Opinion
No. 52901-3-I.
Filed: May 2, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No: 00-2-03098-1. Judgment or order under review. Date filed: 07/29/2003. Judge signing: Hon. Ronald X Castleberry.
Counsel for Appellant(s), Jean E. Huffington, McKay Huffington PLLC, 1904 One Union Square, 600 University St, Seattle, WA 98101-1176.
Luanne Perry, The Johnson Law Group, 1221 2nd Ave Ste 430, Seattle, WA 98101-2942.
Counsel for Respondent(s), Michael B. Tierney, Micheal B Tierney PC, 2955 80th Ave SE Ste 205, Mercer Island, WA 98040-2975.
This appeal arises from a defense verdict. Appellant Hibbs claimed that the police chief of Sultan fired him in violation of a public policy protecting whistleblowing. The jury found that Sultan had an overriding justification for the decision to terminate Hibbs. The trial court properly ruled out theories of wrongful discharge that were not based on a clear mandate of public policy. The instructions to the jury were adequate, the court properly excluded irrelevant evidence, and the court did not err in denying Hibbs' motion for a mistrial. The verdict is affirmed.
FACTS
The testimony at trial established that Richard Hibbs was a police officer with the Sultan Police Department from 1989 until his termination in 1997. Police Chief Gilje first hired Hibbs as a reserve officer. Hibbs then completed the training necessary to become a regular full-time police officer. When a full-time position in Sultan became available in 1991, Hibbs applied for it and Chief Gilje hired him.
In 1995, Chief Gilje left Sultan, and Fred Walser was appointed Chief of Police. Chief Walser's law enforcement background was primarily with the Washington State Patrol. State Patrol Officers receive different training than police officers. Hibbs asked Chief Walser whether he met statutory requirements for being a police chief. According to Hibbs, Chief Walser responded that the Mayor, when hiring a chief of police, 'could hire a monkey as long as he trained him.'
Report of Proceedings at 301.
Hibbs testified that as time went on he became more concerned that Chief Walser lacked qualifications. Hibbs said that Chief Walser ordered him to quit stopping locals for minor traffic infractions. Hibbs believed such stops to be a good tool for discovering license suspensions, narcotics, and drunk driving. Chief Walser replaced the large 'Mag' flashlights that officers had regularly carried with a smaller 'Stinger' flashlight. Hibbs was critical of this decision as he felt the larger flashlight could be used as an impact baton in the field. Hibbs also found problematic Chief Walser's discontinuation of the practice of allowing suspects to use the station bathroom. Hibbs said the result was he either had to take the suspect outside the department to the public bathroom, which he considered a safety issue, or refuse to take them at all, which he felt was against the dignity of the person and could be seen as coercion to obtain a confession. Finally, Hibbs testified that in his opinion, Chief Walser had prematurely ordered evidence destroyed in a rape case.
Hibbs took his concerns about Chief Walser to Sultan council member Mark Tuohy. On June 2, 1997, Tuohy wrote a note mentioning Hibbs' concerns to Bill Trippett, Sultan's City Attorney and City Administrator. Trippett brought the matter to the attention of the Mayor and Chief Walser. Chief Walser fired Hibbs on June 24, 1997. As Hibbs saw it, he was fired for talking to council member Tuohy about the alleged deficiencies of Chief Walser. As Chief Walser saw it, Hibbs was fired for his own shortcomings. Chief Walser testified about an internal investigation of the evidence room that had been going on for three months before his decision to fire Hibbs. Hibbs had been the evidence room officer during much of his tenure as a Sultan officer. Chief Walser formally notified Hibbs he was under investigation in a letter dated June 5, 1997 (three days after Hibbs contacted Tuohy). The Chief's letter alleged false statements and material omissions in Hibbs' employment application, mishandling of evidence, failure to safeguard private property, improper disposition of firearms, and conduct unbecoming of an officer. The report of the formal investigation, which was completed on June 16, 1997, substantiated these allegations and recommended termination of Hibbs.
Chief Walser scheduled a pre-termination hearing. Hibbs entered a general denial of the allegations but offered no evidence or explanation to refute them. Chief Walser terminated Hibbs on June 24, 1997.
Hibbs sued the City of Sultan in April 2000. His claim of wrongful termination in violation of public policy went to trial in 2003. A jury found for the City of Sultan. This appeal followed.
CR 50 RULING
Wrongful discharge in violation of public policy has four elements. The plaintiff must prove that there is a clear public policy (clarity element); that discouraging the conduct in which the plaintiff engaged would jeopardize the public policy (jeopardy element); and that the plaintiff's conduct linked to the public policy caused the dismissal (causation element). The defendant then has the opportunity to offer an overriding justification for the dismissal (justification element). Gardner v. Loomis Armored Inc., 128 Wn.2d 931, 941, 913 P.2d 377 (1996).
After the parties presented their evidence, the trial court acted upon a CR 50 motion by Sultan, and took from the jury Hibbs' claims that his termination jeopardized clear mandates of public policy on the handling of evidence and the required qualifications for a police chief. This left only a claim that the termination of Hibbs violated a Sultan policy adopted to protect whistleblowing. Hibbs assigns error to the CR 50 ruling.
When reviewing a trial court's decision on a motion for judgment as a matter of law, an appellate court applies the same standard as the trial court. Sing v. John L. Scott, Inc., 134 Wn.2d 24, 29, 948 P.2d 816 (1997). Judgment as a matter of law may be granted at the close of a plaintiff's case if the plaintiff has been "fully heard" and "there is no legally sufficient evidentiary basis for a reasonable jury to find or have found for that party". CR 50(a)(1). The court must view all conflicting evidence in the light most favorable to the nonmoving party and determine whether the proffered result is the only reasonable conclusion. Sing, 134 Wn.2d at 29.
A different judge had earlier denied the City's motion for summary judgment on the same issues. Hibbs contends the trial judge lacked authority to modify the ruling of another judge of the same court in the same case. Hibbs is mistaken. The trial court had the authority to modify the order at any time before final judgment. Washburn v. Beatt Equipment Co., 120 Wn.2d 246, 300, 840 P.2d 860 (1992).
Hibbs had the burden of establishing that his discharge violated a clear mandate of public policy. Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 232, 685 P.2d 1081 (1984). The question of what constitutes a clear mandate of public policy is one of law. Dicomes v. State, 113 Wn.2d 612, 617, 782 P.2d 1002 (1989). This court reviews questions of law de novo. Not every statute creates a clear statement of public policy actionable as a wrongful discharge claim. Courts must find public policy, not create it, and the existence of such public policy must be clear. Selix v. Boeing, 82 Wn. App. 736, 741, 919 P.2d 620 (1996). Although there is no precise definition of what constitutes a clearly mandated public policy, the tort may not be based on policies that are of minor scope or significance: it can be said that public policy concerns what is right and just and what affects the citizens of the State collectively Although there is no precise line of demarcation dividing matters that are the subject of public policies from matters purely personal, a survey of cases in other States involving retaliatory discharges shows that a matter must strike at the heart of a citizen's social rights, duties, and responsibilities before the tort will be allowed.
Dicomes v. State, 113 Wn.2d at 618 (quoting Palmateer v. International Harvester Co., 85 Ill.2d 124, 130, 421 N.E.2d 876 (1981)). For example, in the Seattle Center fire alarm case, a technician was fired for refusing to disable the fire alarm system. He invoked a fire code provision stating that no one should work on a fire alarm system without a certificate from the fire chief. Summary judgment for the defendant City was improper because the fire code established a clear public policy. Ellis v. City of Seattle, 142 Wn.2d 450, 459-60, 13 P.3d 1065 (2000). On the other hand, summary judgment was proper in Dicomes, the case involving the firing of the whistleblowing employee of the State Department of Licensing, because the departmental action on which she 'blew the whistle' — the Director's failure to include a disciplinary board's surplus funds in the Department's budget proposal — did not violate state law. Her termination therefore did not contravene a clear mandate of public policy. Dicomes, 113 Wn.2d at 623.
This case is more like Dicomes than Ellis because, as the trial court concluded, Chief Walser's qualifications met statutory requirements. The City confirmed this at trial with a letter from the Criminal Justice Training Commission indicating that the Chief was exempt from certification requirements as a result of his long record of service in the State Patrol. We reject Hibbs' argument that the Chief's qualifications presented a factual issue for the jury to decide; no reasonable jury could have concluded he lacked the qualifications required by statute.
The trial court likewise appropriately concluded there was no clear public policy with respect to the Chief's handling of evidence. 'Plaintiff does not cite either a constitutional provision or a statute or a regulatory code that has been violated. Rather, the plaintiff in a very generic sense indicates that this violates the general principles of the handling of evidence and exposes the department, and thereby the public, to harm.' The court took note of its obligation to act cautiously in declaring a public policy, and pointed out there was no evidence that the Chief's actions were done for personal gain or for any other improper or illicit motive.
Report of Proceedings at 1058.
The court also properly rejected Hibbs' argument that he should benefit from the exception for complaints made in good faith. Where there is not an actual violation of a statute, the complainant's objectively reasonable belief that a statute has been violated will establish the jeopardy prong 'in the context of concerns regarding public safety where imminent harm is present'. Ellis, 142 Wn.2d at 461. As the judge here said in ruling on the CR 50 motion, courts generally have been clear that the threatened harm must be of an immediate nature. 'In the Ellis case there was the potential of immediate harm to the public from the dismantling of the fire alarm system. In this particular case there are generic complaints about qualification and about the handling of the evidence in one case. There is no immediate threat of harm to the public.'
Report of Proceedings at 1059.
The court did allow Hibbs to present to the jury his third basis for the tort: that he was fired in violation of Sultan's policy of encouraging whistleblowing by town employees. In this context, Hibbs was still able to argue that his expression of concerns about the Chief's qualifications and evidence handling should not have led to termination. Limiting argument to the policy of protecting whistleblowers did not prevent Hibbs from presenting his essential claim.
Hibbs argued in closing that just because 'the court has dismissed those claims does not mean those two things can't be considered by you. The reason that matters is, when you're thinking about what is improper governmental conduct for purposes of that public policy on the whistleblower statute, the improper governmental conduct that Mr. Hibbs was concerned about, whether he was correct or not, was that his police chief wasn't legally qualified to hold the position. . . . The evidence handling issues were an additional issue. This court has ruled that that didn't give rise to a claim for him in connection with his termination, but that you can still consider that he held that belief, that he communicated that to Councilman Tuohy, and that Councilman Tuohy wrote it down and took it to Bill Trippett and started a process.' Report of Proceedings at 1161.
The public policy exception to the at-will employment doctrine is a narrow one. Blinka v. Wash. State Bar Assn., 109 Wn. App. 575, 586, 36 P.3d 1094 (2001). The claims removed from the case did not strike at the heart of a citizen's social rights, duties, and responsibilities. We conclude the trial court did not err in its ruling on the City's CR 50 motion.
Because we conclude the trial court properly dismissed Hibbs' claim insofar as it was based on policies relating to evidence handling and qualifications, necessarily we also reject Hibbs' contention that the trial court erred in refusing to instruct the jury on these claims.
INSTRUCTION ON OVERRIDING JUSTIFICATION
The special verdict given to the jury began with two questions based on the whistleblowing claim: 'Did the termination of the plaintiff jeopardize the Town of Sultan's policy of reporting improper governmental action?' And, 'Was retaliation for reporting improper government action a substantial motivating factor in Mr. Hibbs termination?' The jury answered yes to both questions. Where the plaintiff's case foundered was on the next question: 'Has the defendant demonstrated an overriding justification for the termination?' The jury answered yes to this question also, and therefore did not proceed to the final inquiry about damages. Hibbs claims that the jury's decision on the issue of overriding justification was influenced, to his prejudice, by an incorrect instruction.
Clerk's Papers at 69.
Clerk's Papers at 69.
Clerk's Papers at 70.
According to Instruction 8, Hibbs had the burden of proof on the elements of jeopardy and causation. If Hibbs proved those two elements, the burden shifted to Sultan to prove 'the existence of an overriding justification for its conduct jeopardizing the stated public policy':
In order for plaintiff to prevail on his claim of wrongful discharge in violation of public policy, then you must find each of the following propositions:
(1) That discouraging the conduct in which Hibbs engaged would jeopardize the stated public policy of encouraging the reporting of improper governmental action;
(2) That public-policy-linked conduct was a substantial or significant motivating factor in the defendant's dismissal of Hibbs.
If the plaintiff does not prove the first two elements of this claim by a preponderance of the evidence, then your verdict must be for the defendant.
If the plaintiff proves the first two elements listed above and the defendant proves by a preponderance of the evidence the existence of an overriding justification for its conduct jeopardizing the stated public policy, your verdict must be for the defendant.
If the plaintiff proves the first two elements and the defendant does not prove the third element, your verdict must be for the plaintiff.
Clerk's Papers at 81 (Instruction 8).
Instruction 8 was consistent with case law. See Ellis, 142 Wn.2d at 459; Hubbard, 146 Wn.2d 699, 718, 50 P.3d 602 (2002).
The instruction alleged to be erroneous is Instruction 9:
In order for the defendant to establish it has an overriding justification for the plaintiff's termination, it must prove by a preponderance of the evidence that it had sufficient basis to terminate the plaintiff for reasons other than retaliation for the plaintiff's discussion with the City Councilman.
Clerk's Papers at 82.
Hibbs contends Instruction 9 erroneously told the jury that any justification Sultan had for firing him would defeat his claim. He contends it should have said that only a justification which overrides the specific public policy can defeat the claim.
During the colloquy on instructions, Hibbs objected to the giving of Instruction 9 on the basis that it misstated the law regarding the impact of the overriding justification element. 'We believe that it does not adequately shift the burden and potentially confuses the jurors into thinking this is merely a just cause or legitimate business justification type defense, rather than a comparison between one public policy and, on the other hand, a stated reason for termination.'
Report of Proceedings at 1077.
A party objecting to the court's proposed instruction as inadequate has the obligation of offering a proper instruction on the subject. 'Reversible error is not present unless the preferable instruction has been submitted and has been refused.' American Oil Co. v. Columbia Oil Co., 88 Wn.2d 835, 843, 567 P.2d 637 (1977) (quoting Harris v. Burnett, 12 Wn. App. 833, 843, 532 P.2d 1165 (1975)); accord Goodman v. Boeing Co., 75 Wn. App. 60, 75, 877 P.2d 703 (1994), aff'd, 127 Wn.2d 401, 899 P.2d 1265 (1995).
The record does not contain any instruction proposed by Hibbs as a preferable statement of the law on the subject of overriding justification. Therefore, he has not preserved for review his present argument that the court 'failed to tell the jury what role overriding justification played in the scheme of proof'. The only question preserved by his exception is whether Instruction 9 misdefined the defendant's burden of proof or stated it in a confusing and misleading way. We conclude, under the circumstances, that it did not.
Brief of Appellant at 24.
Hibbs' argument, as we understand it, is that the jury should have been instructed to compare the competing public policies advanced by the parties, and decide which was higher up on the scale of public value. In other words, Sultan's other reasons for firing him (whatever the jury found them to be) could defeat his claim of wrongful discharge only if the jury found those reasons were more important than the public policy of encouraging the reporting of improper governmental action. Hibbs bases this argument on Gardner, in which the Supreme Court concluded that the rescue of a human life always has more social value than honoring a company's work rule. See Gardner v. Loomis Armored Inc., 128 Wn.2d 931, 950, 913 P.2d 377 (1996).
The argument fails for two reasons. First, Hibbs is not really objecting to what Instruction 9 says, but rather to what it fails to say. Because there is no proposed instruction in the record to show exactly how Hibbs intended to get the idea of comparing the two policies across to the jury, it is impossible to say now that the court erred in giving a less elaborate instruction. If Instruction 9 adds anything that Instruction 8 does not already say, it is that the overriding justification has to rest on a 'sufficient basis'. This phrase, while vague, does indicate the jury should look for a substantive and serious reason for firing Hibbs as opposed to a flimsy or obviously concocted excuse.
Clerk's Papers at 83.
Second, Gardner contemplates that the court, not the jury, will balance the public policies and decide the relative priorities. See Gardner, 128 Wn.2d at 948-49 ('This court must balance the public policies raised by Plaintiff against Loomis' legitimate interest in maintaining a safe workplace and determine whether those public policies outweigh Loomis' concerns.'). Consistent with Gardner, a prominent treatise advises that the balancing process is for the court, not for juries. 'If juries are allowed to strike the balance in individual cases, the constraints on employer discretion will be unpredictable and the outcomes largely immune from appellate review.'
Henry H. Perritt, Jr. Workplace Torts: Rights and Liabilities, sec. 3.38 at 128 (1991).
Our conclusion on this issue is not intended as an endorsement of this set of instructions for use in future cases. Thoughtful analysis of the roles of judge and jury may in due course produce instructions and special verdict forms that are more satisfactory guides to deliberation. We hold only that the omission of language about the need to balance the competing policies did not make Instruction 9 misleading or inaccurate.
CAUSATION INSTRUCTION
To decide in favor of Hibbs, the jury had to find that Sultan fired him for conduct linked to the whistleblowing policy. As to this element, the court instructed the jury to determine whether Hibbs' report was 'a substantial or significant motivating factor' in his dismissal. Hibbs offered an additional instruction intended to clarify the causation element:
Clerk's Papers at 81 (Instruction 8).
Plaintiff is entitled to recover if he proves his public-policy-linked conduct was a substantial or significant factor in the defendant's decision, even though other factors may also have contributed to it. The plaintiff does not have to prove that his public-policy-linked conduct was the only factor or the main factor in the defendant's decision. Nor does the plaintiff have to prove that he would not have been subjected to the adverse action but for his public-policy-linked conduct.
Clerk's Papers at 189.
Hibbs took exception to the court's failure to give his proposed instruction, which he claimed provided a more accurate definition of his burden of proof.
Instructional error does not require reversal unless prejudice is shown. Boeing Co. v. Key, 101 Wn. App. 629, 633, 5 P.3d 16 (2000). Error is prejudicial when it presumptively affects the outcome of the trial. Boeing Co., 101 Wn. App. at 633.
The jury found in favor of Hibbs on causation. Any error in the instruction on this element did not prejudice him. We find no basis for reversal on this issue.
EXCLUSION OF EVIDENCE
After Hibbs' termination, the Sultan mayor placed Chief Walser on administrative leave on two separate occasions, one of which was in response to an accusation of sexual harassment by a former Sultan employee. Hibbs wished to inform the jury of these administrative leaves and the circumstances surrounding them. In a ruling to which Hibbs assigns error, the trial court granted Sultan's pretrial motion to exclude the evidence as more prejudicial than probative:
Both sides have had an opportunity to depose all of the principal players involved in this. Despite the discovery, the plaintiff has not asserted that the reasons for the administrative leaves of Chief Walser are akin to the reasons stated for the termination of the plaintiff.
Therefore, it appears to me that in fact what would be happening would be that to allow the administrative leaves of Chief Walser to come into testimony would in fact be misleading, confusing to the jury in terms of either a smear campaign on the part of the plaintiff on Chief Walser, or it would be confusing to the jury as to why is he given administrative leave and the plaintiff is not given administrative leave, and it may very well be that the reasons are totally different in terms of the allegations against Chief Walser, that he's in a different position It just introduces an issue in this case that in this court's opinion would have very little probative value and much more in terms of being either misleading or confusing.
Report of Proceedings at 20-21.
Decisions involving evidentiary issues lie within the sound discretion of the trial court and will not be reversed unless abuse of discretion can be shown. State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997). Hibbs contends the evidence of accusations against the Chief was relevant to show his own dismissal was pretextual. Sultan justified Hibbs' termination in part on the basis that he could no longer function ably as a police officer after the investigation substantiated his misconduct. Hibbs wanted to show that Chief Walser had similarly been the subject of investigation, yet Sultan did not question the Chief's ability to continue to function effectively.
Hibbs has presented no evidence that the circumstances that lead to Chief Walser's administrative leave were comparable to his own circumstances. The allegations against Hibbs were substantiated; Hibbs has not shown that the same was true in the Chief's case.
Because Hibbs has not demonstrated the relevancy of Chief Walser's administrative leaves, the trial court did not abuse its discretion in excluding inquiry into the subject.
MOTION FOR MISTRIAL
Over a weekend during the trial, there was publicity about Chief Walser being cleared of the sexual harassment charge. For example, a headline in the local paper declared, 'Sultan police chief cleared', followed by the statement, 'the state Attorney General's Office says there isn't enough evidence to charge Fred Walser with sexually harassing and assaulting a former employee.'
Clerk's Papers at 106.
Clerk's Papers at 106.
Before beginning the testimony on the following Monday, the trial court made inquiries to the jury, and found that seven members were aware of the story to some degree. The court questioned these seven jurors, one by one. Most of them had stopped reading or listening when they realized it was about Chief Walser. But they all recalled it was about the Chief being 'innocent' or 'acquitted,' and some of them knew that the charges determined to be unfounded were about sexual harassment. In response to questions by the court and counsel, all jurors said their exposure to the news would not affect their ability to function in the case or impact their assessment of the Chief's credibility.
One juror, who heard a 'short blip' on the radio while falling asleep, recalled that the story 'had something to do with an 18-year-old girl and they decided not to prosecute him for lack of evidence.' This juror initially said the information might affect how she viewed witness credibility, but on further questioning, she told the court that she could 'handle it'.
Report of Proceedings at 693.
Report of Proceedings at 695.
Hibbs moved for a mistrial at this point. He argued that any juror's perception of Chief Walser as 'innocent' functioned as a 'seal of approval' for Sultan's main trial witness in a case 'in which there are huge credibility issues.' The trial court denied the motion, having concluded that the jury could remain impartial and that the news story did not necessarily bolster Chief Walser's credibility.
Report of Proceedings at 696.
When an irregularity occurs at trial, the trial court must determine whether the irregularity was so prejudicial as to deny a fair trial. The trial court is best able to determine if jurors can set aside preconceived opinions and be fair and impartial. The determination of the trial court will be overturned on appeal only for an abuse of discretion. State v. Rempel, 53 Wn. App. 799, 801, 770 P.2d 1058 (1989).
To support the argument that the trial court abused its discretion, Hibbs cites State v. Harris, 62 Wn.2d 858, 358 P.2d 18 (1962). The defendant there was on trial for murder, accused of killing an elderly woman during an attempted rape. A newspaper article about the trial disclosed that Harris was on parole from a sentence for attempted rape. The fact that a newspaper carrying the article was found in the jury room was brought to the attention of the court. Harris, 62 Wn.2d at 864-64. Upon inquiry to the jurors, the trial court determined that only one of the jurors had seen the article, and that juror did not read it. Therefore, the trial court denied the defendant's motion for a mistrial. Affirming, our Supreme Court stated that if there had been a showing that any juror had read the statement about the parole, 'the situation would be very different.' Harris, 62 Wn.2d at 864.
Harris does not compel a different result in this case. The publicity was not nearly as prejudicial as the article discussed in Harris. After questioning each of the jurors carefully, the trial court was 'firmly convinced that this jury is a very conscientious jury who all but one of them made a conscious decision not to even read the article. Each and every one of them has said that as far as they're concerned it will not affect them.
Report of Proceedings at 699.
While Hibbs is entitled to a fair and unbiased trial, he is not entitled to a perfect trial; the possibility of prejudice must be based on more than tenuous, speculative reasoning. State v. Colbert, 17 Wn. App. 658, 664-65, 564 P.2d 1182 (1977). In light of the substantial deference owed to the trial court's assessment of juror impartiality, we find no abuse of discretion in the decision to deny the motion for a mistrial.
Sultan attached to the respondent's brief some written material discussing the effect of publicity on trials. An appendix may include only materials contained within the record, unless the court gives prior permission. RAP 10.3(a)(7). As this article was not part of the court record, we grant Hibbs' motion to strike this material and the portion of Sultan's brief devoted to the discussion of the article.
Affirmed.
KENNEDY and COLEMAN, JJ., Concur.