Ma v. Gagliardo
| Decision Date | 06 February 2023 |
| Docket Number | 83294-8-I |
| Parties | DR. MOSES MA, Appellant, v. JOHN GAGLIARDO and RICHARD COX, Respondents. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Dr Moses Ma sued John Gagliardo and Richard Cox based on actions allegedly taken against him as a volunteer swimming official. Ma appeals the trial court's decision granting summary judgment and dismissing his claims for violation of Washington's Law Against Discrimination (WLAD), ch. 49.60 RCW, defamation, tortious interference with contract outrage, and civil conspiracy.[1] Because there are genuine issues of material fact, we reverse the trial court's decision dismissing Ma's claims under the WLAD and for tortious interference with contract.[2] We otherwise affirm.
Ma participated as a volunteer swimming official with Pacific Northwest Swimming (PNS), a local swimming committee of USA Swimming (USAS).[3] Gagliardo has been a member of PNS since 2008, a member of the PNS Officials Committee since 2011, and the elected Chair of the Officials Committee since May 2016. Cox has been a member of the PNS Officials Committee since 2006. The Officials Committee is responsible for recruiting, training, certifying, evaluating, recertifying, and supervising officials for PNS. PNS is a voluntary organization, no one is paid.
There are five categories of officials within USAS: (1) stroke and turn, (2) starter, (3) chief judges, (4) referees, and (5) administrative officials. Swim meets are categorized by level: N1 is the local level, N2 is the national level, and N3 is for international or Olympic competitions. Officials are certified for each category to the level of meet the official can participate in. Generally, the N1 certification process for each category requires two steps. After a training class and test, the candidate must complete several novice sessions where they work at meets with a mentor in that category. Then, after completion of the novice sessions, the candidate can be recommended for a final observation by an official authorized to issue certifications.
In 2013, Ma began officiating to spend more time with his children, support their interest in swimming, and volunteer at their swim meets. Ma began the process of obtaining his N1 referee certification in 2015. During the time Ma was working toward certification as a referee, only four officials at PNS could perform final observations. Cox was one of the four. Generally, the N1 certification requires eight novice sessions before the candidate can be recommended for observation. Ma was required to perform 58 novice sessions over 17 months before obtaining certification.
Many officials that worked with Ma described him as "a fair, highly competent, and committed official," fair to swimmers, professional, and attentive to details. Ma's novice service logs contain positive comments about his officiating. These comments include: ; "[Ma] is a natural."; "Takes directions well and implements changes right away." The logs also contain some suggestions for improvement, including "work on 'being the boss,'" and "work on timing." Ma acknowledged that he struggled with the starter position and did extra sessions, both at his own direction and based on feedback, to gain confidence in that role.
While Ma had many supporters, some officials had trouble with him, including Cox. After a meet that Cox described as "very frustrating," Cox wrote to several other officials at PNS "there is no way in hell [Ma] should ever be allowed to become a referee." In Cox's opinion, Ma "was a very difficult person to work with at meets." Cox believed that Ma was "not a bad official when his kids are not around" but could be very distracted when they are present. Cox later observed Ma and certified him as an N2 starter, believing that Ma had improved in that position.
Ma was first observed for the his N1 referee certification after 16 novice sessions and with the recommendation of 3 meet referees. The final observation was conducted by Ron Van Pool in April 2016. Unknown to Ma, according to Gagliardo, he and Van Pool had agreed that the observation was for "educational" purposes because of Ma's "current weaknesses and how they must be resolved." According to Gagliardo,
During the observation, another PNS official tried to tell Ma how the meet should be run. Van Pool concluded that Ma should be observed again to show he could run a meet without allowing other officials to attempt to influence decisions. Van Pool told Ma that he only needed to complete one or two more novice sessions before being observed again. Ma completed several more novice sessions. Then, in May, Ma contacted PNS official Dave Coddington to be observed, but Coddington was unavailable.
In June, Ma contacted Van Pool and asked to be observed again. Van Pool forwarded the e-mail to Gagliardo, Cox, and a third PNS official, David Guffey, asking how they would like him to respond. Cox responded to Van Pool and said officials had told Ma he would not be observed the rest of the season which ended in July. Cox also stated that Ma "still doesn't get it," referring to Ma's ability to run a meet. Gagliardo agreed with Cox's statements.
In August 2016, Coddington e-mailed Cox to summarize a conversation he had with Ma, and Ma's path forward. The path forward included (1) Ma attending a fall referee clinic that Coddington had not scheduled, (2) passing the referee recertification and administrative referee recertification tests, (3) observation by Coddington or Van Pool only, "no substitutions," and (4) demonstrate "a knowledge of 'why' common practices exist, not just that they do, and he can do them." Cox responded to Coddington,
Between Ma's observations, Cox and a few other officials raised some concerns about Ma's officiating. These concerns again included Ma's ability to focus on his assigned role rather than his parental role, his confidence, and missteps in protocols. But, Ma's novice official service logs continued to reflect positive comments and at least eight different meet referees recommended Ma for a second observation after his first, April 2016 observation.
Ma's second observation for deck referee was with Coddington in March 2017. Ma had completed another 42 novice sessions before the second observation. Before the observation, Cox shared some of the concerns other officials had about Ma with Coddington. During the meet Coddington observed Ma, Ma had a good day and Coddington granted Ma's certification as an N1 referee.
Upon learning that Ma had to complete over 50 novice sessions, other officials were "shocked" and "startled." One official described this as an "unprecedented number." Only one other official with PNS was required to complete a high number of novice sessions: Diane Vo completed 38 novice sessions. Like Ma, Diane Vo is of Asian descent. While PNS officials expressed some concern about another official, Kevin Cooney, Cooney was certified on his first observation and after only 15 novice sessions. Kevin Cooney is white.
When Ma started working towards his N1 referee certification, only 29 percent of all PNS officials were of Asian descent and of the 61 referees with PNS, only 3 were of Asian descent.
In March 2018, Ma asked for information from PNS to determine which swimmers would fall within the same category as his daughter for an upcoming meet. Ma believed he could request the information because, in years past, the information was routinely provided to parents and swimmers on the PNS website. Cory Keller, member of PNS and the chair of PNS SafeSport program[4] from 2016 to 2018, however, believed Ma's request was inappropriate because his purpose was to secure a competitive advantage for his child. Keller notified Ma that the request was inappropriate and informed the Chair of the Officials Committee, Gagliardo. Keller blind copied her contact at U.S. Center for SafeSport. After receiving Keller's notice, Ma did not press the issue.
In May 2018, Ma acted as chief judge during the two-day "May Flowers" meet. During a heat on Saturday, Diane Zhang, a stroke and turn judge, signaled a possible disqualification in one of the lanes she was observing. Ma met with Zhang to process the call and recommended that her call not be accepted. Ma contested Zhang's call because he observed the swimmer's actions and believed Zhang's ruling was incorrect. While Ma was not initially aware that the call concerned his son, on site officials questioned Ma's objectivity. The officials were completely swamped that day, with hundreds of disqualifications to process, and Ma felt he could not recuse himself and delay things further. Ma was excused from acting as an official for the rest of the session and, that night, he was notified that he would not be officiating the rest of the meet.
On Sunday, Ma attended the May Flowers meet as a parent to watch his children. Zhang attended as stroke and turn judge and to watch her child. After the morning session, both Ma and Zhang left the aquatic center. The two spoke for a few minutes and had what Ma believed to be an "unnoteworthy" conversation. But after Zhang looked around for her daughter Ma told Zhang where her daughter and ride were. This gave Zhang a "creepy" feeling, like her family was being watched. As a result, Zhang spoke to the meet referee, Thomas Matthes, described the conversation with Ma,...
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