Lee v. Snohomish Cnty.

• Decision Date: 06 March 2018
• Docket Number: CASE NO. C17-0176JLR
• Parties: MARK JEFFERY LEE, Plaintiff, v. SNOHOMISH COUNTY, Defendant.
• Court: U.S. District Court — Western District of Washington

MARK JEFFERY LEE, Plaintiff, v. SNOHOMISH COUNTY, Defendant.

CASE NO. C17-0176JLR

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

March 6, 2018

ORDER ON MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Before the court is Defendant Snohomish County's (the 4"County") motion for summary judgment. (MSJ (Dkt. # 14).) Plaintiff Mark Lee filed a response (Resp. (Dkt. # 19)) and the County filed a reply (Reply (Dkt. # 21)). The court has considered the parties' submissions in support of and in opposition to the motion, the relevant portions

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// of the record, and the applicable law. Being fully advised,¹ the court GRANTS in part and DENIES in part the motion.

II. BACKGROUND

Mr. Lee is a former employee of the Snohomish County Superior Court Denney Juvenile Justice Center ("DJJC"). (Compl. (Dkt. # 1-2) ¶ 4.1.) Specifically, Mr. Lee worked in the Juvenile Detention Alternatives Program ("JDAP"), which provides services for the Snohomish County Juvenile Court, including secure detention, probation, and alternatives to detention. (Finsen Decl. (Dkt. # 16) ¶ 2.) Mr. Lee held a number of positions with the DJJC over his almost 20-year tenure that started in 1996. (Compl. ¶¶ 4.1-4.6.) Mr. Lee's highest and final position he held with the DJJC, which he attained in November 2003, was as the Supervisor of the Juvenile Community Corrections Officers ("JCCO"). (Id. ¶ 4.6; Finsen Decl. ¶ 3; but see Finsen Decl. ¶ 4 (stating that Mr. Lee started work as the JCCO Supervisor on September 1, 2005).) As the JCCO Supervisor, Mr. Lee's responsibilities included: overseeing officers; monitoring and enforcing behavioral compliance; assuming responsibility for the safety and security of the youth and the community; and performing public relations work to maintain positive relations between the court, clients, clients' parents and guardians, school districts, various professional agencies, and the community at large. (Compl. ¶ 4.10; Finsen Decl. ¶ 3.) The JCCO Supervisor is required, among other things, to understand "group dynamicsand de-escalation skills," have the ability to "establish and maintain a rapport with juveniles," and "communicate with juveniles in ways that are both supportive and direct." (Finsen Decl. ¶ 3, Ex. A.)

In addition to working as the JCCO Supervisor, Mr. Lee and his wife were foster parents. (Compl. ¶ 4.7.) In November 2008, Mr. Lee's residence burned down, killing two of his foster children. (Id. ¶ 4.8.) Mr. Lee was diagnosed with Post Traumatic Stress Disorder ("PTSD") after this incident. (Id. ¶ 4.9.)

According to Mr. Lee, he was not subject to a single disciplinary action from DJJC between 1996 and 2011. (Id. ¶ 4.27.) However, starting in early 2012, Mr. Lee received several reprimands while under the management of Margie Holloway.² (Id. ¶¶ 4.27-4.28, 4.36, 4.47, 4.48.) One such reprimand occurred when Mr. Lee implemented a new attendance and reporting policy in order to resolve discrepancies in the existing system, which were causing some youth to be suspended from the program and transferred to secure detention while other youth were receiving credit for time they did not actually serve. (Id. ¶¶ 4.32-4.33.) Ms. Holloway received complaints about Mr. Lee's new attendance policy from other DJJC staff, which led to a written disciplinary memo. (Id. ¶¶ 4.34-4.36.)

On May 22, 2014, Mr. Lee conducted an orientation presentation with youth in a JDAP classroom. (Id. ¶ 4.53; Finsen Decl. ¶ 5.) Mr. Lee had given this same presentation hundreds of times. (Compl. ¶ 4.53.) On this occasion, however, witnessesdescribed Mr. Lee's presentation as "loud, angry, mocking, short, antagonizing, and aggressive." (Finsen Decl. ¶ 5.) On June 19, 2014, Mr. Lee was placed on administrative leave because of the presentation. (Compl. ¶ 4.54.) On April 30, 2015, following notice of and opportunity for a pre-disciplinary hearing, Mr. Lee's employment was terminated because of his orientation presentation. (Finsen Decl. ¶ 5, Ex. B.) Mr. Lee "grieved his termination through several steps, culminating in a post-deprivation hearing in front of Superior Court Judge Michael Downes." (Id. ¶ 6.) Judge Downes issued a written decision on March 23, 2016, affirming Mr. Lee's termination. (Id.; Comer Decl. (Dkt. # 15) ¶ 2, Ex. A ("Downes Decision").) Because Mr. Lee was not a union member between the time of the orientation presentation on May 22, 2014, and his termination on April 30, 2015, the grievance hearing in front of Judge Downes was processed under the Snohomish County Superior Court Human Resources Guidelines and the authority of General Rule 29. (See Finsen Decl. ¶¶ 7-8, Exs. C-D; Downes Decision.) Subsequent to his termination, Mr. Lee has pursued other jobs within the Snohomish County Corrections Division but was told to stop applying in part because of feedback from DJJC employees. (Comp. ¶ 4.60.)

On August 1, 2016, Mr. Lee filed a statutory claim for damages with the Snohomish County Risk Manager. (See Comer Decl. ¶ 3, Ex. B ("Claim for Damages").) Mr. Lee's claim for damages reads:

Mr. Lee was wrongfully terminated from his long term employment with Snohomish County Superior Court, Juvenile Division on April 30, 2015. Mr. Lee attempted to participate in the Superior Court's grievance process. The grievance process used was neither the process created by Human Resources,nor a Union process. The grievance process was finalized, by written ruling, on March 23, 2016.

Mr. Lee is believed and therefore alleged to have been fired for "blowing the whistle" on the corruption in the Department. Mr. Lee observed, and reported, documents relating to the detention of juveniles that were knowingly inaccurate, and presented to Superior Court as true and accurate. The inaccurate records covered up the truth that the requisite supervision of juveniles in the JDAP program, juveniles received credit for time they did not serve [sic].

Mr. Lee is believed and therefore alleged to have suffered a near immediate increase in disciplinary actions taken against him after raising the internal corruption. Mr. Lee was held to a different standard than coworkers. The county was aware of his disability and exploited, rather than accommodated him in the last few years preceding his termination.

Mr. Lee has suffered loss of earnings. Mr. Lee has endured mental anguish and loss of status in his professional field.

(Claim for Damages at 6.) On December 29, 2016, Mr. Lee brought suit in King County Superior Court, alleging the following causes of action: (1) due process violation under 42 U.S.C. § 1983; (2) retaliation under RCW 51.48.025; (3) negligent infliction of emotional distress; (4) discrimination on the basis of his PTSD disability under RCW 49.60.180; (5) age discrimination; (6) contract violation; (7) failure to provide a pre-termination hearing as required by Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985); (8) portrayal in a false light; and (9) defamation. (See Compl. ¶¶ 5.1-13.3.) On January 19, 2017, while the case was still in state court, Mr. Lee filed the Declaration of Service of Debra Gorecki, a registered process server, stating that she personally served Mr. Lee's summons and complaint on Diane Baer at the Snohomish County Risk Management Office ("Risk Management Office") instead of on the County Auditor as

//specified by Washington law. (Declaration of Service (Dkt. # 4-1) at 43); see RCW 4.28.080(1).

The County removed this case to federal court on February 6, 2017. (See Not. of Removal (Dkt. # 1).) On March 23, 2017, the County filed its answer to Mr. Lee's complaint, in which it pleaded that the court "lacks jurisdiction over the person of Defendant ([i]nsufficiency of process and insufficiency of service of process)"; that Mr. Lee "failed to follow statutory claim filing requirements"; and that Mr. Lee "failed to state a claim upon which relief may be granted," among other affirmative defenses. (See Answer (Dkt. # 7) at 15-16.) The parties filed their joint status report with the court on May 4, 2017, in which the County specified that "[a]ll parties have not been served." (JSR (Dkt. # 10) at 5.) Mr. Lee did not seek to clarify with the County why it alleged that service had not been accomplished. (Moody Decl. (Dkt. # 20) at 2.)

The County's present motion for summary judgment requests that the court: (1) dismiss Mr. Lee's claims, or order him to serve the County, because service on the Risk Management Office is improper; (2) dismiss Mr. Lee's causes of action of negligent infliction of emotional distress, defamation, false light, and age discrimination for failure to satisfy the statutory claims filing requirements; and (3) dismiss Mr. Lee's breach of contract claim because Mr. Lee was not a member of the union during the operative time and was not entitled to the statutory protections that he alleged. (MSJ at 6.) In his response, Mr. Lee admits that, upon further review, his contract violation claim is improper and he therefore agrees to dismissal of this claim. (Resp. at 6.) On December 12, 2017, while the County's motion for summary judgment was still pending, Mr. Leeaccomplished service on the County Auditor. (See Proof of Service (Dkt. # 25) at 2.) The court now addresses the County's motion.

III. ANALYSIS

A. Summary Judgment Standard

Summary judgment is appropriate if the evidence, when viewed in the light most favorable to the nonmoving party, demonstrates "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Galen v. Cty. of L.A., 477 F.3d 652, 658 (9th Cir. 2007). The moving party bears the initial burden of showing there is no genuine issue of material fact and that he or she is entitled to prevail as a matter of law. Celotex, 477 U.S. at 323. If the moving party meets his or her burden, then the nonmoving party "must make a showing sufficient to establish a...