Filed Washington State Court of Appeals Division Two
April 16, 2024
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II BRYAN WORLAND, No. 57366-1-II
Appellant,
v. ORDER GRANTING MOTION TO PUBLISH AND PUBLISHING OPINION KITSAP COUNTY,
Respondent.
Respondent, Kitsap County, filed a motion to publish the opinion filed in the above
entitled matter on February 13, 2024 pursuant to RAP 12.3(e). Appellant, Bryan Worland, filed
a response on March 21, 2024. After consideration, the court grants the motion. It is now
ORDERED that the final paragraph in the opinion which reads “A majority of the panel
having determined that this opinion will not be printed in the Washington Appellate Reports, but
will be filed for public record in accordance with RCW 2.06.040, it is so ordered.” is deleted. It
is further
ORDERED that the opinion will now be published.
PANEL: Jj. Glasgow, Veljacic, Che
FOR THE COURT:
PRESIDING JUDGE Filed Washington State Court of Appeals Division Two
February 13, 2024
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II BRYAN WORLAND, No. 57366-1-II
Appellant,
v. UNPUBLISHED OPINION
KITSAP COUNTY,
Respondent.
CHE, J. ⎯ Bryan Worland appeals the trial court’s grant of summary judgment for the
Utility Division of Public Works of Kitsap County (County) on a claim for wrongful termination
in violation of public policy. Worland worked as a maintenance and operation specialist for the
County. The County terminated him in February 2020. The Union filed a grievance seeking
Worland’s reinstatement, which proceeded to arbitration. An arbitrator determined the County
terminated Worland for just cause.
Worland subsequently brought this action for wrongful termination in violation of public
policy. The trial court granted summary judgment for the County based on res judicata and
collateral estoppel. We hold that the trial court properly granted summary judgment based on
collateral estoppel and we need not reach res judicata. Thus, we affirm. No. 57366-1-II
FACTS
Worland worked for the County in various roles from 2012 to February 13, 2020.
Teamsters Local 589 (Union) and the County were parties to a collective bargaining agreement
(CBA) from January 1, 2019 to December 31, 2021 that governed the terms of Worland’s
employment. Worland was a member of the Union. Under the CBA, an aggrieved employee
may attempt to resolve disputes with the County through the CBA grievance procedure. If the
grievance is not satisfactorily resolved, the Union may submit the matter to arbitration. The
CBA also provides that the arbitrator’s decisions “shall be final and binding on both parties.”
Clerk’s Papers (CP) at 86.
At some point, Worland alleged that the County failed to properly compensate him for
overtime. He maintained that the County ordered him to change his time card to omit overtime
he had claimed. And when Worland refused, the County began retaliating against him in a
myriad of ways. Around July 2019, Worland met with the Assistant Director of Public Works of
the Utilities Division (Assistant Director) to discuss alleged harassment Worland suffered over
the past couple years—some of the harassment related to Worland’s use of sick leave.
The Assistant Director received several allegations of misconduct regarding Worland,
and in December 2019, the Assistant Director asked the County’s Department of Human
Resources to investigate the allegations. Subsequently, the County held a pre-termination
hearing. In February 2020, the County terminated Worland based on seven categories of alleged
misconduct.
Worland filed a grievance of his termination through his Union. The Union sought
Worland’s reinstatement and hired a lawyer to represent Worland in the grievance proceedings.
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Worland wanted his personal counsel to accompany him through the grievance process, but the
Union would not allow it. The Union argued that the County lacked just cause to terminate
Worland as required by the CBA, and that the County failed to investigate Worland’s concerns
about harassment in the workplace. The Union also argued that two employees improperly
collaborated to oust Worland, and the subsequent investigation was just a pretext1 to terminate
Worland.
The grievance went to arbitration, which involved developing documentation of the
allegations, cross examining witnesses, and hearing arguments. The Union’s attorney
represented Worland, and the Union did not allow Worland’s personal attorney to participate in
the arbitration. But Worland decided to proceed with the arbitration anyway because (1) the
arbitration “could have resolved at least part of the case,” (2) Worland believed he could only
receive reinstatement through arbitration, not a court proceeding, (3) the Union provided him
with a free attorney and paid for the arbitration, (4) he would not have to pay his personal
attorney, and (5) if he declined to arbitrate the matter, the County would argue that he failed to
mitigate his damages. CP at 166.
The arbitrator determined that the central issue was, “Did the termination of [Worland]
satisfy just cause as defined in Article 13 of the CBA?” CP at 45. “Just cause” was defined as
“a fair and honest reason supported by substantial evidence and reasonably believed by the
1 Worland had previously complained that the County retaliated against him for their overtime disagreement and that employees harassed him for his use of sick time.
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[County] to be true.” CP at 45. Under this standard, the arbitrator concluded that he had to
determine that the County did not rely on the evidence as a pretext and that there were not
“sufficient facts that should have dissuaded the County from reaching its conclusions.” CP at 59.
The arbitrator determined five of the seven misconduct allegations were supported by
substantial evidence. The arbitrator also determined that Worland received due process during
the investigation that led to his termination, rejecting the Union’s argument that the termination
was pretextual or the result of coworker collaboration to oust Worland.
The arbitrator also examined Worland’s workplace concerns about harassment—noting
that Worland’s journal contained allegations of coworkers’ inappropriate gestures and
comments. The arbitrator noted, even though Worland declined to provide the names of the
allegedly harassing employees to the Assistant Director, the Assistant Director required
supervisors to attend workplace culture training. And the arbitrator concluded that the County
did not treat Worland disparately.
Thus, the arbitrator determined that the County demonstrated just cause to support the
termination. Worland later sued the County for wrongful termination in violation of public
policy in superior court. In his complaint, Worland alleged the County retaliated against him for
complaining about underpayment and harassment.
The County moved for summary judgment arguing that Worland’s claim should be
barred under the doctrines of collateral estoppel and res judicata. The trial court ruled that
Worland was estopped from relitigating whether he was unlawfully terminated under both
doctrines and granted summary judgment.
Worland appeals.
4 No. 57366-1-II
ANALYSIS
Worland argues that the trial court erred by precluding the wrongful termination in
violation of public policy claim based on res judicata and collateral estoppel. We disagree.
I. LEGAL PRINCIPLES
“Claim preclusion, also called res judicata, ‘is intended to prevent relitigation of an entire
cause of action and collateral estoppel [also called issue preclusion] is intended to prevent retrial
of one or more of the crucial issues or determinative facts determined in previous litigation.’”
Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299, 306, 96 P.3d 957 (2004)
(footnote omitted) (quoting Luisi Truck Lines, Inc. v. Wash. Utils. & Transp. Comm’n, 72 Wn.2d
887, 894, 435 P.2d 654 (1967)). Where there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law, summary judgment is proper. Billings v. Town of
Steilacoom, 2 Wn. App. 2d 1, 14, 408 P.3d 1123 (2017).
We view all reasonable inferences from the facts in the light most favorable to the
nonmoving party and review summary judgments de novo. Id. We review whether collateral
estoppel and res judicata apply de novo. Id.; Ensley v. Pitcher, 152 Wn. App. 891, 899, 222 P.3d
99 (2009).
II. COLLATERAL ESTOPPEL
To establish collateral estoppel, the proponent must establish the following elements,
(1) identical issues; (2) a final judgment on the merits; (3) the party against whom the plea is asserted must have been a party to or in privity with a party to the prior adjudication; and (4) application of the doctrine must not work an injustice on the party against whom the doctrine is to be applied.
Billings, 2 Wn. App. 2d at 15 (quoting Hadley v. Maxwell, 144 Wn.2d 306, 311, 27 P.3d 600
(2001)).
5 No. 57366-1-II
Division Three has held that three additional factors, developed in the administrative
agency context, should also be considered as part of the injustice element when the prior action
was an arbitration. Scholz v. Wash. State Patrol, 3 Wn. App. 2d 584, 595-96, 416 P.3d 1261
(2018). Those factors are “(1) whether the [arbitrator] acted within its competence, (2) the
differences between procedures in the [arbitration] and court procedures, and (3) public policy
considerations.” Id. Division Three defined the competency factor in this circumstance as
“whether the issue was within the scope of the reference to arbitration.” Id.
Collateral estoppel may apply to issues resolved in labor arbitrations. Billings, 2 Wn.
App. 2d at 16. In Billings, Steilacoom terminated Billings for poor performance and violating
numerous policies. Id. at 10. Billings filed a grievance with the help of his union. Id. An
arbitrator determined just cause supported the termination based on unsatisfactory performance
and insubordination, among other things. Id.
Billings filed a lawsuit against Steilacoom on five grounds, including wrongful
termination in violation of public policy. Id. at 11. Steilacoom moved for summary judgment
arguing that collateral estoppel precluded the wrongful termination claim, which the trial court
granted. Id. at 12. On appeal, we affirmed concluding that collateral estoppel precludes all of
Billing’s state law claims. Id. at 13.
6 No. 57366-1-II
Here, the parties in the labor arbitration and the subsequent litigation are the same.2 The
decision by the arbitrator constituted final judgment on the merits.3 Moreover, the issue of
whether Worland was terminated for just cause was clearly within the scope of reference of the
arbitration as it was the central issue. Additionally, the arbitration procedures appear sufficiently
similar to in-court procedures.4 Worland provides extensive argument regarding the identical
issues and injustice elements of collateral estoppel, and so, we will address them in more depth.
We will also address the public policy consideration factor referenced in Scholz in our analysis
of the injustice element below.
A. Identical Issues
Worland argues that the proceedings did not have identical issues because he is asserting
a cat’s paw theory of liability, and the employer must prove an overriding consideration, which
is more than a justification, to show an affirmative defense to the wrongful discharge claim. We
disagree.
We note that the second claim is always different from the first claim. Scholz, 3 Wn.
App. 2d at 596. For purposes of collateral estoppel, “[w]hat matters is whether facts established
in the first proceeding foreclose the second claim.” Id. at 597.
2 “In a labor arbitration proceeding, a union represents a plaintiff-employee. When an employee’s interest is represented by his union, he is in privity with the union.” Billings, 2 Wn. App. 2d at 18. 3 Like in Billings, the CBA provided that disputes settled in arbitration would be “final and binding on both parties.” CP at 86. 4 The arbitration hearing occurred over five days. “[T]he Parties had full opportunity to call witnesses, to make arguments and to enter documents into the record. Witnesses were sworn under oath and subject to cross-examination by the opposing Party.” CP at 44.
7 No. 57366-1-II
The tort of wrongful termination in violation of public policy is a narrow exception to the
default at-will employment rule, creating a cause of action where the termination frustrates a
clear manifestation of public policy. Billings, 2 Wn. App. 2d at 28. The tort may arise in the
following circumstances:
(1) where employees are fired for refusing to commit an illegal act; (2) where employees are fired for performing a public duty or obligation, such as serving jury duty; (3) where employees are fired for exercising a legal right or privilege, such as filing workers’ compensation claims; and (4) where employees are fired in retaliation for reporting employer misconduct, i.e., whistleblowing.
Id. (internal quotation marks omitted) (quoting Roe v. TeleTech Customer Care Mgmt. (Colo.)
LLC, 171 Wn.2d 736, 755, 257 P.3d 586 (2011)). The tort has four elements:
(1) The plaintiffs must prove the existence of a clear public policy (the clarity element).
(2) The plaintiffs must prove that discouraging the conduct in which they engaged would jeopardize the public policy (the jeopardy element).
(3) The plaintiffs must prove that the public-policy-linked conduct caused the dismissal (the causation element).
(4) The defendant must not be able to offer an overriding justification for the dismissal (the absence of justification element).
Id. at 28-29 (internal quotation marks omitted) (quoting Roe, 171 Wn.2d at 756)).
In Billings, the arbitrator had to determine whether Billings was terminated for just cause.
Id. To succeed in his wrongful discharge claim, Billings had to prove the public-policy-linked
conduct was a substantial factor in causing his dismissal. Id. Consequently, we determined that
the labor arbitration regarding just cause had identical issues to the wrongful termination in
violation of public policy claim. Id. We also determined that Billings could not establish the
overriding justification element for the same reasons. Id.
8 No. 57366-1-II
Here, the arbitrator had to determine whether Worland was terminated for just cause and
whether the reasons for discharge were fair, honest, and supported by evidence. To succeed on
his wrongful termination claim, Worland must prove his public-policy linked conduct was a
substantial factor in the County’s decision to terminate him. We hold that the labor arbitration
and the wrongful discharge claim have identical issues consistent with our precedent in Billings.
The labor arbitrator’s determinations that the County’s reasons for terminating Worland were
fair, honest, supported by substantial evidence, and not pretextual precludes Worland from
establishing the causation and absence of justification elements of his wrongful discharge claim.
Worland emphasizes that because he argues a cat’s paw theory5 of liability in the
wrongful termination claim, it does not have identical issues with the arbitration. As stated
above, the labor arbitration and wrongful discharge claim have identical issues. Whether
Worland asserts a cat’s paw theory of liability does nothing to change that.
During the arbitration, the Union, on behalf of Worland, argued that the ultimate
investigative result was tainted by two employees’ improper collaboration to oust Worland.
“Thus, in essence the Union allege[d] that the investigation was conducted, not to obtain
objective evidence, but to support the County’s decision to rid itself of [Worland].” CP at 67.
As such, Worland essentially raised his cat’s paw theory argument below, in all but name. And
the arbitrator rejected it.
5 Under the cat’s paw theory, the employer does not escape liability if an unbiased decision maker disciplines an employee where a biased subordinate who lacks decision-making power clearly caused such discipline. Boyd v. Dep’t of Soc. & Health Servs., 187 Wn. App. 1, 6 n.1, 349 P.3d 864 (2015).
9 No. 57366-1-II
B. Injustice and Public Policy Considerations
Worland argues a substantial injustice would result from applying collateral estoppel
because it would deny him the right to a jury trial and the right to choose his attorney, and
because, generally, employers could argue that employees failed to mitigate their damages by not
pursuing arbitration. We disagree.
The injustice component of collateral estoppel focuses on procedural irregularities, not
substantive ones. Christensen, 152 Wn.2d at 309. That focus “is consistent with the requirement
that the party against whom the doctrine is asserted must have had a full and fair opportunity to
litigate the issue in the first forum.” Id. Where the issue is first determined in an an informal,
expedited hearing with relaxed evidentiary rules, collateral estoppel may be improper. Id.
In Billings, we rejected an argument that Billings would be denied the right to a jury trial
if collateral estoppel precluded his claims because the parties agreed to a binding arbitration in
the CBA. 2 Wn. App. 2d at 20. We also noted that Billings did not file a jury demand before the
deadline. Id. Additionally, our Supreme Court has noted “the fact that the union brought the
claim and [the union member] was represented by a union lawyer is not a reason to deny
application of collateral estoppel.” Christensen, 152 Wn.2d at 316 (also noting that Christensen
consented to union representation, he elected to pursue administrative remedies, and the union’s
lawyer acted on Christensen’s behalf).
We disagree with Worland’s contention that Billings is distinguishable because we
allegedly did not reach the jury trial issue in Billings, and the County filed for summary
judgment before the deadline to request a jury trial in this case. In Billings, we did reach the jury
trial issue, reasoning that Billings would not be denied a right to a jury trial as he agreed to a
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binding arbitration in the CBA. Billings, 2 Wn. App. 2d at 20. And like in Billings, Worland
agreed to a binding arbitration through the CBA. Moreover, Christensen’s acknowledgement
that an administrative decision can collaterally estop a later claim in superior court further
undermines Worland’s suggestion that the jury trial right prevents application of collateral
estoppel where the prior decision was not made by a jury. As such, we disagree that collateral
estoppel would work an injustice based on the lack of a jury trial in this circumstance.
Regarding the Union’s refusal to allow Worland’s private counsel to aid him in
arbitration, Worland does not suggest that the union lawyer was ineffective. Rather, Worland
maintained that the Union paying for a union attorney to represent Worland raises ethical
implications under RPC 1.8.6 Worland appears to also argue that the union lawyer did not
represent his interests because the Union paid the lawyer, and the lawyer represented the Union
in the arbitration, not Worland. But the duty of fair representation requires unions to serve the
interests of their members without discrimination or hostility to any of their members, to exercise
their discretion with complete good faith and honesty, and to avoid arbitrary conduct. Marquez
v. Screen Actors Guild, Inc., 525 U.S. 33, 44, 119 S. Ct. 292, 142 L. Ed. 2d 242 (1998). And
Worland failed to identify any individual action the union attorney took that was contrary to his
interests.
Moreover, Worland recognized he was proceeding without his preferred attorney but
decided to do so for a myriad of reasons: to gain the representation of a free union attorney and
6 To the extent Worland’s argument raises concerns about possible ethics violations, we note that “‘breach of an ethics rule provides only a public, e.g., disciplinary, remedy and not a private remedy.’” Just Dirt, Inc. v. Knight Excavating, Inc., 138 Wn. App. 409, 417, 157 P.3d 431 (2007) (quoting Hizey v. Carpenter, 119 Wn.2d 251, 259, 830 P.2d 646 (1992)).
11 No. 57366-1-II
no cost arbitration, to acquire arbitration remedies, to resolve “at least part of the case and I had
paid union dues for years,” and to avoid a later argument, he believed the union would raise, that
he failed to exhaust his remedies and mitigate his damages if he declined to arbitrate. CP at 165-
66. We conclude that Worland had a full and fair opportunity to litigate this matter in the
arbitration. Worland weighed the consequences and benefits of proceeding with the arbitration
without his preferred counsel and decided to do so. Whatever injustice, if any, Worland suffered
from being denied his preferred counsel is not sufficient to preclude collateral estoppel under
these circumstances.
Lastly, Worland appears to argue that public policy weighs against applying collateral
estoppel based on any prior union arbitration because if the employee declines the union
arbitration, the employer could potentially argue that the employee failed to mitigate their
damages. We note that Worland failed to cite any authority to support this argument as required
by RAP 10.3(a)(6). To the extent that these concerns exist, they exist within the arbitration
context more generally. And our State has a strong public policy in favor of the finality of
arbitration determinations. Billings, 2 Wn. App. 2d at 16. In light of our State’s strong public
policy, we decline to preclude collateral estoppel based on Worland’s general public policy
concerns about arbitration.
In sum, we hold that collateral estoppel bars relitigating the wrongful termination claim.
Because we hold that collateral estoppel bars Worland’s lawsuit, we decline to reach the res
judicata issue as we may affirm summary judgment on any ground supported by the record.7
7 Port of Anacortes v. Frontier Indus., Inc., 9 Wn. App. 2d 885, 892, 447 P.3d 215 (2019).
12 No. 57366-1-II
CONCLUSION
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Che, J. We concur:
Glasgow, C.J.
Veljacic, J.