Opinion
No. 61838-5-I.
April 20, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-2-37650-0, Paris K. Kallas, J., entered May 30, 2008.
Affirmed by unpublished opinion per Ellington, J., concurred in by Appelwick and Lau, JJ.
UNPUBLISHED OPINION
Bellevue police detective Gary Felt encouraged a junior officer to pursue a discrimination complaint. He alleges that in retaliation, the Bellevue Police Department and the City of Bellevue initiated a malicious criminal prosecution against him for assault of a fellow officer. He contends the prosecution also constituted retaliation in violation of the law against discrimination, chapter 49.60 RCW. But the evidence does not show a nexus between the alleged bias and the decision to prosecute, and Felt thus did not raise a triable issue as to whether improper animus influenced the decision to prosecute. As to the malicious prosecution claim, the City established probable cause, which provides an absolute defense. The trial court did not err in dismissing Felt's claims.
BACKGROUND
Detective Gary Felt spent the last 24 years of his career with the Bellevue Police Department (the Department), where he helped establish the peer counseling program. As part of the program, in December 2003, Felt met with Officer Heidi Moon, who told him she had been sexually assaulted by a fellow officer at her home in Renton. Felt urged Moon to file a criminal complaint with the Renton Police Department (RPD), and personally called the RPD to let them know Moon would be filing a complaint. Later, Felt learned someone with the Department had contacted RPD, and that RPD had declined to investigate Moon's complaint.
Moon also filed an internal complaint with the Department. On May 3, 2004, Felt met with Carolyn Cairns, an attorney hired by the Department to investigate Moon's allegations. Felt told Cairns he had encouraged Moon to file the complaint and expressed his willingness to serve as a witness for Moon if necessary. Felt also expressed concerns about the Department's intervention in the Renton investigation and about the quality of the Department's internal investigation of Moon's allegations. Moon alleges she told then-deputy chief Linda Pillo that Felt was her peer counselor and had assisted her in contacting the RPD.
In February 2005, Moon sued the Department for sexual harassment.
On May 3, 2005, Felt retired from the Department. When he turned in his police gear to Officer Yong Ho Lee, an altercation occurred and the two were observed in loud argument. According to Lee, Felt pointed his gun at Lee's head.
According to Felt, he was angry and may have waved his weapon around by the barrel. Both Lee and Felt reported the incident to their supervisors, Captain Baker and Lieutenant Hershey, respectively, who in turn informed their own supervisors, Major Pentony and Major Quinn.
When Baker asked Lee what he wanted to do about the incident, he said that "as long as I don't have to see [Felt], you know, I just don't want to do anything at that point and just let it be, let him retire and stay away from me." After conferring with Baker, Quinn informed Hershey that it "[d]idn't appear to be anything criminal at this point."
Clerk's Papers at 37.
Id. at 56.
Three days later, Chief James Montgomery contacted Lee. Lee described this as unusual. According to Lee, Montgomery "just [wanted] to assure me that whatever course of action that I decide to take, there is not going to be any kind of repercussion from the administration, you know, frowning upon me, . . . attempting or trying to prosecute another fellow officer." Lee said he told Montgomery he did not want to pursue any action against Felt, but knew the decision was not his to make:
Id. at 37-38.
I think I told him that's what I had initially said. But I also understood, having worked at the department for at that time over 14 years and also having been part of the investigative unit, gang detective for three years, that often times it's just not the victim that decides whether there is going to be prosecution or not. . . . So I knew that even if I said I wasn't, at that point I wasn't going to prosecute, that that was still not, that wasn't going to end there. I mean, we are still going to have to talk it out to see what the best course of action is.
Id. at 39.
According to Chief Montgomery, Lee "felt that he was in fear of his life and wanted to proceed with the investigation." Montgomery recalled that Lee "articulated what had happened and that he wanted to move forward with the case rather than to drop it."
Id. at 45.
Id.
The Department ordered an internal professional standards investigation of the incident. Lieutenant Steve Lynch did the investigation. Lynch concluded employee discipline was not warranted. Lieutenant James Gasperetti then conducted a criminal investigation. When asked how the case became a criminal investigation, Gasperetti said: "Officer Lee had told somebody . . . he felt he had been assaulted. That information somehow got to Major Quinn and Major Quinn then said, Hey, we have an incident here that needs to be investigated as a crime." Gasperetti also heard rumors that a major or deputy chief had encouraged Lee to file a criminal complaint, and Officer Lee told Gasperetti that Baker had said "the [c]hief is thinking in terms of wanting criminal investigation and an internal, to hold [Felt] accountable."
Id. at 85.
Id. at 244. The City argues that the "rumors" are inadmissible evidence that cannot be considered on summary judgment. But the City did not move to strike the evidence or otherwise raise this issue below. Raymond v. Pacific Chemical, 98 Wn. App. 739, 744, 992 P.2d 517 (1999). Accordingly, it is waived. Id.; RAP 2.5(a) (court of appeals may refuse to consider claims not raised in the trial court).
At the end of his investigation, Gasperetti concluded there was probable cause to believe Felt committed second degree assault. The matter was referred to the King County Prosecutor's Office, which declined to file charges. The Department then referred the case to the Bellevue city attorney. Assistant city attorney Jeffrey Torrey filed misdemeanor assault charges in Bellevue District Court. Felt was acquitted.
The record does not reveal why the King County Prosecutor's Office declined to prosecute Felt.
Felt sued the Department and the City for retaliation under RCW 49.60.210 and malicious prosecution. The trial court granted the City's motion for summary judgment.
Analysis
The usual standard of review for summary judgment applies. Felt's two claims are closely intertwined and rest upon the same factual basis.
We review summary judgment decisions de novo, viewing the facts and all reasonable inferences from those facts in the light most favorable to the nonmoving party. Anderson v. State Farm Ins. Co., 101 Wn. App. 323, 329, 2 P.3d 1029 (2000). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. CR 56(c).
At oral argument, Felt's attorney clarified that both claims rest on Felt's prosecution in the Bellevue Municipal Court, and not on the criminal or the disciplinary investigation conducted by the Department.
Retaliation
RCW 49.60.210 prohibits retaliation against a person for opposing a discriminatory practice forbidden by chapter 49.60. In order to establish a prima facie case under the statute, a plaintiff must show he engaged in a statutorily protected activity, had an adverse employment action taken against him, and a substantial motive behind the adverse action was retaliation for the protected conduct. Direct evidence of such a motive is often not available. A plaintiff may make a prima facie case by showing that the employee was engaged in statutorily protected activity, that the employer had knowledge of the activity, and that an adverse employment action was taken. The burden then shifts to the employer to demonstrate a legitimate reason for the adverse employment decision, in which case the burden shifts back to the employee to create a genuine issue of fact that the employer's alleged reason is merely a pretext.
See Kahn v. Salerno, 90 Wn. App. 110, 128, 951 P.2d 321 (1998).
Wilmot v. Kaiser Aluminum Chem. Corp., 118 Wn.2d 46, 69, 821 P.2d 18 (1991) ("'Ordinarily the prima facie case must, in the nature of things, be shown by circumstantial evidence, since the employer is not apt to announce retaliation as his motive.'") (quoting 1 L. Larson, Unjust Dismissal § 605(5), at 6-51 (1988)).
Kahn, 90 Wn. App. at 131.
Renz v. Spokane Eye Clinic, P.S., 114 Wn. App. 611, 618, 60 P.3d 106 (2002). This is a production burden; the employer must produce relevant admissible evidence of another motivation, but need not do so by the preponderance of evidence necessary to sustain the burden of persuasion. See Wilmot, 118 Wn.2d at 70.
Renz, 114 Wn. App. at 619.
For purposes of summary judgment, the City conceded that Felt engaged in protected activity and that an adverse employment decision was taken. The City contended Felt failed to present evidence suggesting that retaliatory bias influenced the results of the criminal investigation or caused the prosecution. The trial court agreed. Despite finding questions of fact as to whether bias or animus existed against Felt, the court dismissed his claims because he presented no evidence that the decisions made by Gasperetti and Torrey were not independent and unbiased.
We agree. There is nothing in the record to support Felt's allegations that Gasperetti and Torrey were acting out of retaliatory motive. Torrey did not know Felt or Lee, and both Torrey and Gasperetti learned about Felt's role in the Moon case only after they made their respective decisions. Both denied any effort to exert influence over them. To survive summary judgment, Felt must therefore show a genuine issue of fact justifying imputation of retaliatory bias to Gasperetti and Torrey.
Felt relies upon an alternative theory of retaliation liability called the subordinate bias or cat's paw theory, developed by federal courts, under which the animus of a nondecisionmaker who has a singular influence may be imputed to the decision-maker. However, when a decision is based on an independent investigation by an unbiased decision-maker, any causal link between a subordinate's retaliatory animosity and the adverse action is severed.
Washington courts may consider federal antidiscrimination jurisprudence when resolving issues of state law. See, e.g., Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 180, 23 P.3d 440 (2001), rev'd on other grounds, McClarty v. Totem Elec., 157 Wn.2d 214, 317 P.3d 844 (2006).
See, e.g., Staub v. Proctor Hosp., ___ F.3d ___, 2009 WL 764157 (C.A.7 Ill.); Arendale v. City of Memphis, 519 F.3d 587, 605 n. 13 (6th Cir. 2008); EEOC v. BCI Coca-Cola Bottling Co., 450 F.3d 476, 484 (10th Cir. 2006).
See, e.g., BCI Coca-Cola, 450 F.3d at 485; Lacks v. Ferguson Reorganized Sch. Dist. R-2, 147 F.3d 718, 725 (8th. Cir. 1998); Wilson v. Stroh Cos., 952 F.2d 942, 946 (6th Cir. 1992).
The federal courts are divided over the standard for establishing causation under this theory. One court imputes subordinate bias to an employer only when the final decision-maker's approval of a subordinate's decision is merely perfunctory. Other courts have held that where the ultimate decision-maker tries to get all sides of the story, the employer will not be held liable solely because one source of information harbors a bias against the plaintiff employee. Yet other courts have held that bias will be imputed to the employer if the biased person influenced or was involved in the decision or the decision-making process.
See Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 291 (4th Cir. 2004).
See, e.g., BCI Coca-Cola, 450 F.3d at 488; Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1250 (11th Cir. 1998).
See, e.g., Poland v. Chertoff, 494 F.3d 1174, 1182 (9th Cir. 2007); Laxton v. Gap Inc., 333 F.3d 572, 584 (5th Cir. 2003); Willis v. Marion County Auditor's Office, 118 F.3d 542, 547 (7th Cir. 1997).
Washington courts have yet to rule upon the application or parameters of the subordinate bias theory. But we need not do so here, as Felt has failed to raise a question of fact as to the causation element under any version of the theory.
Despite its concession that an adverse employment action occurred, the City argues the subordinate bias theory does not apply because officials of the Department were not subordinates, but managers, and the adverse action occurred after Felt retired. Given our resolution of the issue, we need not address these arguments.
The adverse decision complained of is the decision to prosecute made by assistant city attorney Torrey. His decision was based upon his independent review of Gasperetti's investigation file and certification of probable cause. Gasperetti in turn based his conclusions on the report of the professional standards investigation Lynch had conducted, including Lynch's interviews with Lee, Hershey, and Officer Robert Murphy, who witnessed part of the incident between Felt and Lee. Felt declined to be interviewed, but Gasperetti reviewed Lee's written report and personally interviewed Lee and Baker.
As indicated above, Lynch had recommended against internal discipline.
Consistent with his written officer's report of May 10, 2005, Lee told Gasperetti during their interview that as he and Felt stood in his office, a heated argument arose over whether Felt had been issued a certain ballistic vest. Lee turned his computer screen to show Felt the vest had been issued to him. Felt became verbally abusive. Lee turned and saw Felt thrusting his gun towards Lee's face. Felt moved closer and thrust his gun towards Lee again, so that Lee was looking down the barrel. Lee noticed the gun was locked, but was concerned there might be a round in the chamber. The third or fourth time Felt thrust his gun towards Lee, Felt had a loose, sideways cant on the gun grip, "typically known as a gangster pointing of a gun." Then suddenly Felt smashed the gun onto the desk. Lee yelled, "You pointed the fucking gun in my face. Get the fuck out of my office." Felt left without a word.
Officer Murphy witnessed part of the argument; however, he left while Officer Lee and Felt was still arguing. Officer Murphy did not see Felt holding a gun.
Clerk's Papers at 155.
Id.
Lee immediately called his supervisor, Baker, to whom he related what had happened. Baker gave Gasperetti an abbreviated version of the events as described by Lee. Felt went to see his supervisor, Hershey, and told him that in the heat of his argument with Lee, he gesticulated with his hands without realizing he was holding his weapon, which he was holding by the barrel.
The record thus shows that Gasperetti conducted an extensive investigation and reasonably concluded Felt committed the crime of second degree assault. Felt points to Quinn's initial assessment that it "[d]idn't appear to be anything criminal at this point." However, unlike Gasperetti, Quinn did not have the benefit of a full investigation.
Id. at 56.
Felt also argues that both Gasperetti and Torrey were influenced by their knowledge that officials of the Department wanted a criminal charge. Felt points to notes in Lynch's investigation file indicating that Chief Montgomery or someone from his office informed Lynch that a criminal investigation of Felt was authorized. Felt also points to Lee's declaration that although initially he did not want to pursue the matter, he eventually changed his mind and wrote a statement. He testified that "subsequent to me writing the statement, I was told by Cherie, Captain Cherie Baker, that the chief is thinking in terms of wanting a criminal investigation and an internal, to hold him accountable."
Id. at 244.
Even when seen in the light most favorable to Felt, this evidence is not sufficient to raise an issue of fact. Improper motive for the initiation of an investigation is not enough. The question is whether the subsequent investigation was shielded from bias.
Poland, 494 F.3d at 1182.
It is undisputed that Officer Lee, whether or not he initially wished to pursue it, had reported a crime, and he never retreated from his description of Felt's conduct. A third party heard their loud argument. Felt's account of the incident was consistent with Lee's description except for his handling of the gun. Felt identifies no errors of fact in Gasperetti's investigation. Whatever motives lay behind the encouragement of the investigation by the chain of command, there is nothing in the other evidence to suggest that Gasperetti or Torrey were influenced by bias on the part of Montgomery or anyone else, and the facts supported their conclusions.
The court did not err in summarily dismissing Felt's retaliation claim.
Summary judgment is proper if the nonmovant fails to establish a genuine issue of material fact as to every essential element of his claim. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). Consequently, it is irrelevant whether the proffered reason for the adverse employment decision, Felt's alleged assault of Lee, was pretextual or not.
Malicious Prosecution
To establish an action for malicious criminal prosecution, a plaintiff must prove that the prosecution was instituted or continued by the defendant, was motivated by malice, and was ultimately terminated in favor of the plaintiff; that there was a want of probable cause for the prosecution; and that the plaintiff suffered injury or damage.
Hanson v. City of Snohomish, 121 Wn.2d 552, 558, 852 P.2d 295 (1993).
A claim of malicious civil prosecution usually requires proof of two additional elements: arrest or seizure of property and special injury (injury which would not necessarily result from similar causes of action). These elements are excused when malicious prosecution is alleged by a judicial officer, prosecuting authority, or law enforcement officer and relates to the performance or purported performance of the public duty of such officer.
Clark v. Baines, 150 Wn.2d 905, 912, 84 P.3d 245 (2004).
RCW 4.24.350(2); see also Loeffelholz v. Citizens For Leaders with Ethics and Accountability Now (C.L.E.A.N.), 119 Wn. App. 665, 695, 82 P.3d 1199 (2004).
In granting the City's motion for summary judgment, the trial court relied upon the fact that "there was no arrest or seizure and RCW 4.24.350 does not apply because plaintiff was not acting in performance of duties." But because Felt's malicious prosecution claim arises from criminal proceedings, he need not prove arrest or seizure or property and special injury, and RCW 4.24.350 is not relevant.
Clerk's Papers at 92.
The City urges us to affirm on different grounds: that a complete defense exists because there was, as a matter of law, probable cause to prosecute. Felt objects, contending the City raises this defense for the first time on appeal and has therefore waived it. But an appellate court may affirm on any ground supported by the record, even if it was not considered by the trial court.
Nast v. Michels, 107 Wn.2d 300, 308, 730 P.2d 54 (1986); see State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004).
Although a prima facie case of lack of probable cause is established where, as here, criminal proceedings are dismissed or terminated in a malicious prosecution plaintiff's favor, probable cause may be established as a matter of law where unrefuted evidence shows that before instituting criminal proceedings, a full and fair disclosure was made of all known material facts, and the prosecutor thereupon filed a charge. This is the case here.
See Banks v. Nordstrom, Inc., 57 Wn. App. 251, 259-60, 787 P.2d 953 (1990).
Bender v. City of Seattle, 99 Wn.2d 582, 593, 664 P.2d 492 (1983).
Torrey decided to file charges based on the results of Gasperetti's investigation. As previously discussed, Gasperetti conducted an extensive investigation, and Felt's accuser offered a consistent description of the incident both to his superiors and the investigating officers. There is nothing in the record to cast doubt on Lee's truthfulness or motivation. The only evidence of his knowledge of the Moon case is his own testimony that he learned about it many months after pressing charges. Gasperetti and Torrey reasonably concluded from the evidence that probable cause existed to believe Felt assaulted Lee when he raised his weapon to him.
Lee was deposed in the Moon case on October 9, 2006.
Probable cause to prosecute is a complete defense. Dismissal of the malicious prosecution claim was proper.
Affirmed.
WE CONCUR: