No. 24952-9-II.The Court of Appeals of Washington, Division Two.
Filed: January 19, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Thurston County, No. 94-2-03362-7, Hon. Richard D. Hicks, June 18, 1999, Judgment or order under review.
Counsel for Appellant(s), Hugh J. McGavick, Attorney At Law, 2415 Pacific Ave. Ste. a, 2415 Pacific Ave. SE, Olympia, WA 98501.
Counsel for Respondent(s), Susan M. Edison, Assistant Attorney General, 900 4th Ave. Ste. 2200, Seattle, WA 98164.
ALEXANDER, J.P.T.[1]
An investigation was initiated into Anthony A. Lukin’s alleged misuse of State resources after Lukin complained publicly about discrimination at the State agency where he worked. Lukin responded by suing the agency’s executive director and others under 42 U.S.C. § 1983, claiming that the investigation was retaliation for Lukin’s public comments. The trial court granted the executive director’s motion for summary judgment. We affirm the trial court, concluding that Lukin failed to show that the investigation was motivated by his public comments.
FACTS
Lukin was in charge of all of the Washington State Criminal Justice Training Commission’s (`Commission’) law enforcement training in this state from April 1993 to February 1, 1994. During this time and up until Lukin’s voluntary resignation, James Scott was executive director of the Commission.
In December 1993, Scott demoted Lukin effective February 1, 1994. A memorandum to file, dated January 4, 1994, states that Lukin was demoted because of his improper use of state resources in the context of corporate training work that he had provided in Hoonah, Alaska, on November 29-30, 1993, and his failure to maintain a professional leadership role. Lukin claims that Scott told him he wanted to fire him and that he would make his life miserable.
Following his demotion, Lukin spoke out publicly on several occasions concerning what he alleged was discriminatory behavior and mismanagement at the Commission. In addition to comments made within the Commission, Lukin contacted the State Auditor, the African-American Affairs Commission, and various news media between January and September 1994. A sworn deposition that he gave to the African-American Commission fairly illustrates the content and context of his statements. He described `a hostile, intimidating attitude towards people of color and women . . . a general disregard for diversity training, the value of diversity training, the importance of diversity training both in Basic Law Enforcement Academy and the Criminal Justice Training Commission as a whole.’ Clerk’s Papers at 90-91 (Deposition of Lukin). Lukin also complained that a recommendation he had made to provide training in cultural diversity and an eight-hour course he had developed on cultural diversity were not implemented by the Commission following his demotion.
Sometime after September 13, 1994, Scott heard that Lukin had spoken to the African-American Affairs Commission. This caused Scott to believe that Lukin was preparing to accuse him of unlawful retaliation if he disciplined Lukin in the future.
On or about September 29, 1994, Scott received a copy of an invoice that purported to be addressed from Lukin Associates to the Hoonah Police Department in Hoonah, Alaska. The invoice included the Commission’s Burien phone and fax numbers, including Lukin’s direct extension. Although the invoice concerned services purportedly offered or delivered on November 30, 1993 — something for which Lukin had already been disciplined — Scott believed that with the additional evidence the matter needed to be addressed. Furthermore, although there is strong evidence that other employees were conducting private training, there is no evidence that Scott knew that Commission employees other than Lukin used State equipment, supplies, and resources for personal use. Faced with this additional information, Scott asked an assistant attorney general and several members of the Commission’s Board for advice on how to handle the matter.
Scott received advice from the assistant attorney general and several members of the Board that someone outside of the Commission should investigate the matter. Scott was referred to and met with Commander Ed Sorger of the Lacey Police Department in October 1994. He gave Sorger background documents but did not tell the officer how to conduct the investigation, nor was Scott told how the investigation was going to be conducted. At the conclusion of the investigation, Lukin resigned and neither Scott nor the Commission took further action against him.
Lukin thereafter sued Scott and others[2] in Thurston County. He alleged under 42 U.S.C. § 1983 that the defendants violated his civil rights by retaliating against him after he made public comments critical of the Commission’s lack of cultural diversity training, sensitivity, and tolerance. The defendants served their answer on Lukin on May 26, 1995, denying most of the allegations. On February 8, 1999, almost four years after the answer was filed and after the statute of limitations had run, Scott moved to amend his answer under CR 15(a) and add the affirmative defense that service of process was insufficient. The court granted Scott’s motion to amend his answer. It dismissed the suit against Scott on summary judgment on two bases: (1) that Scott was not properly served before the statute of limitations ran; and (2) that Lukin failed to show that the investigation was motivated by Lukin’s public comments about the agency. It also dismissed Lukin’s suit against the other defendants. Lukin appeals only the dismissal of his suit against Scott.
DISCUSSION I. Scope of Review
On appeal of summary judgment, the standard of review is de novo, and the appellate court performs the same inquiry as the trial court. Nivens v. 7-11 Hoagy’s Corner, 133 Wn.2d 192, 197-98, 943 P.2d 286 (1997). When ruling on a summary judgment motion, the court is to view all facts and reasonable inferences therefrom most favorably toward the nonmoving party. Weyerhaeuser Co. v. Aetna Cas. Sur. Co., 123 Wn.2d 891, 897, 874 P.2d 142 (1994). A court may grant summary judgment if the pleadings, affidavits, and depositions establish that there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law. Ruff v. King County, 125 Wn.2d 697, 703, 887 P.2d 886
(1995); see also CR 56(c). Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000).
II. Motion to Amend
Lukin contends the trial court erred when it granted Scott leave to amend his answer. The decision whether to grant or deny leave to amend an answer is reviewed under an abuse of discretion standard. Wilson v. Horsley, 137 Wn.2d 500, 505, 974 P.2d 316 (1999).
The defense of insufficiency of service of process is waived by the party who fails to assert it (1) in a motion under CR 12(g), (2) in a responsive pleading, or (3) in an amendment to that responsive pleading `permitted by rule 15(a) to be made as a matter of course.’ CR 12(h)(1) (italics added); French v. Gabriel, 116 Wn.2d 584, 588, 806 P.2d 1234
(1991); Northwest Administrators v. Roundy, 42 Wn. App. 771, 776, 713 P.2d 1127 (1986); Violante v. White, 26 Wn. App. 391, 392, 612 P.2d 828, review denied, 94 Wn.2d 1011 (1980). By its own terms, CR 12(h)(1) limits amendments adding insufficient service of process to only the first instance under CR 15(a), i.e., those permitted under CR 15(a) as a matter of course.
Because Scott never asserted the defense by motion or in his original answer, the threshold question is whether the amendment was `permitted by rule 15(a) to be made as a matter of course.’ CR 12(h)(1).
This court construes court rules de novo in accord with their purpose `as though they were drafted by the Legislature.’ Nevers v. Fireside, Inc., 133 Wn.2d 804, 809, 947 P.2d 721 (1997) (citation omitted). And this court interprets court rules by reference to rules of statutory construction. State v. Greenwood, 120 Wn.2d 585, 592, 845 P.2d 971 (1993) (citation omitted); Heaney v. Seattle Mun. Ct., 35 Wn. App. 150, 154, 665 P.2d 918 (1983). Court rules must be interpreted so that `no word, clause or sentence is superfluous, void or insignificant.’ State v. Raper, 47 Wn. App. 530, 536, 736 P.2d 680 (1987). When a court rule is unambiguous, the language must be given its plain meaning. State v. Bernhard, 45 Wn. App. 590, 598, 726 P.2d 991 (1986). Court rules are read together to give each effect and harmonize each with the other. See Bour v. Johnson, 122 Wn.2d 829, 835, 864 P.2d 380 (1993).
Under CR 15(a) there are three instances in which a party may amend its pleading: (1) once as a matter of course; (2) by leave of court; and (3) by written consent of the adverse party. Because Scott’s amendment did not fall within the first or third instances, he argues that his actions fall within the second instance, i.e., that the amendment was allowed under CR 15(a) by leave of court.
Scott fails to cite to any authority for the proposition that his CR 12(h) waiver may be excused under the leave provision of CR 15(a). We know of none. The plain language of the court rules leads us to conclude that Scott waived the defense of insufficient service of process under CR 12(h)(1). Thus, we conclude that the trial court abused its discretion when it permitted Scott to amend his answer in contravention of CR 12(h).
III. 42 U.S.C. § 1983
Because Lukin prevails on the first basis for which the trial court granted summary judgment, we now turn to the second issue, whether Lukin provided sufficient evidence that Scott was motivated to initiate the investigation because of Lukin’s public comments about the agency.
A public employee who alleges that he was retaliated against for exercising his First Amendment rights must initially show two things: (1) that `the conduct that triggered the [adverse employment decision] was protected under the First Amendment, and (2) [that] the protected conduct was a substantial or motivating factor in the adverse employment decision.’ Smith v. Bates Technical College, 139 Wn.2d 793, 812, 991 P.2d 1135 (2000).
Assuming without deciding that the First Amendment protected Lukin’s public comments, we conclude that Lukin has failed to show that his speech was a substantial or motivating factor in the decision to initiate an investigation of his alleged misuse of State resources.
Under the second part of the test, the employee must show that the protected speech was a substantial or motivating factor in the adverse employment decision. White v. State, 131 Wn.2d 1, 16, 929 P.2d 396
(1997). Usually this presents an issue of fact. White, 131 Wn.2d at 16. If reasonable minds could reach but one conclusion, however, summary judgment should be granted. White, 131 Wn.2d at 16. Because Scott has denied that the investigation was motivated by Lukin’s public comments on the Commission’s alleged discrimination and was in fact based on evidence that Lukin had misused State resources, Lukin `must set forth specific facts which sufficiently rebut the moving party’s contentions and disclose the existence of a genuine issue as to a material fact.’ White, 131 Wn.2d at 17. The mere fact that the protected speech preceded the investigation is not enough to create an inference that the investigation was retaliatory. See White, 131 Wn.2d at 17.
Even after viewing the evidence in a light most favorable to Lukin, we conclude that Lukin’s evidence is insufficient to create a genuine issue of fact supporting his contention that Scott engaged in a retaliatory investigation because of Lukin’s public comments. We reach that conclusion for several reasons. First, the Commission originally took disciplinary action against Lukin by demoting him before Lukin made public comments concerning the Commission’s alleged discriminatory environment. Moreover, when more evidence surfaced in the form of the invoice that Lukin had misused State resources, Scott cautiously and prudently sought the advice of an assistant attorney general and the Commission’s Board on how he should proceed with Lukin to avoid the appearance of retaliation. The advice they gave to Scott which he followed was that he should initiate an investigation and that the investigator should come from outside the Commission. In addition, Lukin provides no evidence that Scott knew or should have known that other State employees were misusing State resources thereby permitting an inference that Lukin was unfairly targeted because of his public comments. Lastly, there is no evidence that Scott or Sorger engaged in a conspiracy to conduct the investigation in a way that would violate Lukin’s civil rights. In light of these uncontroverted facts, we hold that the trial court properly dismissed the 42 U.S.C. § 1983 action against Scott.
IV. CONCLUSION
The trial court properly granted Scott’s motion for summary judgment. Viewing the evidence in a light most favorable to Lukin, Lukin failed to show that Scott retaliated against him for his public comments on the Commission’s apparent discrimination.
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: HOUGHTON, P.J., BRIDGEWATER, J.