Opinion
No. 52348-1-I.
Filed: May 3, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 01-2-19764-9. Judgment or order under review. Date filed: 04/15/2003. Judge signing: Hon. Bruce W Hilyer.
Counsel for Appellant(s), Paul Eugene Simmerly, Attorney at Law, 2100 116th Ave NE, Bellevue, WA 98004-3016.
Counsel for Respondent(s), Daniel W. Ferm, Williams Kastner Gibbs PLLC, 601 Union St. Ste 4100, Seattle, WA 98101-2380.
Rashelle C Tanner, Crista Ministries, 19303 Fremont Ave N, Seattle, WA 98133-3800.
Sheryl Denise Johnso Willert, Attorney at Law, Two Union Square, 601 Union St. Ste 4100, Seattle, WA 98101-2341.
A claim of wrongful discharge in violation of public policy must be supported by evidence that the dismissal was caused by conduct linked to public policy. Mark Duxbury contends that in 1995, he gave truthful testimony in a deposition, the testimony proved damaging to his employer, and in 1998, he was terminated as a result. The record does not establish a question of fact about that causal connection. We affirm summary judgment of dismissal.
FACTS Background
Amgen, Inc. is the manufacturer of epoetin alfa, a drug that stimulates production of red blood cells in patients with chronic renal failure. In the early 1980s, Amgen granted an exclusive license to Ortho Biotech, Inc. to market epoetin alfa under the brand name Procrit. In the United States, Ortho was authorized to market Procrit only for use with non-dialysis patients; Amgen retained exclusive rights to market the drug for treatment of dialysis patients. Amgen markets the drug as Epogen.
The product license agreement contained an arbitration provision, and proceedings have apparently been ongoing on various issues since 1989. During the early 1990s, Ortho allegedly violated its product license agreement with Amgen by marketing Procrit for treatment of dialysis patients, and in 1993, Amgen sought to terminate its agreement with Ortho. Arbitration proceedings on this issue lasted more than seven years. Eventually, Amgen was awarded $150 million in damages against Ortho. In related litigation, wholesale drug distributor Charise Charles, Ltd. filed suit against Amgen in Florida, after Amgen halted sales of Epogen to Charise Charles on grounds Charise Charles aided Ortho in violating the product license agreement by selling Procrit to independent dialysis centers.
Duxbury's Employment
Mark Duxbury was hired by Ortho as a product specialist (sales representative) in 1992. In this position, and later as a key account specialist, Duxbury was responsible for marketing Procrit in the Northwest. Between 1992 and 1994, Duxbury maintained an exemplary sales record and received several awards. His administrative skills, however, were in the 'needs improvement' category.
In August 1995, Duxbury and several other Ortho employees were subpoenaed to testify in the litigation between Amgen and Charise Charles.
In April 1996, Duxbury's supervisor, Michael Barton, was asked to investigate complaints that Duxbury had engaged in inappropriate, sexist behavior. Barton concluded there were 'some real issues here,' and designed a training program for Duxbury. At around the same time, in a work session to evaluate Barton's leadership skills as district manager, Barton's supervisor suggested he fire Duxbury. Barton refused. Soon afterward, Barton was demoted; he later left the company. Barton later testified his demotion and departure had nothing to do with his refusal to fire Duxbury.
Clerk's Papers at 1113.
In October, 1996, Duxbury was directed to correct his last four expense reports. A new supervisor, Keith Wood, gave Duxbury a 'needs improvement' rating overall. Wood described Duxbury's administrative and organizational skills as 'unacceptable.' Soon thereafter, Wood and Duxbury were refused entry at a client medical center. Wood issued Duxbury a written warning for that and other performance problems, including continued noncompliance with company policies concerning expense and activity reports.
Clerk's Papers at 538.
Duxbury's next supervisor, John Woodhouse, notified Duxbury in April 1998 of numerous deficiencies in his performance, particularly in administrative areas, and enumerated eight areas in which Duxbury was required to improve by the time of his performance review at the end of June. A month later, Woodhouse wrote Duxbury that his failure to properly organize a promotional event was unacceptable. Duxbury's sales performance had also fallen, and Woodhouse set goals for improvement over the next few months. Although he disputes certain details, Duxbury admits his administrative skills were a continuing problem. He denies that his sales were significantly below average.
In mid-July, 1998, a regular customer, Western Washington Cancer Center, informed Woodhouse that Duxbury was no longer welcome on the premises because of repeated sexual and racial comments. The client also described administrative difficulties with Duxbury's handling of its account. Duxbury disputes the details of this complaint, but admits he told a 'Viagra' joke, and that the client's representative was offended. Several days later, Duxbury resigned in lieu of termination.
The record contains evidence regarding personal pressures on Duxbury during these years. It serves no purpose to recite that evidence here.
Duxbury's Testimony
As indicated above, Duxbury was subpoenaed to testify in the Charise Charles lawsuit in 1995. Following his termination, Duxbury contacted Amgen, and provided testimony about Ortho's business practices on several occasions. He gave a second deposition in the Charise Charles suit in December 1998, depositions in the Amgen/Ortho arbitration in August and October, 2001, and testified in the arbitration hearing in January, 2002.
Wrongful Termination Suit
Duxbury filed this suit against Ortho in July, 2001, alleging wrongful discharge, breach of contract, tort of outrage, and infliction of emotional distress. Following discovery, Duxbury moved for partial summary judgment on several issues, and Ortho moved for summary judgment of dismissal. The court denied Duxbury's motion, granted Ortho's motion, and dismissed Duxbury's claims. Duxbury appeals.
Duxbury does not address tort of outrage or contract issues in his brief on appeal. As to infliction of distress, he asserts only that emotional distress damages are recoverable in an action for wrongful termination. We therefore address only the merits of the wrongful termination claim.
DISCUSSION Preliminary Rulings
Protective Order. Discovery in this case included Ortho's internal personnel files and communications, corporate business records, proprietary product information, and materials from the ongoing Amgen/Ortho arbitration, which were themselves subject to a protective order. Duxbury refused to stipulate to a similar order, and asserted his right to provide information to federal regulators or to the media. On Ortho's motion, the court entered a protective order:
Any documents produced by either party in this action which are, in good faith, determined by the producing party to contain confidential or proprietary information, including without limitation, personally sensitive information of a non-public nature, may be designated as confidential, and so marked.
Clerk's Papers at 173.
Under the order, documents designated as confidential were not to be disclosed except to the parties and their counsel, and were to be filed under seal; any party could seek to remove the confidentiality designation of a particular document or seek to modify the order.
Duxbury contends the protective order was not justified under CR 26(c), that the documents submitted by Ortho did not contain trade secrets or other confidential information, and that the order was unduly restrictive as to the use of documents during depositions. Given the nature of the discovery, we see no error in the order. If Duxbury believed Ortho lacked a good faith basis for protecting a particular document, he had the right to seek a ruling on the document. He did not. He also had the right to seek a modification of the order. He never did. Further, he offers no argument that the protective order prejudiced his case.
When Duxbury violated the protective order by filing documents without placing them under seal, the court imposed $2,600 in sanctions. When Ortho later committed the same violation, Duxbury sought similar sanctions against Ortho. The court explained its reasoning for denying the motion: The protective order in this case was issued at the request of, . . . and to protect the interests of, defendants. Given the history of this case, it is apparent to the court that this motion is intended to offset the sanctions previously ordered against plaintiff rather than to protect any legitimate interest of the plaintiff. The appropriate remedy for this violation of the court's order is that defendants, who were given notice and had a reasonable opportunity to cure their failure to take advantage of an order entered at their request, lose the order's protection regarding those documents previously filed that were not sealed.
Id. at 1789-90.
These were tenable grounds for denying Duxbury's motion for sanctions. The court did not abuse its discretion.
Order Striking Declaration Content. Ortho moved to strike portions of declarations submitted by Duxbury during the summary judgment exchange. The court granted the motion. The stricken materials included portions of Duxbury's declaration in opposition to summary judgment, the entirety of Duxbury's declaration in strict reply to Ortho's response to his motion for partial summary judgment, and portions of the declarations of former Ortho employees Tom Fedorka, Renee Matson, and Oliver Medlock. For the most part, material was stricken as speculative, conclusory, argumentative, hearsay, or not within the declarant's personal knowledge.
Duxbury contends the declarants had personal knowledge. For example, regarding his own recitation of a witness's testimony in the arbitration proceedings, he argues, 'Certainly Duxbury could have witnessed or read Ms. Webb's testimony.' Similarly, he contends he can recite the contents of pleadings and rulings in the arbitration because he has read them. Even information arguably within a declarant's personal knowledge, however, must be supported by a sufficient foundation, and no such foundation appears in the declarations themselves. Duxbury contends Ortho should have addressed the issue by way of voir dire of the declarants. But showing a sufficient foundation is the burden of the proponent of evidence. Ortho has no obligation to create a foundation for Duxbury's evidence, and in any case, Duxbury does not explain how Ortho would voir dire an affidavit submitted on summary judgment.
Brief of Appellant at 27-30.
ER 602.
See CR 56(e) (declarations opposing summary judgment must be made upon personal knowledge and must show the declarant's competence to testify to the contents).
We have reviewed the record. The stricken portions of Duxbury's declarations contain numerous assertions that are hearsay, speculation, argument, and/or lack any foundation. The same is true of the other stricken material. The court did not abuse its discretion.
Duxbury's own declarations describe documents, testimony given and statements made by others, ascribe motives and knowledge to others, and make arguments.
Wrongful Discharge Claim
The gravamen of this action is Duxbury's contention that he was discharged in retaliation for testifying, and that such a discharge violated public policy. A discharge is wrongful and gives rise to a tort action if it contravenes a clear mandate of public policy. The cause of action has four elements: (1) existence of a clear public policy; (2) proof that discouraging the conduct in which the plaintiff engaged would jeopardize the public policy; (3) proof that the public policy-linked conduct caused the employee's dismissal; and (4) the absence of an overriding justification for the dismissal. The public policy exception to at-will employment is construed narrowly to guard against frivolous lawsuits. What qualifies as a clear mandate of public policy is a question of law. Wrongful discharge actions have generally been allowed in four situations: '(1) where employees are fired for refusing to commit an illegal act; (2) where employees are fired for performing a public duty or obligation, such as serving jury duty; (3) where employees are fired for exercising a legal right or privilege, such as filing workers' compensation claims; and (4) where employees are fired in retaliation for reporting employer misconduct, i.e., whistleblowing.'
Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 232, 685 P.2d 1081 (1984).
Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 941, 913 P.2d 377 (1996).
Id. at 936 (citing Thompson, 102 Wn.2d at 232).
Thompson, 102 Wn.2d at 232.
Gardner, 128 Wn.2d at 936 (citing Dicomes v. State, 113 Wn.2d 612, 618, 782 P.2d 1002 (1989)).
Duxbury alleges that in response to the 1995 deposition subpoena in the Charise Charles case, he testified truthfully, and Ortho fired him in 1998 because of that testimony. Essentially, he argues that responding to a subpoena is a public duty, and that if an employee must suffer threat of discharge in retaliation for giving truthful testimony, a strong public policy is jeopardized.
Duxbury also contends that, pursuant to subpoena, he provided documents adverse to Ortho, and that these documents were another reason for his termination. So far as we can ascertain, the summary judgment record does not contain those documents. Duxbury asserts they were attached to his (unverified) complaint, which is in the record on appeal. The documents describe a deliberate effort to market Procrit in the dialysis market. Duxbury states he supplied documents not to Charise Charles, but to Ortho's attorneys, and that he was not asked about them in the 1995 deposition.
Duxbury also contends his testimony was protected as 'whistleblowing.' But reporting a private contract violation is not whistleblowing. See Dicomes v. State, 113 Wn.2d 612, 618, 782 P.2d 1002 (1989) (no whistleblower protection where conduct reported not unlawful); Wlasiuk v. Whirlpool Corp., 81 Wn. App. 163, 179, 914 P.2d 102 (1996) (same).
In general, we agree with this proposition. In Blinka v. Washington State Bar Association, we recognized that 'CR 45 and the laws against perjury provide the foundation for a public policy prohibiting adverse employment action for responding to a subpoena or refusing to give false testimony.' Assuming this is so, however, the question is whether Duxbury has presented evidence suggesting his testimony was the cause of his discharge.
109 Wn. App. 575, 585, 36 P.2d 1094 (2001), review denied, 146 Wn.2d 575 (2002).
Duxbury testified in 1995. He was not fired until 1998. Lack of proximity in time between the activity for which an employee alleges he was discharged, and the time of termination, indicates a lack of causal nexus. Duxbury explains this time lapse by pointing out that the Amgen/Ortho litigation took seven years. He argues that the significance of his testimony in the Amgen/Charise Charles litigation may not have been recognized by Ortho until later in the multi-million dollar Amgen/Ortho case, at which point the company sought to distance itself from testimony of disgruntled employees. Eventually, he argues, Ortho 'had to get rid of Mr. Duxbury' or appear to be 'endorsing his testimony.'
Francom v. Costco Wholesale Corp., 98 Wn. App. 845, 862-63, 991 P.2d 1182 (2000); Wilmot v. Kaiser Aluminum, 118 Wn.2d 46, 69, 821 P.2d 18 (1991).
Brief of Appellant at 19.
The summary judgment record does not support this theory. We have only four pages from Duxbury's 1995 deposition. In that excerpt, he testified that a doctor at a kidney center, who was planning to purchase Procrit for use with dialysis patients, asked Duxbury whether there was any difference between Procrit and Epogen for purposes of 'reimbursability.' Duxbury testified he told the doctor it was his understanding that because the drug is the same, the federal government makes no distinction between the two products, so Procrit was eligible for reimbursement regardless of its use. Duxbury further testified he was aware of Ortho's 'absolutely strict' position that the dialysis market was 'out-of-bounds,' and that his manager was 'adamant' that Procrit was not to be promoted for dialysis use ('This was a big topic of conversation.'). Duxbury stated he was nervous about admitting to his manager that he had been in a dialysis facility, 'except for the fact that there were non-dialysis patients being treated there.' Marketing for non-dialysis use was Duxbury's job, and the conversation he described does not indicate Ortho was marketing Procrit for dialysis patients. A physician with both non-dialysis and dialysis patients would presumably know the same drug was marketed under different names for each population and might reasonably be expected to ask questions, or even to ignore the licensing agreement. Nothing in the 1995 testimony is obviously harmful to Ortho.
Clerk's Papers at 501.
Id.
Id.
Duxbury has several times stated as much. In later depositions in the Amgen arbitration, he said: 'I don't believe my [1995] testimony was damaging.' He stated he had no reason to believe that Ortho was unhappy with his 1995 testimony, and said 'I don't think that I said anything that was particularly damaging to the company.' Asked why he believed the 1995 deposition was the cause of his termination, he said that just the fact he 'was deposed at all was a problem,' and that the timing of later events led him to believe his termination was connected to the deposition. In his declaration in opposition to summary judgment below, however, Duxbury gives a markedly different description of his 1995 deposition. He declares he testified to a direct violation of the license agreement: to wit, that at his manager's request, he solicited dialysis business from clients who used Procrit almost exclusively for dialysis patients, and witnessed accounting practices designed to disguise these sales. Duxbury claims his 1995 testimony was similar to his later testimony in the Ortho/Amgen arbitration.
Id. at 90.
Id. at 809.
Id.
If so, it is difficult to see how Duxbury could have repeatedly described his 1995 testimony as not damaging. And if so, it is a mystery why Duxbury did not supply that part of his 1995 testimony for the record in this case, because the excerpt we have does not say what Duxbury now describes. Instead, it contradicts what he describes. In the excerpt before us, Duxbury emphasized his manager's strict insistence on compliance with the licensing agreement, and he neither stated nor implied that his manager directed him to violate the license agreement or set up reimbursement accounts to disguise such violations. And finally, if the 1995 testimony was as Duxbury now describes it, he does not explain why Ortho needed three years to realize its damaging nature.
In a declaration submitted in opposition to Ortho's protective order, Duxbury gave further details of violations of the license agreement. According to Duxbury, Charise Charles received substantial discounts on purchases of Procrit, which it passed on to its customers in the form of reimbursements, thereby creating a competitive edge for Ortho's Procrit compared to Amgen's dialysis product, Epogen. Charise Charles made a practice of setting up billing accounts in the name of the physician, rather than the care center, to avoid creating records of sales to dialysis centers. Duxbury declares that at the direction of his manager, he set up an account for the physician he mentioned in the 1995 deposition, carefully following instructions from Charise Charles personnel. Duxbury states the physician used Procrit to treat both dialysis and non-dialysis patients, and received a substantial rebate from Ortho. When this came to light in the Amgen/Ortho litigation, it 'became extremely damaging.' Clerk's Papers at 142. This declaration was not part of the summary judgment record.
Duxbury nonetheless contends his 1995 testimony was ultimately damaging to Ortho. As evidence of this, he points out that in the Amgen/Ortho litigation, Amgen sought to use certain depositions from the Amgen/Charise Charles case, among them his own, from 1995. He also points to the fact that he later gave testimony adverse to Ortho in the Amgen/Ortho litigation, pointing to Ortho's post-arbitration submission of proposed findings.
Duxbury claims this motion was granted. It was not.
The motion papers supplied to us do not reveal the contents of the excerpt of the 1995 deposition Amgen later sought to use, and Duxbury has not supplied any record of his later testimony. But the proposed arbitration findings are in our record. Ortho proposed findings that several 'former disgruntled Ortho sales representatives' testified that Ortho had an unwritten policy to promote Procrit for dialysis, but that these witnesses all reaffirmed that Ortho's policy was to prohibit marketing for dialysis, and that none pointed to a single instance where Ortho directed them to promote Procrit for dialysis. The proposed findings also state that 'at the direction of his manager, Mark Duxbury promoted Procrit to the nephrologist-owner of [a dialysis center], but Duxbury acknowledged that the nephrologist also had pre-dialysis patients.'
Clerk's Papers at 969-71.
Id. at 970.
Given the function of proposed findings, it is likely that Duxbury's testimony in the Amgen arbitration was at least as harmful to Ortho as Ortho's proposed findings suggest. At some point, therefore, it appears Duxbury did testify his manager directed him to promote Procrit in a way that would violate the agreement.
The record does not contain the license agreement.
But that testimony was given long after Duxbury was fired. His 1995 testimony was not to the same effect. The damaging nature of the later testimony does not establish the damaging nature of the 1995 testimony. To establish a causal connection and overcome the three year lapse, Duxbury had to show a basis for a reasonable inference of causational nexus. If, as he now says, his 1995 testimony was obviously damaging, the three-year lapse cannot be explained. If, in the alternative, the damaging nature of his testimony was only later realized, Duxbury must show some basis for the connection between this realization and his termination. He does not. The record is remarkable mainly for what is missing: obviously damaging content in the 1995 deposition; the absence of any of the later testimony; and the absence of any evidence that might explain why Ortho would wait three years before retaliating against Duxbury for his testimony pursuant to the 1995 subpoena.
Duxbury disputes many of Ortho's complaints about his performance. But he does not dispute engaging in gravely inappropriate behavior that offended a major client. He does not dispute consistently poor performance of administrative duties. And he repeatedly denied his 1995 testimony was damaging. Duxbury points to no evidence suggesting a nexus between that testimony and his termination in 1998, and the inferences he urges upon us are so attenuated as to amount to speculation.
While Duxbury does not directly argue he was fired because Ortho feared he might be subpoenaed again and might then 'spill the beans,' we note such a theory is equally speculative. If Duxbury's description of Ortho's practices is accurate, Ortho had a similar motive to fire a large number of employees nationwide. Yet according to the record, only three of Ortho's seven 'disgruntled former employees' had been fired (including Duxbury).
In sum, the record is insufficient to raise a question of fact that Duxbury was terminated in 1998 in retaliation for his testimony in 1995. The trial court did not err in granting summary judgment.
Duxbury contends the trial court erred in denying his motion for partial summary judgment eliminating certain factual matters from trial. Specifically, Duxbury asked the court to rule that (1) his sales performance while at Ortho always exceeded the regional average, such that at trial, Ortho should not be allowed to refer to Duxbury's sales performance in any negative way; (2) Duxbury never committed an act of sexual or racial harassment or misconduct while employed by Ortho; (3) Michael Barton was directed to terminate Duxbury in April 1996; and (4) the criticisms of John Woodhouse about an event Duxbury helped organize were fabricated. Assuming Duxbury had submitted sufficient evidence of causation, these were contested fact issues. Given our disposition on appeal, the issues are moot.
BECKER, and COX, JJ., concur.