Opinion
No. 31040-6-II
Filed: December 14, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 01-2-08070-4. Judgment or order under review. Date filed: 04/25/2003. Judge signing: Hon. Stephanie A. Arend.
Counsel for Appellant(s), Wayne Clark Fricke, Attorney at Law, 1008 S Yakima Ave Ste 302, Tacoma, WA 98405-4850.
Brett Andrews Purtzer, Attorney at Law, 1008 S Yakima Ave Ste 302, Tacoma, WA 98405-4850.
Counsel for Respondent(s), John Andrew Level, Aty General of Washington, 629 Woodland Sq Loop SE, PO Box 40126, Olympia, WA 98504-0126.
James Shinn appeals the trial court's summary judgment dismissal of his action for violation of civil rights, negligence, outrage, wrongful discharge in violation of public policy, and negligent infliction of emotional distress. Holding that summary judgment was proper, we affirm.
FACTS I. Sexual Misconduct Investigation
In March 2000, a Department of Corrections (DOC) sergeant reported an allegation to the McNeil Island Corrections Center (McNeil) Investigation Office that McNeil ferry captains were providing contraband to female Work Ethic Program prisoners in exchange for sex. McNeil Superintendent, Alice Payne, instructed James Cooper to investigate.
Cooper telephonically interviewed inmate Erin Turner, a Work Ethics Program inmate assigned as a ferry deckhand. Turner said that (1) Shinn had kissed her and patted her on the buttocks; and (2) Shinn would have inmate Tannis Schwenka pilot the boat while Shinn and Turner engaged in improper contact on a bench at the rear of the wheelhouse cabin. Schwenka denied any knowledge of or involvement in the activity.
When Cooper interviewed Turner in person, she confirmed the improper contact. She said that (1) Shinn had placed his arm around her shoulder and tried to kiss her on the mouth; (2) on another occasion, Shinn had placed his arm around her shoulder and placed his hand on her leg; and (3) Shinn had patted her on the buttocks on more than one occasion. Turner had not reported the conduct because she feared she would be sent back to Purdy Correctional Center for her full sentence. During a polygraph examination, Turner again confirmed that Shinn had kissed her and 'patted her on the butt.'
On April 6, 2000, Cooper met with Shinn to notify him of the allegations. Shinn brought union representative Robert Epperson to the meeting. The union and DOC operated under a Collective Bargaining Agreement (CBA). Cooper told Epperson not to say anything during the meeting but to sit and take notes. Cooper indicated he believed Turner's allegations, despite Shinn's denials. When Epperson asked to speak with Shinn, Cooper said he could do so after the interview. At one point, Shinn agreed to talk to Cooper without Epperson present. Cooper gave Shinn the opportunity to confess to the allegations and Shinn said he had done nothing wrong. After the meeting, DOC notified Shinn, by letter, that it was administratively reassigning him to his home according to DOC policy.
Cooper continued the investigation and interviewed Schwenka. Turner had previously spoken to Schwenka about Shinn's advances. Schwenka said that Shinn would call Turner back into the wheelhouse, but she did not know what happened in the wheelhouse on these occasions.
On April 18, 2000, Shinn's supervisor, John Little, initiated an Employee Conduct Report (ECR) to address the allegations. On April 20, 2000, Shinn received the ECR specifically notifying him of the allegations.
II. Criminal Prosecution
In May 2000, Cooper forwarded a copy of his report to the Pierce County Sheriff's Department and the Prosecutor's Office. The State charged Shinn and another ferry captain with attempted custodial sexual misconduct in the second degree. A jury acquitted Shinn.
III. Discharge from Employment
On May 26, 2000, DOC Superintendent Payne met with Shinn and his union representative to discuss the ECR. On June 8, 2000, after personally interviewing Turner, Payne issued her administrative comments on Shinn's ECR, stating her determination that the alleged misconduct did occur and that disciplinary action would follow.
On July 5, 2000, Payne notified Shinn by letter of a July 12, 2000 meeting to discuss her preliminary decision to dismiss him. Shinn's union attorney responded with a letter containing Shinn's waiver of the July 12, 2000 meeting. In an August 2, 2000 letter, Payne informed Shinn of his dismissal effective August 19, 2000.
IV. Lawsuit
Shinn sued the State of Washington, Superintendent Payne, Cooper, and Turner. He claimed 42 U.S.C. sec. 1983 civil rights violations, wrongful discharge, negligence, negligent infliction of emotional distress, and malicious prosecution.
The State moved for summary judgment. The trial court dismissed all of Shinn's claims except for malicious prosecution. Shinn appeals summary judgment dismissal of his civil rights, wrongful discharge, negligence, and negligent infliction of emotional distress claims.
ANALYSIS I. Standard of Review
When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c). The nonmoving party may not rely on speculation, argumentative assertions that unresolved factual issues remain, or having its affidavits considered at face value. Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986). The court considers all facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Wilson, 98 Wn.2d at 437.
After the moving party has submitted adequate affidavits, the burden shifts to the nonmoving party to set forth specific facts sufficiently rebutting the moving party's contentions and disclosing the existence of a material issue of fact. Seven Gables, 106 Wn.2d at 13. The trial court should grant the motion only if, from all the evidence, reasonable persons could reach but one conclusion. Wilson, 98 Wn.2d at 437.
II. Procedural Due Process
Shinn argues that the State violated his civil rights and denied him due process in terminating his employment. The record does not support his assertion.
42 U.S.C. sec. 1983 (1996) provides, in pertinent part:
Every person who . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party inured in an action at law, suit in equity, or other proper proceeding for redress.
To maintain a sec. 1983 claim, a plaintiff must establish: (1) that some person deprived him of a federal constitutional or statutory right; and (2) that the person was acting under color of law. Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 11, 829 P.2d 765 (1992). A public employee acting in his official capacity generally acts under color of state law. Morinaga v. Vue, 85 Wn. App. 822, 833, 935 P.2d 637, review denied, 133 Wn.2d 1012 (1997).
A person may have a property right in continued public employment. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 539, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985). A tenured public employee is entitled to notice of charges against him and an opportunity to respond at a pretermination hearing. Danielson v. Seattle, 108 Wn.2d 788, 798, 742 P.2d 717 (1987). The hearing need not be a full adversarial hearing, Loudermill, 470 U.S. at 545-46, but it must be meaningful and appropriate to the particular case. Bell v. Burson, 402 U.S. 535, 541-42, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971). 'In the public employment context, the pretermination hearing need only be an initial check against mistaken decisions to determine whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.' Fuller v. Employment Sec., 52 Wn. App. 603, 607, 762 P.2d 367 (1988).
Shinn argues he was denied adequate due process because: (1) he did not receive notice of the reason he was called to the April 6, 2000 investigative meeting, which he characterizes as a Loudermill pretermination hearing; (2) Cooper refused to allow Shinn's union representative to take part in the meeting; (3) Cooper indicated he believed the accusations against Shinn; (4) Cooper asked Shinn about an appropriate punishment; and (5) Superintendent Payne failed to supervise Shinn.
The April 6, 2000 meeting was not a Loudermill pretermination meeting. Rather, it was a preliminary, fact-finding inquiry during which Cooper was investigating Turner's sexual misconduct allegations against Shinn. After the meeting, DOC placed Shinn on administrative home assignment, but it did not terminate his employment. Therefore, procedural due process requirements were not implicated in the April 6, 2000 meeting.
See CBA Rule 7.1. Br. of Appellant at 7.
Even if the meeting was a breach of the CBA between DOC and the union, such breach would not amount to a deprivation of property without due process actionable under 42 U.S.C. sec. 1983 because Shinn was not terminated as a result of the meeting. See Boston Envtl. Sanitation Inspectors Ass'n v. City of Boston, 794 F.2d 12, 13 (1st Cir. 1986).
Moreover, Shinn waived any right to raise such breach when he later waived his presence at the actual termination hearing. And he has not shown how Cooper's refusal to allow Shinn's union representative to speak might have affected Payne's later decision to terminate his employment with DOC. See discussion, infra.
Furthermore, the record indicates that DOC provided Shinn with sufficient due process before actually terminating his employment. On April 18, 2000, Shinn's supervisor, Little, initiated an ECR specifically notifying Shinn of the allegations against him. On May 26, 2000, Superintendent Payne met with Shinn to discuss the ECR. Payne gave Shinn the opportunity to explain the circumstances or to rebut the allegations in the ECR. This meeting alone satisfied the Loudermill requirements of 'oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story.' Loudermill, 470 U.S. at 546.
On July 5, 2000, Superintendent Payne gave Shinn a letter notifying him of a July 12, 2000 meeting to discuss her preliminary decision to terminate his employment. The letter gave Shinn the opportunity to provide any additional information for her to consider concerning his employment with DOC. Shinn affirmatively waived this hearing in a letter from his union attorney. As the Seventh Circuit has noted, an 'employee cannot claim lack of due process when his employer offered him . . . a pretermination hearing and he refused to attend.' Flynn v. Sandahl, 58 F.3d 283, 288 (7th Cir. 1995).
Viewing the facts in the light most favorable to Shinn, it is clear that he received adequate due process. Accordingly, we hold that the trial court properly granted summary judgment on Shinn's 42 U.S.C. sec. 1983 claim.
III. Wrongful Discharge in Violation of Public Policy
Shinn next argues that Cooper's refusal to allow Epperson to participate in the April 6, 2000 meeting thwarted public policy and his statutory right to union representation and, therefore, resulted in his wrongful discharge.
A plaintiff has a cause of action in tort for wrongful discharge if the discharge contravenes a clear mandate of public policy. Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 232, 685 P.2d 1081 (1984). The four elements of the tort are: (1) a clear mandate of public policy (clarity); (2) discouraging the employee conduct would jeopardize that public policy (jeopardy); (3) the public policy linked conduct caused the dismissal (causation); and (4) the employer is not able to offer an overriding justification for the termination (justification). Sedlacek v. Hillis, 145 Wn.2d 379, 387, 36 P.3d 1014 (2001); Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 941, 913 P.2d 377 (1996). The elements are listed in the conjunctive, requiring plaintiff to show each element in order to prevail. Ellis v. City of Seattle, 142 Wn.2d 450, 459, 13 P.3d 1065 (2000).
Shinn contends that RCW 49.32.020 (labor regulations) and RCW 41.56.140 (public employment) create a clear public policy mandate that employers not interfere with public employees' relations with their union representatives. Washington courts recognize a public policy action where an employee is fired for exercising a legal right or privilege. Dicomes v. State, 113 Wn.2d 612, 618, 782 P.2d 1002 (1989). Shinn seems to argue that DOC fired him for exercising his legal right to union representation.
Shinn's claim fails on the causation element. A plaintiff must prove that his public-policy-linked conduct actually caused his termination. Gardner, 128 Wn.2d at 941. There must be sufficient evidence of a nexus between the discharge and the alleged policy violation. Havens v. CD Plastics, Inc., 124 Wn.2d 158, 179, 876 P.2d 435 (1994). The court can determine causation as a matter of law when reasonable minds can reach only one conclusion. Miller v. Likins, 109 Wn. App. 140, 144, 34 P.3d 835 (2001). But such is not the case here. Shinn provides little more than an unsupported, argumentative assertion that he 'asserted his rights, which inspired Investigator Cooper's tactics and likely inspired Cooper and Superintendent Payne to seek Captain Shinn's termination, resulting in a wrongful discharge.' Br. of Appellant at 22.
Shinn relies heavily on Smith v. Bates Technical Coll., 139 Wn.2d 793, 991 P.2d 1135 (2000). In Smith, the court recognized an action for wrongful discharge in violation of the plaintiff's protected legal right to file grievances. Smith, 139 Wn.2d at 808. Shinn argues that if filing a grievance implicates the public interest, then Cooper's efforts to interfere with Shinn's right to notice and representation implicate the public interest. This argument does not follow. Shinn's termination had nothing to do with the exercise of his right to union representation. Moreover, he makes only a bald assertion that the exercise of his rights 'likely inspired' his termination. He may not rely on speculation or argumentative assertions to establish violation of public policy or to defeat summary judgment. Seven Gables, 106 Wn.2d at 13.
DOC did not terminate Shinn for exercising his legal right to union representation. Superintendent Payne terminated Shinn because she found by a preponderance of the evidence that Shinn had misused his position of authority in order to have sexual contact with inmate Turner. The trial court properly granted summary judgment on this claim.
Superintendent Payne based her finding on her review of material from Cooper's fact-finding investigation, her review of materials from Little's investigation, her review of Turner's polygraph results, her examination of the ferry boat wheelhouse, her interview of correctional staff, and her personal interview of Turner.
IV. Negligence Claims
Shinn next contends that DOC's investigation, disciplinary proceedings, and decision to terminate him expose the State to liability for negligent supervision, negligent infliction of emotional distress, and negligent investigation. Again, we disagree.
A plaintiff must satisfy four elements in a negligence claim: (1) existence of a duty owed; (2) breach of duty; (3) resulting injury; and (4) proximate causation between the breach and the injury. Schooley v. Pinch's Deli Market, 134 Wn.2d 468, 474, 951 P.2d 749 (1998). The threshold question is whether the defendant owes a duty of care to the plaintiff. Schooley, 134 Wn.2d at 474. The existence of a legal duty is a question of law. Schooley, 134 Wn.2d at 474.
A. Negligent Investigation
Shinn claims that Cooper engaged in an abusive investigation. Washington does not recognize a claim for negligent investigation except for DSHS child abuse investigations. Corbally v. Kennewick Sch. Dist., 94 Wn. App. 736, 740, 973 P.2d 1074 (1999). The trial court properly dismissed this claim as a matter of law.
B. Statutory Duty
A statutory tort duty 'extends only to persons in the class intended to be protected by the statute or ordinance, and only to those persons who suffer harm from a hazard which was intended to be prevented by compliance with the statute or ordinance.' Wells v. Vancouver, 77 Wn.2d 800, 804, 467 P.2d 292 (1970). Shinn baldly asserts that Chapter 41.56 RCW and Chapter 49.32 RCW establish a duty of care, providing no analysis or authority supporting the creation of statutory tort duty.
Shinn's loss of employment did not result from a breach of a statutory duty. On the contrary, DOC fired Shinn based on Superintendent Payne's finding, by a preponderance of the evidence, that he had engaged in sexual misconduct with an inmate. Because Shinn has shown no violated statutory tort duty, the trial court properly dismissed Shinn's negligence claims.
C. Negligent Supervision
Shinn next argues that Payne negligently supervised Cooper in his investigation into Turner's sexual misconduct allegations. Again, we disagree.
'An employer is generally vicariously liable for negligent acts of an employee conducted within the scope of employment. When an employee causes injury by acts beyond the scope of employment, an employer may be liable for negligently supervising the employee.' Gilliam v. DSHS, 89 Wn. App. 569, 584-85, 950 P.2d 20, review denied, 135 Wn.2d 1015 (1998). A cause of action for negligent supervision (by Payne) is redundant, however, where, as here, the employee (Cooper) was acting in the scope of his employment. Gilliam, 89 Wn. App. at 585.
Shinn has provided no evidence that Cooper was acting outside his scope of employment in investigating the allegations against him (Shinn). Rather, Shinn states merely that 'the facts demonstrate . . . an improper supervision by Payne.' Br. of Appellant at 24 (footnote omitted). The trial court properly dismissed Shinn's negligent supervision claim.
D. Negligent Infliction of Emotional Distress
Shinn also argues that Cooper's investigation negligently caused him emotional distress. We disagree.
To prove an action for negligent infliction of emotional distress, the plaintiff must show that the acts were not a workplace dispute or employee discipline. Snyder v. Med. Serv. Corp., 98 Wn. App. 315, 323, 988 P.2d 1023 (1999), affirmed, 145 Wn.2d 233 (2001). '[E]mployers do not owe employees a duty to use reasonable care to avoid inadvertent infliction of emotional distress when responding to workplace disputes.' Bishop v. State, 77 Wn. App. 228, 235, 889 P.2d 959 (1995).
Here, Cooper's alleged misconduct was part of DOC's investigation into a 'workplace dispute' involving a report of Shinn's sexual misconduct against an inmate. Accordingly, DOC owed no duty to Shinn to avoid infliction of emotional distress in resolving this dispute. The trial court properly dismissed this claim as well.
Holding that the trial court properly granted summary judgment, we affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and ARMSTRONG, J., Concur.