Mitch Michkowski v. Snohomish County

• Court: Court of Appeals of Washington
• Decided: February 17, 2015
• Docket: 71328-1
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

MITCH MICHKOWSKI, No. 71328-1-1

Appellant,

v.

SNOHOMISH COUNTY, UNPUBLISHED OPINION

Respondent. FILED: February 17, 2015

Verellen, J. — Mitch Michkowski, who was fired from his job at Snohomish

County District Court (District Court), appeals the trial court's order of summary

judgment dismissing his Washington Industrial Safety and Health Act (WISHA)1

retaliatory discharge claim against the county. He contends that there were disputed

issues of fact about whether the judges who voted to fire him knew that he had raised

issues about bailiffsafety before they decided to fire him. Because he fails to produce

any evidence that the judges had such actual knowledge, he cannot establish a prima

facie case of retaliatory discharge. Summary judgment was proper. We affirm.

FACTS

On January 9, 2012, Michkowski began work in his new position as director of

administration for Snohomish County District Court. Michkowski was hired by the eight

judges who serve in the four divisions of Snohomish County District Court. The

1Ch. 49.17RCW. No. 71328-1-1/2

director's duties include preparing the District Court budget, managing the nonjudicial

operations of the court, attending judges' meetings and otherwise acting under the

direction of the District Court judges. The director serves at the pleasure of all of the

District Court judges and is an at-will position.

On January 13, 2012, Michkowski attended his first judges' meeting. The judges

discussed an advisory memorandum from the civil division of the Snohomish County

Prosecuting Attorney's Office discussing safety and risk issues involving District Court

bailiffs carrying firearms while performing their duties. That memorandum was issued

on January 4, 2012, before Michkowski was hired, and was the result of an ongoing

conversation between the judges and the civil division about the issue. The

memorandum recommended that the District Court either discontinue the practice of

allowing bailiffs to carry firearms or require them to obtain firearm certification and

training. At the meeting, the judges adopted the recommendation to prohibit bailiffs

from carrying firearms. Michkowski did not participate.

As director, Michkowski was responsible for submitting budget recommendations

to the judges, preparing budget proposals as directed by the judges, preparing and

presenting the budget approved by the judges to the county executive and county

council, and informing the judges of the budget status throughout the year. As part of

this process, the budget committee requires the director to draft "priority packages,"

which are requests to fund additional positions or programs for the coming fiscal year.

The director is expected to prepare priority packages that reflect the bench's budgetary

requests. No. 71328-1-1/3

On June 19, 2012, the budget committee met and Michkowski presented his

recommendation that the District Court request funding for a payroll, purchasing and

accounting coordinator, and a trainer position for the 2013 fiscal year. The judges on

the committee rejected his proposal and directed him instead to submit a budget priority

package requesting funding for two legal process assistant positions.

On June 20, 2012, Michkowski e-mailed the budget committee and indicated that

he was going to submit a priority package for an accounting coordinator position, as he

had proposed. In a reply e-mail, Judge Ryan instructed him not to submit a priority

package with this request because the committee had already rejected that proposal.

On July 3, 2012, Michkowski submitted the District Court budget to the county

executive and included a priority package requesting an accounting coordinator in place

of one of the legal process assistant positions requested by the judges. On July 5,

2012, after discovering what he had submitted, the judges immediately directed

Michkowski to amend the submission to accurately reflect the decisions of the budget

committee. He resubmitted a revised priority package for the two legal process

assistant positions.

On July 13, 2012, Judges Ryan and Bui met with Michkowski to discuss his

submission of the priority package with a request for an accounting coordinator when

the budget committee had rejected this proposal. They also asked him if he

misunderstood the judges' instructions. He said that he had not misunderstood, but

offered no explanation for his actions. On July 27, 2012, Judge Bui issued a written

reprimand to Michkowski about his performance on the budget submission. Michkowski No. 71328-1-1/4

acknowledged receipt of the reprimand and stated he "wish[ed] to remain voiceless"

about the content.2

Also in July 2012, Michkowski pursued a pilot project to bring an outside vendor,

AllianceOne, into the south division of the District Court to act as a collection agent for

fines imposed by the court. AllianceOne is a for-profit corporation that collects for other

entities and acts on their behalf by filing contested matters in the District Court and

appearing before the District Court judges. Judges Ryan and McRae objected to the

AllianceOne project because they believed having a for-profit collection agency in the

courthouse would affect the appearance of judicial impartiality. Judge McRae also had

concerns that allowing on-site collections would violate a judicial ethics opinion relating

to the lease of space by a for-profit entity on the same premises as a court. For these

reasons, the judges of the south division voted against the proposal and told

Michkowski not to pursue it.

On August 20, 2012, Judge Ryan and Judge Bui met with Michkowski to review a

list of performance expectations. The judges reminded Michkowski that he needed to

update presiding Judge Bui about his projects and activities. The judges also made

clear that although Judge Bui supervised Michkowski, he worked for all of the judges

and was responsible for following all of their directives. They further discussed

Michkowski's budget duties, monitoring of court operations, and interactions with

outside entities.

On August 21, 2012, Michkowski met with an AllianceOne representative and

Lyndsey Downs, the deputy prosecuting attorney assigned to advise the District Court,

2 Clerk's Papers (CP) at 504. No. 71328-1-1/5

to discuss the collections project. Michkowski had not told Downs that the south

division judges had already rejected the collections proposal. After the meeting, Downs

contacted Judge Ryan and expressed concerns about the project. Judge Ryan was

surprised to hear that Michkowski was still pursuing the project after the south division

judges rejected his proposal, especially without first obtaining permission from Judge

Bui to meet with Downs. Judge Ryan informed Judge Bui of what transpired, and on

August 22, 2012, Judge Bui e-mailed Michkowski and instructed him to stop pursuing

the collections project.

The next day, Michkowski presented Judge Bui with a memorandum addressing

safety concerns related to bailiff duties to maintain order and security in the courtroom,

lack of training for bailiffs to perform those duties, and potential liability for the court.

Michkowski asked Judge Bui to initial a copy of the memorandum to acknowledge her

receipt of it. Judge Bui declined to do so. Michkowski then sent Judge Bui the following

e-mail and included the memorandum as an e-mail attachment:

Judge Bui,

Reflecting on our discussion earlier this afternoon regarding this topic (with regard to the document already being a public document by its very creation), I thought then that it might then make sense just to go ahead and send so that you'll have it electronically.

In any case, I look forward to bringing you potential solutions that you can consider implementing.

Thanks again,

MitchPJ

CPat516. No. 71328-1-1/6

Judge Bui e-mailed back a terse response, stating:

Perhaps you did not hear nor understand: I don't sign memos authored by you so that you can keep a record of it. That does not mean that you automatically place the document... in an email. Find your own record keeping procedure rather than relying on my signature.[4]

Judge Bui then forwarded to Judge Ryan the e-mail chain without the memorandum

attachment.

In October 2012, Robert Veliz became the assistant director of District Court.

Tensions arose between Veliz and Michkowski, and the judges became concerned with

what they felt was an inappropriate amount of time Michkowski spent micromanaging

Veliz. On October 17, 2012, Judges Goodwin and Bui met with Michkowski and Veliz

about finding a way to work together.

Due to ongoing concerns about Michkowski's performance, the judges decided to

discuss whether to continue his employment. In addition to the budget and collection

project issues, the judges expressed their own frustrations with Michkowski's job

performance, such as failing to deliver materials to judges meetings, exhibiting an

arrogant and condescending manner toward judges, a controlling management style

with the court staff, and pursuing projects they viewed as a waste of time (e.g., a photo

gallery at the court) or that were not authorized (e.g., tracking affidavits of prejudice filed

against the judges).

The judges set a special meeting for December 5, 2012. At that meeting, Judges

Ryan, McRae, Goodwin, Lyon, Wisman and Clough voted to terminate Michkowski from

his position. The two other judges, Judges Fisher and Bui, did not vote. Judge Fisher

Id. No. 71328-1-1/7

was absent and Judge Bui abstained from the vote. On December 7, 2012, Judge

Goodwin informed Michkowski of his termination.

On December 13, 2012, Michkowski filed a complaint with the Department of

Labor and Industries (L&l), alleging he had been terminated for raising workplace safety

issues involving bailiffs. After an investigation, L&l issued a citation to the county for

two safety-related violations for lack of training for bailiff duties involving safety risks.

But L&l dismissed Michkowski's complaint, concluding that there was insufficient

evidence to substantiate the allegations that he suffered discriminatory action as

defined by WISHA. The L&l investigation concluded:

Complainant alleged becoming the recipient of discriminatory action after reporting safety and health issues to the Employer.

The Employer denied allegations of discrimination while insisting Complainant's termination stemmed from a variety of reasons, none relative to his engagement into a safety-protected activity.

Investigation failed to produce sufficient evidence to support the allegation that the Complainant was the recipient of discriminatory action. Investigation also determined the non-discriminatory reason for the action taken appeared consistent with the Employer's business operations.

Based on the above facts and pursuant to RCW 49.17.160, this investigation failed to demonstrate a violation and was closed.151

Michkowski appealed the decision to the director of L&l. The director affirmed the

decision, finding that the record did not establish discrimination under RCW 49.17.160.

On July 5, 2013, Michkowski filed his retaliatory discharge claim against the

county. The county moved for summary judgment. The trial court granted summary

judgment and dismissed the claims. Michkowski appeals.

5 CP at 323. No. 71328-1-1/8

ANALYSIS

Michkowski contends that summary judgment was improper because there were

issues of fact about whether the voting judges had knowledge of his complaint about

bailiff safety, a fact material to establishing his retaliatory discharge claim. The record

does not support this contention.

Summary judgment is proper when there is no genuine issue about any material

fact and the moving party is entitled to judgment as a matter of law.6 We construe the

evidence in the light most favorable to the nonmoving party and review the ruling based

solely on the record before the trial court at the time of the summary judgment motion.7

A party challenging summary judgment may not rely upon mere allegations or denials,

but must instead set forth specific facts showing the existence of a genuine issue for

trial.8

RCW 49.17.160(1) prohibits the discharge of an employee "because such

employee has filed any complaint. . . under or related to this chapter." Michkowski

brought this WISHA retaliatory discharge action claiming that he was discharged for

raising workplace safety issues relating to bailiff security in the courtroom. To establish

a prima facie case for retaliatory discharge in this context, Michkowski must show

6 CR 56(c). 7 Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998); RAP 9.12, Washington Fed'n of State Emps., Council 28 v. Office of Fin. Mgmt., 121 Wn.2d 152, 163, 849P.2d 1201 (1993). 8 CR 56(e); McBride v. Walla Walla County. 95 Wn. App. 33, 36, 975 P.2d 1029, 990 P.2d 967 (1999).

8 No. 71328-1-1/9

(1) that he filed a complaint related to WISHA, (2) that he was discharged, and (3) that

there is a causal connection between the complaint and the discharge.9

The parties concede that the first two elements have been established and only

dispute causation. Michkowski contends that there are issues of material fact on the

causation element, specifically whether the judges who voted to discharge him had

actual knowledge that he made the complaint. We disagree.

To show the requisite causal link, the plaintiff must present sufficient evidence

that the protected activity was the likely reason for the adverse employment action.10

"Essential to a causal link is evidence that the employer was aware that the plaintiff had

engaged in the protected activity."11

As the county contends, the undisputed evidence in the record does not establish

such actual knowledge. The record establishes only that Judge Bui was aware of

Michkowski's complaint about bailiff safety and that she abstained from the vote to

discharge him. All of the voting judges submitted declarations stating they were not

aware Michkowski had raised this issue until after he filed his complaint with L&l about a

week after they voted to terminate him. Indeed, in his L&l complaint, Michkowski

admitted that he did not raise the issue with any other judge, stating, "I reported my

concerns to my reporting authority, the Presiding Judge (not the court at large, the

county, or any other authority . . . )."12

9 See Wilmot v. Kaiser Aluminum. 118 Wn.2d 46, 68, 821 P.2d 18(1991): Frisino v. Seattle School Dist. No. 1. 160 Wn. App. 765, 785, 249 P.3d 1044(2011). 10 Cohen v. Fred Meyer. Inc., 686 F.2d 793, 796 (9th Cir. 1982). 11 \± 12 CP at 328. No. 71328-1-1/10

While Michkowski is correct that he may rely upon circumstantial evidence and

reasonable inferences, he cannot rely on mere speculation or a hunch that the decision

makers knew of his exercise of protected conduct. It is pure speculation to infer that a

person having knowledge of an employee's protected activity actually told the decision

maker about the protected activity.13 Michkowski offers no evidence to rebut the voting

judges' sworn declarations that Judge Bui did not tell them about the memo before they

voted to terminate him. Without such evidence, summary judgment was proper.14

Michkowski contends the record raises an issue of fact about whether the judges

had actual knowledge. He first points to the first judges' meeting he attended when the

issue of bailiff safety was addressed and the court voted to adopt the prosecuting

attorney's recommendation to restrict the bailiffs' ability to carry firearms. But the record

shows that he did not participate at all in that decision or otherwise voice his concerns

about the issue. He also points to the fact that he and Judge Bui discussed his concerns

during weekly meetings and that he raised the issue in his August 23, 2012

memorandum. But again, this evidence shows only that he raised the issue with Judge

Bui, who did not vote.

Michkowski also points to the fact that Judge Bui forwarded the Bui-Michkowski

e-mail exchange to Judge Ryan. But there is no evidence or inference that the safety

memorandum was sent to Judge Ryan. The record does not show that any information

about Michkowski's bailiff concerns were conveyed to Judge Ryan. Rather, the record

13 See Clover v. Total Systems Services, 176 F.3d 1346, 1355 (11th Cir. 1999) (concluding that '"could have told' is not the same as 'did tell.'") 14 See Mulhall v. Adhcroft, 287 F.3d 543, 552 (6th Cir. 2002) (where employee failed to take depositions to rebut denials of knowledge of employee's protected activity, summary judgment was proper).

10 No. 71328-1-1/11

shows only that Judge Bui forwarded Michkowski's e-mail and her response without the

memorandum attachment. Neither of the e-mails refers to the content of the memo or

mentions Michkowski's safety concerns.15 Rather, the e-mail exchange reflects only

Judge Bui's frustration with Michkowski's methods of keeping track of her receipt of his

memos.

Michkowski next refers to two incidents in August 2012 involving bailiff security

that were the subject of his memorandum. These both involved bailiff Larry Skinner,

who reported that he was assaulted by a defendant on August 1, 2012, and was

required to call 911 for assistance with a defendant on August 21, 2012. Michkowski

asserts that "[cjertainly all of the Judges on the Snohomish County District Court were

aware that these two safety-related issues occurred."16 But Michkowski puts forth no

evidence that he in fact complained to the judges about these incidents. The record

shows only that Skinner made the report on his own behalf.

Michkowski also points to L&l's notes from an interview with bailiff Bill Hawkins

as documentation that Michkowski "has voiced safety concerns on several occasions,

and has made recommendations."17 But it appears that the notes refer to Hawkins, not

Michkowski, stating:

He was not well acquainted with the Complainant [Michkowski], and asserted that Complainant did not acknowledge him. He further asserted he never had a conversation with the Complainant about anything, he never asked about his job duties, job description, or any safety issues.

15 His e-mail refers only to "our discussion earlier this afternoon regarding this topic." CPat516. 16 Br. of Appellant at 18. 17 CP at 74.

11 No. 71328-1-1/12

He reportedly has voiced safety concerns on several occasions, and has made recommendations. He stated in general he feels safe in performing his duties. Additionally, he suffered no adverse employment action for voicing his concerns.[18]

In any event, the notes do not establish actual knowledge of the voting judges. Absent

any evidence of actual knowledge, Michkowski fails to establish a prima facie case of

retaliatory discharge. Accordingly, summary judgment was proper.19

Michkowski further argues that even if the evidence does not establish that the

voting judges had actual knowledge of his complaint about bailiffsafety, they should be

bound by Judge Bui's knowledge under agency principles. This argument is without

legal basis. As the county correctly notes, Michkowski confuses knowledge of

workplace safety issues in the context of the county's duty to its employees with the

burden of proof in a retaliatory discharge claim based on a complaint of workplace

safety.

Under well-settled agency principles, a principle is charged with notice to an

agent when the agent receives the notice while acting in the scope of his or her

authority of an agent.20 But this does not apply in a retaliatory discharge. Michkowski

relies on Kimbro v. Atlantic Richfield Company, where an employee was ultimately fired

for absenteeism caused primarily by a disability, of which management claimed it was

unaware despite the immediate supervisor's actual knowledge of the condition.21

18 jd_, (emphasis added). 19 See Mulhall, 287 F.3d at 552 (failure to produce any evidence to rebut denials of knowledge of employee's protected activity cannot defeat summary judgment); Newton v. Meiier Stores Ltd. P'ship, 347 F. Supp. 2d 516, 524 (N.D. Ohio 2004) (absent "specifics facts" establishing actual knowledge, summary judgment was proper). 20 Kimbro v. Atlantic Richfield Co.. 889 F.2d 869, 876 (9th Cir. 1989). 21 889 F.2d 869, 874 (9th Cir. 1989).

12 No. 71328-1-1/13

The court held that because the immediate supervisor had a duty to report this

information to management, this created a duty of the employer to accommodate the

employee's disability.22 Thus, for purposes of liability in this context, the supervisor's

knowledge was imputed to management.23 But in Kimbro, there was no claim of

retaliatory discharge; rather, the issue of the employer's imputed knowledge was

relevant only to the claim of the employer's failure to make reasonable accommodations

for an employee's disability. Kimbro did not hold that such knowledge is imputed to the

employer for purposes of establishing a retaliatory discharge claim.24

Here, the county is not claiming that it had no duty to respond to bailiff safety

issues once raised by Michkowski. In fact, the county concedes it has such a duty as

evidenced by the L&l citations for workplace safety violations. But it does not follow that

this duty imputes knowledge to the judges who voted to discharge him for purposes of

establishing a retaliatory discharge claim when there is no evidence those judges had

actual knowledge of his complaint. This is precisely why L&l found the county in violation

of workplace safety standards, but dismissed Michkowski's retaliatory discharge claim

based on his complaint about these safety violations. As one court has recognized, "It

simply defies logic to argue that [an employer's] 'real intention' was to fire [an employee]

22 JU 23 JU at 872-73. 24 See Cordoba v. Dillard's. Inc.. 419 F.3d 1169, 1184 (11th Cir. 2005) (distinguishing Kimbro in a discriminatory discharge case: "Kimbro plainly is not on point here .... [T]hat case was about reasonable accommodations, not discriminatory discharge.").

13 No. 71328-1-1/14

'because of a disability [the employer] knew nothing about."25 The knowledge of Judge

Bui is not imputed to the judges who voted to terminate Michkowski.

Without evidence of actual knowledge, Michkowski fails to establish the causal

connection necessary to make out a prima facie case of retaliatory discharge.

Accordingly, we need not reach his further contention that there was sufficient evidence

that the judges' stated reasons for his discharge were a pretext. As discussed above,

the employer's motivation for the discharge only becomes an issue after a prima facie

case is established.

We affirm.

WE CONCUR:

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25 Id.