Billings v. Town of Steilacoom
| Citation | 408 P.3d 1123 |
| Decision Date | 26 September 2017 |
| Docket Number | No. 49631-3-II,49631-3-II |
| Parties | Joshua BILLINGS, individually, Appellant, v. TOWN OF STEILACOOM, a municipal corporation, Ronald Schaub, individually, and Paul Loveless, individually, Respondents. |
| Court | Court of Appeals of Washington |
Richard H. Wooster, Kram & Wooster, P.S., 1901 S I St., Tacoma, WA, 98405-3810, Counsel for Appellant.
Jayne Lyn Freeman, Attorney at Law, 801 2nd Ave Ste 1210, Seattle, WA, 98104-1518, Counsel for Respondent(s).
Melnick, J.¶1 Joshua Billings appeals the trial court's order granting summary judgment to the Town of Steilacoom, Police Chief Ronald Schaub, and Town Administrator Paul Loveless, and striking a declaration. We conclude that the trial court did not err. We affirm.
FACTS
¶2 From December 10, 2001 to September 25, 2012, Billings worked for the Town of Steilacoom Public Safety Department. On May 8, 2012, Steilacoom demoted Billings from the rank of Sergeant to Public Safety Officer (PSO). PSOs served dual roles as police officers and firefighters under the supervision of the Director of Public Safety (DPS), known as the "Police Chief." Clerk's Papers (CP) at 113. From October 18, 2010 until November 5, 2015, Schaub served as Police Chief. He reported to Loveless.
¶3 Following several internal affairs investigations, Schaub concluded Billings violated numerous policies and demonstrated a pattern of poor performance. Schaub recommended terminating Billings. Mayor Ron Lucas and Loveless agreed.
¶4 At the time the investigation concluded, Billings was off work due to a hand injury. Steilacoom waited until Billings's doctor released him to return to duty before moving forward with the termination. On September 25, 2012, Steilacoom terminated Billings's employment.
¶5 On October 2, Billings, assisted by the Steilacoom Officers' Association (SOA), filed a grievance opposing his demotion and termination. After Steilacoom denied the grievance, the SOA requested arbitration pursuant to the applicable Collective Bargaining Agreement (CBA). The CBA provided: CP at 149.
¶6 The parties proceeded to arbitration. After ten days of presenting evidence and arguing the case, the arbitrator issued her final decision. It included findings of fact and conclusions of law. The arbitrator concluded that just cause did not support Billings's demotion, but just cause supported Billings's termination based on unsatisfactory performance, insubordination, departures from the truth, failure to perform, unbecoming conduct, unsatisfactory performance, and leaving his duty post.
¶7 The CBA provided that the arbitrator's decisions would be "final and binding on both parties." CP at 153.
¶8 On November 25, 2015, Billings filed a complaint against Steilacoom, and Schaub and Loveless as employees of Steilacoom, alleging (1) discrimination and retaliation because of Billings's disability, lawful union activities, and/or medical leave; (2) negligence and/or intentional infliction of emotional distress; (3) violation of title 41 and/or 49 RCW; (4) negligent retention and supervision of those who retaliated against Billings; and (5) wrongful termination in violation of established public policy. Billings alleged damages including loss of earnings, compensation, and benefits, mental and emotional trauma, pain and suffering, loss of reputation, and other damages. Billings also requested costs and attorney fees.
¶9 Steilacoom, Loveless, and Schaub denied Billings's allegations. They also asserted affirmative defenses including improper service of process, res judicata, collateral estoppel, exhaustion of administrative remedies, intentional conduct, comparative fault, discretionary immunity, statute of limitations, failure to state a claim, good faith immunity, mitigation of damages, setoff, privilege, and failure to comply with chapter 4.96 RCW. They requested that the complaint be dismissed with prejudice. They also requested costs and attorney fees.
A. MOTION FOR SUMMARY JUDGMENT
¶10 Steilacoom, Loveless, and Schaub filed a motion for summary judgment dismissal of all of Billings's claims pursuant to CR 56. They argued there existed no genuine issue of material fact and summary judgment was appropriate. Steilacoom, Loveless, and Schaub argued that any claims prior to Billings's September 2012 termination were barred by the statute of limitations.1 In addition, they argued that collateral estoppel barred Billings from relitigating whether they had a legitimate basis to terminate his employment, because the essential elements of Billings's claims had been fully litigated and determined in the arbitrator's ruling. They further argued that collateral estoppel also precluded Billings from proceeding on his public policy wrongful termination claims and his chapter 49.60 RCW discrimination claims under the test set out in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). They argued that collateral estoppel precluded Billings from proceeding on retaliation claims.
¶11 Steilacoom, Loveless, and Schaub argued that if the claims were not barred by collateral estoppel, the negligence claims should be dismissed because employers do not have a duty to avoid emotional distress and the employees acted within the scope of their employment. Finally, Steilacoom, Loveless, and Schaub argue that the intentional infliction of emotional distress claim should be dismissed because Billings's termination did not rise to the level of outrage. As support for the motion for summary judgment, Steilacoom, Schaub, and Loveless included exhibits from the arbitration, and the arbitration award.
¶12 Billings opposed the motion for summary judgment and argued that collateral estoppel should not preclude any of his claims because it would cause an injustice. He also argued that his claim for wrongful termination in violation of public policy remained viable. Billings submitted a declaration opposing the motion, listing numerous alleged factual inaccuracies in the arbitration award.
¶13 Billings also included a declaration of Glen Carpenter, a sergeant and defensive tactics instructor with the Pierce County Sheriff's Office. Carpenter stated that Schaub told him about an internal affairs investigation of
Billings. Carpenter gave Schaub his opinion as to whether Billings would have been justified to use deadly force during a certain stop. Carpenter stated that although Billings would have been justified to use deadly force, Billings did not utilize the best tactical approach or technique that would be commonly trained. Carpenter concluded that Billings's stop did not constitute an unlawful use of force.
¶14 Steilacoom, Schaub, and Loveless filed a motion to strike Carpenter's declaration. They argued that it was irrelevant, duplicative, and inadmissible. They further argued that Carpenter's declaration did not create an issue of material fact because the arbitrator did not conclude that Billings violated the department's policy against unsatisfactory performance based on tactics used, nor was Billings terminated for using excessive force. However, the arbitrator found that Billings violated the department's policy for his using unsafe tactics in the stop, not for the use of force. The trial court granted the motion to strike Carpenter's declaration.
¶15 Billings filed a motion to amend his complaint to add a cause of action for First Amendment violations under 42 U.S.C. § 1983. The court granted the motion.
¶16 The trial court granted Steilacoom, Schaub, and Loveless's motion for summary judgment and dismissal of all the claims. Billings appeals.
ANALYSIS
¶17 Billings argues that the trial court erred by granting Steilacoom, Schaub, and Loveless's motion for summary judgment because his claims were not barred by collateral estoppel. He also argues that collateral estoppel should not be applied to an unreviewable, labor arbitration decision.
¶18 We disagree with Billings and conclude that collateral estoppel bars all of Billings's state law claims. We need not decide whether his 42 U.S.C. § 1983 claim is precluded by collateral estoppel. Because there exists no genuine issue of material fact, the court properly granted summary judgment.
¶19 Summary judgment is appropriate where there are no genuine issues of material facts, and the moving party is entitled to judgment as a matter of law. CR 56(c) ; McGowan v. State , 148 Wash.2d 278, 289, 60 P.3d 67 (2002). The appellate court engages in the same inquiry as the trial court, with questions of law reviewed de novo and the facts and all reasonable inferences from the facts viewed in the light most favorable to the nonmoving party. Williamson, Inc. v. Calibre Homes, Inc. , 147 Wash.2d 394, 398, 54 P.3d 1186 (2002).
¶20 We conduct de novo review on whether collateral estoppel applies to bar relitigation of an issue. State v. Vasquez , 109 Wash.App. 310, 314, 34 P.3d 1255 (2001).
¶21 " " Hadley v. Maxwell , 144 Wash.2d 306, 311, 27 P.3d 600 (2001) (quoting Reninger v. Dep't of Corr. , 134 Wash.2d 437, 449, 951 P.2d 782 (1998) ). It is distinguished from claim preclusion, or res judicata, " 'in that, instead of preventing a second assertion of the same claim or cause of action, it prevents a second litigation of issues between the parties...
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