Hanson v. Cnty. of Kitsap

• Decision Date: 22 May 2014
• Docket Number: Case No. 13–5388 RJB.
• Citation: 21 F.Supp.3d 1124
• Court: U.S. District Court — Western District of Washington
• Parties: Craig D. HANSON, Plaintiff, v. COUNTY OF KITSAP, Washington, David Lynam, Kitsap County Fire Marshal, John and Jane Doe, Employee–Agents and Former Employee Agents of Kitsap County, Defendants.

21 F.Supp.3d 1124

Craig D. HANSON, Plaintiff

v.COUNTY OF KITSAP, Washington, David Lynam, Kitsap County Fire Marshal, John and Jane Doe, Employee–Agents and Former Employee Agents of Kitsap County, Defendants.

Case No. 13–5388 RJB.

United States District Court, W.D. Washington, at Tacoma.

Signed May 22, 2014.

Order Denying Reconsideration June 2, 2014.

Thomas G. Jarrard, The Law Office of Thomas G. Jarrard PLLC, Matthew Z. Crotty, Crotty & Son Law Firm, Spokane, WA, for Plaintiff.

Deborah Ann Boe, Christine M. Palmer, Jacquelyn Moore Aufderheide, Port Orchard, WA, for Defendants.

ORDER ON PARTIES' MOTIONS FOR PARTIAL SUMMARY JUDGMENT

ROBERT J. BRYAN, District Judge.

This matter comes before the Court on the Defendants' Motion for Partial Summary Judgment Regarding Claims for Reemployment, Failure to Promote, and Discrimination (Dkt. 77), Plaintiff's Cross Motion for Partial Summary Judgment (Dkt. 97), Defendants' Motion for Partial Summary Judgment Regarding Hostile Work Environment, Constructive Discharge and Retaliation (Dkt. 90), Plaintiff's motion to strike (Dkt. 33) and Defendants' motion to strike (Dkt. 128). The Court has considered the pleadings filed regarding the motions and the remaining file.

Plaintiff, a veteran of the United States Army, United States Marine Corps, and Washington Army National Guard, filed this employment case pursuant to Uniformed Services Employment and Reemployment Rights Act (“USERRA”) 38 U.S.C. § 4301 et seq. and state law on May 22, 2013. Dkt. 1. In his second Amended Complaint, Plaintiff makes USERRA—based claims for discrimination in employment based on his military service under 38 U.S.C. § 4311, for retaliation under § 4311, failure to reemploy to the proper reemployment position under §§ 4312 and 4313 ; failure to provide proper benefits under § 4316 ; discharge without cause under § 4316 ; and for failure to properly pay employee pension and other benefits under § 4318. Dkt. 45. Plaintiff also makes state law claims for violations of the Washington Law Against Discrimination (“WLAD”), Washington's Public Records Act, defamation and liquidated damages. Id. He seeks damages, attorneys' fees, and costs. Id.

Defendants move for summary dismissal of Plaintiff's state and federal claims based on Plaintiff's allegations that Defendants: 1) failed to reemploy and promote Plaintiff, 2) denied Plaintiff the statutorily protected benefits of employment, 3) failed to pay Plaintiff's longevity bonus, 4) failed to contribute to Plaintiff's retirement plan, and 5) acted with discriminatory intent in failing to reemploy or promote Plaintiff. Dkt. 77.

Plaintiff filed a response to Defendants' partial motion for summary judgment and made a cross motion for partial summary judgment. Dkt. 97. Plaintiff argues that he should be granted summary judgment on his claims that Defendants violated his USERRA rights by: 1) failing to properly reemploy him in violation of §§ 4312 and 4313, 2) failing to give him his 2012 longevity bonus in violation of §§ 4311 and 4316, 3) discharging him without cause violation of § 4316(c), 4) failing to properly contribute to his pension in violation of § 4318, and 5) repeatedly discriminating against him due to his military service. Id. Plaintiff argues that Defendants' motion for partial summary judgment should be denied as to whether Defendants acted with discriminatory intent in failing to reemploy or promote Plaintiff. Id.

Defendants also filed a Motion for Partial Summary Judgment regarding Hostile Work Environment, Constructive Discharge and Retaliation. Dkt. 90. Defendants argue that all Plaintiff's claims based on the allegations that Defendants created a hostile work environment, Plaintiff was constructively discharged, and that Defendants retaliated against Plaintiff be dismissed. Dkt. 90. Plaintiff opposes the motion. Dkt. 123.

For the reasons set forth below, Defendants' motions should be granted, in part, and denied, in part. Plaintiff's cross motion should be granted as to his § 4318 claim (pension) and denied in all other respects.

I. FACTS AND PROCEDURAL HISTORY

On October 1, 2013, Plaintiff's motion for an order granting partial summary judgment on the issue of liability regarding his USERRA claims under 38 U.S.C. §§ 4312, 4313 (reemployment), 4316 (benefits & without cause discharge) and 4318 (pension) was denied. Dkt. 37. The following facts are taken from the parties' submissions in support of the present motions, and the record in accord with Fed.R.Civ.P. 56(c)(3).

A. FACTS

On March 14, 2007, Kitsap County, Washington, hired Plaintiff as a Deputy Fire Marshal 1 (“DFM 1”). Dkts. 25–1, at 1; 103, at 42. When he was hired, his supervisor, Fire Marshal David Lynam, was aware that Plaintiff was serving in the Washington Army National Guard and would need to take a military leave of absence from time to time. Dkts. 34, at 1; 103, at 53–54. On April 7, 2007, Plaintiff was assigned a radio call sign of “FM3.” Dkt. 25–1, at 1–2. Kitsap County issued boots, a badge, an identification card, and a vehicle to Plaintiff. Dkt. 25–1, at 2.

As a DFM 1, Plaintiff conducted building inspections. Dkt. 25–1, at 2. He also performed “out of class” work conducting fire investigations, which is work typically done in Kitsap County by a Deputy Fire Marshal 2 (“DFM 2”). Dkt. 25–1, at 2. The office had a fire investigation rotation system where the marshals would take turns being on duty approximately every three weeks. Dkt. 103, at 69. They got paid extra for overtime, to be on call, and if they went out to do an investigation. Dkt. 106, at 12. The amount of investigations in any one week depended on the number of fires that week. Dkt. 103, at 69. The number of hours it took to investigate a fire varied as well. Dkt. 113, at 5. Plaintiff acknowledges that his hours fluctuated. Dkt. 98, at 2. From 2007–2009 Plaintiff conducted at least 48 fire investigations. Dkt. 25–1, at 2. Plaintiff was paid for each hour of investigative work he completed. Dkts. 33, at 3; 103, at 43. (Defendants now note that this was in error because under the Collective Bargaining Agreement, in order to be paid for out of class work, he needed to work ten consecutive days at that work, and he never did. Dkt. 33, at 3–4. Further, assisting in fire investigations was a part of DFM 1's duties. Dkt. 33, at 4. Defendants state that they are now following the Collective Bargaining Agreement in this regard. Dkt. 33, at 4.) In any event, Plaintiff did not perform all the duties associated with the position of DFM 2. Dkts. 25–1, at 2; 34, at 2; 114, at 6.

The Kitsap Board of County Commissioners have the sole authority to create and fund positions within the county. Dkt. 34, at 6. Insofar as the positions relevant to this case are concerned, a Collective Bargaining Agreement (“CBA”) regulates how job vacancies can be filled. Dkt. 34, at 5. DFM 1s do not “automatically” advance to DFM 2. Dkt. 33, at 4. In May of 2007, a newly created DFM 2 position was opened for applications, but was revoked due to a hiring freeze. Dkts. 25–1, at 2; 33; 34, at 7; and 103–1, at 71. Kitsap County did not open a job vacancy for a DFM 2 position again until February of 2013. Dkt. 34, at 7.

In 2008 through mid–2009, in addition to the funding the position of Fire Marshal (which was held by Mr. Lynam), Kitsap County funded one full time DFM 2 position (Tina Turner) and two full-time DFM 1 positions (Plaintiff and Jackie Blackwood). Dkt. 34, at 5. Ms. Blackwood began working for Kitsap County in 1993 and was hired as a DFM 1 in 2008. Dkt. 33, at 5. Ms. Blackwood was assigned a radio call sign of “FM4.” Dkt. 109, at 4. As a consequence of the economic recession, in mid–2009, the DFM 1 positions were reduced to .90 FTE (36 hours a week). Dkt. 34, at 5 and 48.

In October of 2009, Plaintiff notified Kitsap County that he had been called for active duty military service, and began that service in November of 2009. Dkt. 25–1, at 3. Before he left, Plaintiff returned his badge, identification card, phone, and vehicle to Mr. Lynam. Dkts. 25–1, at 3; and 103, at 59–60.

After Plaintiff left, the county hired two people as temporary “extra help.” Dkt. 103–1, at 67. Brad Wiggins was hired as a DFM 2 and Shawn Shepherd was hired as a DFM 1. Dkt. 103, at 60. Mr. Wiggins was hired to do fire investigations, and was assigned the emergency radio call sign “FM3.” Dkts. 103–1, at 68; 103, at 60. Mr. Wiggins was given Plaintiff's old badge. Dkt. 103, at 60. Mr. Shepherd was hired to do building inspections, particularly as it pertained to more complex and specialized work that had arisen in the county. Dkt. 103–1, at 69. Mr. Shepherd was not given a radio call sign or badge. Dkt. 103, at 60.

While Plaintiff was on active duty, Kitsap County had to further cut its budget due to the recession. Dkt. 34, at 5. Effective 2011, the DFM 1 positions were reduced to .85 FTE (34 hours per week). Dkt. 34, at 5. During that time, the Fire Marshal's office also had to relocate to a different building. Dkt. 34, at 7. The Department of Community Development, of which the Fire Marshal's office is part, had to lay off more than 20 employees and had to eliminate 9 vehicles. Dkt. 34, at 7. There were points after Mr. Hanson left that everybody in the department worked less than full time. Dkt. 103, at 60.

Plaintiff returned to work for Kitsap County on December 3, 2012, after being honorably discharged on November 30, 2012. Dkts. 25–1, at 3 and 98, at 2. He is a disabled veteran with a 30% disability rating for Post Traumatic Stress Disorder

(“PTSD”). Dkt. 98, at 1.

1. Post Return Equipment and Training

After Plaintiff returned, he, like all the other employees, had access to at least two shared vehicles. Dkts. 98, at 2; 34, at 8. Plaintiff shared a vehicle “more often than not” with Brad Wiggins. Id. Plaintiff was given a new radio identifier, “FM5,” for 911 calls. Dkt. 34, at 5.

Plaintiff was issued a new employee identification badge. Dkt. 34, at 8. Plaintiff was not given a fire...