Wurts v. City of Lakewood
| Decision Date | 29 April 2015 |
| Docket Number | CASE NO. C14-5113 BHS |
| Court | U.S. District Court — Western District of Washington |
| Parties | BRIAN WURTS, Plaintiff, v. CITY OF LAKEWOOD, et al., Defendants. |
This matter comes before the Court on Plaintiff Brian Wurts's ("Wurts") motion for summary judgment (Dkt. 29) and Defendants City of Lakewood, Brett Farrar, Choi Halladay, Heidi K. Hoffman, Andrew E. Neiditz, John Unfred's (collectively "Defendants") motion for summary judgment (Dkt. 30). The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and hereby grants in part and denies in part the motions for the reasons stated herein.
On February 5, 2014, Wurts filed a complaint against Defendants in Pierce County Superior Court for the State of Washington. Dkt. 2-10. Wurts asserts causes of action for wrongful discharge in violation of public policy, violations of Washington law against discrimination ("WLAD"), deprivation of First Amendment rights, and deprivation of Equal Protection rights. Id.
On February 6, 2014, Defendants removed the matter to this Court. Dkt. 1.
On June 26, 2014, Defendants filed an amended answer and asserted counterclaims for unjust enrichment and fraud by omission. Dkt. 19.
On March 5, 2014, Wurts filed a motion for summary judgment (Dkt. 29) and Defendants filed a motion for summary judgment (Dkt. 30). Both parties responded (Dkts. 38 & 45), and both parties replied (Dkt. 49 & 50). On April 1, 2014, each party filed a surreply. Dkts. 54 & 55.
Defendant City of Lakewood ("City") hired Wurts in 2004 as an officer with the Lakewood Police Department. Dkt. 29-1, Declaration of Brian Wurts ("Wurts Decl."), ¶ 2. From 2004 to 2010, Wurts consistently received superior performance reviews for his work as an officer and on other projects. Dkt. 29-3, Declaration of Douglas McDermott ("McDermott Dec."), Exhs. 1-7. In addition to serving as a full-time senior patrol officer, Wurts served on the executive board of the Lakewood Police Independent Guild ("Guild"), the collective bargaining unit for commissioned officers and sergeants of the Lakewood Police Department, and as president of the Guild. Wurts Decl. ¶ 4.
In 2006, Wurts became president of the Guild. Id., ¶ 6. As Guild president, Mr. Wurts represented the rights and interests of the Guild and its members, which included engaging in negotiations with the City over the Collective Bargaining Agreement ("CBA") between the Guild and the City, representing Guild members with respect todisciplinary actions, bringing multiple grievances on behalf of Guild members, and filing the Guild's first unfair labor practice complaint ("ULP") against the City in November 2011. Id. ¶ 7.
On February 8, 2012, Wurts's fellow officer, Skeeter Manos ("Manos"), was arrested and charged with ten counts of wire fraud in the United States District Court for the Western District of Washington. McDermott Dec., ¶ 9, Exh. 8. In the charging document, the Government alleged that Manos had embezzled over $112,000 in charitable donations intended for the families of Lakewood police officers killed in the line of duty, as well and an additional $47,000 from the funds he managed for the Guild as its treasurer. Id. Manos ultimately pled guilty to the charges against him. Id.
On February 8, 2012, the same day as Manos's arrest, Chief Brett Farrar placed Wurts on administrative leave. Id. ¶ 10, Ex. 9. The reason for this action was listed as "[a]llegations of such a serious nature that termination is the likely outcome if they are found to be true." Id. On that same day, the department initiated an investigation into Wurts's "[t]heft of donated funds" based on allegations from fellow officers. Id., Exh. 10. Wurts was also instructed that, while on paid administrative leave, he was "to be available for duty or investigative purposes during" the period of leave. Id.
The initial investigation was subsequently amended to better describe the allegations against Mr. Wurts and clarify that they "involve[d] his duties as Guild President." Id., Ex. 11. The amended notice contained the following "Summary of Complaint" against Wurts:
It is alleged that Skeeter Manos stole at least $100,000 from donations intended for the children of our fallen Officers from December 2009 to February 2011 and that he spent this money on personal expenses. It is further alleged that Manos stole at least $30,000 from the Lakewood Police Independent Guild between 2006 and 2012. Since you were LPIG President during this time, it is alleged that you had knowledge of this activity and took no action.
Id., Ex. 12. The investigation was assigned the number 2012PSS-004. Id.
While investigation 2012PSS-004 was pending, four more investigations of Mr. Wurts were ordered. Investigation 2012PSS-005 involved allegations that Wurts received payment for his off-duty employment as a board member for a legal defense group, WACOPS, and lied to his department about being paid for the work performed. Id., Exh. 13. Investigation 2012PSS-013 involved allegations that Wurts took an out-of-state vacation while on paid administrative leave and continued to work for WACOPS in a paid capacity while on leave. Id., Exh. 14. Investigation 2012PSS-017 involved allegations that Wurts had engaged in sexual activity with another officer while on duty. Id., Exh. 15. Investigation 2012PSS-020 was described by Assistance Chief Michael Zaro as follows:
The purpose of this investigation was to determine if Officer Wurts violated Department policy by talking to witnesses involved in investigation number 2012PSS-004 before it was finally adjudicated. Officer Wurts admitted in his statement that he talked to Officer Jeff Martin and former employee Shawn Noble about their statements prior to his Loudermill hearing. Officer Wurts acknowledges that this is contrary to department policy but believes it is his right to do so.
On December 28, 2012, City Manager Andrew Neiditz and Assistant City Manager Choi Halladay sent Wurts a letter informing Wurts of his immediatetermination. Id., Exh. 17 ("Termination Letter"). The letter informed Wurts that the allegations that Wurts violated his oath of office, failed to obey all laws, and violated standards of professional conduct were found to be sustained and true. Id. at 1. Moreover, the letter stated that "the investigation supports the conclusion that [Wurts's] conduct facilitated the theft and fraud committed by Skeeter Manos." Id. at 2. With regard to a discipline determination, the letter provides as follows:
With regard to the City's counterclaims, on December 31, 2012, Wurts made a claim to CIGNA Insurance Group ("CIGNA") for disability benefits. Wurts Decl., ¶ 33. CIGNA approved Wurts's claim and paid Wurts $414.70 per month for the months of May through December of 2012. Id. It is undisputed that Wurts was on paid administrative leave during these months.
Both parties filed a surreply, and both parties are aware that it is improper to include new argument or evidence in a reply brief. See United States v. Puerta, 982 F.2d 1297, 1300 n.1 (9th Cir. 1992).
First, Wurts improperly submitted a declaration and additional exhibits in support of his reply. Dkt. 51. Defendants correctly move to strike this additional evidence because it is improper. The Court agrees and grants Defendants' motion.
Second, Wurts argues that Defendants raised new arguments in their reply that were not raised in the initial motion. Dkt. 54. Specifically, Wurts argues that "[f]or the first time in their reply brief, defendants ask the Court to dismiss plaintiff's claims in their entirety against defendants Halladay, Unfred, and Hoffman." Dkt. 54 at 2. Notwithstanding the fact that individual liability against these defendants appears to be completely implausible, Wurts is correct that Defendants did not raise these issues in their original brief. Because asserting such claims may needlessly increase the cost of litigation and unnecessarily consume resources of the parties and the Court, Wurts may file a subsequent brief on the merits of these claim alone no later than May 7, 2015. Therefore, the Court denies Wurts's motion to strike as moot.
In this case, Wurts moves for summary judgment on his claim for wrongful termination in violation of public policy based on his union activities and on the City's counterclaims. Dkt. 29. Defendants move for summary judgment on all of Wurts's claims. Dkt. 30.
Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (...
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