Murphy v. City of Kirkland, No. 61966-7-I (Wash. App. 4/27/2009)

Decision Date27 April 2009
Docket NumberNo. 61966-7-I,61966-7-I
CourtWashington Court of Appeals
PartiesKEVIN P. MURPHY, Appellant, v. CITY OF KIRKLAND, a municipal corporation; KIRKLAND POLICE GUILD, a labor union; STAN ASTON, an individual; ERIC OLSEN, an individual; MICHAEL MURRAY, an individual; WILLIAM HAMILTON, an individual; GREGORY EDWARDS, an individual; and GENE MARKLE, an individual, Respondents.

Appeal from King County Superior Court. Docket No: 06-2-32477-3. Judgment or order under review. Date filed: 06/16/2008. Judge signing: Honorable Charles W Mertel.

Counsel for Appellant(s), Kevin P. Murphy (Appearing Pro Se), 21214 Ne 151st St, Woodinville, WA, 98077-7612.

Counsel for Respondent(s), Shannon Mary Ragonesi, Keating Bucklin & McCormack, 800 5th Ave Ste 4141, Seattle, WA, 98104-3175.

William Raymond Evans, City of Kirkland, 123 5th Ave, Kirkland, WA, 98033-6189.

James Michael Cline, Cline & Associates, 1001 4th Ave Ste 2301, Seattle, WA, 98154-1119.



Pro Se litigants are held to the same standard as attorneys and must comply with all procedural rules on appeal. Chief among these rules is the requirement that appellants support their assignments of error with authority and argument. In this pro se appeal from rulings dismissing his claims against his former employer, supervisors, and union, former Kirkland Police Officer Kevin Murphy fails to support virtually all of his claims with citations to pertinent authority or meaningful legal analysis. Because of these omissions, and for the additional reasons set forth below, we affirm.


From 1996 until his resignation in December 2004, Kevin Murphy worked as a police officer for the Kirkland Police Department. Before he resigned, Murphy twice sought, but failed to receive, a promotion to corporal. He also filed a grievance seeking an increase in pay to the corporal level, but the grievance was denied.

Murphy's supervisors soon noticed a negative change in his performance and attitude. The City of Kirkland (City) eventually referred him for a fitness for duty evaluation. The examining psychologist determined that Murphy was not fit for duty due to his "preoccupation and obsessive orientation about his discontent" concerning his failed promotions. Murphy then received three months of treatment.

In early 2004, supervisors placed Murphy on a performance improvement plan to address insubordination and time management issues. In September 2004, the chief of police sent Murphy a notice of a predisciplinary hearing. On October 8, 2004, following a hearing, the chief disciplined Murphy with a 12-day unpaid suspension.

On October 13, 2004, Murphy filed a grievance regarding the disciplinary action. When the City denied the grievance, the Kirkland Police Guild, with Murphy's approval,1 notified the City that it planned to take the matter to arbitration. On December 26, 2004, after the matter was referred to arbitration, Murphy resigned.

In June 2005, prior to arbitration, the Guild negotiated a settlement of the grievance. The settlement reduced Murphy's suspension from 12 to 4 days, allowed him to submit a written rebuttal to be kept in his file, precluded the City from using Murphy's discipline as precedent in other disciplinary matters, and required supervisor training regarding performance improvement plans.

In October 2006, Murphy filed suit against the Guild, the City, and members of the Kirkland Police Department. Among other things, Murphy alleged that the Guild and the City had "surreptitiously" settled his grievance against his wishes, and that the Guild acted arbitrarily and in bad faith. The complaint set forth a number of causes of action, including wrongful discharge, breach of the Guild's duty of fair representation, breach of the collective bargaining agreement, defamation, negligence, outrage, and intentional and negligent infliction of emotional distress.

Following motions for summary judgment, the court dismissed Murphy's claims against the Guild. The court concluded that the Guild did not breach its duty of fair representation and that Murphy's claims were time barred in any event.

In a series of orders, the court excluded evidence relating to the settlement, alleged retaliation against Murphy, and Murphy's performance improvement plan. The court then dismissed all claims against the City and the individual defendants except the claims for negligent infliction of emotional distress and wrongful discharge. The latter claims were ultimately dismissed by stipulation. Murphy appeals.


The law does not distinguish between litigants who elect to proceed pro se and those who seek assistance of counsel.2 Both must comply with applicable procedural rules, and failure to do so may preclude review.3 The most fundamental and frequently cited rule of appellate procedure is that issues raised on appeal must be supported by argument and pertinent authority.4 Appellate courts generally will not consider issues that do not comply with this rule.5 In this case, Murphy fails to support the vast majority of the issues raised in his opening brief with pertinent authority and/or meaningful legal analysis. These omissions are fatal to virtually all of his claims.

This appeal is a prime example of the risks associated with handling an appeal, particularly a complex one, pro se. The proceedings below involved multiple defendants, numerous causes of action, a number of superior court rulings, at least one issue of first impression, and a voluminous record. An appeal in a case of this nature requires a firm grasp of the law and the record, and a high degree of analytical precision. While this court appreciates Murphy's efforts, his briefing, as discussed below, is simply inadequate given the legal and factual complexities of this case. Guild's Breach of Duty of Fair Representation

Murphy first contends the trial court erred in dismissing his claim against the Guild for breach of its duty of fair representation. We review a summary judgment order de novo, engaging in the same inquiry as the trial court, and viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party.6 Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.7

The superior court ruled that Murphy's claims against the Guild were time barred and that the Guild did not breach its duty of fair representation in any event. Under the Public Employees Collective Bargaining Act (PECBA), chapter 41.56 RCW, a complaint for unfair labor practices must be filed with the Public Employment Relations Commission within six months of the alleged violation.8 Our appellate courts have not addressed whether this limitation period applies to a public employee's lawsuit for breach of the duty of fair representation. This issue was fully briefed below, however, and the trial court concluded that the statute barred Murphy's claim.9 Although Murphy challenges that conclusion on appeal, he provides no pertinent authority or meaningful legal analysis. Nor has he made his response to the Guild's motion for summary judgment a part of the record on appeal. These omissions preclude review. City's Breach of Collective Bargaining Agreement.

Murphy contends the court erred in dismissing his claims against the City for breach of contract. Again, he cites no pertinent authority and provides no meaningful legal analysis. In fact, the argument section of his opening brief contains little more than an invitation for this court to review his superior court filings. Trial court briefs cannot be incorporated into appellate briefs by reference.10

Murphy's reply brief contains additional and more specific arguments regarding his breach of contract claim. But that portion of the brief provides no citations to the record and virtually no supporting authority. Moreover, arguments raised for the first time in a reply brief need not be considered.11 These deficiencies are fatal.

Murphy's briefing is also deficient in that it fails to address the City's arguments that he did not exhaust administrative remedies, and that the grievance settlement precludes any judicial action on claims arising from the handling of the grievance.

In any case, Murphy's principal breach of contract claim is unpersuasive. Murphy contends the grievance settlement was not authorized by the Collective Bargaining Agreement and violated RCW 41.56.080. But the Guild was acting as Murphy's agent when, with his approval, it referred the matter to arbitration,12 and nothing in the CBA precluded a settlement short of arbitration.13 10 Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290, review denied, 136 Wn.2d 1015 (1998) (no incorporation of summary judgment briefs on appeal); State v. Kalakosky, 121 Wn.2d 525, 540 n.18, 852 P.2d 1064 (1993) ("If this court allowed parties to expand the issues subject to appeal by reference to trial memoranda, the Rules of Appellate Procedure would be rendered meaningless. Respondents would have no idea what issues required a response, and appellate courts would have to search trial court records and clerk's papers and address all issues raised below. Such an `end run' around the Rules of Appellate Procedure will not be sanctioned [.]").

Nor did RCW 41.56.08014 preclude the City from settling the grievance. That statute permits an employee to "present his grievance to the public employer and have such grievance adjusted without the intervention of the exclusive bargaining representative[.]" Murphy alleges that he presented his grievance to the City solely in his individual capacity. But even assuming that allegation is true, Murphy later turned the matter over to the Guild when the grievance was denied. He thus waived his right to proceed without...

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