Tombari v. State of Washington

• Court: District Court, E.D. Washington
• Decided: February 10, 2023
• Docket: 2:20-cv-00336
• Status: Unknown

Opinion

1 2 3 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 4 Feb 10, 2023 5 SEAN F. MCAVOY, CLERK 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 ANTONIA TOMBARI, and individual, 10 and TROY BRUNER, an individual, No. 2:20-CV-00336-SAB 11 Plaintiffs, 12 v. ORDER GRANTING 13 STATE OF WASHINGTON, by and DEFENDANTS’ MOTION FOR 14 through the WASHINGTON STATE SUMMARY JUDGMENT 15 DEPARTMENT OF CORRECTIONS, a 16 Washington State Agency; CATHI 17 HARRIS, and individual; JIM RILEY, an 18 individual; MEGAN SMITH, an 19 individual; RENEE SCHUITEMAN, an 20 individual; and KRISTOPHER SMITH, 21 an individual, 22 Defendants. 23 Before the Court is Defendants’ Motion for Summary Judgment, ECF No. 24 58. A hearing on the motion was held on February 7, 2023, by videoconference. 25 Plaintiffs were represented by Courtney A. Hall and Michael Mauer. Defendants 26 were represented by Nicholas R. Ulrich. After hearing argument from counsel, the 27 Court took the matter under advisement. 28 // 1 Facts 2 This is a wrongful termination employment case brought by two former 3 employees who worked for a short time at Airway Heights Correctional Center 4 (“AHCC”). Plaintiff Dr. Troy Bruner started working at the Sex Offender 5 Treatment Assessment Program (SOTAP) as a Psychologist at AHCC in December 6 2016, and resigned in September 2017. As the psychologist for the Unit, Plaintiff 7 Bruner was on the leadership team and reported to Defendant Cathi Harris, the 8 statewide director of SOTAP. Defendant Renee Schuiteman was the program 9 manager of SOTAP. 10 According to Plaintiff Bruner, Defendant Schuiteman did not want 11 Defendant Harris to hire him and after he was hired, she began making false 12 reports about him to Defendant Harris, including false reports about alleged work 13 performances issues. Plaintiff Bruner repeatedly told Defendant Harris that the 14 reports were false, however, she did nothing to look into the reports or make them 15 stop. 16 According to Defendants, Plaintiff Bruner was being investigated for 17 possible sexual harassment toward other employees (due to an off-color joke made 18 at a happy hour). While the investigation was underway, it was reported that 19 Plaintiff made an inappropriate sexual comment to the program’s intern. Rather 20 than respond to the investigation report, Plaintiff chose to resign. 21 During the investigation, Plaintiff Bruner was not allowed to work. He was 22 instructed that he could have no contact with anyone during the investigation. The 23 investigation lasted months and Plaintiff was not told when it would be completed. 24 Eventually when the investigation was completed, Plaintiff was not allowed to 25 return to or have contact with anyone at SOTAP. According to Plaintiff, he 26 resigned because he believed that the investigation was a sham process. 27 Plaintiff Antonia Tombari started working with the Department of 28 Corrections as a sex offender treatment specialist in May 2017. When Plaintiff 1 Tombari started working at SOTAP, she was on “probationary” status under the 2 collective bargaining agreement (“CBA”) between DOC and the Teamsters Local 3 Union 117. 4 On January 12, 2018, Plaintiff Tombari filed a complaint of workplace 5 discrimination. She alleged she was discriminated against based on her race, age, 6 color, sex/sexual orientation, gender/gender express/gender identity, sexual 7 harassment, and disability. She also accused Defendants of creating a toxic work 8 environment and believed she was being bullied and harassed. Plaintiff Tombari 9 resigned from her position in March 2018. She began working for Frontier 10 Behavior Health shortly thereafter. 11 Plaintiffs initiated their lawsuit against Defendants in Spokane County 12 Superior Court. Defendants removed the action to the Eastern District of 13 Washington on September 18, 2020. In their Complaint, they each brought a claim 14 for violation of their due process property right in continued employment under 42 15 U.S.C. § 1983. Plaintiff Tombari is also asserting three separate state law claims: 16 (1) wrongful discharge in violation of public policy (retaliation), (2) 17 outrage/intentional infliction of emotional distress, and (3) negligent infliction of 18 emotional distress. 19 Collective Bargaining Agreement 20 Employees of the AHCC were subject to a Collective Bargaining 21 Agreement. Pertinent parts of the CBA include: 22 15.5 Permanent Status An employee will attain permanent status in a job classification upon his/her 23 successful completion of a probationary, trial service, or transition review 24 period.

25 15.7 Review Periods 26 A. Probationary Period 1. Length of Probationary Period 27 Every part-time and full-time employee, following his/her initial 28 appointment to a permanent position will serve a probationary period. 1 Employees initially appointed into the following job classifications will serve a twelve (12) month probationary period due to the need to complete 2 job-specific training programs: 3 a. Correctional Officer; 4 b. Classification Counselors; c. Correctional Mental Health Counselors; 5 d. Sex Offender Treatment Specialists; and 6 e. All Health Services classifications. All other newly hired employees will serve a six (6) month probationary 7 period. 8 *** 9 5. Separation 10 The Employer may separate a probationary employee at any time during the probationary period. The Employer will provide the employee five (5) 11 working days written notice prior to the effective date of the separation. 12 However, if the Employer fails to provide five (5) working days’ notice, the separation will stand and the employee will be entitled to payment of salary 13 for five (5) working days, which time the employee would have worked had 14 notice been given. Five (5) working day notice deficiencies will not result in an employee gaining permanent status. 15 16 6. Separation Review The separation of a probationary employee will not be subject to the 17 grievance procedure in Article 9. However, the employee may request and 18 will receive a review of the separation by the Secretary or designee. The review request must be submitted to the DOC Headquarters Labor Relations 19 Office within fourteen (14) calendar days from the effective date of the 20 written separation notice. This request, however, will not act as a suspension of the designated separation date. 21 Motion Standard 22 Summary judgment is appropriate “if the movant shows that there is no 23 genuine dispute as to any material fact and the movant is entitled to judgment as a 24 matter of law.” Fed. R. Civ. P. 56(a). There is no genuine issue for trial unless 25 there is sufficient evidence favoring the non-moving party for a jury to return a 26 verdict in that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 27 (1986). The moving party has the initial burden of showing the absence of a 28 1 genuine issue of fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). 2 If the moving party meets its initial burden, the non-moving party must go beyond 3 the pleadings and “set forth specific facts showing that there is a genuine issue for 4 trial.” Anderson, 477 U.S. at 248. 5 In addition to showing there are no questions of material fact, the moving 6 party must also show it is entitled to judgment as a matter of law. Smith v. Univ. of 7 Wash. Law Sch., 233 F.3d 1188, 1193 (9th Cir. 2000). The moving party is entitled 8 to judgment as a matter of law when the non-moving party fails to make a 9 sufficient showing on an essential element of a claim on which the non-moving 10 party has the burden of proof. Celotex, 477 U.S. at 323. The non-moving party 11 cannot rely on conclusory allegations alone to create an issue of material fact. 12 Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993). When considering a 13 motion for summary judgment, a court may neither weigh the evidence nor assess 14 credibility; instead, “the evidence of the non-movant is to be believed, and all 15 justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255. 16 Discussion 17 1. Section 1983 Due Process Claim - Property Right 18 A discharged employee may assert procedural due process rights under the 19 Fourteenth Amendment of the U.S. Constitution if they establish that a property 20 interest in the state position existed. Portman v. Cnty. of Santa Clara, 995 F.2d 21 898, 904 (9th Cir. 1991). A property interest does not exist unless the employee 22 has a “legitimate claim of entitlement” to the public job. Bd. of Regents v. Roth, 23 408 U.S. 564, 577 (1972). Courts should look to the contract of employment and to 24 state law to determine if there are any rules or understandings that secure certain 25 benefits and that support claims of entitlement to those benefits. Id. Alternatively, a 26 plaintiff may establish a property interest by showing mutually explicit 27 understandings or common practices and agreements derived from the employer- 28 employee relationship which would create a sufficient expectancy of continued 1 employment to merit some due process. Perry v. Sindermann, 408 U.S. 593, 600- 2 603 (1972). 3 “A section 1983 claim based upon procedural due process ... has three 4 elements: (1) a liberty or property interest protected by the Constitution; (2) a 5 deprivation of the interest by the government; and (3) lack of process.” Portman 6 995 F.2d at 904. 7 A. Plaintiff Antonia Tombari 8 It is undisputed that Plaintiff Antonia Tombari was on probationary status at 9 the time she left her employment at AHCC. 10 If employment is at-will, a plaintiff does not have a property interest in the 11 job. Armstrong v. Reynolds, 22 F.4th 1058, 1067 (9th Cir. 2022). Stated another 12 way, if an employee can be fired for any reason at any time, at most the employee 13 has a unilateral expectation of continued employment, which is not enough to 14 establish a property interest. Id. On the other hand, “[i]f discharge can only be for 15 ‘just cause,’ an employee has a right to continued employment until there is just 16 cause to dismiss him.” Id. If state law restricts the grounds on which an employee 17 may be discharged in a way that a probationary employee could have a reasonable 18 expectation of continued employment, the probationary employee has a 19 constitutionally protected property interest in the position. Palm v. Los Angeles 20 Dep’t of Water and Power, 889 F.3d 1081, 1085 (9th Cir. 2018) (quotation 21 omitted). 22 While Plaintiff insists there are genuine issue of material fact regarding 23 whether she has a property interest, generally this question is answered by 24 reviewing a contract or state law to determine whether the employee had a 25 legitimate expectation of continued employment. Notably, Plaintiff has not alleged 26 that there is a custom, unwritten policy or practice that goes beyond the CBA to 27 show that she has a property interest in her continued employment at AHCC. As 28 such, the Court finds that there are not genuine issues of material fact that would 1 need to be decided by a jury before the Court can determine whether the CBA 2 created a property interest. 3 Pursuant to the CBA, it is clear that as a probationary employee Plaintiff 4 does not have a legitimate expectation of continued employment. Up to the time 5 that Plaintiff completed the probationary period, she could be terminated at any 6 time and for any reason.1 And Plaintiff was never terminated, rather she resigned 7 from her position. 8 Plaintiff argues that Section 6 of the CBA, which provides for separation 9 review, creates a property interest. The Court disagrees. As a matter of law, the 10 Court finds the ability to request a review of the separation decision does not 11 provide a constitutional property interest in continued employment. At best, during 12 the review process the employee would be in the same position they would have 13 been when they applied for the position—namely they would be trying to convince 14 AHCC to hire, or in this case to continue employment. Clearly, an applicant to a 15 state employment opportunity does not have a legitimate expectation of continued 16 employment, or stated another way, a constitutional property interest. Under either 17 scenario—applying for a position or asking for a review of a termination decision 18 while on probationary status—the decision is left to the discretion of AHCC and as 19 such, does not provide Plaintiff with a property interest. See Dorr v. Butte Cnty., 20 795 F.2d 875, 878 (9th Cir 1986 (“The power of the appointing authority to 21 determine, on a purely subjective basis, whether a probationary employee has 22 performed satisfactorily undercuts any expectation of continued employment that 23 might otherwise arise by virtue of the requirement that disciplinary dismissal be 24

25 1While Defendants are prohibited from terminating Plaintiff for unlawful purposes, 26 such as discrimination based on a protected class, or retaliation, such a claim 27 would be brought under a different statue, such at Title VII, and not as a due 28 process property interest claim. 1 grounded upon objectively reasonable cause.”). Under Plaintiff’s theory, all 2 probationary employees who are subject to the CBA would have a property interest 3 after their first day of employment. It is clear this was not the intent or bargained 4 for benefit of the CBA. 5 Because Plaintiff does not have a property interest as a matter of law, she 6 cannot successfully bring a § 1983 violation of her due process claim, and 7 summary judgment is appropriate. 8 B. Plaintiff Troy Bruner 9 The parties agree that Plaintiff Troy Bruner has a property interest in his 10 employment, that is, he had a legitimate expectation of continued employment at 11 AHCC. 12 Plaintiff argues he was constructively discharged and as a result his due 13 process rights were violated. Plaintiff cites to a Fifth Circuit case which held a 14 constitutional violation based on constructive discharge may be shown in a narrow 15 range of cases where an employee confronts an either/or termination proposition 16 and it can be said that the state agency’s motive was to avoid providing a 17 predetermination remedy. See Fowler v. Carrolton Pub. Library, 799 F.2d 976 (5th 18 Cir. 1986). Plaintiff also cited to a Tenth Circuit case which held that a due-process 19 constructive-discharge claim can be based on the employer’s intentionally or 20 knowingly creating working conditions so intolerable that a reasonable employee 21 would quit. Lauck v. Campbell Cnty, 627 F.3d 805, 812 (2010). The Tenth Circuit 22 went on to say that an employer cannot circumvent the due-process requirements 23 that would attend a true firing by trying to compel a resignation in a manner that 24 violates the employee’s property rights. 25 The Ninth Circuit has also addressed this question in a case that is seemingly 26 on-point. See Huskey v. City of San Jose, 204 F.3d 893 (9th Cir. 2000). There, it 27 was undisputed that the plaintiff had a property interest in his job, and he resigned 28 from his position. The plaintiff argued, however, that he was deprived of his 1 property interest in his job because his resignation was the result of a constructive 2 discharge. Id. at 900. The Ninth Circuit instructed that to support a claim of 3 constructive discharge under § 1983, the plaintiff must show that there are triable 4 issues of fact as to whether a reasonable person in their position would have felt 5 that they were forced to quit because of intolerable and discriminatory working 6 conditions. Id. An isolated incident of mistreatment is not enough. Id. The Circuit 7 went on provide examples of situations that did not rise to the level of a 8 constructive discharge. Id. at 900-902. Ultimately, the Circuit held that while 9 normally the question of whether working conditions are so intolerable as to justify 10 a reasonable employee’s decision to resign is a factual question for the jury, courts 11 can rely on Circuit precedent to find that an employee’s allegations were 12 insufficient as a matter of law. Id. at 900. 13 Similarly, in this case when viewing the facts in the light most favorable to 14 the Plaintiff, the non-moving party, and relying on the guidance provided by the 15 Ninth Circuit, the Court finds that a reasonable jury would not find that the 16 working conditions facing Plaintiff Bruner were so intolerable that a reasonable 17 person would feel forced to resign. As such, Plaintiff Bruner cannot show that his 18 due process rights were violated, and summary judgment as a matter of law is 19 appropriate. 20 2. Remaining State Law Claims 21 A district court may decline to exercise supplemental jurisdiction if it has 22 dismissed all claims over which it had original jurisdiction. See 28 U.S.C. § 23 1367(c)(3); United Mine Workers v. Gibbs, 383 U.S. 715, 725–26 (1966) 24 (“Certainly, if the federal claims are dismissed before trial, even though not 25 insubstantial in a jurisdictional sense, the state claims should be dismissed as 26 well.”). Here, the Court has granted summary judgment on Plaintiffs’ federal 27 claims. The Court declines to exercise supplemental jurisdiction over plaintiffs' 28 state law claims and will remand those claims back to Spokane Superior Court. 1 Accordingly, IT IS HEREBY ORDERED: 1. Defendants’ Motion for Summary Judgment, ECF No. 58, is 3 GRANTED. 2. The District Court Executive is directed to enter judgment in favor of 5 Defendants and against Plaintiff with respect to the Due Process claims. 3. The Court remands Plaintiff's state law claims back to Spokane County Superior Court. 8 IT IS SO ORDERED. The District Court Clerk is hereby directed to enter this Order, provide copies to counsel, and close the file. 10 DATED this 10th day of February 2023. 11 12 13 14 Shockey ec toar 1 Stanley A. Bastian Chief United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY