Ellis v. City of Seattle

• Decision Date: 14 December 2000
• Docket Number: No. 68252-6.,68252-6.
• Citation: 142 Wn.2d 450,142 Wash.2d 450,13 P.3d 1065
• Court: Washington Supreme Court
• Parties: David A. ELLIS, Respondent, v. CITY OF SEATTLE, d/b/a Seattle Center, Appellant.

13 P.3d 1065

142 Wn.2d 450

142 Wash.2d 450

David A. ELLIS, Respondent, v. CITY OF SEATTLE, d/b/a Seattle Center, Appellant.

No. 68252-6.

Supreme Court of Washington, En Banc.

Argued June 20, 2000.

Decided December 14, 2000.

As Amended January 8, 2001.

Jeffrey Lowell Needle and Maria C. Fox, Seattle, Amicus Curiae on behalf of Washington Employment Lawyers Assoc.

Daniel Charles Gallagher and Mitchell Alan Riese, Seattle, for Petitioner.

Leight Ann Collings Tift, Seattle, Hon. Mark Sidran, Seattle City Attorney, and Jeffrey Julius, Asst., Seattle, for Respondent.

TALMADGE, J.

We decide in this case if David Ellis, a sound technician at the Seattle Center's Key Arena who refused to disable a public address (PA) component of the Arena's fire alarm system at his employer's insistence, presented sufficient evidence to get to the jury on his claim of wrongful discharge based on public policy. We hold Ellis presented sufficient evidence to withstand a motion for summary judgment. We reverse the Court of Appeals' decision on wrongful discharge based on public policy and remand that portion of Ellis's case, along with his claim of retaliatory discharge pursuant to RCW 49.17.160, to the King County Superior Court for trial.

ISSUE

Has Ellis presented sufficient evidence to get to a jury on his claim of wrongful discharge as against public policy?

FACTS

David A. Ellis was employed as an intermittent sound technician, a casual employee, at the Seattle Center, an agency of the City of Seattle (City), beginning in September 1995. Ellis has a degree in electrical engineering from the University of Michigan. Before he began working at the Seattle Center, he had over 10 years of experience in the repair, installation, and maintenance of professional audio and video equipment.

After several years of refurbishing, the Key Arena opened at the Seattle Center in late 1995 as the home of the Seattle Supersonics basketball team. The controversy in this case arises from the operation of the fire alarm system at the Key Arena. Upon a manual or automatic fire alarm being turned in, a three minute delay period occurred. After that interlude, the alarm became audible. By design, this alarm shut off the Arena's PA system. The purpose of shutting off the PA system was to allow the emergency fire microphones located in a separate room at the Arena to become active so emergency officials could give directions to patrons at Key Arena in the event of a fire or other emergency. Thus, Seattle Fire Department personnel could make any necessary crowd control announcements over the PA system without interference from those announcing a game or other activity at Key Arena. Ellis and other sound technicians were specifically told of this system feature by its manufacturer.

Upon the opening of Key Arena, problems ensued with the fire alarm system. The fire alarm system activated near the end of a Sonics basketball game on January 19, 1996, causing the PA system to go off the air, as designed. The sound technician on duty at the time, Matthew Abraham, averred the following:

Within seconds of the PA system being muted, Rob Martin, an official with the Sonics, and Jill Crary, the Events Services Representative (ESR) from Seattle Center, got on the radio and asked what was going on with the PA system and why there was no house sound. I explained to them that it was a function of the fire alarm system mode, and that it was a function of the fire alarm system that the house PA would be cut off, and control over the house PA would be shifted to the emergency fire microphones, for use only by Fire Department officials.

Jill Crary and Rob Martin then told me over the radio to restore the sound, and to do whatever needed to be done. I told them that they were asking me to alter a fire alarm system, and that this was a system approved by the Fire Department, and that it should not be altered without authorization. Crary asked me if I knew how to bypass the relay, and thus restore the house sound. I said yes, I did know how to do it. Rob Martin then got on the radio, and told me to bypass the relay and restore the sound. I said that I needed proper authorization to do so. Martin then said, "I, Rob Martin, give you authorization to bypass the relay." I then told Martin and Crary over the radio that I would try. I then went to the location where the bypass of the relay would have to be performed, but I did not, in fact, attempt to bypass the relay, because I was not sure that the situation was under control and that in fact, the fire alarm was false, and I did not want to interfere with the design of the fire alarm system and risk making the system not operate in the way that it was designed to.

I was also concerned because when Crary first called me on the radio to ask what was going on and why the sound had cut out, and when I explained that we were in a fire alarm mode, Crary said that she had no idea that the Key Arena was even in a fire alarm mode. Then, less than a minute later, Martin was telling me that he was authorizing me to bypass this relay to restore the house PA sound. This made me even more wary of performing the bypass, since both Crary and Martin had indicated by their comments that they did not understand how the fire alarm system worked at Key Arena. Neither Crary nor Martin ever indicated that the Fire Department had given them any authority to authorize me to alter the fire alarm system, and bypass the relay.

Clerk's Papers at 332-33. Abraham reported this incident to Ellis the following night, so Ellis was aware of the controversy arising from orders to bypass the shunt relay.

Two days after this incident, Ellis and Abraham were both working at Key Arena preparing for another Sonics game. A couple of hours before the start of the game, a grease fire in the kitchen caused the fire alarm to go off, again resulting in a loss of the PA system. Jill Crary was again the ESR on duty and she instructed Abraham to bypass the fire relay until the alarm could be reset by fire officials. Abraham asked Crary for written authorization, which she provided by a hand-written note, whereupon Abraham bypassed the fire relay and reconnected it when Crary told him to do so.¹

Concerned about potential danger to the public from bypassing the emergency fire microphone relay, as well as the legality of tampering with a fire alarm system, Ellis and Abraham saw their supervisor, Rick Smargiassi, on the following day to express their concerns. Ellis asked Smargiassi to get management involved in the issue. Ellis saw Smargiassi again the very next day to ask if he had done anything about his concerns. Ellis averred:

Smargiassi told me that I had to do whatever I was told to by an event services representative (ESR), such as Jill Crary, even though I believed that tampering with a fire alarm system was illegal. I told Smargiassi that I would be happy to wire around the emergency fire microphone sound relay, as long as I had written authorization or a verbal request from a Fire Department official. I told Smargiassi that I thought that this request from ESRs, who have no training or authority in fire prevention, was not proper. I told Smargiassi that I wanted written clarification on who could, at what time, ask me to bypass the fire relay.

Clerk's Papers at 365-66. Two days later, Smargiassi told Ellis he had conferred with John Cunningham, the Human Resources Manager for Seattle Center.

Smargiassi said that I needed to understand the "chain of authority" at Seattle Center. He said that if one of my superiors asked me to do something, I had to do it, without written authorization, whether or not I believed it to be legal.[²] I asked Smargiassi if he had spoken to the Fire Department. He said that he had not. Smargiassi told me that if I was not willing to do whatever I was asked without questioning it, he would have to accept my resignation. I told him that I would not resign, as I had done nothing wrong.

Clerk's Papers at 366. Two days later, at a meeting Smargiassi had called, in the presence of two other intermittent sound technicians and an ESR named Kevin Moore, Ellis said, in response to a question from Smargiassi, he would not bypass the emergency fire microphone sound relay with only a verbal request from an ESR, and would require "either written authorization from someone above me at Seattle Center or a written or verbal request from someone at the Fire Department or someone at Seattle Center showing me that this request was a legal one." Clerk's Papers at 367. Matt Abraham also insisted on such authorization.

Ellis knew the Seattle Center had not received a blanket authorization from the Seattle Fire Department to bypass the system because he overheard a voice mail message from Jill Crary on January 26 indicating the Center had not received Fire Department approval for the bypass.

On February 2, 1996, John Cunningham summoned Ellis to a fact-finding meeting at which Ellis repeated his insistence on obtaining what he considered proper authorization before bypassing the relay. Ellis and Cunningham give two very different accounts of this meeting. Cunningham claimed Ellis was insubordinate, while Ellis contended he reiterated his willingness to bypass the system upon verbal authorization from the Fire Department or written authorization from Seattle Center management. At the conclusion of the meeting, Cunningham suspended both Ellis and Abraham.

Three days later, Ellis and Abraham complained to the Washington State Department of Labor and Industries (L & I) about being asked to disable part of the fire alarm system. Subsequently, the Seattle Center suspended Abraham for 15 days for insubordination and shortly thereafter accepted his resignation in lieu of discharge. Ellis was discharged by Seattle Center director Virginia Anderson on February 22, 1996, for "gross insubordination." She listed as causes for the termination Ellis's failure to...