Kirby v. City of Tacoma

• Court: Washington Court of Appeals
• Writing for the Court: HUNT, J.
• Citation: Kirby v. City of Tacoma, 98 P.3d 827, 124 Wn. App. 454, 124 Wash.App. 454 (Wash. App. 2004)
• Decision Date: 14 September 2004
• Docket Number: No. 29963-1-II, No. 30747-2-II.
• Parties: Joseph J. KIRBY and Deborah A. Kirby, husband and wife, Appellants, v. The CITY OF TACOMA, a municipal corporation; Ray Corpuz and "Jane Doe" Corpuz, husband and wife; Philip Arreola and "Jane Doe" Arreola, husband and wife; William Woodard and Catherine Woodard, husband and wife; Raymond Roberts and "Jane Doe" Roberts, husband and wife; David Brame and "Jane Doe" Brame, husband and wife; James Hairston and "Jane Doe" Hairston, husband and wife, Respondents.

98 P.3d 827

124 Wn. App. 454

124 Wash. App. 454

Joseph J. KIRBY and Deborah A. Kirby, husband and wife, Appellants, v. The CITY OF TACOMA, a municipal corporation; Ray Corpuz and "Jane Doe" Corpuz, husband and wife; Philip Arreola and "Jane Doe" Arreola, husband and wife; William Woodard and Catherine Woodard, husband and wife; Raymond Roberts and "Jane Doe" Roberts, husband and wife; David Brame and "Jane Doe" Brame, husband and wife; James Hairston and "Jane Doe" Hairston, husband and wife, Respondents.

Nos. 29963-1-II, 30747-2-II.

Court of Appeals of Washington, Division 2.

September 14, 2004.

Publication Ordered October 5, 2004.

John Louis Messina, Jeremy Adam Johnston, Messina/Bulzonmi, Tacoma, Stephen Louis Bulzomi, Messina/Bulzomi, University Place, Cynthia M. Morgan, Law Offices of Reseburg & Morgan, Seattle, for Appellants.

Shelley Marie Kerslake, Kenyon Disend PLLC, Issaquah, Jon Jeffrey Walker, Tacoma City Attorneys Office, Tacoma, for Respondents.

HUNT, J.

Tacoma police officer Joseph Kirby appeals summary judgment in favor of the City of Tacoma, in which the trial court dismissed his claims of age and disability related employment discrimination, First Amendment violations, and intentional infliction of emotional distress. He also appeals the trial court's denial of his motion for relief from judgment based on newly discovered evidence. Kirby argues that (1) genuine issues of material fact exist as to his claims of discrimination and intentional infliction of emotional distress; (2) he properly pleaded a First Amendment claim; and (3) the trial court abused its discretion in denying the motion for relief from judgment. Holding that summary judgment dismissal of Kirby's claims was proper, we affirm.

FACTS

I. BACKGROUND

Kirby joined the Tacoma Police Department (TPD) in January 1983. He quickly received promotions to sergeant and lieutenant, received commendations and "outstanding" evaluations, placed first on the civil service captain's list, and was made a temporary captain for six months.

In January 1996, on promotion to lieutenant, Kirby was removed from the Clandestine Lab Team (CLT). Another officer, Sergeant Ramsdell, was allowed to remain on the CLT when he was promoted to lieutenant, because the team did not have another officer certified as a team leader. When another certified officer became available, Ramsdell was also removed from the CLT.

On March 4, 1997, Kirby became involved in police union activities. On September 15, 1998, he was diagnosed with a work-related stress disorder, about which he notified the City on July 31, 1998. His private physician provided psychiatric treatment from September 15, 1998, until March 26, 2001. Kirby was subjected to several psychiatric examinations to determine his fitness for duty, including one on September 9, 1998. Kirby twice reported himself unable to work due to stress-related illness.¹

Kirby had a contentious relationship with the TPD command structure. On June 15, 1998, for example, TPD held a command staff meeting to discuss domestic violence between two TPD officers. Kirby had spoken with one of the involved officers over the weekend and related the conversation without saying that it was confidential or union-related.² When the bureau commander ordered Kirby to write an administrative report on the incident, Kirby saluted and said, "F* *king Airborne, you'll get your report, but you won't like what it says."³ Clerk's Papers (CP) at 269. Kirby wrote the report but improperly disseminated it, before submitting it to the bureau commander; as a result, Kirby was reprimanded for insubordination.

Kirby was the subject of numerous Internal Affairs (IA) investigations, some of which lasted for months and some for up to two years. TPD does not generally initiate IA investigations unless the incident would justify economic sanctions. Charles Meinema later testified, "[I]t seems whenever Joe Kirby has any kind of disagreement with a superior, the matter gets referred to IA, and this has happened to other people as well." CP at 412.

On Friday, August 20, 1999, Kirby learned of allegations that a TPD officer had attempted to bribe a citizen. The following Monday, he brought the allegations to a superior officer. Kirby was orally reprimanded and counseled for failure to inform the chief of police immediately. Kirby later testified that he did not tell the chief because he believed that the chief was likely to engage in a cover-up. No formal disciplinary action was taken against the officer allegedly involved in the bribery allegations.

On November 3, 1999, Kirby was orally reprimanded again, this time for having failed to support a superior officer's policies by expressing his (Kirby's) own opinion about the TPD's decision to transfer a secretary out of his division in October.

According to Kirby, TPD Chief Philip Arreola exhibited age discrimination when he (1) once referred to Kirby as the "old guard"; and (2) again, during a command staff meeting, said, "Now if I can just get some of these gray-haired old captains to leave, we can get you guys here at the table" (while addressing two younger officers who had just placed first and second on the captain's list). CP at 420. Another time, at a staff meeting, Kirby complained about administration of discipline procedures. Arreola told Kirby to stand down or he would suspend⁴ him for having the audacity to challenge him in an open forum. Arreola never took any steps to suspend or terminate Kirby. According to Kirby, Arreola also seized his email account and conducted a "warrantless search of his emails" in retaliation for raising an issue about officer safety when serving warrants and potential TPD liability.⁵

In 1999 and 2000, TPD twice passed over 52-year-old Kirby for promotion to captain, even though he had been a temporary captain for the previous six months and had placed first on the civil service captain's list at the time of the appointments. Instead, TPD gave the positions to the two other candidates from the top three, who were 45 and 42 years old. Before passing over Kirby for promotion, the TPD had never passed over a lieutenant who placed first on the civil service captain's list, even though the City's personnel rules allowed selection of any candidate from the top three.

Arreola was no longer employed with the TPD when Kirby was passed over for captain; nor was Arreola involved in the promotion decisions at issue here. Rather, Chief James Hairston selected the other applicants over Kirby because they fit better into the organizational structure and had better team-working skills.⁶

II. PROCEDURE

Kirby sued the City, alleging continued harassment and discrimination during his employment with the TPD because of his participation in protected union activities, his disability, and his age. He later amended his complaint, adding intentional infliction of emotional distress. Kirby also filed a Notice of Claim indicating his intent to assert constitutional tort claims under both the Washington State and Federal Constitutions.

The trial court granted the City's motions for partial summary judgment on all Kirby's claims, and dismissed the case. The court also dismissed Kirby's First Amendment claim, finding that the complaint failed properly to plead a First Amendment claim.

The trial court denied Kirby's motion for reconsideration under CR 59(a)(7),(8), and (9), in which he argued that he had presented sufficient evidence to defeat summary judgment on his claim of wrongful adverse employment action.

Kirby then moved for relief from judgment based on newly discovered evidence and fraud. On April 26, 2003, TPD Chief David Brame killed himself and his wife. The newspaper published an article about Chief Brame's prehire psychological evaluation, including the text of the evaluation. During discovery in Kirby's case, the City had claimed that their files did not contain prehire psychological screening material.

The trial court denied Kirby's motion. It concluded that Kirby did not properly plead a claim for discrimination based on union activity, and the evidence did not suggest that TPD discriminated against Kirby based on age, disability, or union activity.

ANALYSIS

I. STANDARD OF REVIEW

When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c). We must consider all facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Wilson, 98 Wash.2d at 437, 656 P.2d 1030. The nonmoving party may not rely on speculation, argumentative assertions that unresolved factual issues remain, or having its affidavits considered at face value. Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wash.2d 1, 13, 721 P.2d 1 (1986).

After the moving party has submitted adequate affidavits, the burden shifts to the nonmoving party to set forth specific facts sufficiently rebutting the moving party's contentions and disclosing the existence of a material issue of fact. Seven Gables, 106 Wash.2d at 13, 721 P.2d 1. We will uphold the ruling granting the motion only if, from all the evidence, reasonable persons could reach but one conclusion. Wilson, 98 Wash.2d at 437, 656 P.2d 1030.

II. EMPLOYMENT DISCRIMINATION

A. McDonnell Douglas Test

Washington courts apply the protocol developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) to determine the evidentiary burdens of the parties in discrimination cases. Hill v. BCTI Income Fund-1, 144 Wash.2d 172, 180, 23 P.3d 440 (2001); Grimwood v. Univ. of Puget Sound, Inc., 110 Wash.2d 355, 753 P.2d 517 (1988). Under this protocol, ...