Mikkelsen v. Pub. Util. Dist. # 1 of Kittitas Cnty.
| Citation | 195 Wash.App. 922,380 P.3d 1260 |
| Decision Date | 13 September 2016 |
| Docket Number | No. 33528–3–III,33528–3–III |
| Court | Court of Appeals of Washington |
| Parties | Kim Mikkelsen, Appellant, v. Public Utility District # 1 of Kittitas County, John Hanson, Paul Rogers, and Charles Ward, Respondents. |
John Jay Carroll, Halverson Northwest Law Group PC, P.O. Box 22550, Yakima, WA, 98907–2550, for Appellant.
Sarah Lynn Clarke Wixson, Stokes Lawrence Velikanje Moore & Shore, 120 N. Naches Ave., Yakima, WA, 98901–2757, James Michael Kalamon, Paine Hamblen LLP, 717 W. Sprague Ave., Ste. 1200, Spokane, WA, 99201–3505, for Respondents.
OPINION PUBLISHED IN PART
Siddoway
, J.
¶1 Kim Mikkelsen appeals the summary judgment dismissal of her wrongful discharge and discriminatory discharge claims against the Kittitas County Public Utility District (PUD), its commissioners, and its former general manager, Charles Ward. Ms. Mikkelsen worked satisfactorily for 27 years, mostly part time, as the PUD's finance manager and as an interim general manager. But she does not dispute that within the first year of Mr. Ward's tenure as general manager, she and he “just plain didn't get along.” Clerk's Papers (CP) at 380.
¶2 She persuades us that Washington should follow the majority of federal circuit courts and apply the McDonnell Douglas1
burden-shifting approach to discrimination claims without requiring a discharged plaintiff to demonstrate, as part of her prima facie case, that her replacement came from outside her protected class. But it does not avail her, because she fails to meet her burden at the third step of the McDonnell Douglas analysis.
¶3 We address and affirm dismissal of her discrimination claims in the published portion of this opinion.
¶4 In the unpublished portion, we address the dismissal of Ms. Mikkelsen's breach of policy, negligent hiring and supervision, and intentional infliction of emotional distress claims. Here again, a reasonable trier of fact could reach only one conclusion: her evidence is insufficient. We affirm the summary judgment dismissal of all of Ms. Mikkelsen's claims.
FACTS AND PROCEDURAL BACKGROUND
¶5 Because we are reviewing the dismissal of claims on summary judgment, we view disputed evidence in the light most favorable to Ms. Mikkelsen as the nonmoving party.
¶6 The Kittitas County PUD, which provides electrical service to Kittitas County and a small section of Yakima County, has approximately 15 employees. It is administered by a three-member board of commissioners. Day-to-day operations are the responsibility of its general manager.
¶7 Kim Mikkelsen was a part-time manager of accounting and finance for the PUD for 27 years. The part-time nature of the position enabled her to operate a private consulting business providing services to other utilities on financial, administrative, and accounting matters. According to her, she would usually be at the PUD two or three days a week, although there were some times when she would be gone for a full week and would make up the work the next week. She was compensated on an hourly basis.
¶8 In August 2009, after then-general manager Mark Kjelland resigned, Ms. Mikkelsen was appointed as the PUD's interim general manager. Mr. Kjelland's resignation followed a whistleblower complaint against him that was filed by four employees, one being Ms. Mikkelsen. Although the board encouraged Ms. Mikkelsen to apply for the permanent general manager position, she declined.
¶9 During her roughly 10 months as interim general manager, Ms. Mikkelsen helped organize the nationwide search for Mr. Kjelland's replacement. She researched potential executive search firms and recommended three to the board. The commissioners decided to engage Langley & Associates. The firm vetted between 50 and 60 applicants for the general manager position, performing credential verification, reference, and background checks. It identified nearly 30 qualified candidates; from those, the board selected seven to personally interview, one being Mr. Ward. Mr. Ward had 29 years of experience in the power industry and had previously been the manager of engineering and operations for High Plains Power in Riverton, Wyoming. High Plains gave Mr. Ward a favorable recommendation.
¶10 According to Ms. Mikkelsen, she expressed concern to the board before Mr. Ward was offered the general manager position about how many of his prior positions had been short-term, including one from which he admitted being fired. The board nonetheless selected Mr. Ward for the general manager position. It addressed the concern that he changed jobs too frequently by offering him a bonus should he stay with the PUD for at least five years.
¶11 Also during her time as interim general manager, Ms. Mikkelsen investigated other utilities' progressive discipline policies and developed a proposed “corrective action” policy for the PUD. Her proposal was the subject of meetings and discussion by the board, which adopted a corrective action policy in November 2009. At the time Mr. Ward assumed the position of general manager, Ms. Mikkelsen had applied the policy once, giving a verbal warning to a union lineman. Mr. Ward also applied the policy once during his tenure, again giving a verbal warning to a union lineman.
¶12 Mr. Ward assumed the position of general manager on May 14, 2010, and Ms. Mikkelsen returned to her position as finance manager. Initially Mr. Ward and Ms. Mikkelsen worked together without problems. Harmonious relations did not last long, however.
¶13 In deposition testimony of Ms. Mikkelsen offered in connection with summary judgment motions in the trial court, she described the deterioration in their relationship:
CP at 110. Elsewhere, Ms. Mikkelsen described Mr. Ward's management style as “flash management,” by which she meant he would execute decisions first and think about them later. CP at 113. She also described his style as “termination and insubordination,” adding, “There was a lot of 'ations in his speech patterns.” CP at 109. She described herself, by contrast, as a “tell it like it is person,” and her own management style as “team leader.” CP at 131, 125.
¶14 Mr. Ward initially made Ms. Mikkelsen the acting manager in his absence but changed that around January 2011, rotating the assignment thereafter between Matt Boast and Brian Vosburgh, the two other members of the PUD's small management team. According to Ms. Mikkelsen, CP at 132.
¶15 By late March 2011, however, Ms. Mikkelsen had grievances she wanted to discuss with Mr. Ward. She requested a meeting. According to Ms. Mikkelsen, the subject of the March meeting was what she viewed as a “general communication breakdown.” CP at 114.
¶16 Ms. Mikkelsen prepared an outline of issues she wished to cover that she took into her meeting with Mr. Ward on March 30. She made him a copy at his request. Two pages and a portion of a third chronicle at least 10 complaints, including that Mr. Ward's behavior and communication with her were disrespectful; he engaged in passive/aggressive behavior; he made decisions without knowing the facts; he assigned duties without considering staff capacity; he reacted belligerently when she suggested his approach to union negotiations would not be bargaining in good faith and was exposing the PUD to liability; he unfairly accused her of being untrustworthy and taking “jabs;” and he rejected her proposal for how to correct employee pay differential errors by prior management. CP at 333–34. Her memo concluded, “What do you propose to correct this behavior?” CP at 335. Her only reference to gender or discrimination in the premeeting memo was in connection with the reference to disrespectful behavior and communication “toward me, the only woman in a senior management position for the [PUD].” CP at 333.
¶17 Ms. Mikkelsen's notes made after the meeting indicate Mr. Ward denied treating her any differently than other staff members. He said he trusted her and “would have to start acting differently around [her].” CP at 335. But she noted her disbelief that he “took ownership of any gender bias or going around [her] to avoid ideas that may not be in agreement with his.” Id.
¶18 By June 2011, Ms. Mikkelsen was concerned enough about her and Mr. Ward's poor relationship that she paid the PUD for a cell phone it had issued to her the prior year, which she had sometimes used in connection with consulting engagements. She transferred the phone service contract to her name and planned to return the PUD's computer and printer she had at her home. According to her notes, she was concerned that Mr. Ward would “use [the phone] as a weapon against [her] in some manner,” or accuse her of accepting a “gift of public funds.” CP at 336. She testified when deposed:
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Mikkelsen v. Pub. Util. Dist. No. 1 of Kittitas Cnty.
...prejudice. The Court of Appeals, Division Three, affirmed in a partially published opinion. See Mikkelsen v. Pub. Util. Dist. No. 1 of Kittitas County, 195 Wash.App. 922, 380 P.3d 1260 (2016). Mikkelsen sought this court's review regarding the discrimination issue and the corrective action ......
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