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Washington Guard Fails to Establish Employer Retaliation

Lonnie Earles was a guard at the Washington Corrections Center (WCC) near
the town of Shelton. In 1994 he settled an employment discrimination suit
with the State Department of Corrections (DOC). Over the next several
years Earles was transferred from one position at WCC to another several
times, was denied overtime and other work for medical reasons, and was
reprimanded several times for inappropriate behavior. In 2002 he sued the
DOC and seven of its employees for retaliation, pursuant to RCW § 49.60 et
seq., and for civil rights violations under 42 U.S.C. § 1983. The Thurston
County Superior Court summarily dismissed the case. Earles appealed.

On appeal, Division 2 of the Court of Appeals found that to state a
retaliation claim Earles would have to show that: (1) he was engaged in
statutorily protected conduct; (2) his employer took adverse employment
action against him; and (3) there was a casual link between that conduct
and his employer's adverse action. But Division 2 found Earles' job
transfers, his not getting job assignments for medical reasons, and his
reprimands for misconduct to have been appropriate, and thus not adverse
for purposes of the second prong as stated above. Consequently, the
appeals court dismissed the retaliation claim. Moreover, since the
defendants' actions were appropriate, there couldn't have been a civil
rights violation, so the court also dismissed that claim. See: Earles v.
State of Washington, 125 Wash.App. 1014 (Wash.App. Div. 2, 2005), petition
for review denied, 155 Wash.2d 1008, 122 P.3d 912 (Table) (Wash. 2005).

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Related legal case

Earles v. State of Washington

[U] Earles v. State, Department of Corrections, 125 Wash.App. 1014 (Wash.App.Div.2 01/19/2005)

[1] IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II


[2] No. 30635-2-II


[3] 125 Wash.App. 1014, 20050


[4] January 19, 2005


[5] LONNY J. EARLES, AN INDIVIDUAL, APPELLANT,
v.
STATE OF WASHINGTON, DEPARTMENT OF CORRECTIONS; GARY JONES AND CONNIE JONES, HUSBAND AND WIFE; AND CAROL F. PORTER AND JOHN DOE PORTER, HUSBAND AND WIFE, RESPONDENT.


[6] SOURCE OF APPEAL Appeal from Superior Court of Thurston County Docket No: 02-2-00945-7 Judgment or order under review Date filed: 06/27/2003 Judge signing: Hon. Daniel J Berschauer


[7] Counsel OF Record


[8] Counsel for Appellant(s) Dan Robert Young Attorney at Law 1000 2nd Ave Ste 3310 Seattle, WA 98104-1019


[9] Counsel for Respondent(s) Paul Francis James Attorney Generals Office 629 Woodland Square Loop SE PO Box 40126 Olympia, WA 98504-0126


[10] The opinion of the court was delivered by: Hunt, J.


[11] Concurring: Christine Quinn-Brintnall, David H. Armstrong


[12] UNPUBLISHED OPINION


[13] Lonny Earles appeals the trial court's summary judgment dismissal of his employment retaliation and 42 U.S.C. sec. 1983 action against the Department of Corrections and two employees. Holding that Earles failed to establish an adverse employment action, we affirm.


[14] FACTS


[15] I. Employment History


[16] Lonny Earles is employed as a Lieutenant at the Washington Corrections Center in Shelton (WCC). In 1989, then Sergeant Earles sued the State Department of Corrections (DOC), alleging WCC discriminated against him because of his union activities. In 1994, the parties settled Earles' lawsuit: DOC agreed to pay damages and to promote Earles to lieutenant.


[17] As a result, according to Earles, WCC thereafter retaliated against him (for having filed his 1989 lawsuit) by taking the following actions:


[18] A. Shift Transfers


[19] Shortly after the 1994 lawsuit settlement, WCC Superintendent Kurt Peterson assigned Earles to the graveyard shift, stating he would 'rot on graveyard.' Clerk's Papers (CP) at 386. In February 1996, Superintendent Stanley transferred Earles from the graveyard shift to relief lieutenant, where Earles would no longer receive extra shift pay or holiday pay. In November 1997, Earles was transferred to swing shift. In November 1998, as a result of a personal relationship with a subordinate staff member, Earles was transferred to hearings lieutenant.*fn1


[20] B. Removal from Interview Panel


[21] In August 1999, Gary Jones removed Earles from a panel that interviews and hires new employees. According to Jones, he removed Earles because Earles had not received supervisor approval to be on the panel and he had other regular duties that needed his attention.


[22] C. Medical Approval for Overtime


[23] Two doctors' medical reports said Earles felt very sleepy while driving, had fallen asleep at work, and had a brain stem lesion that had been followed on MRI.*fn2 Jones was aware of these medical problems and had witnessed Earles' fatigue at work. In August 1999, Jones told Earles he would need medical approval for each overtime shift Earles wanted to work.


[24] D. Denial of Training Request


[25] In December 1999, WCC denied Earles' request to attend a $59 four-hour training class, 'Getting Organized Fast.'


[26] E. Discipline


[27] In December 2000, Kevin Waller and Jones issued an Employee Conduct Report ('ECR') to Earles based on a suspected policy violation during an inmate cavity search. Superintendent Moore subsequently dismissed the ECR.


[28] A week later, Waller gave Earles a 'letter of counseling' because Earles had failed to obtain proper authorization for a staff member to take an Electronic Immobilization Device ('EID').*fn3 Later, Waller determined there was considerable confusion regarding the EID use policy, and he removed the letter from Earles' file.*fn4


[29] Several months later, in May 2001, Superintendent Porter sent a memo to Earles noting his inappropriate comments about sick leave usage. Earles had told Sergeant Johnson, a subordinate, that several officers use sick leave as a substitute for annual leave.


[30] The following month, Earles and other officers sexually harassed Officer Martz. In the presence of three subordinate officers, Earles said, 'Look it's Evergreen and their pet stud muffin {referring to Officer Martz}. I defended you as long as I could until they started making sense and I had to turn on you.'*fn5 CP at 254. As shift lieutenant and supervisor, Earles was the highest level of management present, but he failed to prevent or to correct the harassment of Martz. Superintendent Porter issued ECR's to Earles and the other officers. Associate Superintendent Ronald Wineinger assigned Earles to stay at home, with full pay and benefits during the investigation, and ordered him not to talk to any WCC employees.


[31] Superintendent Porter conducted a review hearing and issued Earles a letter of reprimand. Earles kept his position as hearings lieutenant, with no overtime or holiday pay, and WCC required him to attend a three-day class on communication. Earles filed a grievance, for which there was an administrative hearing.*fn6


[32] Earles filed the instant lawsuit against DOC on June 5, 2002. On June 17, 2002, Wineinger issued an ECR to Earles for alleged comments about the sexual orientation of WCC staff and managers. In August 2002, Earles asked Porter to remove the letter of reprimand related to the 'stud muffin' incident. CP 399. Porter stated the letter would remain in Earles' file pending conclusion of the recent disciplinary action (comments about sexual orientation). Bill Mendoza conducted an investigation into the sexual orientation comments, and WCC took no disciplinary action.


[33] Earles notified Porter when the ECR regarding the comments had been dismissed. But Porter did not remove the letter from Earles' personnel file until after she was asked about it in her deposition.


[34] F. Disparate Treatment


[35] After Earles had surgery for a job-related knee injury, his physician recommended that Earles not return to work. When Earles requested permission to return to work, the personnel office told him (1) he could not return as a shift lieutenant because he needed to be fully recovered to respond to emergencies; and (2) instead, he could return to work in the mail room. Later in 2001, when Lieutenant John Cottom broke his arm, his physician approved his return to work, and WCC allowed Cottom to return to work with a cast on his arm.


[36] On another occasion, WCC's superintendent informed Earles in writing that DOC policy did not allow him and his wife to work the same shift and that Earles could not supervise his nephew.*fn7 WCC management tried to change Earles' reporting relationships so he could work shifts with his family members. But as a shift lieutenant, Earles is the highest ranking manager when the regular superintendent is off-site and, therefore, he has to take immediate disciplinary action with subordinates. According to Earles, WCC allowed other employees' relatives to work together in a supervisory relationship,*fn8 but he knows of no other shift lieutenant with a relationship with a subordinate whom WCC did not require to change position in order to avoid the conflict.


[37] Near the end of 2001, Wineinger told Earles to submit a plan explaining how he would respond to a potential disciplinary situation if he were working with a relative. Wineinger rejected Earles' first three plans, but approved the fourth plan. According to Earles, he was the only person WCC required to submit this type of plan. But the record shows that WCC also required Lieutenants Gorszinski, Zachrey, Cottom, and Woods to submit similar plans.


[38] II. Procedure


[39] Earles sued DOC, Carol Porter, Gary Jones, and their spouses. The State/DOC moved for summary judgment, and to strike Earles' declarations. The trial court granted the State's motion to strike in part, and it granted the State's motion for summary judgment. Earles appeals.


[40] ANALYSIS


[41] I. Standard of Review


[42] When reviewing an 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 appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c).


[43] We consider all facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Wilson, 98 Wn.2d at 437. The nonmoving party may not rely on speculation, argumentative assertions that unresolved factual issues remain, or having its affidavits considered at face value. Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986).


[44] After the moving party has submitted adequate affidavits, the burden shifts to the nonmoving party to set forth specific facts sufficiently rebutting the moving party's contentions and disclosing the existence of a material issue of fact. Seven Gables, 106 Wn.2d at 13. We will uphold the ruling granting summary judgment only if, from all the evidence, reasonable persons could reach but one conclusion. Wilson, 98 Wn.2d at 437. The trial court's summary judgment ruling meets this test here.


[45] II. McDonnell Douglas Protocol


[46] In retaliation and discrimination cases, Washington courts apply the protocol the Supreme Court developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), to determine the parties' respective evidentiary burdens. Hill v. BCTI Income Fund-1, 144 Wn.2d 172, 180, 23 P.3d 440 (2001); Hudon v. West Valley School District No. 208, 123 Wn. App. 116, 124, 97 P.3d 39 (2004). Under this protocol, the plaintiff bears the initial burden of establishing a prima facie case of discrimination or retaliation. Hill, 144 Wn.2d at 181; Hudon, 123 Wn. App. at 124. If the plaintiff fails to establish a prima facie case, the defendant is entitled to judgment as a matter of law. Hill, 144 Wn.2d at 181.


[47] If, however, the plaintiff succeeds in establishing a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory explanation for the adverse employment action. Hill, 144 Wn.2d at 181. If the defendant provides such a reason, the burden shifts back to the plaintiff to show the employer's reason is actually a pretext for what, in fact, is a discriminatory purpose. Hill, 144 Wn.2d at 182; Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 364, 753 P.2d 517 (1988). If the plaintiff fails to make this showing, the defendant is entitled to judgment as a matter of law. Hill, 144 Wn.2d at 182.


[48] III. No Retaliation No Adverse Employment Action


[49] 'Washington recognizes a cause of action for retaliation under the law against discrimination, Ch. 49.60 RCW.' Kahn v. Salerno, 90 Wn. App. 110, 128, 951 P.2d 321, review denied, 136 Wn.2d 1016 (1998). To establish a prima facie case of retaliation, a plaintiff must show that (1) he was engaged in statutorily protected activity, (2) his employer took adverse employment action against him, and (3) there is a causal link between the employee's activity and the employer's adverse action. Milligan v. Thompson, 110 Wn. App. 628, 638-39, 42 P.3d 418 (2002). Earles fails to establish a prima facie case of retaliation.


[50] A. Statutorily Protected Activity


[51] In 1989, Earles sued the Department of Corrections for discrimination based on his union activities; the parties settled. Under RCW 49.60.210(1),*fn9 this lawsuit was a protected activity for which an employer cannot retaliate. Thus, Earles has satisfied the first element of his retaliation claim.


[52] B. Adverse Employment Action


[53] He does not, however, satisfy the second element: He fails to establish any legally sufficient, adverse employment action. According to our Supreme Court, discrimination requires 'an actual adverse employment action, such as a demotion or adverse transfer, or a hostile work environment that amounts to an adverse employment action.' Robel v. Roundup Corp., 148 Wn.2d 35, 74 n.14, 59 P.3d 611 (2000). In our recent opinion, Kirby v. City of Tacoma, Wn. App. , 98 P.3d 827 (2004), we cite federal law that further describes the criteria for an adverse employment action: An actionable adverse employment action must involve a change in employment conditions that is more than an 'inconvenience or alteration of job responsibilities,'*fn10 such as reducing an employee's workload and pay. Ray v. Henderson, 217 F.3d 1234, 1243-44 (9th Cir. 2000).


[54] Earles complains about different WCC incidents occurring over the last ten years, but none constitute an adverse employment action. Although WCC management transferred Earles several times between 1994 and the current lawsuit, he always maintained his rank as lieutenant and he never lost pay from his base salary. Earles complains that some of his assignments made him ineligible for overtime pay, but he admits overtime is never guaranteed and management has the ability to determine the shifts that lieutenants work. Thus, loss of overtime pay eligibility is not an adverse employment action.


[55] WCC transferred Earles at least once to prevent him from supervising someone with whom he had started a personal relationship, which would have violated a DOC rule.*fn11 Additionally, management denied some of Earles' overtime requests because of his medical conditions: fatigue, falling asleep at work, and a brain tumor. These actions are not adverse employment actions.


[56] Earles further complains that WCC management disciplined him with a memo, ECR, or letter of reprimand on approximately five occasions since 1994. The record shows that WCC removed at least three of those letters from Earles' personnel file. It appears that there was a legitimate basis for investigating each incident. Thus, these disciplinary actions were not adverse employment actions.


[57] In his remaining claims, Earles asserts that WCC management treated him differently than it treated other employees in similar circumstances. The record, however, either does not support Earles' assertions or shows a legitimate reason for management's actions. For example, Earles claims WCC singled him out by having him write a plan for supervising relatives; but the record shows that WCC made the same requirement of other similarly-ranked supervisors. Earles also asserts that WCC treated him differently than it treated Tauscher while under investigation for wrong-doing, in that WCC allowed Tauscher to work but confined Earles to home on administrative leave with pay. Tauscher, however, could work at WCC without affecting the investigation, whereas Earles could not. See n.6, supra.


[58] Earles has failed to establish any adverse employment action: the second element necessary for a prima facie case of retaliation.


[59] C. Causal Connection Between Protected Activity and Adverse Employment Action


[60] Because Earles has failed to establish an adverse employment action, (1) we do not reach the third retaliation factor whether there is a causal connection between his protected activity and an adverse employment action by DOC; and (2) we hold that the trial court properly dismissed Earles' retaliation claim on summary judgment.


[61] IV. 42 U.S.C. sec. 1983 Claim


[62] Earles' failure to show an adverse employment action similarly defeats his 42 U.S.C. sec. 1983 claim. 42 U.S.C. sec. 1983 provides, in pertinent part:


[63] Every person who . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.


[64] To maintain a sec. 1983 claim, a plaintiff must establish that (1) some person deprived him of a federal constitutional or statutory right; and (2) the person was acting under color of state law. Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 11, 829 P.2d 765, cert. denied, 506 U.S. 1028 (1992). Again, Earles satisfies the one part of the test: Porter and Jones were public employees acting in their official capacities and, therefore, under color of state law. See Morinaga v. Vue, 85 Wn. App. 822, 833, 935 P.2d 637, review denied, 133 Wn.2d 1012 (1997). But Earles fails to establish the first part of the test.


[65] Earles contends that defendants Porter and Jones violated his constitutional rights of access to the courts and freedom of speech. Apparently in connection with this argument, Earles assigned error to the trial court's striking his statement and perception about Porter's demeanor and attitude (that she considered him guilty before a disciplinary hearing). Earles argues his statement was admissible as a 'lay opinion under ER 701.' Br. of Appellant at 14, n.2. We disagree.


[66] We review trial court rulings on motions to strike for abuse of discretion. Tortes v. King County, 119 Wn. App. 1, 12, 84 P.3d 252 (2003), review denied, 151 Wn.2d 1010 (2004). Generally, lay opinion about the state of mind of another person is inadmissible under ER 701. See State v. Farr-Lenzini, 93 Wn. App. 453, 462-63, 970 P.2d 313 (1999) (state trooper's opinion that driver 'knew I was back there and refusing to stop' held inadmissible). We find no abuse of discretion by the trial court in striking Earles' statement describing his perception of Porter's state of mind. Even considering the evidence in the light most favorable to Earles, he has failed to show that Porter and Jones interfered with his constitutional rights.


[67] In having failed to show an adverse employment action, Earles has also failed to produce evidence of WCC retaliation for his lawsuit. Nor has Earles shown that Porter and Jones violated his freedom of speech or otherwise deprived him of his constitutional rights.


[68] We hold, therefore, that the trial court properly dismissed Earles' 42 U.S.C. sec. 1983 claim on summary judgment.


[69] V. Attorney Fees


[70] RAP 18.1 authorizes an award of attorney fees if applicable law grants a party the right to recover such fees. This provision is applicable on appeal. See Chatterton v. Bus. Valuation Research, Inc., 90 Wn. App. 150, 157, 951 P.2d 353 (1998).


[71] Earles requests attorney fees under RCW 49.60.030(2). RCW 49.60.030(2) provides that any party injured by a violation of Chapter 49.60 RCW may recover reasonable attorney fees and costs. But because Earles failed to establish such a violation, he is not entitled to attorney fees.


[72] Affirmed.


[73] 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.


[74] Hunt, J.


[75] We concur:


[76] Armstrong, J.


[77] Quinn-Brintnall, C.J.



--------------------------------------------------------------------------------

Opinion Footnotes

--------------------------------------------------------------------------------

[78] *fn1 Earles admits it was management's function to determine what shifts the lieutenants would work and that there was no guarantee of overtime pay.


[79] *fn2 Earles, however, claimed he did not have medical problems, had never fallen asleep at work, and never told management he had a brain tumor.


[80] *fn3 This 'letter of counseling' was a one-page memorandum, which stated, '{I}t is your responsibility to ensure that policies and procedures are followed. You failed to ensure that WCC F.I. 410.210 EID was followed.' This letter of counseling was to be placed in Earles' personnel file for one year. CP at 434.


[81] *fn4 Earles complains that WCC did not similarly investigate or discipline Lieutenant Rothrock, who had reportedly authorized staff to use the EID without specific permission.


[82] *fn5 After this incident, Officer Martz transferred to another work location and filed a complaint with the Human Rights Commission.


[83] *fn6 Earles claims the administration did not similarly assign Captain Tauscher to his home pending investigation of allegations that he had touched a female receptionist in the groin while reaching for a piece of candy in her lap. Tauscher was told not to have contact with the female receptionist. He could perform his duties without contacting her. Earles, however, could not have performed his duties without contacting the other officers involved with the sexual harassment investigation.


[84] *fn7 The (DOC) has a general policy prohibiting relatives from supervising relatives, but it does not strictly prohibit occasional, direct supervision of relatives. DOC policy 816.010 provides: Acting/temporary appointments or assignments of less than 30 days are not precluded by this policy when there is no expectation of decisions affecting hiring, promoting, work assignment evaluations, corrective/disciplinary action or any other activity that could be seen as exercising favoritism. CP at 77.


[85] *fn8 Earles does not provide specific facts about how long the relatives worked together and whether they violated DOC policy 816.010. The record indicates that several of his cited examples did not violate DOC policy 816.010 because WCC management changed the chain of command to avoid employees reporting directly to their relatives.


[86] *fn9 RCW 49.60.210(1) provides: It is an unfair practice for any employer . . . to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter.


[87] *fn10 DeGuiseppe v. Vill. of Bellwood, 68 F.3d 187, 192 (7th Cir. 1995) (quoting Crady v. Liberty Nat'l Bank & Trust Co. of Indiana, 993 F.2d 132 (7th Cir. 1993)) (emphasis added).


[88] *fn11 Under Department Policy 816.010, Paragraph 1a, 'supervisor/subordinate relationships cannot be in the same chain of command.' CP at 418.