White v. State

• Decision Date: 12 July 1995
• Docket Number: No. 17170-8-II,17170-8-II
• Citation: 898 P.2d 331,78 Wn.App. 824
• Court: Washington Court of Appeals
• Parties: Judy C. WHITE, Appellant, v. The STATE of Washington, Evelyn Blanchard, former Director of Nursing Services at Washington Soldier's Home and Colony, in her individual capacities; Alan Harrah, former Superintendent of Washington Soldier's Home and Colony, in his individual capacity, Respondents.

Page 824

78 Wn.App. 824

898 P.2d 331

Judy C. WHITE, Appellant, v. The STATE of Washington, Evelyn Blanchard, former Director of Nursing Services at Washington Soldier's Home and Colony in her individual capacities; Alan Harrah, former Superintendent of Washington Soldier's Home and Colony, in his individual capacity, Respondents.

No. 17170-8-II.

Court of Appeals of Washington Division 2.

July 12, 1995.

As Amended on Denial of Reconsideration Aug. 25, 1995.

Paul A. Lindenmuth, Law Offices of Neil J. Hoff, Tacoma, for appellant.

Jeffrey A.O. Friemund, Asst. Atty. Gen., Olympia, for respondents.

FLEISHER, Judge.

Judy White, an employee at a state nursing home, alleged that she was transferred in retaliation for exercising her First Amendment rights after reporting suspected patient abuse. White also alleged a tort claim for a wrongful transfer in violation of public policy. The trial court dismissed her claims and White appeals. Because reports of suspected patient abuse are matters of public concern and because the State's workplace interests do not outweigh White's interest in reporting the suspected patient abuse, we reverse the trial court and remand in part. Furthermore, because the tort cause of action for a wrongful discharge in violation of public policy does not extend to cover the mere transfer of an employee, we affirm the trial court in part.

FACTS

Judy White was employed as a secretary at the Washington State Soldier's Home (the Home) in Orting. The Home provides nursing care services to indigent state veterans, who are voluntarily admitted and free to leave at any time. White provided clerical support to several staff members at the Home, including her immediate supervisor, Evelyn Blanchard, the Director of Nursing Services. White also was actively involved in the affairs of her union.

White and Blanchard had a long history of a poor working relationship. Memos were sent back and forth between the two, criticizing each other's job performance. Furthermore, grievances were filed by White against Blanchard on several occasions.

On April 11, 1988, a patient at the Home became very agitated, scratching himself, smearing feces on himself, and throwing lit cigarettes at other residents. After attempts to calm the patient failed, Blanchard ordered the patient placed in a straitjacket. The parties disagree on the Home's policy regarding the use of straitjackets. The policy either requires that a doctor order the use of a straitjacket, or that emergency use of a straitjacket is permitted so long as a physician's order is obtained as soon as possible. Once the straitjacket was placed on this patient, however, the Home's medical director refused to sign an order permitting its use. The patient was released from the jacket after about 2 hours.

White observed the patient while he was in the straitjacket. She believed that the use of a straitjacket by the Home was unprecedented. Other employees of the Home were also upset at the use of a straitjacket, and they discussed the incident at their next union meeting. In mid-May 1988, after those employees most familiar with the incident chose not to report their concerns, White, as a union official, decided to report the incident as "patient abuse" to the Home's medical director.

Alan Harrah, the Home's superintendent, arranged to have the incident investigated by outside personnel from another State Soldier's Home located in Retsel. In June 1988, the investigator concluded that no patient abuse had occurred, but noted that "[the] staff who suspected patient abuse were negligent in not reporting the incident immediately." ¹

In December 1987, several months before the straitjacket incident occurred, management at the Home began reorganization discussions. They determined that Blanchard was supervising too many employees. At that time the physical plant at the Home received computer equipment to track the use and maintenance of machinery; before it could be utilized, however, a large volume of information first had to be entered into the system.

In August 1988, after the straitjacket incident, Harrah submitted a reorganization plan to his superiors at the Department of Veteran's Affairs (D.V.A.), that would reassign several departments from Blanchard to the plant manager. The plan also called for a secretary with computer skills to be transferred to the plant manager's office in order to input the initial tracking information. White was one of three available persons in the Home's secretarial pool, and Harrah recommended that she be transferred. This transfer would not result in the loss of any salary or benefits to White.

White soon learned of the proposed transfer and requested a meeting with Harrah. At this meeting, Harrah informed White that the transfer to the physical plant would be effective on November 1, 1988. The plant manager's former office in the physical plant was to be remodeled to serve as White's new office. White stated that she believed that the transfer was partly in retaliation for the accusation of patient abuse. She considered the office to be an undesirable work environment, but refused to provide any suggestions on its remodeling.

In protest, White filed a union grievance on the transfer which Harrah and the director of the D.V.A. denied. White then sought mediation and agreed to a "final resolution" of her grievance that upheld her transfer, but required further modifications to her office at the physical plant. White also submitted a retaliation complaint to the Washington State Human Rights Commission (the Commission) under RCW 70.124.060. The Commission, however, dismissed the complaint because its jurisdiction only extended to discharged employees. ² White continued working at the Home until June 1992, when she resigned to take a new job.

White filed suit in November 1991, alleging a 42 U.S.C. § 1983 cause of action against the individual defendants, Blanchard and Harrah, based on a violation of her free speech rights. She also brought a tort cause of action against both the State and the individual defendants for a wrongful transfer in violation of public policy. The trial court granted the State's motion for summary judgment, dismissing all claims, and White appealed to this court.

ANALYSIS

I. The 42 U.S.C. § 1983 claim

White argues that the trial court erred in dismissing her 42 U.S.C. § 1983 claim against the individual defendants. Under this statute, a person who, under color of law, subjects another to the deprivation of any right under the Constitution is liable to the injured party. 42 U.S.C. § 1983. In these actions, it is well established that a public employee is entitled to reinstatement for a discharge that infringes on the employee's constitutionally protected interest in freedom of speech. Dicomes v. State, 113 Wash.2d 612, 624, 782 P.2d 1002 (1989). Furthermore, lesser employment actions, including transfers, are also protected for purposes of First Amendment analysis. Johnston v. Koppes, 850 F.2d 594, 595 (9th Cir.1988). "[A] transfer traceable to speech-related activity is properly the subject of first amendment challenge, even though the transfer result[s] in no loss of pay, seniority, or other benefits." Allen v. Scribner, 812 F.2d 426, 434 n. 16 (9th Cir.1987), amended by, 828 F.2d 1445 (9th Cir.1987) (quoting Hughes v. Whitmer, 714 F.2d 1407, 1421 (8th Cir.1983), cert. denied, 465 U.S. 1023, 104 S.Ct. 1275, 79 L.Ed.2d 680 (1984)). In the present case, White was transferred and, therefore, the defendants may be liable if her right to free speech has been violated.

To determine if a public employer has violated an employee's right to free speech, the court must satisfy a four step inquiry. ³ Powell v. Gallentine, 992 F.2d 1088, 1090 (10th Cir.1993); Binkley v. Tacoma, 114 Wash.2d 373, 382, 787 P.2d 1366 (1990). First, the public employee must establish that the speech dealt with a matter of public concern. Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983); Binkley, 114 Wash.2d at 382, 787 P.2d 1366. Second, if the speech dealt with a matter of public concern, the court must balance the interests of the employee as a citizen commenting on matters of public concern with the interests of the State as an employer in providing effective and efficient public service. Connick, 461 U.S. at 150, 103 S.Ct. at 1691; Binkley, 114 Wash.2d at 382, 787 P.2d 1366. Third, the employee must demonstrate that the speech was a substantial or motivating factor in the action taken against the employee. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); Binkley, 114 Wash.2d at 382, 787 P.2d 1366. Finally, the employer must demonstrate that the same action would have been taken against the employee in the absence of the protected activity. Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at 576; Binkley, 114 Wash.2d at 382, 787 P.2d 1366. The first two prongs in this four-step process are questions of law for the court to resolve. Connick, 461 U.S. at 148 n. 7 & 150 n. 10, 103 S.Ct. at 1691 n. 7 & 1692 n. 10; Binkley, 114 Wash.2d at 382, 787 P.2d 1366. Accordingly, the court reviews these determinations de novo. The third and fourth prongs, however, are questions of fact ordinarily left to the trier of fact. Binkley, 114 Wash.2d at 382, 787 P.2d 1366; Hall v. Ford, 856 F.2d 255, 258 (D.C.Cir.1988).

In the present case, the trial court found that White's comments did not satisfy either the first or the second prong, and thus did not address the remaining two prongs of the test.

A. Matters of Public Concern

Courts have not yet articulated a precise definition of "public concern." See Allen, 812 F.2d at 430. Instead, "[w]hether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Connick, 461 U.S. at 147-48, 103 S.Ct. at...