White v. Falls

• Decision Date: 21 January 2020
• Docket Number: 79150-8-I
• Court: Washington Court of Appeals
• Parties: PATRICK WHITE, Appellant, v. GRANITE FALLS, a city incorporated pursuant to chapter 35 RCW and HAROON SALEEM, in his official capacity as former Mayor of Granite Falls, Respondents.

PATRICK WHITE, Appellant, v. GRANITE FALLS, a city incorporated pursuant to chapter 35 RCW and HAROON SALEEM, in his official capacity as former Mayor of Granite Falls, Respondents.

No. 79150-8-I

Court of Appeals of Washington, Division 1

January 21, 2020

UNPUBLISHED OPINION

SMITH J.

This appeal arises from an employment dispute between the city of Granite Falls (City) and Patrick White, who was formerly employed as a sergeant with the Granite Falls Police Department (GFPD). Following an investigation into White on eight counts of misconduct, White was demoted from sergeant to patrol officer. White's union filed a grievance based on a retaliation claim, which was denied and not appealed to the superior court. White then filed this suit in the superior court. White challenged the City's investigation and its provision of the investigation report to the Snohomish County Prosecutor's Office for a Potential Impeachment Disclosure (PID) of White. Additionally, White alleged due process violations based on his purported inability to file a claim with the Granite Falls Civil Service Commission. We conclude that White failed to set forth sufficient facts to support any of his three causes of action. Thus, we affirm the superior court's order granting summary judgment in favor of the City.

FACTS

White was employed by GFPD from 1990 until 2014, when the department closed. In April 2011, GFPD was without a chief of police for a short period of time while it waited for Interim Police Chief Dennis Taylor to be officially appointed and sworn in. White directed his subordinate to make him an official "Chief of Police" identification card with White's name and photo on it. White believed the GFPD policy manual required him to perform the role of chief. GFPD ultimately found the identification card and a chief's hat badge in White's patrol vehicle.

In July 2012, GFPD received a public records request. Chief Taylor asked White to complete the search for responsive documents. White testified that Chief Taylor told him to delete the responsive documents that White had found on his own computer. Chief Taylor testified that White said the documents were at his home and that he told White to bring them in. Chief Taylor also testified that he told White to delete three e-mail addresses that were not relevant to the public records request.

Following an unrelated incident, Chief Taylor issued a written disciplinary action for insubordination against White. Shortly thereafter, White notified the City he was taking extended sick leave under the federal Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601-2654 (FMLA). While on leave, Chief Taylor took over many of White's management duties and, in so doing, found numerous missing case reports and witness statements with no corresponding case report number. After further investigation, Chief Taylor discovered that White was responsible for approximately 48 missing case reports over a three-year period. White also had failed to clean the temporary evidence locker as directed. During his leave, White refused to return his patrol car despite Chief Taylor's repeated requests. White returned from FMLA leave about one and a half months later, and Chief Taylor placed him on immediate nondisciplinary paid administrative leave to obtain a fitness-for-duty psychological evaluation. Dr. Bill Ekemo, Ph.D., a clinical and consulting psychologist, found Sergeant White fit for duty but recommended increased supervision.

On May 7, 2013, White sent a letter to Mayor Haroon Saleem claiming that Chief Taylor directed him to delete documents subject to the public records request. The City investigated the allegation using an outside investigator, Dean Mitchell. Mitchell determined that "[t]he preponderance of evidence would strongly suggest that Chief Taylor did not knowingly order a public document to be destroyed, [and did not] knowingly allow[ ] subordinates to perform illegal or improper police procedures."

The day after White sent his letter to Mayor Saleem, Chief Taylor gave White a letter indicating he would be investigated for (1) disobedience or insubordination, (2) failure or refusal to properly perform duties, (3) unsatisfactory work performance, (4) violation of GFPD's general policy of expeditious reporting, (5) criminal conduct for forgery pursuant to RCW 9A.60.020, 6) unauthorized use of an identification card, (7) unauthorized possession of GFPD property, and (8) knowingly making false or misleading statements. Stillaguamish Police Department Lieutenant Doug Pendergrass investigated the allegations. Following his investigation, Lieutenant Pendergrass sustained all eight allegations of misconduct, including finding that White "committed criminal conduct regarding the [identification card], particularly forgery under RCW 9A.60.020."

On July 17, 2013, Lieutenant Pendergrass submitted his report to Mayor Saleem. Mayor Saleem provided White with written notice of a predisciplinary hearing and a copy of Lieutenant Pendergrass's report. Following the hearing, on August 22, 2013, Mayor Saleem issued a disciplinary decision to demote White to patrol officer and suspend him without pay for two weeks. Mayor Saleem stated that White failed to verbally address the issues pertaining to (1) the missing police reports and (2) his failure to return the police car. He also determined that White's "explanation of how and why [the identification card] came to be was muddled and did not serve to exonerate [him]."

Abiding by GFPD protocol, the City provided Snohomish County Prosecutor Mark Roe with Lieutenant Pendergrass's report Roe determined that "it [was] plausible that Sgt White's contention [that the items were merely a novelty] is accurate" and that the information "is unlikely to be relevant or admissible in most criminal trials." However, he determined that "a reasonable person (such as a judge or a juror), could conclude otherwise." Thus Roe created a PID concerning White.

On August 29, 2013, White, through his union, filed a grievance with the City for discipline without just cause. The City denied his grievance during the first three steps of the grievance process.

On September 20, 2013, White also submitted a whistleblower retaliation complaint to Mayor Saleem, alleging that the City retaliated against him for filing the allegation about Chief Taylor's conduct with regard to the public records request. Mayor Saleem denied the claim, which White appealed to a state administrative law judge (ALJ). The ALJ found in favor of the City, and White did not appeal further.

On September 15, 2016, White filed this action in superior court alleging that (1) the City and Mayor Saleem negligently conducted and supervised the investigation of White, (2) the City, Mayor Saleem, and Chief Taylor "negligently or with reckless indifference referred Pat White for a PID referral," and (3) Mayor Saleem and Chief Taylor "were complicit in denial of his Due Process Rights by disbanding the civil service commission and by creating the witch hunt that ensued." Following discovery and depositions, the City moved for summary judgment on all of White's claims. In his response, White objected to and moved to strike exhibits 1, 3, 5 through 9, 11 through 16, 18 through 19, 21, 23 through 26, 28, and 36 through 39. White stated the exhibits were "hearsay exhibits," submitted "without personal knowledge or introduction of any evidence that the records are business records." White opposed the motion for summary judgment solely based on the inadmissibility of the City's exhibits. The trial court denied the motions to strike and granted the motion for summary judgment on all claims. The court also denied White's motion for reconsideration of its order. White appeals.

ANALYSIS

Summary Judgment

White contends that the trial court improperly granted summary judgment on each of his three causes of action. Specifically White's argument is that "[t]he trial court erred in granting summary judgment when the record did not contain suitable admissible evidence to support it." We disagree. And we do so without inclusion of the contested exhibits.

"We review summary judgment orders de novo." Keck v. Collins. 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). "[S]ummary judgment is appropriate where there is 'no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.'" Eicon Constr., Inc. v. E. Wash. Univ., 174Wn.2d 157, 164, 273 P.3d 965 (2012) (second alteration in original) (quoting CR 56(c)). Although the evidence is viewed in the light most favorable to the nonmoving party, if that party is the plaintiff and "'fails to make a showing sufficient to establish the existence of an element essential to that party's case, '" summary judgment is warranted. Young v. Key Pharms.. Inc.. 112 Wn.2d 216, 225, 770 P.2d 182 (1989) (quoting Celotex Corp. v. Catrett. 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)).

Cause of Action 1

White "allege[d] the City of Granite Falls and Haroon Saleem acting under color of law negligently conducted the investigation of Pat White or negligently supervised the investigation of Lieutenant Pendergrass."

"In general, Washington common law does not recognize a claim for negligent investigation." Janaszak v. State. 173 Wn.App. 703, 725, 297 P.3d 723 (2013) (citing Ducote v. Dep't of Soc. & Health Servs.. 167 Wn.2d 697, 702, 222 P.3d 785 (2009)). However, "[t]o the extent an employee has an employment contract requiring specific reasons for dismissal, then the employer must conduct an adequate investigation or be liable for breach of that contract." Lambert v. Morehouse, 68 Wn.App. 500, 505, 843 P.2d 1116 (1993) (emphasis added).

Here the...