Dewey v. Tacoma School Dist. No. 10

• Decision Date: 05 March 1999
• Docket Number: No. 22060-1-II
• Citation: Dewey v. Tacoma School Dist. No. 10, 974 P.2d 847, 95 Wn.App. 18 (Wash. App. 1999)
• Court: Washington Court of Appeals
• Parties: , 133 Ed. Law Rep. 1053 William DEWEY, Appellant, v. TACOMA SCHOOL DISTRICT NO. 10, John and "Jane Doe" Helmlinger and Benjamin and "Jane Doe" Soria, individually and the marital communities comprised thereof, and in their official capacities as agents of the District, Respondents.

Page 18

95 Wn.App. 18

974 P.2d 847, 133 Ed. Law Rep. 1053

William DEWEY, Appellant, v. TACOMA SCHOOL DISTRICT NO. 10, John and "Jane Doe" Helmlinger and Benjamin and "Jane Doe" Soria, individually and the marital communities comprised thereof, and in their official capacities as agents of the District, Respondents.

No. 22060-1-II.

Court of Appeals of Washington Division 2.

March 5, 1999.

Publication Ordered April 9, 1999.

Philip Saint John Wakefield and D. Michael Tomkins, Seattle, for Appellant.

Curman M. Sebree, Seattle, for Respondents.

ARMSTRONG, J.

William Dewey was employed by the Tacoma School District No. 10 from January 1988 until September 1993, when his position was eliminated. Although he applied for another position in the District, he was not appointed to it. Dewey sued the District, claiming he was wrongfully terminated in retaliation for (1) reporting misconduct by his supervisor; and (2) threatening to report misconduct by subordinate employees. The trial judge dismissed the case after Dewey rested. On appeal, Dewey argues the trial court erred in (1) ruling that he had not adequately pled a First Amendment claim; (2) denying him leave to amend his complaint to state a First Amendment claim; and (3) finding the evidence insufficient to go to the jury. We affirm.

FACTS

Dewey began his employment with the Tacoma School District in January 1988 as Maintenance Coordinator in the Building and Grounds Department. When the Building and Grounds Department was reorganized in 1989, Dewey became manager of the Work Control Center. Dewey was employed as the Work Control Center Manager until September 1993 when the Work Control Center was eliminated.

After learning of the proposed elimination of the Work Control Center, Dewey applied for the Maintenance Manager Position. A panel interviewed Dewey on August 13, 1993, but he was not selected. On September 1, 1993, the District Superintendent wrote Dewey that his employment would terminate effective October 15, 1993, as a result of the elimination of his position and budget restrictions.

Dewey sued the District, the District Deputy Superintendent, Benjamin Soria, and his former supervisor, John Helmlinger, for wrongful termination of employment. ¹ The overarching theory of Dewey's complaint is that the District terminated his employment in retaliation for (1) reporting Helmlinger's use of District employees to move household furniture during work hours; and (2) reporting Helmlinger's refusal to investigate a subordinate employee's suspected misuse of compensatory time.

A. Furniture Moving

In spring 1993, Helmlinger asked his managers to lunch at his home and to help him move furniture. Dewey and three others helped with the move, which occurred at least partly during work hours.

On August 30, 1993, Jeff Sopher, a District employee, wrote a letter to the president of the School Board reporting Helmlinger's use of District employees to move furniture at his home during the workday. Dewey had previously told Sopher about the furniture move because Dewey believed that Sopher was about to lose his job. Dewey also said that Sopher could use his name to "blow the whistle on this furniture moving thing." Dewey concedes that he gave Sopher the information to protect Sopher's job.

B. Compensation Time

In early 1993, Dewey was asked to review the compensatory time balances of his four employees. Dewey reported to Helmlinger that he was having problems computing the balances. Dewey believed the balances reported to him were inaccurate and suspected his employees of misusing compensation time. Dewey testified that Helmlinger instructed him, as a supervisor, to negotiate the compensation time issue with his staff. But Dewey disagreed with this instruction, believing there was nothing to negotiate as "the figures [did] not add up." Dewey eventually reported the issue to Assistant Superintendent Ben Soria, Helmlinger's supervisor. Helmlinger testified that he contacted the state auditor when it became apparent Dewey could not resolve the discrepancies on his own.

Dewey's amended complaint alleges the following legal theories: (1) breach of employment contract; (2) wrongful discharge in violation of RCW 42.40 and RCW 42.41 (the "whistleblower" statutes); (3) misrepresentation of Dewey's job responsibilities; (4) interference with a business relationship; (5) civil conspiracy; (6) age discrimination; and (7) intentional infliction of emotional distress.

In June 1995, the District moved for summary judgment. In response, Dewey asserted two theories in support of his wrongful discharge claim: (1) retaliatory discharge in violation of the whistleblower statutes, RCW 42.40 and RCW 42.41; and (2) wrongful discharge in violation of public policy. The superior court dismissed all of Dewey's claims except those for age discrimination, retaliatory discharge, and wrongful discharge.

After further discovery, the District moved to dismiss the remaining wrongful discharge claims. In response, Dewey argued for the first time that the termination violated his First Amendment right to speak about matters of public concern. Counsel for both parties discussed the First Amendment theory during oral argument. Although Dewey asserted that the theory had been "notice pled" as a basis for wrongful discharge, the District argued the claim had not been properly pled. The court denied the motion to dismiss, but it did not address the First Amendment claim.

On the first day of trial, Dewey voluntarily dismissed his age discrimination claim. After Dewey rested his case, the District moved for a directed verdict. The court ruled that a First Amendment claim had not been properly pled and denied Dewey's motion to amend to state the claim. The court then dismissed Dewey's remaining claims.

ANALYSIS

A. First Amendment Claim

Dewey contends that he stated a First Amendment claim under the principle of "notice pleading" when he pled facts to support such a claim. Although Dewey maintains he pled a cause of action for violation of an employee's free speech rights, his amended complaint does not contain the words, "First Amendment" or "free speech." The issue thus becomes whether the necessary elements may be fairly inferred from his complaint.

Under the liberal rules of procedure, pleadings are intended to give notice to the court and the opponent of the general nature of the claim asserted. Lewis v. Bell, 45 Wash.App. 192, 197, 724 P.2d 425 (1986). Although inexpert pleading is permitted, insufficient pleading is not. Lewis, 45 Wash.App. at 197, 724 P.2d 425. "A pleading is insufficient when it does not give the opposing party fair notice of what the claim is and the ground upon which it rests." Lewis, 45 Wash.App. at 197, 724 P.2d 425 (citation omitted); Molloy v. City of Bellevue, 71 Wash.App. 382, 385, 859 P.2d 613 (1993) (complaint must apprise defendant of the nature of plaintiff's claims and legal grounds upon which claim rests). A complaint for relief should contain: "(1) a short and plain statement of the claim showing that the pleader is entitled to relief and (2) a demand for judgment for the relief to which he deems himself entitled." CR 8(a).

Under 42 U.S.C., § 1983, a public employee may state cause of action for being discharged or otherwise disciplined for exercising the right of free speech. White v. State, 131 Wash.2d 1, 10, 929 P.2d 396 (1997). But an employee's right to speak out is not absolute. In order to present a prima facie case of retaliation in employment based on the exercise of First Amendment rights, a public employee must demonstrate: (1) the speech deals with a matter of public concern; (2) the employee's free speech interest is greater than the employer's interest in promoting the efficiency of the public services provided; (3) the speech was a substantial or motivating factor in the personnel decision adverse to the employee; and (4) in the absence of the protected speech, the employer would not have made the same personnel decision. Binkley v. City of Tacoma, 114 Wash.2d 373, 382, 787 P.2d 1366 (1990); Wilson v. State, 84 Wash.App. 332, 340-41, 929 P.2d 448 (1996) (citations omitted).

In his amended complaint, Dewey alleges he had "blown the whistle" on two improper activities and that, in retaliation, the District wrongfully terminated his employment. Specifically, Dewey alleges:

Plaintiff ... reported to his superiors that Defendant HELMLINGER was using public funds and labor for personal benefit, and that possible abuses of compensation time were occurring. Plaintiff reported these acts not for his own personal gain, but because they involved the misuse of taxpayer moneys....

Thus, Dewey's amended complaint alleged his speech dealt with a matter of public concern and was a substantial or motivating factor in his discharge. But Dewey fails to articulate two elements essential to a free speech claim. First, Dewey did not allege that his free speech interest was greater than the District's interest in promoting the efficiency of its public services. Second, Dewey did not allege that the District would not have made the same personnel decision in the absence of the protected speech. ² As all four elements must be present, Binkley, 114 Wash.2d at 382, 787 P.2d 1366, Dewey's amended complaint fails to plead a free speech violation.

The reasoning of Trask v. Butler, 123 Wash.2d 835, 872 P.2d 1080 (1994), is persuasive. The court held that to give effect to CR 8:

[A] litigant must plead more than general facts in a complaint to properly allege a CPA [Consumer Protection Act] cause of action. If no reference is required to the CPA, a litigant would not have to amend their complaint to assert a violation. If this were the rule, a litigant could simply await trial and surprise their adversary with a CPA claim so long as enough facts were intermixed in the complaint. In hindsight it is easy to view facts and agree they support a CPA claim. It is a...