Smith v. Bates Technical College

• Decision Date: 27 January 2000
• Docket Number: No. 67374-8.,67374-8.
• Citation: 991 P.2d 1135,139 Wash.2d 793
• Court: Washington Supreme Court
• Parties: Kelly SMITH, Petitioner, v. BATES TECHNICAL COLLEGE; College District No. 28; William P. Mohler; Jon Thorpe; Deborah Emond; and Sally Cofchin, Respondents.

991 P.2d 1135

139 Wash.2d 793

Kelly SMITH, Petitioner, v. BATES TECHNICAL COLLEGE; College District No. 28; William P. Mohler; Jon Thorpe; Deborah Emond; and Sally Cofchin, Respondents.

No. 67374-8.

Supreme Court of Washington, En Banc.

Argued June 24, 1999.

Decided January 27, 2000.

Eric Hansen, Federal Way, for Petitioner.

Christine Gregoire, Attorney General, Paul Triesch, Asst. Atty. Gen., Seattle, for Respondents.

SANDERS, J.

The question is whether the common law tort of wrongful discharge in violation of public policy extends to employees who may be terminated only for cause and, if so, whether an employee must first exhaust administrative or contractual remedies before pursuing such an action. We are also asked to decide whether a public employee establishes a cause of action under 42 U.S.C. § 1983 when a public agency discharges her in retaliation for filing an employment related grievance. We review an unpublished decision of the Court of Appeals which affirmed dismissal of the employee's claims, and reverse in part.

FACTS

Bates Technical College (Bates) is a vocational-technical institution operated by the State of Washington. RCW 28B.50.030(11). Bates employed Kelly Smith as a traffic programmer for its on-site television station, KBTC-TV, from February 1986 until February 1994.

While employed at Bates, Smith was a state technical college employee entitled to those civil service protections applicable to higher education employees. See RCW 41.56.024. Additionally, Smith was at all times a member of the Tacoma Association of Public School Professional-Technical Employees Union (the union). Under the collective bargaining law for higher education personnel, an institution of higher education and a union may elect to have their relationship and corresponding obligations governed by RCW 41.56.¹ See RCW 41.56.201. Because Smith's union apparently elected to participate in the collective bargaining process, she was subject to RCW 41.56 and the collective bargaining agreement (CBA) negotiated by her union. The CBA allowed an employee to be disciplined only "for cause" and established a grievance procedure for any claim based on an alleged violation of the CBA, written college policies, regulations and rules, or unfair and inequitable treatment.

Prior to 1991 Deborah Emond was Smith's immediate supervisor. Smith received favorable performance evaluations from Emond. Following a restructuring at Bates in September 1991, Emond became the station manager. Avon Killion was selected for the position of supervisor of programming and fundraising and became Smith's immediate supervisor.² This restructuring led to a series of problems between Smith and her supervisors.

In July 1993 Smith filed her first grievance alleging Emond violated the CBA by unilaterally changing her job description. After filing this grievance Smith's relationship with Emond began to seriously deteriorate. According to Smith, Emond refused to respond to Smith and avoided making eye contact with her. Although Smith demanded this grievance be submitted to arbitration, she withdrew her demand shortly before the arbitration was scheduled to begin.

Smith filed a second grievance to contest the docking of her pay for leaving the work area at a time other than her scheduled lunch or break period. John Thorpe, senior vice president of Bates, denied Smith's grievance, finding: "[Y]our conduct in this situation constitutes misconduct and insubordination. You are hereby reprimanded for this misconduct and insubordination and your personnel file will so reflect this." Ex. 3.

In late October 1993 Smith took medical leave, ostensibly due to job stress. While on leave, Smith received two letters from Emond requesting return of certain documents, suggesting Smith had stolen them. Smith responded to the first letter by stating she did not steal the items mentioned by Emond. In a letter dated January 10, 1994, Smith was reprimanded for failing to provide the data requested by Emond. Smith grieved this reprimand. Additionally, in a memorandum addressed to Emond, Smith detailed numerous problems she experienced after returning from medical leave. According to Smith, Emond did not help her resolve these problems.

Upon her return to work, Smith began cross-training Karin Jackson as a backup in Smith's position. According to Karin Jackson, Smith allegedly made threatening remarks about several co-workers whom Smith believed were a "clique." Karin Jackson reported this alleged incident to Sally Cofchin, Bates' Director of Personnel. Cofchin and several other managers met with Smith to confront her with Karin Jackson's accusations. Although Smith admits she discussed her anger and the workplace stress, Smith contends she did not threaten any employee of Bates. In December 1993, Smith responded by grieving the allegations leveled against her.

In January 1994 Smith filed an additional grievance after being required to submit a leave slip for her late arrival to work. When asked to submit the leave slip, Smith allegedly became enraged and shouted at her supervisor and another employee. As a result of this conduct Smith was issued a reprimand, which she subsequently grieved. Smith filed yet another grievance alleging her supervisor violated the confidentiality of the grievance process by circulating her letter of reprimand to three employees of Bates.

On February 11, 1994 William Mohler, president of Bates, dismissed Smith from her employment. This action followed a meeting between management and Smith designed to avoid the dismissal. Smith filed a grievance to contest her termination under the CBA, which proceeded to arbitration. The arbitrator issued an award in favor of Smith, ruling:

[Smith] was not terminated for cause and following progressive discipline. The College shall promptly offer to reinstate her to her former position and shall make her whole for all direct and indirect benefits lost due to her improper termination. The College shall also remove from [Smith's] personnel [file] all records pertaining to the course of dealing leading to this case including particularly the February 2 letter warning of possible termination and all of the documents referenced in that letter.

Clerk's Papers at 88. Bates complied with the order by reinstating Smith, reimbursing her lost wages and benefits, and purging her personnel file. Smith received back pay for three months in the amount of $10,728.00 plus accrued benefits in the amount of $2,765.93 for social security, retirement, health insurance, and medical aid/industrial insurance.

In addition to filing these numerous grievances, Smith filed four separate unfair labor practice (ULP) complaints with the Public Employment Relations Commission (PERC). Two ULPs preceded Smith's dismissal and two followed her dismissal. In these ULPs, Smith complained of retaliation for filing her earlier grievances and challenged her dismissal by Bates.

Before PERC could address these claims, Smith filed a complaint in Pierce County Superior Court. Smith ultimately sued Bates, the college district of which it is a part, and four supervisory personnel, seeking monetary damages for wrongful discharge in violation of public policy, defamation, and violation of her First Amendment rights pursuant to 42 U.S.C. § 1983.

Bates moved for summary judgment on all the claims. The trial court granted Bates' motion in part, dismissing Smith's wrongful termination claim for failure to exhaust her remedies with PERC. The trial court also dismissed Smith's § 1983 claim as to the college, but not the individuals. At the conclusion of the trial the court granted the defense motion to dismiss the remaining § 1983 claims. The trial court reasoned: "There needs to be a public element involved in either the speech or the petition. And since counsel for plaintiff has admitted that there is no public issue here, I think that Binkley [v. City of Tacoma, 114 Wash.2d 373, 787 P.2d 1366 (1990) ], Gearhart [v. Thorne, 768 F.2d 1072 (9th Cir.1985) ], and the decisions from the other six circuits control." Report of Proceedings at 690. The trial court allowed the defamation claim to proceed, but the jury found Smith had not been defamed. However the trial court awarded Smith $10,407.50 for attorneys fees incurred in the successful arbitration proceeding.

The Court of Appeals, Division Two, affirmed the decision of the superior court in an unpublished opinion. Smith v. Bates Technical College, No. 19937-8-II, 1998 WL 275591, 91 Wash.App. 1008 (Wash.Ct.App. May 29, 1998). We granted review confined to the issues of the common law tort of wrongful discharge in violation of public policy and 42 U.S.C. § 1983.

ANALYSIS

When reviewing a grant of summary judgment, we engage in the same inquiry as the trial court. RAP 9.12; Harris v. Ski Park Farms, Inc., 120 Wash.2d 727, 737, 844 P.2d 1006 (1993). A summary judgment will be affirmed if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See CR 56(c); Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). All facts and reasonable inferences are reviewed in the light most favorable to the nonmoving party; all questions of law are reviewed de novo. Id. Because the trial court decision involves questions of law, our review of both issues in this case is de novo. See Department of Labor & Indus, v. Fankhauser, 121 Wash.2d 304, 308, 849 P.2d 1209 (1993).

I. Tort of Wrongful Discharge in Violation of Public Policy

Under Washington common law, an employer could generally discharge an employee with or without cause absent an agreement to the contrary. Roberts v. Atlantic Richfield Co., 88 Wash.2d 887, 891, 568 P.2d 764 (1977). However, an employer's absolute prerogative to discharge an employee has not remained unfettered. In Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 685 P.2d 1081 (1984), we joined a growing number of jurisdictions...