No. 24213-7-III.The Court of Appeals of Washington, Division Three.
May 2, 2006.
Appeal from a judgment of the Superior Court for Spokane County, No. 04-2-02927-3, Jerome J. Leveque, J., entered May 20, 2005.
Affirmed by unpublished opinion per Kato, J., concurred in by Schultheis, A.C.J., and Thompson, J. Pro Tem.
Counsel for Appellant(s), Shaunna H. Gutina, Staeheli Gutina, 301 W Indiana Ave, Spokane, WA 99205-4700.
Gregory George Staeheli, Staeheli Gutina, 301 W Indiana Ave, Spokane, WA 99205-4700.
Counsel for Respondent(s), Louis III Rukavina, Louis Rukavina PS, 421 W Riverside Ave Ste 1015, Spokane, WA 99201-0402.
KATO, J.
Luis Vega sued Pre-Vocational Training Center (PVTC), his former employer, for wrongful termination in violation of public policy. The court granted summary judgment dismissal of his complaint. We affirm.
PVTC, a non-profit organization whose mission is to provide training and employment to developmentally disabled adults, is licensed through the State of Washington Department of Social and Health Services, Division of Developmental Disabilities (DDD). PVTC contracted with the Spokane County Community Services Division (County) to assist disabled persons. Contract provisions required PVTC to obtain criminal background checks on any employee who might have unsupervised access to disabled persons or vulnerable adults, pursuant to DDD policy.
On July 8, 1999, Mr. Vega was hired by PVTC as a maintenance worker. During the employment process, he informed PVTC of a prior conviction for first degree armed robbery. Following his release from prison, Mr. Vega held several jobs. Satisfied with his work references and comfortable the armed robbery was an event of the distant past, PVTC offered him the maintenance position.
On May 30, 2002, the County received a letter from DDD outlining a revised background check process. On June 12, the County forwarded the letter to PVTC. In July, the County performed an audit of PVTC, which revealed that not all of PVTC’s employees had current background clearance forms in their personnel files. The County then advised PVTC to obtain current background checks for those not on file at the time of the audit.
Around the time of the Spokane County audit, PVTC contacted a lawyer about employees with criminal backgrounds and inquired whether it was obligated to terminate their employment. The attorney’s August 5, 2002 letter refers to an unnamed employee believed to have an armed robbery conviction. The letter cites Washington statutes and administrative codes requiring employers to terminate employees with certain criminal backgrounds. The letter also recommended that PVTC confirm the armed robbery was classified as either first or second degree before terminating the employee.
In his affidavit, the attorney confirmed Mr. Vega was the employee who, in his opinion, could not be retained based on state law and the County contract. The attorney also described PVTC Executive Director Valerie Olson’s reluctance to terminate Mr. Vega based on his good employment record. The attorney reiterated to Ms. Olson that PVTC was subject to civil liability for negligent hiring if a problem arose with Mr. Vega.
On August 15, Mr. Vega submitted a background authorization form in which he disclosed his first degree robbery conviction. On August 26, following the criminal background check, the Department of Social and Health Services (DSHS) issued a `letter of record,’ notifying PVTC that Mr. Vega had a non-disqualifying crime on record, but PVTC had to determine whether he was suitable for unsupervised contact with vulnerable persons. Clerk’s Papers (CP) at 66.
On August 29, PVTC submitted a report to the County that Mr. Vega’s background check was returned with a letter stating he had a criminal record, but his record was not disqualifying. According to the County, under DSHS and County procedure, it was then up to the agency to decide whether the employee was suitable to have unsupervised access to vulnerable adults. If an employee had received a letter noting a disqualifying background, a plan outlining how the employee would be kept from having unsupervised access would need County approval. At this point, Mr. Vega was classified as only having a record. There was thus no requirement for a plan to be approved.
In October, PVTC implemented an internal policy relating to the criminal background checks of its employees. The policy described the outcomes of these background checks, PVTC’s decisions as to hiring and retention of persons with past criminal history, and cited relevant Washington statutes and administrative code sections pertaining to employees with unsupervised access to vulnerable persons. The policy specified that `PVTC shall not engage or hire someone with disqualifying information.’ CP at 71. The policy also stated applicants with non-disqualifying criminal records may be subjected to a discretionary assessment of their background and allowed PVTC to `assess each applicant on a case-by-case basis.’ CP at 71.
On December 5, DSHS sent a second criminal background check letter for Mr. Vega, this time classifying him as having `disqualifying information.’ CP at 75. PVTC then informed Mr. Vega of the change in his DSHS background check status and terminated his employment.
On June 30, 2004, Mr. Vega sued PVTC for wrongful termination in violation of public policy. He alleged in his complaint that his termination was retaliation for the actions of Maggie Vega, his ex-wife and now live-in girlfriend, while she was employed by PVTC. Ms. Vega was employed between August 28, 1995, and November 19, 2002, as a payroll benefits specialist. She stopped working at PVTC as a result of a work-related injury.
During her employment, Ms. Vega had been asked to monitor several employees at PVTC and to report any misuse of company funds to Cynthia Dillon, PVTC’s new controller. The company’s previous controller was prosecuted for embezzlement and Ms. Vega had provided information in that case. According to Ms. Vega, the former controller had asked her to monitor the use of funds by Executive Director Valerie Olson.
In March 2002, Ms. Dillon also asked Ms. Vega to monitor Ms.
Olson’s use of company checks and credit accounts. Ms. Vega told Mr. Vega about the inquiry into Ms. Olson’s use of company funds. Mr. Vega told her he saw Ms. Olson manually writing company checks rather than computer-generated checks. Ms. Vega reported this to Ms. Dillon, but did not mention Mr. Vega as the source of her information. In June 2002, Ms. Dillon warned Ms. Vega of Ms. Olson’s intention to reprimand her for breach of confidentiality and rumor-mongering. On November 19, 2002, Mr. and Ms. Vega were approached by Ms. Olson, Ms. Dillon, and another company official and accused of disclosing confidential information and spreading rumors. According to Mr. Vega’s complaint, both he and Ms. Vega were called `company problems’ that PVTC needed to `get rid of,’ and that they should watch their backs. CP at 109.
The court dismissed Mr. Vega’s lawsuit on summary judgment. This appeal follows.
The issue is whether the trial court properly granted summary judgment dismissal. When reviewing the trial court’s order of summary judgment, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is proper only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). We must view all the facts and all reasonable inferences from them in a light most favorable to the nonmoving party. Wilson, 98 Wn.2d at 437.
An indefinite employment contract is generally terminable at will by the employer. Roberts v. Dudley, 140 Wn.2d 58, 63, 993 P.2d 901 (2000). An employer can discharge an at-will employee for “no cause, good cause or even cause morally wrong without fear of liability.” Ford v. Trendwest Resorts, Inc., 146 Wn.2d 146, 152, 43 P.3d 1223 (2002) (quoting Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 226, 685 P.2d 1081 (1984)). To demonstrate the at-will employment was modified by policies, a terminated employee must establish that the policy terms were modified according to the law of contract. Kuest v. Regent Assisted Living, Inc., 111 Wn. App. 36, 50-51, 43 P.3d 23 (2002), review denied, 149 Wn.2d 1023 (2003). To establish a modification to the traditional at-will employment scenario, the employee must provide factual evidence of an offer, acceptance, and consideration. Id.
While Mr. Vega argues there was a contract between him and PVTC forbidding unsupervised contact with vulnerable persons, no such document appears in the record. At no point is it alleged that Mr. Vega broke company policy by having unsupervised contact. Without more, there is no showing of a genuine issue of material fact as to Mr. Vega’s status as an at-will employee, who could be terminated at PVTC’s discretion.
Courts, however, have recognized an exception to the at-will rule in the form of a common law claim in tort for wrongful discharge of an employee when the discharge `violates a clear mandate of public policy.’ Thompson, 102 Wn.2d at 232. Public policy wrongful discharge torts are based on four elements: (1) The plaintiffs must prove the existence of a clear public policy; (2) the plaintiffs must prove that discouraging the conduct in which they engaged would jeopardize the public policy; (3) the plaintiffs must prove that the public-policy-linked conduct caused the dismissal; and (4) the defendant must not be able to offer an overriding justification for the dismissal. Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 941, 913 P.2d 377 (1996).
Summary judgment review in an employment case involves a series of shifting burdens. Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 185-87, 23 P.3d 440 (2001). In a wrongful termination case, the employee bears the initial burden `of proving his dismissal violates a clear mandate of public policy.’ Wilmot v. Kaiser Aluminum Chem. Corp., 118 Wn.2d 46, 67, 821 P.2d 18 (1991) (citing Thompson, 102 Wn.2d at 232-33). In order to meet this burden, the employee must plead and prove a public policy may have been violated and the discharge may have been motivated by reasons contravening that public policy. Id. We must determine whether Mr. Vega met his initial burden.
Mr. Vega cites prevention and reporting of theft as the clear mandate of public policy. His suit alleges that both he and his former wife witnessed unauthorized use of PVTC funds by a company executive and Ms. Vega reported it to another supervisor. As to the second element, Mr. Vega claims both he and Ms. Vega were threatened with termination for reporting the misuse of funds, so the public policy of theft deterrence was jeopardized. Mr. Vega maintains his termination was retaliatory and caused by his involvement in Ms. Vega’s reporting the misuse of funds. He has met his initial burden.
Once the employee demonstrates his termination may have been motivated by reasons contrary to public policy, `the burden shifts to the employer to prove that the dismissal was for reasons other than those alleged by the employee.’ Wilmot, 118 Wn.2d at 67-68. The employer must identify a legitimate reason for the termination. Id. at 68. At this point, the employer’s burden is not one of persuasion, but of production. Id.
PVTC denied Mr. Vega’s termination was retaliatory and presented evidence his termination was justified for several reasons. PVTC presented documentation of a change in company policy in October 2002, based on the guidance of legal counsel interpreting Washington law. PVTC provided letters detailing its contract with the County as to at-risk employees and also the December 5, 2002 letter from DSHS classifying Mr. Vega as having a disqualifying criminal background. PVTC has met its burden to produce a legitimate basis for Mr. Vega’s termination. The burden then shifts back to Mr. Vega to disclaim the employer’s stated reasons.
In order to create a genuine issue of material fact to survive summary judgment, the plaintiff must meet the ultimate burden of persuasion by showing “that the employer’s articulated reasons are a mere pretext for what, in fact, is a discriminatory purpose.” Wilmot, 118 Wn.2d at 68
(quoting Baldwin v. Sisters of Providence in Wash., Inc., 112 Wn.2d 127, 136, 769 P.2d 298 (1989)). Although the Baldwin case was a statutory discrimination case, the Wilmot court extended this burden-shifting standard to cases involving wrongful termination torts. Wilmot, 112 Wn.2d at 68.
Mr. Vega presented affidavits outlining a series of events between Ms. Vega and her supervisor regarding the misuse of PVTC’s funds that culminated with the Vegas being threatened in November 2002 with termination for their involvement in the theft reports. PVTC, on the other hand, offered its company policy adopted in October 2002 requiring it to discharge any employee whose background check yielded a disqualifying criminal record. The December disqualifying letter on Mr. Vega was issued by DSHS, an independent state agency charged with conducting criminal background checks. Mr. Vega was not terminated until after the policy was adopted and the DSHS letter issued.
Timing is key in evaluating Mr. Vega’s claim. PVTC was placed on notice by DDD of the change in background check procedure in May 2002. The County performed an audit and required PVTC to obtain new background checks on several employees. Shortly thereafter, PVTC consulted an attorney who recommended that the company discharge any person with disqualifying criminal history so as to avoid civil liability in the event of an incident. Mr. Vega’s `letter of record’ was received in August. PVTC exercised its discretion and opted to retain him. The company policy enacted in October 2002 established that employees with disqualifying information would be summarily discharged. DSHS issued a disqualifying information letter regarding Mr. Vega in December 2002. These facts indicate the policy to discharge `disqualified’ persons was made prior to and independently of the alleged November threats to Mr. and Ms. Vega that allegedly led to their retaliatory discharge. Reasonable minds could not differ on this record that Mr. Vega has failed to show PVTC’s reason for terminating him was mere pretext for a discriminatory purpose. See Ellis v. City of Seattle, 142 Wn.2d 450, 458, 13 P.3d 1065 (2000). There is no genuine issue of material fact necessitating trial. The court properly granted summary judgment dismissal.
Mr. Vega’s request for costs on appeal is denied.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, A.C.J. and THOMPSON, J. PRO TEM., concur.
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