STATE v. BULLIS, 48164-9-I (Wash.App. 1-14-2002)

No. 48164-9-I.The Court of Appeals of Washington, Division One.
Filed: January 14, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of King County, No. 99-2-17282-5, Hon. Linda Lau, February 12, 2001, Judgment or order under review.

Counsel for Appellant(s), Mitchell A. Riese, Attorney At Law, 753 N 35th Suite 102, Seattle, WA 98103.

Counsel for Respondent(s), Paul J. Triesch, Attorney General’s Office, 900 4th Ave Ste 2200, Seattle, WA 98164-1012.

Catherine Hendricks, Torts Division Atty Generals Office, Assistant Attorney Gen, 900 4th Ave Ste 2000, Seattle, WA 98164.

RONALD E. COX, J.

Larry Bullis sued Shoreline Community College (SCC) for retaliatory termination in violation of the Whistleblower Act, RCW 42.40.050. At issue on appeal is whether the trial court erred in summarily dismissing his action.

We hold that Bullis established a prima facie case of retaliation, and that there are genuine issues of material fact for trial. We reverse.

SCC hired Bullis in 1991 as an instructional technician in its photography lab. He was to assist a faculty member, Christopher Simons.

In April 1994, Simons led students on an Art Force Student Club camping trip. Upon their return, Simons learned that a former student had been killed while taking photographs in Bosnia. Simons suggested to members of the Art Force Student Club that they sign paperwork falsely claiming that they attended the camping trip so that the club’s allocated funds could be donated to the deceased student’s memorial fund. At least four students and one former student made false claims.

A student who knew that the camping trip expenses were falsified expressed concern to Bullis that Simons misappropriated college funds. About a year later, Bullis submitted written complaints on the matter, first to the Attorney General’s Office, and then to SCC.

The state Auditor’s Office conducted an investigation, and concluded that Simons misappropriated public funds. SCC ordered him to repay the funds plus the expenses of the investigation. SCC also placed Simons on probation, barred him from acting as a student club advisor, and compelled him to attend an ethics class for state employees.

Bullis claims that Simons learned he filed a whistleblower complaint, and that Simons started treating him poorly. Bullis contacted SCC officials to alert them to his deteriorating relationship with Simons, which Bullis felt was retaliatory.

In December 1995, a SCC official notified Bullis that he was reassigned to work from home. Louise Douglas stated that SCC needed to review the worsening situation. In response to his request to be reassigned, SCC later offered Bullis a lateral transfer into a position in its Public Information Office (PIO). He accepted, and transferred to that office in January 1996.

Bullis now claims that he quickly realized after his transfer that he had no meaningful work there. He also contends that he was treated differently than other employees in that office.

In May 1996, SCC notified Bullis that his position would be eliminated in June due to lack of funds. It was.

In July 1999, Bullis commenced this action. The State moved for summary judgment, and also moved to strike portions of Bullis’ evidence that he submitted in opposition to the motion. The trial court denied the latter motion and granted the former. The court assessed costs in favor of the State in a separate judgment.

Bullis appeals the summary judgment order and the judgment for costs.

Prima Facie Case
Bullis contends that he established a prima facie case of retaliatory actions by SCC. Because he provided evidence that he participated in a protected activity, SCC had knowledge of such activity, and SCC arguably retaliated, we agree.

We may affirm an order granting summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.[1] We consider all facts and reasonable inferences in the light most favorable to the nonmoving party.[2] We review questions of law de novo.[3] The moving party bears the initial burden of showing the absence of a genuine issue of material fact.[4] A defendant may meet that burden by demonstrating that the claimant has failed to establish an essential element of his or her claim.[5] Once met, the burden shifts to the party with the burden of proof at trial to make a showing sufficient to establish the existence of an element essential to that party’s case.[6] If the claimant fails to meet that burden, the trial court should grant the motion because there can be no genuine issue of material fact given that a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.[7]

A threshold issue here arises from the State’s contention that we should strike certain evidence that Bullis submitted below in opposition to the summary judgment motion. There, the State argued that this evidence was inadmissible and moved to strike it. The trial court judge denied the motion and included that ruling in the summary judgment order.

In Smoke v. City of Seattle,[8] we noted that `[a] judgment is composed of distinct parts, each requiring a cross-appeal if the respondent, successful on one part, seeks reversal of some other part. For example, a plaintiff/respondent who recovers damages, but is not awarded prejudgment interest, must file a notice of cross-appeal to assure review of the order denying prejudgment interest.’[9] Relying on the principle of that case, Bullis argues that we should decline to review the evidentiary ruling below, because the State failed to cross-appeal that part of the court’s summary judgment order.

We conclude that it is unnecessary to decide that question. This is so because, in any event, the trial court’s evidentiary ruling was correct. On appeal, the State first argues, without explanation, that Bullis’ declaration, in which he said he was denied meaningful work, contradicts his deposition testimony, in which he discussed his job duties. Based on McCormick v. Lake Washington School Dist.,[10] the State argues that contradictory testimony cannot create a genuine issue of material fact. While this statement of the rule is correct, the State fails to properly apply it. The decision states: `the above rule [is] inapplicable where the subsequent sworn testimony was not in `flat contradiction’ to previous testimony.’[11] Because the State fails to adequately show that the declaration flatly contradicted Bullis’ deposition testimony, this argument fails.

Second, the State also argues that the evidence of SCC’s budget that Bullis offered in opposition to the motion is inadmissible because it is not properly authenticated.[12] But publications `purporting to be issued by public authority’ are self-authenticating under ER 902(e). The 1995-1996 and 1996-1997 expenditure sheets Bullis submitted as evidence are from the Washington State Board for Community and Technical Colleges’ website, and are listed as publications under `Academic Year Reports.’[13] They are self-authenticating, and the trial court properly considered them.

Moving to the main issue — whether Bullis established a prima facie case of retaliation — we hold that he did. Bullis makes two arguments in support of his claim. He first contends that amendments to RCW 42.40.050
should be retroactively applied as a remedial measure to avoid summary judgment here. Alternatively, he argues under our jurisprudence dealing with RCW 49.60 that he has established a prima facie case. We agree with the second argument and need not address the first. To establish a prima facie retaliation claim, an employee must demonstrate:

(1) that the employee engaged in statutorily protected activity;
(2) that an adverse employment action was taken against the employee; and
(3) that retaliation was a substantial factor in the adverse action.[14]

But an employee may still be terminated for proper cause even when engaged in a protected activity.[15]

The first two elements are not substantially at issue here. Bullis had been engaged in a protected activity, the reporting of misappropriation of government funds. And the claims of adverse employment action are arguable: the transfer of jobs, allegedly for improper purposes; the claim of lack of meaningful work; and the termination of employment. Thus, our focus is primarily on the third element.

To establish that element, an employee must show that retaliation was a substantial factor motivating the adverse employment situation.[16]
Circumstantial evidence is admissible to establish the employer’s motivations for this element, because “the employer is not apt to announce retaliation as his motive.”[17] If the employee establishes that he participated in an opposition activity, the employer knew of that activity, and he was discharged, then a rebuttable presumption is created in favor of the employee that precludes dismissal of the employee’s case at this juncture.[18]

In Kahn v. Salerno, a former employee contended that she had been fired based on her complaints of sexual harassment in violation of RCW 49.60.[19] This court held that since the employer had actual knowledge of the abuse, and Kahn was discharged, that she met the third element and established a prima facie case.[20] Here, Bullis has established the third element. SCC knew of his whistleblowing activities, and arguably adverse employment activity followed. RCW 42.40.050(1)(j) establishes dismissal as one of the actions against a whistleblower creating a rebuttable presumption of retaliation under RCW 42.40.050(2). Moreover, it is arguable that the transfer and the claimed lack of meaningful work following his arranged transfer to the PIO office created issues as to the third element.

The State responds that Bullis did not establish a prima facie case. It argues that he fails to create a genuine issue of material fact on whether it provided him meaningful work. Based on a claimed, but unexplained, variance between Bullis’ deposition testimony and his declaration opposing summary judgment, the State claims that any change in work assignment was not `materially significant.’ Citing a Title VII case, Crady v. Liberty Nat. Bank and Trust Co. of Indiana,[21] the State contends Bullis cannot now claim retaliation. It asserts that mere inconvenience or alteration of job duties does not show a prima facie retaliation case.[22] The State’s argument is unpersuasive. Federal discrimination law does not govern this dispute.[23] Rather, Bullis’ claim is controlled by Washington’s whistleblower statute that lists the types of employment actions constituting retaliation under RCW 42.40.050(1).

Bullis creates genuine issues of material fact that his new assignment did not provide meaningful work. Our statute lists lack of meaningful work as a type of retaliation, under RCW 42.40.050(1)(d). Bullis presents evidence that SCC did not assign him enough work to substantially occupy his time. Bullis argues that when SCC removed him from the college homepage project, it took away a large portion of the work it assigned him prior to his transfer. Further, Bullis reports a conversation in which his new supervisor expressed frustration with him, because she did not know what he was doing in PIO and that he did not seem to do anything. In addition, Mariko Kakiuchi, Director of College Communications and Public Information, said that the work assigned to Bullis was not sufficient to occupy him full time. Viewing this evidence in the light most favorable to Bullis, there is a genuine issue of material fact as to this type of retaliation.

We conclude that Bullis established a prima facie case, because he was engaging in a protected activity, his employer knew of this activity, and he was subject to retaliatory action under RCW 42.40.050(1)(d) and (j).

The State maintains that it presented sufficient evidence that SCC had a non-retaliatory reason for Bullis’ termination. We disagree.

Washington applies the shifting burden formula that allocates the burdens of production to both parties in a claim of retaliation or discrimination.[24] The employer can rebut an employee’s prima facie case by advancing a legitimate non-retaliatory justification for the termination.[25] A directed verdict for the employee may result if the employer fails to produce any evidence of non-retaliatory motivation for the discharge.[26] If the employer fulfills its burden of production, the burden shifts back to the plaintiff, who must show that the employer’s articulated reason is a pretext for discriminatory motives.[27] To create a pretext issue, the plaintiff must present evidence that the articulated reason for the discharge was unworthy of belief.[28]
If the plaintiff fails to make this showing, the defendant is entitled to judgment as a matter of law.[29] The burden of persuasion remains at all times with the employee.[30]

Our Supreme Court affirmed summary judgment for the employer on these grounds in Grimwood v. University of Puget Sound, Inc.[31] The employer provided evidence that the complaining employee’s termination was a legitimate decision, based on his continued poor performance.[32] The court held that plaintiff failed to meet his burden to create a genuine issue of fact that his employer’s reasons for the termination were a pretext for discriminatory action.[33]

Bullis argues that he presented sufficient evidence that SCC’s justification was unbelievable and thereby created a genuine issue of material fact that his termination was retaliatory. We agree.

The State advances the justification that SCC eliminated Bullis’ position due to lack of funds. The record supports this assertion, but only to an extent. The State provides an explanation that Bullis’ assertion that SCC’s budget increased during the fiscal period in which he was terminated was incorrect. Based on a declaration from Keith LaBelle, Vice President for Business and Administrative Officer for Human Resources, the State argues that while SCC’s budget increased in gross those increases were dedicated funds. Further, LaBelle stated that SCC’s general fund budget reflected a 2% cut during the 1995-1997 biennium. However, the State fails to fully rebut the presumption of retaliation created by Bullis’ prima facie case. This is so because the State fails to present a justification for Bullis’ contention that he was the only employee terminated due to lack of funds since June 1996. At oral argument, the State conceded this point, but offered no justification for it. Thus, Bullis creates a pretext issue by presenting evidence that SCC’s articulated reason for discharge was unworthy of belief.[34]

We also note that the State does not offer a justification to rebut Bullis’ lack of meaningful work claim. Under RCW 42.40.050(d), lack of meaningful work creates independent grounds for an employee’s claim of retaliation. Bullis demonstrates that there are genuine issues of material fact regarding SCC’s justification for his termination and for the lack of meaningful work. Because he makes this showing, we conclude that SCC is not entitled to judgment as a matter of law.[35]

Costs
Bullis appeals the judgment awarding the State costs and fees. But he fails to brief this issue.[36] Nonetheless, based on our reversal of the summary judgment order, we must also vacate the award of costs and fees.

We reverse the summary judgment and vacate the judgment for costs and fees.

WE CONCUR: COLEMAN, J., APPELWICK, J.