Russell Burke And Julie Burke, V City Of Montesano ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
February 22, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
RUSSELL BURKE and JULIE BURKE, and No. 48497-8-II
their marital community,
Appellants,
v.
CITY OF MONTESANO; KEN ESTES and UNPUBLISHED OPINION
“JANE DOE” ESTES; KRISTY POWELL and
“JOHN DOE” POWELL; and ROCKY
HOWARD and “JANE DOE” HOWARD,
Respondents.
SUTTON, J. — Russell and Julie Burke appeal the superior court’s order granting the City
of Montesano’s (City) motion for summary judgment on their claim for wrongful discharge in
violation of public policy. Because Burke has failed to establish a genuine issue of material fact
that Burke’s political activity was a substantial factor or a pretext in the City’s decision to terminate
him, we hold that the superior court properly granted the City’s motion for summary judgment.
We affirm.
FACTS
I. BURKE’S EMPLOYMENT HISTORY
In 1986, Russell Burke began working for the City’s Public Works Department. In 1996,
the City promoted Burke to Streets Supervisor. In 1999, Burke was promoted to Assistant Public
Works Director. In 2010, the City promoted Burke to Public Works Supervisor. The City created
No. 48497-8-II
the Public Works Supervisor position in order to create a union alternative to the Public Works
Director position. During the time Burke was Public Works Supervisor, there was no Public
Works Director. As the Public Works Supervisor, Burke performed most of the duties of the
Public Works Director. However, because the Public Works Supervisor position was a union
position, Burke did not have the authority to discipline or fire other union employees. Burke’s
direct supervisor was the City Administrator, Kristy Powell.
II. BURKE’S POLITICAL ACTIVITIES-2011
In the summer of 2011, Burke hosted a party to support mayoral candidate Doug Streeter.
Powell helped organize and attended Burke’s party. Streeter’s opponent, Ken Estes, won the
election for mayor. In December, shortly after the election, Estes brought donuts to the public
works building. Estes questioned Burke about why he had hosted the party for Streeter. Estes also
offered Burke a pin that said “I was one of the 70 [percent] for Mayor Estes.” Clerk’s Papers (CP)
at 799. Burke rejected the pin because he did not vote for Estes. After this, Burke and Estes did
not have any other conversations regarding politics or the 2011 mayoral election.
III. APPOINTMENT OF PUBLIC WORKS DIRECTOR
When Estes became mayor, he decided that it was important to have a Public Works
Director who had the authority to discipline and make other personnel decisions. Estes discussed
the Public Works Director position with Burke, but Burke did not want to take a position that
would require Burke to leave the union. Estes appointed Powell as the Interim Public Works
Director. Then, the City posted the Public Works Director position and Burke applied. Burke was
Estes’s, Powell’s, and the interview committee’s first choice for Public Works Director, but Burke
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again declined the position because it would require him to leave the union. In May 2012, Estes
offered the position to the next candidate, Rocky Howard.
After Howard accepted the Public Works Director position, the City terminated the Public
Works Supervisor position. Burke then became the Public Works Lead. The Public Works Lead
position was similar to the former Public Works Supervisor position except that Burke now
reported to the Public Works Director and did not have the authority to approve overtime or
projects.
IV. ALLEGED THEFT OF PAINT AND INVESTIGATION
After Howard’s appointment to Public Works Director, Powell became aware of an unpaid
paint invoice for the Public Works Department. The discovery of the unpaid invoice prompted an
investigation into the potential misappropriation of paint from the Public Works Department. The
City discovered that Burke ordered almost twice as much paint from 2010-2012 than he ordered
from 2007-2009. The increase in ordering paint coincided with Burke opening a personal painting
business. Invoices also showed that Burke continued ordering paint into September, after the
City’s painting season ended in early August. On February 12, 2013, Burke was placed on paid
administrative leave and notified of a pending internal investigation related to allegations against
him.
On March 14, 2013, Powell wrote an email regarding a conversation with Estes and the
City’s attorney. The email stated that “[o]ur objective is that [Burke] will no longer work here.”
CP at 489.
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As part of its investigation, the City ordered Burke to appear for an interview with the
investigator, William Curtright, on April 8, 2013 at 10:00 a.m. Burke was warned, in writing, that
failure to comply with the order to appear for the interview could result in additional disciplinary
action. The City rescheduled Burke’s interview from April 8 to April 11. On April 3, Burke’s
attorney notified the City that he would be unable to appear with Burke for the scheduled interview
and requested that the interview be rescheduled. Based on scheduling difficulties, the City was
not able to reschedule Burke’s interview. However, the City confirmed that Burke’s union
representative was able to attend the interview. Burke refused to attend the April 11 interview
because of his attorney’s unavailability.
On April 15, 2013, the City issued Burke a written notice warning that his failure to appear
was insubordination and the City was considering taking additional disciplinary action. The City
also notified Burke that he was obligated to appear for an interview when the interview was
rescheduled. The City rescheduled Burke’s interview to April 19. Burke’s attorney was again
unavailable and advised Burke not to attend the interview. However, on April 30, the City
suspended the investigation until June 1.
V. LOUDERMILL HEARING AND SUSPENSION
On May 1, the City held a Loudermill1 hearing regarding discipline for Burke’s earlier
insubordination and failure to appear. Rather than attend the hearing, Burke submitted a written
response claiming he was not insubordinate because he was acting on his attorney’s advice. Based
1
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985).
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on Burke’s failure to comply with a direct order and a written warning, Estes suspended Burke
without pay for 21 days.
On May 24, 2013, Burke’s attorney wrote to inform the City that Burke would not
participate in any interview with the City regardless of when the interview was scheduled. The
City replied that, as a city employee, Burke was under obligation to obey the city’s direct orders.
Burke was provided with a written order to appear for an interview on June 4 at 1:00 p.m. Burke
was warned that “if he refuses to appear, he disobeys a direct order and is subject to discipline.”
CP at 114.
Burke again failed to appear for the interview on June 4, 2013. As a result, the City began
scheduling a second Loudermill hearing to consider discipline up to and including termination. On
June 10, Burke’s attorney informed the City that a Loudermill hearing was “not likely to be a good
use of anyone’s time.” CP at 127. Rather than attend the Loudermill hearing, Burke opted to rely
on his prior written communications with the City.
Also on June 10, Burke’s attorney informed the City that Burke was now willing to
cooperate with the investigation but only on the condition that the City retain a different
investigator to perform the interview. The City informed Burke:
An employer’s work related order is not negotiable. The employee’s
remedy for an order believed to be unlawful or in violation of a collective
bargaining agreement is to obey and grieve, or if the order is disobeyed, to raise the
issue through a pre-disciplinary hearing response or grievance procedure.
CP at 135.
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VI. BURKE’S DISCHARGE/TERMINATION
On June 17, 2013, Estes issued a written notice of termination for Burke. The notice stated
that Burke had “continually disobeyed any order to appear or provide information” even after a
written notice and 21 day suspension. CP at 140. The notice of termination also stated that the
allegations under investigation were serious and Burke’s repeated disobedience prevented the City
from being able to conduct its investigation. And, the notice of termination concluded:
Your refusal to obey orders has caused enormous disruption and expense to
the City. Because the allegations are so serious, and your actions have both
impeded the City’s investigation and made it impossible to successfully complete,
I find that the only appropriate penalty is discharge.
CP at 141.
Estes later testified in a deposition that Burke’s failure to attend a Loudermill hearing on
June 17 was the final action that prompted his discharge. But a Loudermill hearing was not held
on June 17 because when the City attempted to schedule a hearing, Burke informed them he would
not appear.
Burke originally filed a grievance challenging his termination. However, he later withdrew
his termination grievance and his grievance regarding his 21 day suspension.
VII. LAWSUIT AND SUMMARY JUDGMENT ORDER
On July 30, 2015, Burke filed an amended complaint alleging claims for retaliation in
violation of RCW 42.17A.495, wrongful discharge in violation of public policy, breach of contract,
promissory estoppel, and violation of the Washington Constitution. The City filed a motion for
summary judgment to dismiss all claims. Prior to the superior court’s ruling on the City’s motion
for summary judgment, the parties stipulated to dismiss all of Burke’s claims except for the claim
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for wrongful discharge in violation of public policy. Then, the superior court granted the City’s
motion for summary judgment and dismissed Burke’s claim for wrongful discharge in violation of
public policy. Burke appeals.
ANALYSIS
I. STANDARD OF REVIEW
We review the superior court’s decision to grant summary judgment de novo. Rickman v.
Premera Blue Cross, 184 Wn.2d 300, 311, 358 P.3d 1153 (2015). We affirm an order for summary
judgment when there are no genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. CR 56(c); Rickman, 184 Wn.2d at 311. We review the evidence in
the light most favorable to the non-moving party and draw all reasonable inferences in that party’s
favor. Rickman, 184 Wn.2d at 311.
II. WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC POLICY
Recently, our Supreme Court clarified that the elements for wrongful discharge in violation
of public policy are to be analyzed under the framework originally established in Thompson2
and Gardner.3 Rose v. Anderson Hay & Grain Co., 184 Wn.2d 268, 358 P.3d 1139 (2015).
Traditionally, courts only recognized a claim for wrongful discharge in violation of public policy
in four circumstances:
“(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.”
2
Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 685 P.2d 1081 (1984).
3
Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 913 P.2d 377 (1996).
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Rose, 184 Wn.2d at 276 (quoting Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 936, 913 P.2d
377 (1996)).
Here, Burke’s claim, that he was discharged for exercising his First Amendment right to
engage in political activities, falls under one of the four standard circumstances for wrongful
discharge in violation of public policy. For this type of claim, we apply the three-step, burden
shifting test under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d
668 (1973). The first step is for the plaintiff to make out a prima facie case for wrongful discharge
by showing that he exercised a constitutional right, he was terminated, and the protected activity
was “a cause” of the plaintiff’s termination. Wilmot v. Kaiser Aluminum & Chem. Corp., 118
Wn.2d 46, 70, 821 P.2d 18 (1991). If the plaintiff presents a prima facie case, in the second step
the burden of production shifts to the employer to “articulate a legitimate nonpretextual
nonretaliatory reason for the discharge.” Wilmot, 118 Wn.2d at 70. The third step requires the
plaintiff to produce sufficient evidence that the employer’s alleged nonretaliatory reason for the
employment action was pretextual. Wilmot, 118 Wn.2d at 70. An employee may satisfy the pretext
prong by establishing a genuine issue of material fact that either (1) the employer’s articulated
reason for its action is pretextual, or (2) although the employer’s stated reason is legitimate,
retaliation for protected activity nevertheless was a substantial motivating factor. Wilmot, 118
Wn.2d at 73.
Here, assuming without deciding that Burke has met his burden to establish that political
retaliation was a cause of his termination, the City has articulated a legitimate nonretaliatory reason
for Burke’s termination and Burke cannot meet his burden to establish pretext. Accordingly,
summary judgment was proper.
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Burke’s notice of termination clearly states that the City’s reason for his termination was
insubordination. And Burke’s termination came after Burke was warned, in writing, on numerous
occasions that his failure to cooperate with the City’s internal investigation constituted disobeying
a direct order subjecting him to disciplinary action, including termination. The City gave Burke
at least three opportunities to appear for interviews with the investigator. And on each occasion,
the City warned Burke that he was being given a direct order to appear. The City also imposed an
intermediary progressive discipline—a 21 day suspension of Burke—for the same conduct. The
record establishes that the City gave Burke a direct, legal order, Burke repeatedly disobeyed that
order, and the City provided him written warnings regarding additional progressive discipline for
disobeying the order prior to termination. Therefore, the City has met its initial burden of
production to show that Burke’s termination was for reasons other than political retaliation.
Burke does not dispute any of the facts surrounding the investigation, his refusal to appear
when ordered, or his termination. Nor does he appear to dispute that termination is an appropriate
action for an insubordinate employee. Therefore, in order to meet his burden under the pretext
prong, Burke must show that political retaliation was a substantial motivating factor in the City’s
decision to terminate him.
Burke points to two specific pieces of evidence to support his assertion that political
retaliation was a substantial factor in Estes decision to terminate him: (1) the March 2013 email
from Powell in which Powell asserts the City’s objective is for Burke to no longer work for the
City, and (2) the deposition testimony by Estes that the decision to terminate Burke was based in
part on Burke’s refusal to participate in a second Loudermill hearing on June 17, when a second
hearing was never scheduled. Br. of App. at 28-29. Even viewed in the light most favorable to
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Burke, neither piece of evidence establishes political retaliation was a substantial motivating factor
in the City’s otherwise legitimate decision to terminate Burke.
Viewed in the light most favorable to Burke, the March 2013 email demonstrates that the
City was interested in terminating Burke before his insubordination. But the email does not create
a reasonable inference that the City had decided to terminate him before his failure to appear for
the June 4 interview. Further, the email was written in the context of an investigation that strongly
suggested that Burke had engaged in misconduct, which had already resulted in his suspension.
And Powell, not Estes, authored the email. Therefore, reading the email to establish that the City
had decided to terminate Burke because of political retaliation is not a reasonable inference.
Instead, Burke’s argument is based on speculation and speculation cannot be considered on
summary judgment. Little v. Countrywood Homes, Inc., 132 Wn. App. 777, 780, 133 P.3d 944(2006).
Similarly, Estes’s statement that Burke’s failure to attend a second Loudermill hearing on
June 17 was part of the reason for his termination is not evidence that political retaliation was a
substantial factor in Burke’s termination. Burke correctly points out that (1) a Loudermill hearing
was not ultimately scheduled in June, and (2) even if a Loudermill hearing had been scheduled, he
would not have been required to attend. And under some circumstances, providing an inaccurate
reason for a termination can provide evidence of pretext. See Renz v. Spokane Eye Clinic, P.S.,
114 Wn. App. 611, 623-24, 60 P. 3d 106 (2002).
But these facts do not create an inference that political animus was a substantial factor in
the City’s decision to terminate Burke for at least two reasons. First, the City did not rely on the
failure to attend a second Loudermill hearing in its termination letter. Estes’s deposition testimony
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came long after the termination, when he was trying to recall the reasons for the termination.
Second, even though Estes’s testimony was inaccurate, it is not reasonable to infer from that
testimony that the City terminated Burke because of political retaliation.
Here, the City had a legitimate reason to terminate Burke for insubordination and Burke
has not met his burden to present evidence that created a genuine issue of material fact that political
retaliation was a substantial motivating factor or pretext in the decision to terminate him.
Accordingly, we hold that the superior court did not err by granting the City’s motion for summary
judgment and dismissing Burke’s claim for wrongful discharge in violation of public policy.
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 in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, J.
We concur:
MAXA, A.C.J.
WORSWICK, J.
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