Robert & Jacqueline Piel, Apps. v. City Of Federal Way, Resp. ( 2016 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ROBERT PIEL and JACQUELINE NO. 72707-9-1
PIEL, husband and wife,
Respondents,
DIVISION ONE
THE CITY OF FEDERAL WAY, a
municipality organized pursuant to the
laws of the State of Washington, UNPUBLISHED OPINION
Appellant. FILED: May 16,2016
Lau, J. — The Federal Way Police Department terminated Robert Piel after he
made comments about murdering other Department members. He appeals a jury
verdict that rejected his wrongful discharge claim based on alleged public policy
violations. Piel challenges numerous trial court rulings on exclusion and admission of
evidence. He also challenges the partial summary judgment order that limited the
public policy sources for his wrongful discharge claim. Because the trial court's
evidence rulings fall well within its broad discretion and it properly granted partial
summary judgment, we affirm the judgment entered on the jury's verdict.
No. 72707-9-1/2
FACTS1
Piel worked for the Federal Way Police Department for nearly 11 years, as an
officer and then as a lieutenant. In May 2006, Chief Anne Kirkpatrick terminated Piel for
misconduct when Piel directed a subordinate officer to release a firefighter detained on
suspicion of drunk driving. Piel successfully grieved his termination through arbitration.
He contended the Department lacked just cause to terminate him and that his
termination was motivated by anti-union bias.
From 2002 to 2005, Piel spearheaded an effort to unionize the lieutenants in the
Department. Piel claimed the Department retaliated against him in various ways. Piel
noticed "a marked increase in his duties and responsibilities without commensurate
support [and] unusual and obstreperous internal affairs investigations." Piel. 177 Wash. 2d
at 607-08. Piel argued this retaliation ended with his termination. The arbitrator
concluded that although just cause existed to discipline Piel, the Department did not
meet its burden of proof on discharge. The arbitrator ordered the Department to
reinstate Piel in a demoted capacity and reimburse him for all lost pay and benefits.
In August 2007—nearly 13 months after his termination—Piel returned to work.
On his first day back, Piel made several questionable comments. For example, Piel
asked one newlywed officer, who he had not met, if her husband was ugly and if they
planned to have kids. She testified that the comments made her uncomfortable and
that she did not want to answer Piel because she did not know him: "I was so hot,
sweaty, embarrassed, uncomfortable, enraged, and disgusted that Ithrew my chair
1 For a summary of background facts, see Piel v. City of Federal Way. 177 Wash. 2d
604, 306 P.3d 879 (2013).
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No. 72707-9-1/3
back and stated, 'Are we done?' I then walked out of the briefing room feeling
completely helpless and furious." Exhibit (Ex.) 4, tab 11; see also Report of
Proceedings (RP) (Oct. 21, 2014) at 69-70.2 One officer stated that Piel's behavior
approached conduct unbecoming of an officer.
Witnesses heard Piel make some threatening statements after a unit briefing.
Jail Coordinator Jason Wilson and two other officers testified that Piel said he had
thought about "murdering" people in the department. Wilson reported Piel's comments
to his superior the next day. The Department assigned Commander Steve Arbuthnot to
conduct a formal disciplinary investigation of the incident.
Two other officers heard Piel make the threatening statements. Officer Brian
Bassage provided a written statement that corroborated Wilson's testimony. During an
interview with Arbuthnot, Officer Bassage expressed some concern about the
statement, but viewed it as not a serious threat. Officer Jason Ellis also heard the
comments but assumed Piel was joking. Officer Ellis reiterated this belief in his
interview with Arbuthnot.
About one month after the "murder" comment, Arbuthnot interviewed Piel. Piel
repeatedly denied making the comment. Ex. 4, tab 23. Piel offered to take a polygraph
test, and Arbuthnot responded, "Okay." Ex. 4, tab 23. Officer Keith Pon, a Police
Officer's Guild representative present at the interview, did not object. Arbuthnot
received an e-mail from Piel containing the polygraph test results. The collective
2One officer who witnessed this incident provided this statement: "Piel went on to
talk with [female officers] Schroll and Scheyer. It was mentioned that Scheyer recently
got married. Piel asked Scheyer if her husband was a cop or if he was ugly ... I could
sense they were upset." Ex. 4, tab 9.
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bargaining agreement between the City and the Police Officer's Guild expressly
prohibits polygraph evidence in disciplinary proceedings unless both parties stipulate to
its admission: "Nor shall polygraph evidence of any kind be admissible in disciplinary
proceedings, except by stipulation of the parties to this [agreement." Ex. 99 at 20.
Police Officer's Guild President John Clary declined to stipulate. Because Arbuthnot
reviewed the polygraph evidence, the City reassigned the investigation to an
independent investigator to avoid any improper influence. Arbuthnot explained the
reassignment in the summary report he provided to the City:
Officer Piel's comments referring to the work place violence
concerns have been assigned by the City to an independent investigator
due to Officer Piel sending me [polygraph test results]. The Police
Officer's Guild Collective Bargaining Agreement prohibits the introduction
of [this] information in a disciplinary investigation unless stipulated to by
the Guild and the City. No such stipulation existed at the time the
[polygraph test results were] forwarded to me and the Guild refused to
stipulate throughout this investigation.
Ex. 4 at 2.
The City retained attorney Amy Stephson to continue the investigation. The City
provided Stephson with Arbuthnot's report and the statements and interviews he had
collected. Stephson interviewed Piel and the three who heard the threatening
comments—Bassage, Wilson, and Ellis. Piel continued to deny he made threats.
Stephson's final report concluded that Piel "did make a comment to the effect that he
had thought of murdering others with his gun at some point or points during the 15-
month period he was absent from the police department." Ex. 9 at 2. Stephson also
concluded that Piel's comment violated section 10.6 of the employee guidelines.
Section 10.6 prohibits employees from "threatening injury or damage against a person
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or property." Ex. 9 at 3. It further states that "[b]ecause of the potential for
misunderstanding, joking about any of the above misconduct is also prohibited." Ex. 9
at 3.
Stephson also found Piel's testimony not credible for two reasons. First, three
witnesses contradicted Piel's repeated denials about the "murder" comment. Ex. 9 at 3.
Second, Piel also denied making negative comments that other witnesses heard and
testified about, such as the comments directed at the female officers and his comments
about former Chief Kirkpatrick. "When asked about these other comments, Piel either
denied them outright, denied making them at the briefing, or couldn't remember them.
This suggests that he either has little recollection of what he said during that
conversation, or decided to deny making any comments that were arguably negative. In
either event, his credibility is not enhanced." Ex. 9 at 3.
Professional Standards Commander Melanie McAllester is responsible for
reviewing internal investigations and recommending discipline to the Chief.
Commander McAllester concluded that Stephson's report sustained allegations of
workplace violence (threats) and untruthfulness against Piel. She recommended that
Piel be terminated for each violation. On January 31, 2008, Chief Brian Wilson issued a
letter of discharge to Piel.
In 2008, the Piels sued the City of Federal Way. They alleged wrongful
discharge in violation of public policy. Piel argued the Department terminated him for
engaging in union-organizing activities protected by RCW 41.56.040. In October 2009,
a superior court judge granted the City's motion to dismiss and motion for summary
judgment. The trial court ruled that Piel could not satisfy the "jeopardy" elementof his
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wrongful discharge claim because the remedies available through the Washington
Public Employee Relations Commission (PERC) adequately protected the public policy
grounded in RCW 41.56. The Supreme Court reversed and remanded on direct review.
It held that Piel could pursue his wrongful discharge claim despite the administrative
remedies available through PERC.
Piel alleged on remand that several activities he engaged in during his
employment constituted protected activities for purposes of a wrongful discharge claim.
These activities included (1) formation of the Lieutenant's union in accordance with
RCW 41.46, (2) several administrative actions such as filing a complaint pursuant to the
Employee Guidelines for Employees of the City of Federal Way, (3) filing a claim for
damages with the City under RCW 4.96.020.
The City successfully moved for summary judgment on two issues. First, the trial
court concluded that Piel was collaterally estopped from arguing that his 2006
termination was motivated by anti-union animus. At the arbitration hearing following his
2006 termination, Piel argued that the termination constituted retaliation for engaging in
union-organizing activities. The arbitrator rejected this argument and concluded just
cause existed. Because the issue was previously litigated and determined during
arbitration, the trial court ruled that collateral estoppel barred Piel's claim that his 2006
termination was retaliation for engaging in union activities.
Second, the trial court ruled that actions authorized by the employee guidelines
and submitting a notice of claim for damages under RCW 4.96.020, were not protected
activities for purposes of a wrongful discharge claim. The trial court granted the City's
motion for summary judgment as to those claims. The Piel's only remaining claim was
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No. 72707-9-1/7
that his 2008 termination amounted to wrongful discharge in violation of public policy
protected under RCW 41.56. After an 8-day trial, the jury rejected Piel's wrongful
discharge in violation of public policy claim. Piel appeals various evidence rulings and
the partial summary judgment order.
ANALYSIS
Standard of Review
We will reverse a trial court's evidentiary rulings only upon a showing of abuse of
discretion. Subia v. Riveland. 104Wn. App. 105, 113-14, 15 P.3d 658 (2001). "Atrial
court abuses its discretion if its decision is manifestly unreasonable or based on
untenable grounds or untenable reasons." In re Marriage of Littlefield, 133 Wash. 2d 39,
46-47, 940 P.2d 1362 (1997). Further, even if a trial court's evidentiary rulings were
erroneous, the appellant must also show that the error was prejudicial. "Error will not be
considered prejudicial unless it affects, or presumptively affects, the outcome of the
trial." Brown v. Spokane Cntv. Fire Prot. Dist. No. 1. 100 Wash. 2d 188, 196, 668 P.2d 571
(1983).
Exclusion of Polygraph Evidence
Piel claims the trial court erred when it excluded evidence that he "had taken and
passed a polygraph." Br. of Appellant at 20. The trial court properly ruled that the
polygraph evidence was more prejudicial than probative.3 The collective bargaining
agreement also prohibits polygraph evidence absent a stipulation by the parties. Piel
3Piel failed to endorse any expert witness to lay any foundation for the admission
of the polygraph evidence. His claim that the evidence was not offered for its truth is
undermined by his arguments at trial and on appeal.
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No. 72707-9-1/8
has failed to show that the trial court abused its discretion when it excluded the
polygraph evidence.
Generally, courts exclude polygraph evidence due to its unreliability and the
powerful effect it can have on juries. "[Ejvidence that a polygraph test has been taken
or passed is inadmissible absent stipulation by both parties because the polygraph has
not attained general scientific acceptability." State v. Justesen. 121 Wash. App. 83, 86, 86
P.3d 1259 (2004).4 Because "[polygraph evidence is liable to be prejudicial," it "should
be admitted only when clearly relevant and unmistakably nonprejudicial." Justesen, 121
Wash. App. at 93.
Piel contends the polygraph evidence was admissible because it was introduced
not for its substantive truth but to show the Department's bias against him.5 Under
limited circumstances, polygraph evidence may be admitted for purposes other than its
substantive truth:
If the polygraph evidence is being introduced because it is relevant
that a polygraph was administered regardless of the results,... then the
polygraph evidence may be admissible as an operative fact. If, on the
other hand, the polygraph evidence is offered to establish that one party's
4"The Washington courts have never directly and squarely addressed the
question of whether the [polygraph evidence] rules applicable to criminal cases apply
with equal force and effect in civil cases, or whether the courts should be more
receptive to polygraph evidence in civil cases. The few reported cases on point suggest
that the same ground rules applicable in criminal cases apply in civil cases as well." 5B
Karl B. Tegland, Washington Practice: Evidence Law and Practice § 702.40, at 158
(5th ed. 2007).
5Piel also argues the polygraph evidence was relevant to show his "state of
mind" when Stephson interviewed him. Specifically, Piel claims that polygraph shows
that he in good faith did not believe he made the "murder" comments and therefore did
not intentionally deceive Stephson. But Piel's state of mind was not a relevant issue
here. The DOC's state of mind was relevant in Subia because the main issue in that
case was whether the disciplinary action was motivated by racial discrimination. Subia.
104Wn. App. 114.
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No. 72707-9-1/9
version of the events is the truth, the polygraph evidence is being
introduced for its substantive value and is inadmissible absent a
stipulation.
State v. Reav. 61 Wash. App. 141, 149-50, 810 P.2d 512 (1991) (guoting Brown v. Darcv.
783 F.2d 1389, 1397 (9th Cir. 1986)).
Piel cites Subia. The Department of Corrections (DOC) relied on the polygraph
results as a reason for placing Subia on administrative leave without pay due to alleged
sexual misconduct. The evidence was not offered to show whether Subia engaged in
misconduct. As the court of appeals observed, the polygraph evidence "was highly
relevant" as to whether the DOC's reason for the discipline was false. Subia. 104 Wn.
App. at 114. This bears directly on the employer's motive for its disciplinary action, a
central issue in Subia's race discrimination trial. Piel argues the polygraph evidence is
admissible because whether or not he made the "murder" comments is not as important
as the fact that the test was taken and the Department's reaction to it.
Unlike in Subia. the polygraph evidence here offered no direct evidence on a
central claim or defense. The polygraph evidence in Subia was a primary factor in the
DOC's nondiscriminatory decision to place Subia on administrative leave. Subia. 104
Wash. App. at 115. The marginal relevance of Piel's polygraph evidence is clear. Piel
claimed that he was terminated for illegitimate reasons. The investigation into Piel's
misconduct was already well underway when Piel sent Arbuthnot the polygraph results.
Arbuthnot had already collected statements from several other officers attesting to Piel's
conduct. Piel argued he was terminated due to his involvement in forming the union in
the early 2000s and his successful arbitration in 2007. The polygraph evidence was not
central to his claims. He presented his theory of the case without it. Piel's theory at trial
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No. 72707-9-1/10
focused on the Department's alleged retaliatory discharge based on his effort to form a
lieutenant's union in the early 2000s. As proof of this, he presented evidence on
onerous and unusual changes to his employment, including a transfer out of a specific
unit, assignment of additional duties without commensurate support, poor performance
reviews, and several standards investigations led by Greg Wilson, the brother of former
Deputy Chief Brian Wilson. Piel's attorney claimed that the evidence would
"demonstrate] a pattern of animus" culminating in Piel's termination. RP (Oct. 13,
2014) at 209. But the polygraph evidence was not directly relevant to this "pattern." For
example, Piel argues the polygraph evidence is relevant because it supports the
inference that Chief Wilson removed Arbuthnot from the investigation because
Arbuthnot was leaning towards clearing some of the charges against Piel. But the
record shows that Piel was able to make the same argument without the polygraph
evidence:
So, Commander Arbuthnot—and this is very important—tells Bud
[Piel], and it's on the record, that he's 'decided that—that four of the five
charges are unsubstantiated.' He's gonna dismiss 'em. He interviews
Bud Piel and the very next day Chief Wilson pulls him off the investigation.
Hires an outside investigator.
RP(Oct. 13, 2014) at 222-23.
The City also properly declined to consider the polygraph evidence due to the
collective bargaining agreement's stipulation requirement. As discussed above, the
Federal Way Police Officers' Collective Bargaining Agreement expressly prohibits
consideration of polygraph evidence in disciplinary matters absent stipulation by the City
and the union. Arbuthnot's final report correctly notes that "no such stipulation existed
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No. 72707-9-1/11
at the time the [polygraph evidence was] forwarded to me and the Guild refused to
stipulate throughout this investigation." Ex. 4 at 2.6
Piel fails to present any evidence of a binding stipulation. He claims instead that
members of the Guild never objected and that the Guild representative's silence during
Piel's interview with Arbuthnot amounts to a stipulation. He also points to an e-mail
comment from Guild President John Clary about some information missing from the file
for the Piel investigation, including the polygraph evidence. Arbuthnot claims John
Clary declined to consent to Piel's polygraph evidence. Neither the union
representative's silence nor Clary's e-mail constitute an affirmative stipulation. It is also
questionable whether Arbuthnot and the Guild representative were authorized to bind
the City and the union to such a stipulation. We are not persuaded by Piel's stipulation
claims. Piel does not dispute that the department was precluded from using the
polygraph evidence in Piel's disciplinary proceeding under the Collective Bargaining
Agreement's stipulation requirement.7
The trial court's decision to exclude the polygraph evidence does not amount to
an abuse of discretion. See Industrial Indem. Co. of the Northwest, Inc. v. Kallevig. 114
Wash. 2d 907, 926, 792 P.2d 520 (1990) ("A trial court has broad discretion in performing
6 The Guild has consistently refused to allow polygraph evidence since the
collective bargaining agreement was amended in 2001.
7 Piel argues that the City could have introduced all the evidence justifying their
reasons for not considering the polygraph evidence had it been admitted. Piel contends
that the trial court could have admitted the polygraph evidence and then the City could
have presented evidence explaining its decision not to consider the polygraph
evidence—the collective bargaining agreement, the conversation with Guild President
Clary, etc. The jury could decide whether the Department's decision to ignore the
polygraph evidence was motivated by improper bias. Piel misses the point. The
threshold question on the polygraph's admissibility rests with the trial court, not the fact
finder.
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No. 72707-9-1/12
the balancing test contemplated in ER 403 and will be reversed only upon a showing of
abuse of discretion."). This is especially true for polygraph evidence, which "is liable to
be prejudicial and therefore should be admitted only when clearly relevant and
unmistakably nonprejudicial." Justesen. 121 Wash. App. at 93 (emphasis added). Given
the polygraph evidence's limited probative value and its potential for prejudice, the trial
court did not abuse its discretion when it excluded the evidence.
Even if we assume the trial court erred when it excluded the polygraph evidence,
Piel fails to show prejudice. Thomas v. French. 99 Wash. 2d 95, 659 P.2d 1097 (1983)
("Error without prejudice is not grounds for reversal, and error will not be considered
prejudicial unless it affects, or presumptively affects, outcome of trial."). Piel was fired
for two independent reasons: he threatened workplace violence and then lied about it.8
Even if we assume the polygraph evidence was relevant to show Piel was not dishonest
when he denied making the threat, that evidence does not affect the Department's
legitimate motive to terminate Piel based on workplace violence by a police officer. The
8 Commander McAllester's recommendation provides:
Workplace violence: Officer Piel did not simply threaten to harm
another; his statement was to end another's life. He is a police officer and
must understand the seriousness of such a statement, especially given
the circumstances. His position provides him the means of carrying out
his threat. / recommend that Officer Piel be terminated for this
sustained violation.
Untruthfulness: An independent investigator determined that the
City could reasonable conclude that Officer Piel was dishonest during the
investigation when he uncategorically denied making the statement. His
dishonesty prevents him from continuing in a profession that demands
honesty, credibility, and integrity from those entrusted to protect the
community and enforce the laws. / recommend that Officer Piel be
terminated for this sustained violation.
Ex. 12 at 4.
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No. 72707-9-1/13
trial court properly excluded the polygraph evidence and Piel shows no prejudice from
its exclusion.
Whether the City used the Polygraph Ruling "As a Sword"
Piel argues that the City improperly used the trial court's ruling excluding the
polygraph evidence. He claims the trial court permitted the City to "invent" facts related
to the polygraph test and "open the door"9 to the polygraph evidence without similarly
allowing Piel to rebut the City's claims or discuss that evidence. After it ruled in limine
to exclude the polygraph evidence, the court made it clear that Piel was permitted to
examine Arbuthnot and the other witnesses about the polygraph evidence provided by
Piel and why the investigation was transferred to Stephson, so long as no one
mentioned the polygraph: "y]ou're entitled to ask [Arbuthnot] and cross him on the issue
[of his removal] without.. . disclosing what the information was." RP (Oct. 20, 2014) at
189. "We're gonna go with what's been redacted ... I'd caution both parties not to use
the polygraph, given my ruling earlier... I have made it very clear that... no evidence
regarding the polygraph or taking the polygraph or the results of the polygraph will be
admissible." RP (Oct. 15, 2014) at 199. When the parties failed to reach an agreement
on what substitute term to use for "polygraph," consistent with the court's ruling, the City
used the term "information" when referring to the polygraph evidence during trial. It also
9This assignment of error does not implicate "the open door" doctrine. The
doctrine involves the introduction of inadmissible evidence, not admissible evidence. If
the City and its witnesses had actually used the term "polygraph," arguably the door is
opened. But even then, the trial court has a measure of discretion to decide when the
door is opened. See 5 Karl B. Tegland, Washington Practice: Evidence Law and
Practice § 103.14 (5th ed. 2007) ("Waiver of objections—'Opening the door). We also
note that Piel never objected at any time to the City's use of the substitute term
"information."
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ensured all references to "polygraph" were redacted from the trial documents and
exhibits. Piel does not complain that witnesses violated the trial court's in limine ruling.
For example, during its opening statement, the City explained that Chief Wilson
replaced Arbuthnot after he discovered "information" that tainted the investigation:
When, uh, Commander Arbuthnot opened that e-mail he realized
that it was something that under the contract—the collective bargaining
agreement—with Officer Piel's union, he's not allowed to look at that
information and consider it in the investigation unless the union stipulates
or agrees to that. Commander Arbuthnot had a conversation with John
Clary, who's the president of the union, who said, "No way. You cannot
use that."
RP (Oct. 13, 2014) at 233-34 (emphasis added). And Chief Wilson testified that "there
was information that was provided by Mr. Piel that, uh, compromised the integrity of the
investigation." RP (Oct. 16, 2014) at 63 (emphasis added). Arbuthnot gave similar
testimony using the term "information." RP (Oct. 20, 2014) at 187-90.
The trial court applied its polygraph ruling equally to both parties. It allowed each
party the same latitude to examine witnesses and present exhibits as long as the
evidence complied with the court's in limine ruling. The court's ruling did not prevent
Piel from eliciting relevant evidence on the issues relevant to his claims.
We find no error based on the trial court's polygraph ruling.
Jason Wilson's Deviant Behavior
Piel argues the trial court erred when it prohibited him from eliciting testimony
regarding Jail Coordinator Jason Wilson's deviant behavior. We conclude the trial court
did not abuse its discretion when it excluded this evidence.
Piel sought to discredit Wilson because he was the only witness to report the
"murder" comments to superiors at the Department. Wilson applied three times for a
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police officer position and was never hired. Piel claimed he recommended to his
superiors that Wilson "not become a police officer" because Wilson had admitted to
committing lewd acts. RP (Oct. 8, 2014) at 107. The City objected to the lewd behavior
evidence but not the evidence about Piel's role in the Department's decision not to hire
Wilson.
The deviant behavior evidence was not relevant to Wilson's bias. The trial court
properly allowed, as relevant bias evidence, Piel's role in the Department's decision not
to hire Wilson. The trial court properly exercised its broad discretion to exclude the
deviant behavior evidence as more prejudicial than probative.10 Nor does Piel show the
exclusion of this evidence affected the verdict.
Evidence of Previous Disciplinary Action
Piel claims the trial court erred when it excluded evidence of previous disciplinary
action offered "to show the alleged reasons for the termination are pretext." Br. of
Appellant at 39. He argues, "[a]ny prior... workplace violence or threats during the
entire history of the FWPD, or any prior allegations of dishonesty, and how the City
handled them" were relevant to their claims. Br. of Appellant at 39-40. Piel also asserts
that pretext evidence "can be shown with evidence that similarly situation [sic]
individuals were treated differently." Br. of Appellant at 39. The trial court did not abuse
its discretion when it excluded evidence of those actions as irrelevant on grounds the
proffered actions are factually dissimilar, too remote in time, and involve different
decision makers.
10 Even Piel's attorney recognized the danger of unfair prejudice when he argued
to the trial court: "Your honor, sometimes the shocking nature ... of conduct burns it
into people's mind." RP (Oct. 8, 2014) at 107.
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Piel sought to elicit testimony regarding three other disciplinary actions that
occurred in the late 1990s and early 2000s.
Otto/Stoneburner Incident
This incident involved Piel's 2006 termination and subsequent arbitration. In
February 2006, Travis Stoneburner alleged that Officer Jeffery Otto choked him during a
traffic stop and improperly confiscated his personal property. Piel, a lieutenant at the
time, told Stoneburner to complete a complaint form and he would file it. In March
2006, Officer Otto detained an individual suspected of driving under the influence. Piel
told Otto to release the suspect because he was a firefighter. Chief Kirkpatrick
assigned Commander Steve Kelly to investigate the incident. During the investigation,
Piel filed Stoneburner's incomplete complaint form. Piel described Officer Otto's
allegedly unstable mental state to Commander Kelly. The Department initiated a
second investigation against Piel during the firefighter investigation to determine Piel's
motive and credibility in the Otto investigation. Piel was later terminated due to the
firefighter incident but reinstated in a demoted capacity. Brian Wilson, who was a
commander in the Department at the time, was not involved in either the investigation
against Piel or the decision to terminate him.
Greg Wilson Incident
This incident involved Chief Brian Wilson's brother, Greg Wilson. Greg Wilson
denied creating a racially-charged Screensaver for a monitor in a patrol car. The
Department later learned he lied. Greg Wilson was not terminated. Ron Wood was the
Chief when this incident occurred in 1998 or 1999. The Department's manual of
standards changed in 2002. Piel tried to introduce this evidence over the City's
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objection. The trial court sustained the objection: "it's too remote in time, involves
different, urn, set of facts, [and] different chiefs." RP (Oct. 16, 2014) at 74.
Brian Wilson Incident
This incident involved Deputy Chief Brian Wilson. In 2001, Wilson told a
commander over the phone, "I don't want to meet with you. If I did, I might end up with
my hands around your neck." Clerk's Papers (CP) at 711. Two years later, Chief
Kirkpatrick investigated the incident. The Department determined that Wilson did not
intend to assault the commander. The trial court precluded Piel from asking Wilson
about this incident in part due to the different investigators involved in the earlier
incident.
Piel contends the trial court erred when it prohibited cross-examination on these
incidents because they demonstrate that the Department treated Piel differently than
other individuals facing disciplinary action in the past.11 Piel correctly asserts that an
employer's different or inconsistent treatment of other employees may be relevant and
11 Piel also complains he was prohibited from asking Chief Wilson whether the
Department required a finding of "intent to deceive" for a dishonesty violation. Br. of
Appellant at 40-41. The record shows that Piel repeatedly attempted to insert an
additional "intent to deceive" requirement into the case. RP (Oct. 15, 2014) at 234-40.
But Chief Wilson explained that a finding of dishonesty presumes intent to deceive:
[Plaintiff's Counsel]: Did you tell Amy Stephson that she had to find
intent to deceive?
[Commander McAllester]: She didn't have to find intent to deceive.
[Plaintiff's Counsel]: Okay. Because you didn't ask her to find it;
right?
[Commander McAllester]: No, we asked—dishonesty is—includes
the intent to deceive. So she found dishonesty.
RP (Oct. 20, 2014) at 159. Despite this response, Piel continued to press the issue.
The City objected, alleging the line of questioning was argumentative and that the
question had been asked and answered. The trial court sustained the objection. The
record shows that Piel was not prohibited from asking Chief Wilson about the alleged
"intent to deceive" requirement; he simply was unhappy with Chief Wilson's answer.
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admissible in a wrongful termination case under appropriate circumstances. See, e.g..
Fulton v. Dep't of Soc. & Health Servs.. 169 Wash. App. 137, 161-62, 279 P.3d 500
(2012). However, "[t]he trial court has broad discretion to determine when the
circumstances are appropriate." Lords v. Northern Automotive Corp.. 75 Wash. App. 589,
610, 881 P.2d 256 (1994). When the circumstances of a previous disciplinary action
differ from the employment action at issue, a trial court does not abuse its discretion
when it excludes evidence of the previous action as irrelevant or prejudicial. See
Roberts v. Atlantic Richfield Co.. 88 Wash. 2d 887, 893, 568 P.2d 764 (1977). In Roberts.
an age discrimination case, the court upheld the trial court's decision to exclude
witnesses who had allegedly been terminated due to their age because "[t]he offer of
proof contained no evidence that these employees held comparable positions with Arco,
that they worked under similar circumstances, or that they had been discharged in a like
manner. The trial court rejected this offer of proof as irrelevant and too remote to be of
significant value." Roberts. 88 Wash. 2d at 893. In Lords, the court held that the trial court
did not abuse its discretion when it excluded testimony from another terminated
employee because that employee had been evaluated by a different superior than the
one who had terminated the plaintiff:
Northern contends the trial court did not abuse its discretion in
refusing to allow Mr. Hibbs to testify because the circumstances of his
layoff were irrelevant. He did not hold the same position as fthe plaintiff!
and his performance was evaluated by Lords, not Streeter fthe supervisor
who terminated the plaintiff].
When evidence is likely to confuse or mislead a jury, it may result in
unfair prejudice. The trial court did not abuse its discretion when it
determined the excluded evidence would be confusing or misleading.
Lords. 75 Wash. App. at 610 (emphasis added).
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The trial court did not abuse its discretion when it prohibited Piel from introducing
dissimilar evidence of previous disciplinary actions. Piel's prior discipline evidence
involved different investigators and decisions makers. And the two Wilson incidents
occurred under an older version of the standards policy.
Piel argues no authority requires the same decision makers to admit prior events.
We are not persuaded by this argument. In Lords, that a different employee was
evaluated by a different superior than the plaintiff was a factor to determine whether that
employee's testimony was relevant. Generally, when a prior employment decision is
admitted to show the plaintiff was treated differently than other employees, that prior
decision was made by the same decision maker as the one responsible for the action
giving rise to the lawsuit. See, e.g.. Sellsted v. Washington Mutual Savings Bank. 69
Wash. App. 852, 861, 851 P.2d 716 (1993). The trial court properly exercised its broad
discretion to determine whether a prior employment action is sufficiently different to
justify exclusion of that evidence. Lords. 75 Wash. App. at 610.
Testimony on Piel's Other Comments
Piel argues that the trial court erred when it admitted evidence of comments he
made that offended two female officers. Piel argues this evidence was irrelevant
because Chief Wilson based Piel's termination on the "murder" comments, not his other
offensive comments.
This claim is waived. RAP 2.5; State v. Atkinson. 19 Wash. App. 107, 575 P.2d
240 (1978) (waiver through failure to object or by voluntarily broaching the matter at
trial). Piel failed to timely object to this evidence. During motions in limine, Piel moved
to exclude testimony of the two female officers—Officers Baker and Scholl—regarding
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Piel's offensive comments. The trial court deferred its ruling and told Piel to "bring it up"
later during the trial. RP (Oct. 8, 2014) at 65. The first mention of these offensive
comments occurred when the City cross-examined Officer Bassage. Piel failed to
object. Piel's attorney later also asked Officer Ellis about the same offensive comments
he now claims should have been excluded. RP (Oct. 14, 2014) at 208-09 (Piel's
attorney: "I just like to ask you about the ... these comments from Scholl and—and
[Baker]. What—what did you hear and what was your take on that?"). Piel finally
objected when the City called Officer Baker as a witness. But by then the jury had
already heard the objectionable evidence. And Piel never requested a curative
instruction.
The trial court also acted well within its discretion when it permitted the City to
introduce these offensive comments. Although Piel's termination was primarily due to
the "murder" comments, the other offensive comments were relevant to the
Department's investigation and its conclusion that Piel had been dishonest. For
example, Arbuthnot testified that he considered the offensive comments as part of his
investigation. Commander McAlester considered Piel's offensive comments in her
recommendation for disciplinary action. Stephson wrote in her report that the conflicting
testimony about Piel's offensive statements was directly relevant to her conclusion that
Piel was not credible. The trial court properly admitted this evidence as more relevant
than prejudicial. Piel also fails to show how the evidence affected the verdict.
The Trial Court's Summary Judgment Orders
There are two summary judgment issues relevant to this appeal. The first is
whether Piel may rely on either the Federal Way Employee Guidelines or the filing of a
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notice of damages claim pursuant to RCW 4.96.020 as a source of public policy for
purposes of his wrongful termination claim. The second is whether he is collaterally
estopped from pursuing claims related to his 2006 discharge.
We review summary judgment orders de novo, engaging in the same inquiry as
the trial court. Michak v. Transnation Title Ins. Co.. 148 Wash. 2d 788, 794-95, 64 P.3d 22
(2003). Summary judgment is proper if, viewing the facts and reasonable inferences in
the light most favorable to the nonmoving party, no genuine issues of material fact exist
and the moving party is entitled to judgment as a matter of law. CR 56(c); Michak. 148
Wash. 2d at 794-95.
Source of Policy for Purposes of Wrongful Discharge
Piel claims the trial court erred when it concluded that neither (1) his complaints
to human resources under the Federal Way Employee Guidelines nor (2) his filing of a
notice of damages claim pursuant to RCW 4.96.020 was protected conduct giving rise
to a wrongful discharge claim. Wrongful discharge in violation of public policy requires
four elements:
(1) The plaintiffs must prove the existence of a clear public policy (the
clarity element);
(2) The plaintiffs must prove that discouraging the conduct in which they
engaged would jeopardize the public policy (the jeopardy element);
(3) The plaintiffs must prove that the public-policy-linked conduct caused
the dismissal (the causation element);
(4) The defendant must not be able to offer an overriding justification for
the dismissal (the absence of justification element).
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Roe v. TeleTech Customer Care Momt. LLC. 171 Wash. 2d 736, 756, 257 P.3d 586
(2011). The only issue here is whether the employee guidelines or RCW 4.96.020
provide a clear public policy sufficient to satisfy the clarity element.
Wrongful discharge in violation of public policy is a narrow exception to the at-will
employment doctrine that balances the employee's interest in job security and the
employer's interest in making personnel decisions without fear of liability. Roe. 171
Wash. 2d at 755. To maintain this balance, courts will not permit an action for wrongful
discharge absent "[a] clear mandate of public policy sufficient to meet the clarity
element [that is] truly public; it does not exist merely because the plaintiff can point to
legislation or judicial precedent that addresses the relevant issue." Roe. 171 Wash. 2d at
757. Courts must "'find', not 'create' public policy and the existence of such policy must
be 'clear.'" Selixv. Boeing Co.. 82 Wash. App. 736, 741, 919 P.2d 620 (1996) (quoting
Roe v. Quality Transp. Servs.. 67 Wash. App. 604, 610, 838 P.2d 128 (1992)).
In Thompson v. St. Regis Paper Co.. the court explained that an employer's
conduct must violate a clear legislative or judicial expression of public policy:
"In determining whether a clear mandate of public policy is violated,
courts should inquire whether the employer's conduct contravenes the
letter or purpose of a constitutional, statutory, or regulatory provision or
scheme. Prior judicial decisions may also establish the relevant public
policy. However, courts should proceed cautiously if called upon to
declare public policy absent some prior legislative or judicial expression on
the subject."
102 Wash. 2d 219, 232, 685 P.2d 1081 (1984) (emphasis omitted) (quoting Parnar v.
Americana Hotels. Inc.. 65 Haw. 370, 380, 652 P.2d 625 (1982)). Generally, courts
recognize a clear violation of public policy in four situations:
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(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.
Gardner v. Loomis Armored. Inc.. 128 Wash. 2d 931, 936, 913 P.2d 377 (1996). The issue
here is whether either the Federal Way Employee Guidelines or RCW 4.96.020 clearly
create a "legal right or privilege" sufficient to sustain a claim for wrongful discharge in
violation of public policy. Gardner. 128 Wash. 2d at 936.
Piel has failed to show that the Federal Way Employee Guidelines constitute a
"clear mandate of public policy" for purposes of a wrongful discharge claim. Roe. 171
Wash. 2d at 757. In 2005, Piel filed several complaints with the City's human resources
department under the Federal Way Employee Guidelines. He alleged the City failed "to
follow its own Employee Guidelines concerning the preparation of 'Employee
Performance Appraisals.'" CP at 14-15. He disputed his performance appraisals and
filed a second complaint when he learned the disputed appraisal would be placed in his
permanent personnel file. Piel argues that filing these complaints is a protected activity
for purposes of a wrongful discharge claim.
But the employee guidelines do not create a public "legal right or privilege."
Gardner. 128 Wash. 2d at 936. They are not a "constitutional, statutory, or regulatory
provision or scheme," and Piel fails to cite any authority supporting the proposition that
the employee guidelines create a public legal right or privilege sufficient for a wrongful
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discharge claim.12 Thompson. 102 Wash. 2d at 232. Piel cites Bravo v. Dolsen
Companies. 125 Wash. 2d 745, 888 P.2d 147 (1995). Bravo involved a statute that
granted "substantive rights upon employees to be free from interference, restraint, or
coercion." Bravo. 125 Wash. 2d at 758 (discussing RCW 49.32.020). Unlike Bravo, the
guidelines at issue here do not stem from a statutory scheme, nor do they confer
analogous substantive rights.
RCW 4.96.020 also creates no legal right or privilege sufficient for Piel's wrongful
discharge claim. RCW 4.96.020 details procedural requirements before an individual
may sue a government entity. The statute requires that "[a]ll claims for damages
against a local governmental entity ... shall be presented to the agent within the
applicable period of limitations within which an action must be commenced." RCW
4.96.020(2). Piel argues that because filing a notice of a claim for damages is required
by the statute prior to commencing a tort claim against the City, it is protected conduct
for purposes of a wrongful termination claim.
But the statute is primarily procedural; it does not grant any "substantive rights
upon employees." Bravo. 125 Wash. 2d at 758. Further, courts have recognized that the
purpose of the statute is to protect government entities, not the public: "The purpose of
this [notice of tort] claim is to allow government entities time to investigate, evaluate,
and settle claims before they are sued." Fast v. Kennewick Public Hosp. Dist.. 188 Wn.
App. 43, 54, 354 P.3d 858 (2015) (quoting Renner v. City of Marvsville. 168 Wash. 2d 540,
545, 230 P.3d 569 (2010)). Although filing a lawsuit against one's employer is arguably
12 Indeed, Piel only spends two sentences in his opening brief arguing the
Guidelines constitute a clear mandate of public policy.
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No. 72707-9-1/25
protected activity, the public policy protecting this action does not stem from RCW
4.96.020. As discussed above, to sustain a claim for wrongful discharge in violation of
public policy, the source of public policy must be a clear mandate, and "courts should
proceed cautiously if called upon to declare public policy absent some prior legislative
or judicial expression on the subject." Thompson. 102 Wash. 2d at 232: see also Selix. 82
Wash. App. at 741 (courts must "'find,' not 'create' public policy and the existence of such
policy must be 'clear'"). Piel has failed to show that RCW 4.96.020 provides a clear
mandate of public policy sufficient to sustain his wrongful discharge claim.
Collateral Estoppel
Piel also argues the trial court erred when it ruled that he was collaterally
estopped from asserting that his 2006 discharge was motivated by anti-union animus.
Collateral estoppel prevents relitigation of an issue after the estopped party has
already had a full and fair opportunity to present its case. Pederson v. Potter. 103 Wn.
App. 62, 69, 11 P.3d 833 (2000). "It is well settled that in an appropriate case the
decision in an arbitration proceeding may be the basis for collateral estoppel or issue
preclusion in a subsequent judicial trial." Robinson v. Hamed. 62 Wash. App. 92, 96-97,
813P.2d 171 (1991); see also PieJ, 177 Wash. 2d at 615 ("an employee who loses in an
administrative arbitration proceeding ... may be collaterally estopped from asserting a
wrongful discharge claim."). There are four requirements for collateral estoppel to
apply:
(1) the issue decided in the prior adjudication must be identical with
the one presented in the second; (2) the prior adjudication must have
ended in a final judgment on the merits; (3) the party against whom the
plea is asserted was a party or in privity with a party to the prior
adjudication; and (4) application of the doctrine must not work an injustice.
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No. 72707-9-1/26
Pederson. 103 Wash. App. at 69. The trial court correctly ruled that Piel is collaterally
estopped from arguing his 2006 termination was motivated by anti-union animus.
Piel mainly argues that the trial court erred because the issue in his 2007
arbitration was not identical to the claim he alleged in his complaint to the trial court—
that his 2006 termination was motivated by anti-union animus. He claims "there was a
reasonable hypothesis that the issues were not identical for collateral estoppel
purposes." Br. of Appellant at 50. But the record shows the arbitration did address
whether the Department terminated Piel due to anti-union animus. The arbitration
focused on whether the "just cause" existed to terminate Piel. This analysis required
the arbitrator to consider whether the Department applied its rules "evenhandedly and
without discrimination to all employees." Ex. 31 at 16. Indeed, Piel argued that the
Department lacked just cause because it was motivated by anti-union animus. In his
brief to the arbitrator, Piel even identified the elements for a wrongful discharge claim:
An employer's decision to impose discipline cannot be based on
the improper motive of bias against a labor organization ... This issue
commonly arises where the target of discipline is a union officer or activist,
where there is a pattern of more lenient discipline for similar offenses in
the past, and where the relationship between the labor organization and
the employer is a difficult one .. .
A claim for wrongful termination in violation of public policy exists
where a Plaintiff proves 1) The existence of a clear public policy; 2) that
discouraging the conduct would jeopardize the public policy; 3) that public
policy-linked conduct caused the termination; and 4) that the employer's
justification for termination was pre-textual...
[The evidence] documents a pervasive history of harassment and
retaliatory conduct directed at Lt. Piel.
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No. 72707-9-1/27
CP at 263. During opening argument, Piel's attorney—the same attorney who
represented him at trial and in this appeal—expressly argued that the Department
lacked just cause to terminate Piel because the termination was retaliatory:
It's our position in this matter that Bud Piel was not terminated for
just cause and that the actions against Lieutenant Piel were retaliatory.
There was retaliation directed against him because of union involvement,
which you'll hear through this arbitration, and also retaliation because
there was a filing by Lieutenant Piel of a claim for damages .. . against the
City arising from actions directed at him resulting from his union
involvement.
CP at 270. The arbitrator considered the Department's alleged anti-union animus when
he determined whether just cause existed to terminate Piel. A finding that Piel's
termination was motivated by anti-union animus precluded a finding of just cause.
Piel does not dispute the trial court's conclusions on the remaining collateral
estoppel elements. They are satisfied under the circumstances here. The trial court
properly granted partial summary judgment on these two issues.
CONCLUSION
For the foregoing reasons, we affirm the judgment on the jury's verdict.
WE CONCUR:
^)j)-e,*-/t^t^y O .
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