts.wa.gov/
opinions/pdf/D2%2045087-9-II%20%20Unpublished%20Opinion.pdf (“RCW
42.40.050 and RCW 49.60.210(2) prohibit retaliation against a whistleblower. To
establish a prima facie case of retaliation, an employee must show that (1) she
engaged in a statutorily protected activity (filing a whistleblower complaint), (2) the
employer took an adverse employment action, and (3) the adverse action was
caused by the employee’s activity.”); Rainy v. State Horse Racing Com’n, noted at
134 Wn. App. 1023, 2006 WL 2131741, at *5 (Wash. Ct. App. Aug. 1, 2006)
(“RCW 42.40.050(2)’s language differs from the McDonnell Douglas burden-
10
No. 83301-4-I/11
published case has expressly addressed the rebuttable presumption contained in
the 2008 and 1999 amendments to RCW 42.40.050.26
Recently, the California Supreme Court addressed a very similar issue in
Lawson v. PPG Architectural Finishes, Inc.,27 whether a whistleblower retaliation
claim under California’s Labor Code is governed by the McDonnell Douglas
framework or the statutory presumption in section 1102.5.28 Similar to
Washington’s 2008 and 1999 amendments, in 2003, California added a procedural
provision to section 1102.5.29 Specifically, section 1102.6 provides,
In a civil action or administrative proceeding brought pursuant to
Section 1102.5, once it has been demonstrated by a preponderance
of the evidence that an activity proscribed by Section 1102.5 was a
contributing factor in the alleged prohibited action against the
employee, the employer shall have the burden of proof to
demonstrate by clear and convincing evidence that the alleged
action would have occurred for legitimate, independent reasons even
if the employee had not engaged in activities protected by Section
1102.5.[30]
shifting analysis by requiring the agency to show, by a preponderance of the
evidence, that the agency’s action was justified by reasons unrelated to the
employee’s whistleblower status. Under McDonnell Douglas, the employer must
simply articulate a legitimate nonretaliatory reason for the adverse employment
action. A McDonnell Douglas employee must then offer evidence that the
employer’s explanations are pretext. RCW 42.40.050(2) says nothing about the
state employee’s burden, if any, to counter the state employer’s nonretaliatory
reasons for its conduct. McDonnell Douglas deals with an obligation to produce
evidence; RCW 42.40.050(2) deals with an obligation to persuade by a
preponderance of the evidence.”) (internal citation omitted).
26 RCW 42.40.050(2).
27 No. S266001, (Cal. Sup. Ct. Jan. 27, 2022), https://www.courts.ca.gov/
opinions/documents/S266001.pdf.
28 Id. at 1.
29 Id. at 7.
30 Id.
11
No. 83301-4-I/12
The court explained that the amendments were designed to “‘encourage earlier
and more frequent reporting of wrongdoing by employees and corporate managers
when they have knowledge of specified legal acts by expanding employee
protection against retaliation.’”31 The court held that “section 1102.6, and not
McDonnell Douglas, supplies the applicable framework for litigating and
adjudicating section 1102.5 whistleblower retaliation claims.”32
The California Supreme Court’s holding in Lawson is inconsistent with the
trend of our unpublished decisions that apply the McDonnell Douglas burden-
shifting scheme to whistleblower retaliation claims. And the briefing here does not
address all of the complexities acknowledged in Lawson.33 But we need not
decide this issue of first impression because here, the outcome is the same under
the rebuttable presumption standard in RCW 42.40.050(2) and the McDonnell
Douglas burden-shifting scheme.
31
Id. (quoting Assem. Com. On Judiciary, Analysis of Sen. Bill No. 777
(2003-2004 Reg. Sess.), as amended May 29, 2003, p. 1).
32 Id. at 9.
33 For example, Lawson notes that some case law suggests that the
McDonnell Douglas shifting burden of production scheme on motion practice may
be compatible with the statutory rebuttable presumption because the first step of
establishing a retaliation claim “requires plaintiffs to prove the employer’s
retaliatory intent.” Id. at 11 (citing Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 354, 8
P.3d 1089 (2000)). But other case law rejects that concept because “McDonnell
Douglas is not the only possible method of proving discriminatory or retaliatory
intent.” Id. (citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.
Ct. 613, 83 L. Ed. 2d 523 (1985)).
12
No. 83301-4-I/13
II. RCW 42.40.050
Boespflug contends that the trial court improperly granted summary
judgment in favor of the Department because there are genuine issues of material
fact sufficient to proceed to the jury on his whistleblower retaliation claims.
We review an order granting summary judgment de novo.34 “Summary
judgment is appropriate if there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law.”35 We review the evidence in the
“light most favorable to the nonmoving party.”36 The motion should only be
granted if “‘reasonable persons could reach but one conclusion.’”37 However, bare
assertions that a genuine issue of material fact exists will not defeat summary
judgment.38
The whistleblower retaliation statute, RCW 42.40.050(1)(a) provides, “Any
person who is a whistleblower, as defined in RCW 42.40.020, and who has been
subjected to workplace reprisal or retaliatory action is presumed to have
established a cause of action for the remedies provided under chapter 49.60
RCW.”
34Trimble v. Washington State Univ., 140 Wn.2d 88, 92, 993 P.2d 259(2000) (citing Benjamin v. Washington State Bar Ass’n, 138 Wn.2d 506, 515, 980
P.2d 742 (1999)).
35
Id. at 93 (citing Clements v. Travelers Indem. Co., 121 Wn.2d 243, 249,
850 P.2d 1298 (1993); CR 56 (c)).
36 Id. (citing Clements, 121 Wn.2d at 249).
37 Id. (citing Clements, 121 Wn.2d at 249).
38 Id. (citing White v. State, 131 Wn.2d 1, 9, 929, P.2d 396 (1997)).
13
No. 83301-4-I/14
First, the employee must establish that he is a whistleblower.
RCW 42.40.020 defines the term:
(10)(a) “Whistleblower” means:
(i) An employee who in good faith reports alleged improper
governmental action to the auditor or other public official, as defined
in subsection (7) of this section; or
(ii) An employee who is perceived by the employer as
reporting, whether they did or not, alleged improper governmental
action to the auditor or other public official, as defined in subsection
(7) of this section.
(b) For purposes of the provisions of this chapter and chapter
49.60 RCW relating to reprisals and retaliatory action, the term
“whistleblower” also means:
(i) An employee who in good faith provides information to the
auditor or other public official, as defined in subsection (7) of this
section, and an employee who is believed to have reported asserted
improper governmental action to the auditor or other public official,
as defined in subsection (7) of this section, or to have provided
information to the auditor or other public official, as defined in
subsection (7) of this section, but who, in fact, has not reported such
action or provided such information.
Subsection (7) defines a “public official” as the attorney general’s designee or
designees; the director, or equivalent thereof in the agency where the employee
works; an appropriate number of individuals designated to receive whistleblower
reports by the head of each agency; or the executive ethics board.
Second, the employee must establish that his employer took “adverse
actions” against him. RCW 42.40.050(1)(b) provides:
For the purposes of this section, “reprisal or retaliatory action”
means, but is not limited to, any of the following:
14
No. 83301-4-I/15
(i) Denial of adequate staff to perform duties;
(ii) Frequent staff changes;
(iii) Frequent and undesirable office changes;
(iv) Refusal to assign meaningful work;
(v) Unwarranted and unsubstantiated letters of reprimand or
unsatisfactory performance evaluations;
(vi) Demotion;
(vii) Reduction in pay;
(viii) Denial of promotion;
(ix) Suspension; (x) Dismissal; (xi) Denial of employment;
(xii) A supervisor or superior behaving in or encouraging
coworkers to behave in a hostile manner toward the whistleblower;
(xiii) A change in physical location of the employee’s
workplace or a change in the basic nature of the employee’s job, if
either are in opposition to the employee’s expressed wish;
(xiv) Issuance of or attempt to enforce any nondisclosure
policy or agreement in a manner inconsistent with prior practice; or
(xv) Any other action that is inconsistent compared to actions
taken before the employee engaged in conduct protected by this
chapter, or compared to other employees who have not engaged in
conduct protected by this chapter.[39]
Third, the employee must establish that his “whistleblower activity” caused
the “adverse actions.” The employee can establish causation “by showing that
retaliation was a substantial factor motivating the adverse employment decision.”40
39 (Emphasis added.)
40 Allison v. Hous. Auth. of City of Seattle, 118 Wn.2d 79, 96, 821 P.2d 34(1991).
15
No. 83301-4-I/16
Once the employee establishes a prima facie case of whistleblower
retaliation under RCW 42.40.050(2), the burden shifts back to the employer to
rebut the presumption of retaliation. Subsection (2) provides:
The agency presumed to have taken retaliatory action under
subsection (1) of this section may rebut that presumption by proving
by a preponderance of the evidence that there have been a series of
documented personnel problems or a single egregious event, or that
the agency action or actions were justified by reasons unrelated to
the employee’s status as a whistleblower and that improper motive
was not a substantial factor.
A. Whistleblower
Boespflug claims that he is a whistleblower under RCW 42.40.020(10). We
agree.
First, on April 20, 2016, Boespflug filed an “ethics complaint” with Nancy
Kellogg regarding Ault’s handling of the citations he issued to Pacific Air and Kraft
Electric. Kellogg is an assistant attorney general in the labor and industries
division of the state attorney general’s office who is designated to receive
whistleblower reports. Because Boespflug filed a complaint of “improper
governmental action” to an attorney general “designee,” he is a whistleblower as to
his first complaint.
Second, on September 6, 2016, Boespflug reported a complaint of
“unethical behavior” to Cynthia Baxley-Raves regarding Ault’s handling of citations
Boespflug issued to ERS Group. Baxley-Raves is the Department’s personal
liaison to the state auditor’s office for whistleblower complaints. Because
Boespflug filed a complaint of “improper governmental action” to an employee
16
No. 83301-4-I/17
acting as liaison to the state auditor’s office, he is a whistleblower as to his second
complaint.
Third, on December 9, 2016, Boespflug filed a complaint with the
Washington State Human Rights Commission regarding Ault’s handling of
citations that Boespflug wrote to the City of Bonney Lake’s Fennel Creek sewage
lift station. Boespflug complained to Jacqueline Hawkins-Jones, an investigator
with the auditor’s office, who recommended he submit a complaint to the
Washington State Human Rights Commission. Because Boespflug reported a
complaint of “improper governmental action” to an employee of the state auditor’s
office, he is a whistleblower as to his third complaint.
Fourth, in February 2017, Boespflug filed a complaint with the auditor’s
office expressing his concerns “about a Department employee instructing electrical
inspectors to approve installations that are not up to code.”41 Because Boespflug
filed a complaint of “improper governmental action” with the state auditor’s office,
he is a whistleblower as to his fourth complaint.
Boespflug establishes that he “engaged in statutorily protected activity” as a
whistleblower for all four of his complaints.
B. 2016 Performance Evaluation
Boespflug argues that his 2016 performance evaluation was
“unsatisfactory,” constituting “reprisal or retaliatory action.”42
41 CP at 1557.
42 Appellant’s Br. at 36-37.
17
No. 83301-4-I/18
In October 2016, Boespflug received a performance evaluation from Ault,
the author of the evaluation. In the evaluation, Ault states that Boespflug’s
“inspection stops” were “above the office average,” that he “provides quality
customer service,” and that he “ensures the safety of Washington workers and
citizens.”43
But Ault also stated,
In working with you, I have observed that you do not follow standard
work [procedures] by going directly to a jobsite without first making
access calls, and ensuring that you will have access to perform your
inspection. You leave a door hanger or message for the homeowner
to call and arrange access, and you mark the inspection request as a
recorded stop. This creates unnecessary delay and confusion for
the customer, and causes extra work for those of us in the office that
answer the customer calls. Also, standard work [procedures]
indicate[ ] that if the department spends the resources to go to an
inspection request, then a trip fee is charged to help pay for the
resources that have been utilized.[44]
Even accepting that there are genuine issues of material fact whether the
October 2016 performance evaluation was unsatisfactory, Boespflug must
establish that his whistleblower activity caused Ault to give him the unsatisfactory
performance evaluation. That requires a showing that when Ault made the
evaluation, he knew or suspected Boespflug had engaged in protected activity.
In February 2015, Boespflug inspected a site in which Kraft Electric was
installing a new circuit for a tanning bed. After the inspection, Boespflug issued
43 CP at 1802, 1805.
44 CP at 1805.
18
No. 83301-4-I/19
“four warning citations to Kraft Electric.”45 In April 2016, after discovering that Ault
deleted his citations, Boespflug filed his first complaint. That June, Boespflug
inspected ERS Group’s mobile home service installation. In July, Boespflug
discovered that the mobile home’s service was approved even though Boespflug’s
corrections had not been made. The original inspector told Boespflug that he was
asked to “make [Boespflug’s] inspection go away.”46 That September, Boespflug
filed another complaint. Boespflug contends that the first act of reprisal or
retaliatory action occurred in October 2016 when he received an unsatisfactory
performance evaluation from Ault. But Ault did not know that Boespflug was the
complainant regarding his alleged “favoritism to certain customers” until November
2016, after he had submitted Boespflug’s October 2016 evaluation.47 And there is
no evidence Ault suspected Boespflug had made complaints against him when he
submitted the evaluation. Because retaliation is an “intentional act,” an “employer
cannot retaliate against an employee for an action of which the employer is
unaware.”48 Therefore, Boespflug fails to establish that his whistleblower status
caused his “unsatisfactory” performance evaluation. There are no genuine issues
of material fact; the October 2016 evaluation does not support a violation of the
whistleblower statute.
45 CP at 2100.
46 CP at 2100.
47 CP at 103.
48Cornwell v. Microsoft Corp., 192 Wn.2d 403, 414, 430 P.3d 229 (2018)
(citing Marin v. King County, 194 Wn. App. 795, 818, 378 P.3d 203 (2016)).
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No. 83301-4-I/20
C. November and December 2016 E-mails
Boespflug contends that the e-mails he received from Ault regarding the
McCoy Electric electrical installation and the citations he wrote to ERS Group
constituted retaliatory reprimands.
In evaluating whether the e-mails from Ault to Boespflug amounted to
reprisal or retaliatory action, the context and the content of the e-mails are
critical.49 As to the context, the undisputed facts reveal a history of customer
complaints about Boespflug resulting in disagreements whether he was complying
with standard work procedures including charging trip fees, and this history
predated his whistleblower status.
As to the content, on November 28, 2016, Ault sent an e-mail to Boespflug
regarding Boespflug’s October 17 inspection of the McCoy Electric electrical
installation. The essence of this e-mail is a request for additional information from
Boespflug. For example, Ault asked Boespflug why he did not follow standard
work procedures and charge a trip fee, noting that it appeared Boespflug wrote on
a piece of cardboard “ok to insulate,” and asked why he did not use other standard
procedures to record the result of his inspection. Ault also asked if Boespflug
granted permission to use rebar not connected to the footing or foundation or any
other rebar as a ground. The next day, Boespflug sent an e-mail questioning
whether there was a homeowner permit for the installation, why Ault had not
documented the permit Ault had inspected, and why Ault did not document his
49 See Kahn v. Salerno, 90 Wn. App. 110, 125, 951 P.2d 321 (1998).
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No. 83301-4-I/21
approval of a wall covering. That same day, Ault responded by e-mail asking
Boespflug to answer the questions as set out in his initial e-mail. On December 6,
2016, Boespflug responded, “Reviewed standard work. Trip fee at discretion of
inspector. [N]on warranted.”50 Another inspector completed the project, but there
was no other consequence to Boespflug.
Based upon this context, and the content of the request for more
information, the undisputed facts do not support any reasonable inference that Ault
engaged in retaliation in his November 28 and November 29 e-mails. The
longstanding dispute between Boespflug and Ault regarding the standard work
procedures, including charging for trip fees, preexisted the e-mails, and the
request for additional information was not an unwarranted or unsubstantiated
reprimand.
Similarly, after receiving a complaint from Gordon, the owner of ERS
Group, Ault asked Faith Jeffrey, a compliance team specialist, to reinspect the
ERS Group installation. Jeffrey found various gaps in the citations Boespflug
wrote to ERS Group. On December 6, 2016, Jeffrey sent Ault an e-mail noting the
key areas that Boespflug needed to correct. A few days later, Ault sent Boespflug
an e-mail based upon Jeffrey’s analysis of Boespflug’s citations, which culminated
in Ault asking Boespflug to resubmit the citations based on prior directions he had
received such as to add photos to the file, clarify how he sent a compliance
request to ERS Group, indicate whether he had actually followed-up with others,
50 CP at 1613.
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No. 83301-4-I/22
and explain whether he made a closing phone call. These undisputed facts do not
reveal any act of retaliation in the form of an unwarranted or unsubstantiated
reprimand. Instead, they establish a request that Boespflug address the specific
points Jeffrey made in her review of the citations Boespflug issued to ERS Group.
Therefore, the November and December 2016 e-mails from Ault to
Boespflug do not amount to unwarranted or unsubstantiated reprimands. There
are no genuine issues of material fact.
D. February 2017 Inspection Area Relocation
Boespflug contends that his inspection area relocation constituted reprisal
or retaliatory action because the Department had never relocated him and
therefore it was “inconsistent” conduct.51
In February 2017, after 29 years of working in Bonney Lake inspection area
4, Boespflug was reassigned to Eatonville, inspection area 5. And Boespflug filed
his four whistleblower complaints in the months before he was assigned a new
inspection area. But even accepting that there are genuine issues of material fact
whether Boespflug’s inspection area relocation was inconsistent conduct
compared to actions the Department took before Boespflug was a whistleblower,
Boespflug must establish that his whistleblower activity caused his inspection area
relocation. Ault testified, “Everyone in my office has been assigned [to an
inspection area] closer to their home to improve the[ir] quality of life.”52 Ault also
51 Appellant’s Br. at 38.
52 CP at 70.
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No. 83301-4-I/23
stated that Boespflug was being reassigned because of “[d]ocumented complaints
and issues from the geographical location that he was inspecting previously.” 53
Morris stated, “And it’s always valuable if the inspectors move to different areas
because different areas have different kinds of electrical problems. So it increases
their knowledge, their experience, and those kind of things.”54 Thornton stated
that “the reasoning for [relocation] originally [was due to] a large turnover in staff”
and the Department’s desire to make it more “convenient for the staff.”55
Even viewing the evidence in the light most favorable to Boespflug, he does
not establish that his status as a whistleblower was a substantial motivating factor
in the Department’s decision to relocate him to a different inspection area closer to
home, the same as every other inspector.
Even if Boespflug could establish that his whistleblower status caused his
inspection area relocation, the Department sufficiently rebutted his presumption of
whistleblower retaliation under RCW 42.40.050(2). The Department established
by a preponderance of the evidence that it had justified reasons for moving
Boespflug’s inspection area, namely, that the Department relocated all inspectors
to inspection areas closer to their homes. Therefore, the undisputed facts rebut
any presumption of whistleblower retaliation by demonstrating that there were
justified reasons for the reassignment unrelated to his whistleblower status.
53 CP at 2146.
54 CP at 80-81.
55 CP at 407, 1090-91.
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No. 83301-4-I/24
E. February 2017 Vehicle Reassignment
Boespflug argues that his vehicle reassignment without an ergonomic
evaluation constituted reprisal or retaliatory action because it was “inconsistent”
conduct by the Department “compared to other employees.”56
In January 2017, Ault sent Boespflug an e-mail notifying him that he would
be receiving “a much newer vehicle with new snow tires.”57 Ault also stated that
Boespflug’s vehicle was being replaced because it had almost 115,000 miles on it,
the amount of mileage triggering mandatory replacement.58 But Boespflug did not
receive an ergonomic evaluation before his vehicle was replaced. Bob Matson, a
Department employee, stated that “an ergonomic evaluation is part of the process
to getting any new or used vehicle by motor pool.”59 And Hulbert stated that
before he was assigned a new vehicle, he received an ergonomic evaluation.
Therefore, viewing the evidence in the light most favorable to Boespflug,
there are genuine issues of material fact whether the Department’s failure to
conduct an ergonomic evaluation was inconsistent compared to the treatment of
other employees and was therefore a reprisal or retaliatory action.
The Department contends the testimony of Matson and Hulbert reveal that
an employee must request such an ergonomic evaluation, and Boespflug made no
such request. But that argument depends on viewing the evidence in a light most
56 Appellant’s Br. at 41-42.
57 CP at 1605-08.
58 Boespflug’s vehicle had 105,444 miles on it. See CP at 44.
59 CP 1042.
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No. 83301-4-I/25
favorable to the Department. Viewed in a light most favorable to Boespflug,
especially the testimony of Matson regarding a standard practice, the evidence
establishes genuine issues of material fact whether retaliation was a substantial
factor in the Department’s decision to issue Boespflug a newer vehicle without first
conducting an ergonomic evaluation.
Under the rebuttable presumption of RCW 42.40.050(2), questions of fact
remain whether the Department can rebut the presumption of retaliation by
demonstrating justified reasons unrelated to Boespflug’s whistleblower status.
Therefore, a trial is required.
The Department argues that the proper framework for determining a
whistleblower retaliation claim is the McDonnell Douglas burden-shifting scheme.
Under the McDonnell Douglas framework, the plaintiff still must establish a prima
facie case of whistleblower retaliation. After the plaintiff has established a prima
facie case, the burden shifts back to the employer to produce evidence of
legitimate nonretaliatory reasons for the adverse employment actions. 60 And after
the employer establishes legitimate nonretaliatory reasons for their adverse action,
the burden then shifts back to the employee to show that the employer’s proffered
reasons for the adverse actions were pretextual.”61
Here, even if we apply the McDonnell Douglas standard to Boespflug’s
whistleblower retaliation claims on summary judgment, the outcome is the same.
60 Scrivener, 181 Wn.2d at 446 (citing Grimwood v. Univ. of Puget Sound,
Inc., 110 Wn.2d 355, 363-64, 753 P.2d 517 (1988)).
61 Id.25
No. 83301-4-I/26
Because the testimony of Matson and Hulbert establish a question of fact whether
an ergonomic evaluation was “standard procedure” before assigning an employee
a newer vehicle, Boespflug establishes that there are genuine issues of material
fact as to whether the Department’s “legitimate” reasons were pretextual.
Because here the outcome is the same under both the rebuttable
presumption standard in RCW 42.40.050(2) and the McDonnell Douglas burden-
shifting scheme, we need not decide this issue of first impression.
III. Cross Appeal
In its cross appeal, the Department argues that the trial court erred in
considering various statements in witness declarations because the statements
were hearsay. But because we are reversing summary judgment only on the
issue of Boespflug’s vehicle reassignment, we need only address the hearsay
statements in the Department’s cross appeal pertaining to that issue. The
genuine issues of material fact as to Boespflug’s vehicle reassignment are
supported by the statements for which Boespflug, Hulbert, and Matson had
personal knowledge. There was no abuse of discretion in considering those
statements on summary judgment. We need not address hearsay issues on
unrelated matters presented in the Department’s cross appeal.62
62 We note this opinion does not preclude the Department from raising
specific hearsay and lack of personal knowledge objections at trial based upon the
particular foundation offered at that time.
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IV. Attorney Fees
On remand, consistent with RAP 18.1(i), the trial court should determine
whether Boespflug is entitled to attorney fees and costs under RCW 42.40.050 if
he should prevail at trial.
Therefore, we affirm the summary judgment in favor of the Department
except only the alleged act of retaliation involving the lack of an ergonomic
evaluation for the selection of a replacement vehicle, which presents genuine
issues of material fact.
We reverse in part and affirm in part.
WE CONCUR:
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