Martin v. Gonzaga Univ., 34103-8-III.

• Decision Date: 07 September 2017
• Docket Number: No. 34103-8-III.,34103-8-III.
• Parties: David MARTIN, a single person, Appellant, v. GONZAGA UNIVERSITY, Respondent, Chris Standiford and "Jane Doe" Standiford, a marital community, Defendants.
• Court: Washington Court of Appeals

200 Wash.App. 332

402 P.3d 294

David MARTIN, a single person, Appellant,

v.GONZAGA UNIVERSITY, Respondent,Chris Standiford and "Jane Doe" Standiford, a marital community, Defendants.

No. 34103-8-III.

Court of Appeals of Washington, Division 3.

SEPTEMBER 7, 2017

Julie Christine Watts, The Law Office of Julie C. Watts, PLLC, 108 N. Washington St., Ste. 302, Spokane, WA, 99201-5127, for Appellant.

Michael Bradley Love, Michael Love Law, PLLC, 905 W. Riverside Ave., Ste. 404, Spokane, WA, 99201-1099, for Respondent.

Fearing, C.J.¶1 David Martin sues his former employer, Gonzaga University, for discharge in employment in violation of public policy and for a violation of a statute allowing an employee access to his personnel file. We affirm a summary judgment dismissal of the wrongful discharge claim. Martin fails to present evidence to support the fourth element of the claim, that element being the absence of an overriding justification for Gonzaga University to fire Martin. The undisputed facts, including Martin's own words, establish insubordination. We reverse the summary judgment dismissal of Martin's claim that the university denied him access to his personnel file on the ground that Gonzaga University failed to provide testimony that it produced all of the file to Martin.

¶2 Few decisions delineate the nature of the overriding justification element of the wrongful discharge in violation of public policy cause of action. We devote pages to define and demarcate the element.

FACTS

¶3 This lawsuit arises from the employment of David Martin at Gonzaga University's Rudolf Fitness Center (RFC). Because the trial court granted Gonzaga University's summary judgment motion, we recite the facts in a light most favorable to David Martin, although we also include some of the university's evidence.

¶4 Spokane's Jesuit school, Gonzaga University, opened the Rudolf Fitness Center in 2003 for use by students, faculty, and staff. A basketball fieldhouse and a pool, among other facilities, occupy the fitness center. During the summer months, the university rents the fitness center to other organizations such as youth camps and leagues. The university's Athletics Department oversees the fitness center.

¶5 At unknown dates before Gonzaga University's hire of David Martin in 2008, university students sustained injuries when playing basketball and striking bare concrete walls behind the basketball hoops in the Rudolf Fitness Center. Injuries included concussions, head trauma

, broken bones, dislocated shoulders, and lacerations. No protective padding covered the walls. Basketball courts at other Gonzaga University facilities included padding on the walls.

¶6 Beginning in 2004, Gonzaga University Athletics Department staff discussed affixing prophylactic padding to the basketball court walls at the Rudolf Fitness Center. No code requirement or National Collegiate Athletic Association regulation requires the use of pads. Nevertheless, in 2004, Senior Associate Athletics Director Chris Standiford instructed Assistant Athletics Director Jose Hernandez to hire a risk management consultant to assess the need for pads along the walls of the basketball courts. The Athletics Department later declined to follow the consultant's recommendation to install pads. The university then estimated the cost of the padding as $30,000.

¶7 During a deposition in this lawsuit, Assistant Athletics Director Jose Hernandez testified that he "believed" that Senior Associate Athletics Director Chris Standiford rendered the 2004 decision rejecting installation of protective pads. Clerk's Papers (CP) at 66. In 2007, Hernandez again engaged a consultant to assess the need for safeguarding pads and the costs of the pads. After the second assessment, Hernandez recommended to his supervisor, Assistant Athletics Director Joel Morgan, that Gonzaga University install the pads. The Athletics Department again declined to install the recommended pads. Hernandez does not know whether Morgan or Standiford made the decision. Morgan recalled no such recommendation.

¶8 Gonzaga University hired plaintiff David Martin on January 2, 2008, to work as an assistant director of the Rudolf Fitness Center. In addition to his wages, Martin received other benefits, including health insurance and free tuition. Martin utilized his tuition benefit and enrolled in Gonzaga's master's degree program for sports administration.

¶9 When David Martin gained employment at the Rudolf Fitness Center, the fitness center's employees included Assistant Athletics Director Jose Hernandez, Associate Director Shelly Radtke, and Assistant Directors Andrew Main and Kerri Conger. Hernandez also enjoyed the title of University assistant athletics director. The university's Athletics Department's chain of command encompassed the Rudolf Fitness Center's employees. We have already mentioned some of the supervisor's names and titles. The fitness center's associate and assistant directors initially reported to the center's Assistant Athletics Director Hernandez. Later, Associate Director Shelly Radtke directly supervised David Martin. Hernandez reported to Gonzaga University Assistant Athletics Director Joel Morgan. Morgan reported to university Senior Associate Athletics Director Chris Standiford. Standiford reported to Mike Roth, director of Athletics.

¶10 After David Martin's hire, Gonzaga University students continued to sustain injuries while playing basketball in the Rudolf Fitness Center and striking concrete walls while running full speed. For several years, David Martin requested that Gonzaga University install protective padding on the fieldhouse walls behind the basketball hoops, although we lack evidence as to the number of times and the dates of the requests. Martin recalled one request during his second year of employment after a student sustained serious injuries while playing basketball. Martin forwarded a concern to his supervisor, Jose Hernandez, and the pair discussed the need to install padding to help minimize the risk of injuries. Martin deemed that Gonzaga University held a legal obligation to maintain a safe environment for students and employees. He worried about blood and other bodily fluids spilled during accidents could create pathogen hazards. In response to Martin's expression of concern, Fitness Center Assistant Athletics Director Hernandez informed Martin that requests for protective padding could only be made once a year at the budget meeting.

¶11 In a deposition, Jose Hernandez confirmed that David Martin spoke to him about installing pads. According to Hernandez, Martin repeatedly and passionately spoke about the need for wall padding.

¶12 According to David Martin, before he raised this safety concern to Jose Hernandez, he received a raise for good work performance. Thereafter, Martin received no pay raises despite receiving complimentary performance evaluations. David Martin does not present records to support these assertions.

¶13 During the employment of David Martin, other Rudolf Fitness Center employees expressed concerns about the lack of protective wall padding in the basketball courts. According to Associate Director Shelly Radtke and Assistant Director Andrew Main, all Athletics Department staff discussed the lack of padding on the walls of the Rudolf Fitness Center. Neither Radtke nor Main identified a supervisor to whom either raised a safety concern about the walls.

¶14 One or more supervisors of David Martin periodically reviewed his job performance. Martin testifies that supervisors never advised him of any work performance deficiencies. Records show, however, that Martin received below average ratings for his interpersonal skills, problem solving, professional development, and leadership responsibilities on his April 28, 2011 performance review.

The review noted that Martin's overall performance "was below the quality and standard that he is capable of." CP at 128. The review further read:

[Martin's] inconsistent performance kept him from meeting the basic job requirements. Throughout the academic year, at times he would displayed [sic] great work ethics and at other times he would not. This up and down behavior and conduct was a surprise and uncharacteristic of him.

CP at 128. In addition, the review commented that Martin did an excellent job developing and implementing a training program for lifeguards. No supervisor signed the April 2011 performance review.

¶15 Rudolf Fitness Center Assistant Athletics Director Jose Hernandez and David Martin exchanged e-mails following the April 28, 2011 performance review. In one e-mail, Hernandez posed two questions to Martin. Hernandez asked Martin how the latter could improve his performance to advance the interests of the fitness center. The second question asked Martin how other Rudolf Fitness Center staff needed to change or improve. Martin's response focused on his desire to develop a pool program, his dissatisfaction with resistance to change from others, and a lack of teamwork among staff. Martin did not mention any student safety concerns related to the lack of protective padding in the basketball courts.

¶16 In a document dated August 16, 2011, an anonymous author, perhaps Jose Hernandez, summarized in writing David Martin's April 2011 review. The document lacks a header. The author identified four deficiencies in Martin's work performance and correlating expectations and goals. The four highlighted deficits were a lack of interpersonal and professional communication skills with coworkers, a lack of teamwork, abrasive and insensitive written communications, and a neglect of job responsibilities.

¶17 After David Martin's April 28, 2011 performance review, Rudolf Fitness Center Assistant Athletics Director Jose Hernandez counseled Martin daily about his job performance, his need to follow protocol, and his interpersonal skills. According to Hernandez,

[Martin] was a young man just removed from college at the time who was a challenge to work

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