Miguel v. Guess

• Decision Date: 18 July 2002
• Docket Number: No. 20699-8-III.,20699-8-III.
• Citation: 51 P.3d 89,112 Wash.App. 536
• Parties: Nan MIGUEL, Plaintiff, and Mary Jo Davis, Appellant, v. Charles GUESS, and Pullman Hospital District No. 1-A, d/b/a Pullman Memorial Hospital, Respondents.
• Court: Washington Court of Appeals

51 P.3d 89

112 Wash.App. 536

Nan MIGUEL, Plaintiff, and Mary Jo Davis, Appellant, v. Charles GUESS, and Pullman Hospital District No. 1-A, d/b/a Pullman Memorial Hospital, Respondents.

No. 20699-8-III.

Court of Appeals of Washington, Division 3, Panel Seven.

July 18, 2002.

Richard D. Reed, Judith A. Lonnquist, Seattle, for Appellant.

James B. King, Christopher J. Kerley, Michael J. McMahon, Susan W. Troppmann, Spokane, for Respondents.

KURTZ, J.

Mary Jo Davis sued Pullman Hospital District No. 1-A (the "Hospital") and Charles Guess, M.D., after she was dismissed from her position in the Hospital's radiology department. Ms. Davis believes that she was fired because she is a lesbian. In her lawsuit, she contended that public employment discrimination based solely on sexual orientation is irrational and actionable under 42 U.S.C. § 1983 as a violation of the Equal Protection Clause of the United States Constitution. Her claims were dismissed on summary judgment. We reverse the dismissal and remand for trial Ms. Davis's § 1983 claims against the Hospital and Dr. Guess. In so doing, we hold that Ms. Davis has raised material issues of fact with respect to whether (1) the Hospital and Dr. Guess are state actors for the purposes of § 1983, and (2) they denied her equal protection under the laws. But, we affirm the dismissal of her claim based upon public policy because her discharge did not violate a clear mandate of Washington public policy.

FACTS

In July 1993, Mary Jo Davis was hired by Pullman Memorial Hospital to work as a sonographer in its radiology department. The director of that department was Dr. Charles Guess, a radiologist with staff privileges. Ms. Davis's immediate supervisor was Nan Miguel, who managed the radiology department.

Ms. Davis and Dr. Guess did not enjoy a good working relationship. Ms. Davis is a lesbian. Before she was hired, Dr. Guess told Ms. Miguel that the Hospital should not hire Ms. Davis because her homosexuality might cause trouble. On a number of occasions, Dr. Guess referred to Ms. Davis as a fucking faggot, a fucking dyke, and a queer. Dr. Guess was also heard to say: "`I don't think that fucking faggot should be doing vaginal exams and I'm not working with her.'" Clerk's Papers (CP) at 1367. He reaffirmed this sentiment in a statement to Scott Adams, the Hospital Administrator, overheard by Dr. James Harrington, an emergency room physician. According to Dr. Harrington, Dr. Guess stated "`I don't think a queer should be doing vaginal exams.'" CP at 1367. And, Mr. Adams replied with words to the effect of: "`I hear what you're saying. We need to do something about it and we will.'" CP at 1367.

On one occasion, Dr. Guess treated the department staff to ice cream. He told everyone that they were celebrating because Ms. Davis was not at the hospital that day. He remarked that it was gay pride week, and Ms. Davis must be off marching somewhere. Although Ms. Davis's co-workers laughed in response to Dr. Guess's statement, one observer to this event reported that Dr. Guess was not joking.

Dr. Guess's reservations about Ms. Davis were not limited to her lifestyle. He told other employees that Ms. Davis was not properly trained and lacked the necessary experience to be performing ultrasounds. Specifically, he stated that when Ms. Miguel stopped assisting Ms. Davis with the scans, "she was lost in what she was doing." CP at 145. In his deposition, Dr. Guess identified other physicians who had expressed concerns about Ms. Davis's professional skills. As the director of the radiology department, Dr. Guess was responsible for the overall care patients received in his department.

In early November 1994, Ms. Miguel sent a memorandum to Mr. Adams objecting to Dr. Guess's treatment of Ms. Davis. According to Mr. Adams, Ms. Miguel informed him that Dr. Guess was not cooperating with [Ms. Davis] in her being able to perform her duties as an ultrasonographer. That he was critical of her work, that he was uncooperative in trying to provide her necessary information to perform her duties and that he was critical of her lifestyle.'" CP at 2341. Mr. Adams further stated that other employees of the radiology department confirmed these allegations in a department meeting. Later that month, Ms. Davis sent a letter to Mr. Adams, Ms. Miguel, and the Hospital complaining about the way in which Dr. Guess treated her.

At the end of November 1994, Ms. Miguel was placed on paid administrative leave. Mr. Adams explained in a memorandum to Ms. Miguel that she was being placed on leave while the Hospital determined how to restructure the radiology department to create a cohesive group. She was informed that depending upon what the Hospital decided, she might be asked to return in a staff role, a group leader role, or her position might be terminated. Ultimately, the Hospital eliminated Ms. Miguel's position and she lost her job.

As a result of Ms. Davis's and Ms. Miguel's complaints, Mr. Adams and Dr. Margaret Miller, the Hospital's Chief of Medical Staff, met with Dr. Guess. They informed him that his disparaging comments about Ms. Davis, specifically his references to her lifestyle, would not be tolerated by the Hospital. Mr. Adams advised Dr. Guess that no formal disciplinary action through the established medical staff process would be necessary unless the behavior continued. According to Mr. Adams, Dr. Guess agreed to discontinue the behavior.

After his meeting with Mr. Adams and Dr. Miller, Dr. Guess decided that one way to comply with the Hospital's demand that he change his treatment of Ms. Davis would be to minimize his contact with her. Dr. Guess announced that he would begin to perform his own ultrasounds. The immediate impact of this decision was to reduce the amount of work for the radiology technologists. The Hospital responded by reducing Ms. Davis's hours from full time to three-quarters time.

Ms. Davis then retained counsel to file a grievance regarding her reduction in work hours. In preparing for her grievance hearing, Ms. Davis made a photocopy of documents from two patient files in an attempt to prove that her reduction in work hours was the result of Dr. Guess's animus regarding her sexual orientation.

Mr. Adams informed Ms. Davis that her actions in copying information from patient files were in violation of the Hospital's patient confidentiality policies, and Ms. Davis was given a three-day suspension. Mr. Adams sent Ms. Davis a second letter, in which he informed her that after further consideration, he decided that her acts constituted serious offenses under the Hospital's policies, and she was terminated.

Ms. Davis appealed to the Board of Commissioners (the "Board"). The Board found that the termination was justified. The Board commented that Ms. Davis breached the confidentiality of patient files and had become a disruptive employee.

Procedural History. Ms. Davis filed a complaint against the Hospital and Dr. Guess in November 1996. In due course, Dr. Guess and the Hospital each moved for summary judgment. The court ultimately dismissed all of Ms. Davis's claims against Dr. Guess. The court also dismissed all claims against the Hospital, except for the claims for wrongful discharge in breach of promises made in the employee handbook and violation of due process.

Ms. Davis sought discretionary review from the Washington Supreme Court of the court's decision to dismiss her equal protection and public policy claims against the Hospital and Dr. Guess. The Hospital also sought review of the court's refusal to dismiss the employee handbook and due process claims.

A Supreme Court commissioner denied review, stating that it did not appear that the case would be significantly streamlined by an early consideration of the equal protection and public policy issues. Additionally, the commissioner stated that Ms. Davis did not demonstrate that the superior court had committed obvious or probable error in dismissing her claims.

In response, Ms. Davis moved the superior court to dismiss with prejudice her employee handbook and due process claims in order to perfect her appeal as a matter of right from a final judgment. The court granted the motion and this appeal followed. In it, Ms. Davis contends the superior court erred when it dismissed her equal protection claims against both Dr. Guess and the Hospital, and her claim against the Hospital that its actions violated Washington public policy.

ANALYSIS

Standard of Review. In reviewing a summary judgment, we engage in the same inquiry as the trial court. Snohomish County v. Anderson, 124 Wash.2d 834, 843, 881 P.2d 240 (1994). The facts and all reasonable inferences from the facts are construed in favor of the nonmoving party, Ms. Davis. Id. We do not weigh the evidence or determine the truth of the matter; the only question is whether there is a genuine issue for trial. A motion for summary judgment should be granted only if the court concludes that reasonable persons would reach but one conclusion based on the facts and reasonable inferences therefrom. Id.

42 U.S.C. § 1983. Ms. Davis claims the Hospital and Dr. Guess violated 42 U.S.C. § 1983. To establish a cause of action under 42 U.S.C. § 1983, Ms. Davis must show: (1) the defendant violated a federal constitutional or statutory right, and (2) the defendant acted under color of state law. Here, Ms. Davis argues that the Hospital and Dr. Guess violated the Equal Protection Clause of the United States Constitution. In considering this claim, we first address whether Ms. Davis has raised a material issue of fact as to whether either of the defendants acted under color of state law. While the ultimate determination of whether the Hospital and Dr. Guess are state actors is a question of law, if a factual dispute underlies that decision, then it cannot be made on summary judgment. See Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 344 n. 7 (4th Cir.2000), ...