Opinion
No. 57235-1-I.
March 19, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-2-30721-0, Michael Heavey, J., entered October 12, 2005.
Counsel for Appellant(s), Walter Hartvig Olsen Jr., Olsen Law Firm PLLC, Kent, WA.
Troy Robert Nehring, Olsen Law Firm PLLC, Kent, WA.
Bradley Tony Branson, Olsen Law Firm PLLC, Kent, WA.
Counsel for Respondent(s), Kathryn L. Feldman, Ater Wynne LLP, Seattle, WA.
Brenda S Molner, Ater Wynne LLP, Seattle, WA.
Affirmed by unpublished opinion per Grosse, J., concurred in by Schindler, A.C.J., and Becker, J.
Curtis Casper appeals the summary judgment dismissal of his action against Securitas Security Services for wrongful dismissal. The evidence is irrefutable that Casper lied to a federal investigator. As a matter of law, lying to a federal official during an investigation constitutes just cause sufficient for termination. It is irrelevant whether Casper was an employee at-will or whether he could demonstrate an express or implied agreement with his employer under either the company handbook or the collective bargaining agreement. Where there is just cause for dismissal, it does not matter that the employer may have failed to follow protocol in terminating employment. The trial court is affirmed.
FACTS
In October 2001, Curtis Casper was hired by Argus Services, Inc. (Argus) as an armed security officer. At that time, Argus had a contract with the General Services Administration (GSA) through the Federal Protection Services (FPS) to provide security services for federal facilities throughout Washington. Casper was placed at the Jackson Federal Building in Seattle.
In September 2003, Securitas Security Services (Securitas) purchased Argus and all of its assets. Prior to its sale, Argus entered into a Collective Bargaining Agreement (CBA) with the United Government Security Officers of America, Local No. 51 on April 17, 2002. Casper and other Argus employees were offered employment at Securitas. An employee handbook was issued to each employee. The handbook clearly stated that employees were employees "at-will." However, the handbook also contained a clause indicating that any conflict with this handbook and the terms of the CBA would be resolved in favor of the CBA.
"The employment relationship that exists between you and Securitas Security Systems, USA, Inc. (the Company) is employment-at-will. You are free to end your employment with the Company at any time, for any reason, with or without prior notice. Likewise, Securitas may, at any time, end your employment with or without cause or prior notice."
Additionally, security guards at the Jackson Federal Building were provided with the Contract Guard Information Manual (Manual). The Manual provides that security should call the Denver Mega Center when they receive a report of a crime. The Manual also provides a list of grounds, including dishonesty, that can result in disciplinary action up to and including permanent removal from the government contract.
The Manual provides in pertinent part:
The following is a list of grounds for disciplinary action, up to and including permanent removal from any GSA guard service contract:
. . . .
6. Dishonesty — . . . lying to a Government official or your supervisor.
On the night of October 24, 2003, Casper, Brad Bushnell and Bert Dollente were working at the Jackson Federal Building. While on break, the three guards were approached by a man who told them someone had been stabbed a few blocks away. Bushnell and Dollente left to see if they could give aid. After arriving on the scene, Bushnell apprehended a suspect and recovered the weapon. Dollente returned to the Jackson Federal Building. Bushnell waited for the police to arrive giving his name, phone number and a description of what had occurred.
Bushnell's declaration indicated that they had told Casper to report their leaving. Upon his return to the Jackson Federal Building, Bushnell learned that Casper had not called the Denver Mega Center. Bushnell was not scheduled to work for the next four days.
Ian Canaan, a commander with the Department of Homeland Security was the supervisor of FPS security services in the greater Western Washington Area. Canaan had dinner with a friend in the Seattle Police Department who told him about the security officer who helped apprehend a suspect that had committed a crime near the Jackson Federal Building. Upon returning to work, Canaan checked the log and found no mention of the incident. Canaan asked Casper, if he knew anything about the incident. Casper denied any knowledge. Canaan then asked another officer who identified Bushnell from the description provided.
On October 30, Bushnell returned to work and Canaan asked him about the incident on the 26th. Bushnell told Canaan everything that had happened. Canaan again went to Casper and asked if he knew of the incident that had occurred on the 26th. Casper again denied knowing anything. Canaan then told Casper that Bushnell had informed him of the incident and Casper finally admitted that he knew the officers had left the premises and that he had not called the Denver Mega Center.
Canaan reported Casper's failure to cooperate with a pending investigation and his "blatant deception" to his supervisor, Michael Whitaker. Whitaker requested that Casper be removed from any post under FPS. On October 31, 2003, Casper was informed by telephone that he was removed from the duty roster at the Jackson Federal Building. In November, Casper called and was told that he was off the roster until a written statement regarding the incident was provided. Casper testified that the union would not act on his behalf because Casper was under federal investigation. In January 2004, Securitas sent someone to pick up Casper's firearm and other equipment.
ANALYSIS
Casper contends that his termination was inappropriate because he was not notified through proper channels about his dismissal. He argues that the collective bargaining agreement provided certain avenues for notice of dismissal and, more importantly, provisos for graduated discipline. Since these procedural avenues were not followed, he contends that his dismissal was inappropriate. Casper does not argue that the action that resulted in his termination was protected. Moreover, he admitted that his conduct constituted just cause for termination.
Ordinarily, what constitutes just cause is a question of fact; however, issues may be decided as matters of law where reasonable minds could not differ. Here, the testimony of the other officers, the declaration of the federal officer, Casper's own written statement and deposition all demonstrate that he lied to the federal officer investigating the incident, not once, but twice.
Korsland v. Dyncorp Tri-Cities Servs., Inc., 156 Wn.2d 168, 184-85, 125 P.3d 119 (2005).
The Supreme Court in Bulman v. Safeway, Inc. noted that an employer retains the right to determine what employee misconduct warrants termination where there is no evidence that the employer intended to surrender its authority to determine what constitutes just cause for a dismissal to another. As noted by the court, "an employer's agreement to restrict discharges to those supported by just cause should not be followed by a further judicial implication which takes the determination of just cause away from the employer."
Bulman v. Safeway, Inc., 144 Wn.2d 335, 353, 27 P.3d 1172 (2001).
Baldwin v. Sisters of Providence, Inc., 112 Wn.2d 127, 138, 769 P.2d 298 (1989).
Both the Handbook and Section 6.1 of the CBA provide that an employee may be dismissed for just cause. The CBA does not define just cause, but gives the company the power to decide what acts or omissions constitute just cause. Article 4 of the CBA states:
Except as limited by the specific undertakings expressed in this Agreement, the Company shall continue to have the right to take any action it deems appropriate in the management of its employees and of the business in accordance with its judgment. Those rights shall include the authority to administer and/or manage the Company's business including, but without limitations to the direction of the work force, the right to plan, direct, expand, and control operations, to hire, to assign, to transfer, to suspend or to discharge for just cause.
Casper admitted that he lied twice to the federal officer investigating the incident. He also admitted in his deposition that the company had the right to dismiss him for just cause.
Q. Would you agree that lying to a federal officer could be just cause for termination from the company?
A. As far as I know, yes.
The Manual which employees at federal positions were required to follow clearly indicates that dishonesty was a possible cause for dismissal. Moreover, the handbook issued by Securitas enumerated a non-exclusive list of conduct which could result in termination of employment. That list included insubordination to a supervisor, falsification of a company record, dishonesty, leaving post without proper relief or authorization and failure to participate in a company investigation.
Just cause was defined in Baldwin and Havens v. C D Plastics, Inc. as
Havens, 124 Wn.2d 158, 167, 876 P.2d 435 (1994).
a fair and honest cause or reason, regulated by good faith on the part of the party exercising the power. We further hold a discharge for "just cause" is one which is not for any arbitrary, capricious, or illegal reason and which is one based on facts (1) supported by substantial evidence and (2) reasonably believed by the employer to be true.
Baldwin, 112 Wn.2d at 139; accord Havens, 124 Wn.2d at 167.
Although neither Baldwin nor Havens involved actions under a collective bargaining agreement, the language employed is instructive and in accord with federal decisions. While issues of just cause under a collective bargaining agreement are normally resolved in arbitration, courts have applied a common principle recognized by arbitrators that "`for a penalty to be just it must be in keeping with the seriousness of the offense.'" The Seventh Circuit has described just cause as a "`flexible concept, embodying notions of equity and fairness'" that should be determined on a case by case basis. Here, the just cause — lying to a federal investigator — is based on facts which are supported by substantial evidence and which Securitas knew to be true.
Crider v. Spectrulite Consortium, Inc., 130 F.3d 1238, 1242 (7th Cir. 1997) (quoting S. J. Groves Sons Co. v. Int'l Bro. of Teamsters, 581 F.2d 1241, 1244-45 (7th Cir. 1978)).
Crider 130 F.3d at 1242 (quoting Arch of Ill. v. Dist. 12, UMW, 85 F.3d 1289, 1294 (7th Cir. 1996)); Scott v. Riley Co., 645 F.2d 565, 568 (7th Cir. 1981).
Casper argues both in his brief and at oral argument that there was no notice of termination or protocol followed in his dismissal. Casper does not argue that the reason for his termination is not just. Rather, he contends that the procedures leading to his termination violated the collective bargaining agreement. He asserts that he was not given written notice of his dismissal nor an opportunity to understand why he was dismissed. The record, however, disputes this. While there is not a formal termination process, the record indicated that Casper had conversations with a variety of people which resulted in his writing a letter admitting his inappropriate conduct and apologizing for the same. Casper does not and cannot offer any overriding justification for his actions. And, although the testimony is somewhat conflicting over the notice of termination that was given to Casper, it is clear that he was constructively terminated. He was immediately removed from the guard duty roster at the Jackson Federal Building. All the due process in the world would not change the outcome of Casper's termination.
Casper next argues that Securitas' decision was arbitrary and capricious and unfair to him because the other two officers involved in the incident that day were not dismissed. Casper argues that his situation is akin to the scenario found in Lund v. Grant County Public Hospital. In Lund, the trial court granted a summary judgment after the hospital dismissed Lund for telling a patient that a doctor might have made an incorrect diagnosis and gave the patient's mother the patient's x-rays to obtain another opinion. However, in Lund, evidence was presented that the custom of telling patients about possible incorrect diagnosis was common and no discipline had occurred because of those same acts.
Lund, 85 Wn. App. 223, 932 P.2d 183 (1997).
Here, there is no evidence that lying to a federal officer during an investigation was common and the custom of the employees. Moreover, there is no evidence that either Bushnell or Dollente lied or impeded a federal investigation as Casper by his own omission did. Neither Bushnell nor Dollente lied to Canaan when he inquired about the incident. The trial court is affirmed.
WE CONCUR: