[U] Morse v. Washington State Dep't of Corrections, 129 Wash.App. 1015 (Wash.App.Div.1 09/06/2005)

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


[2] No. 55268-6-I


[3] 129 Wash.App. 1015, 2005.WA


[4] September 6, 2005


[5] JAYNE K. MORSE, APPELLANT,
v.
WASHINGTON STATE DEPARTMENT OF CORRECTIONS; AND JOSEPH D. LEHMAN, SECRETARY OF CORRECTIONS, KAREN DAHLBECK, PAUL ROOT, AND LESLIE R. RYDER, JR., IN THEIR OFFICIAL AND INDIVIDUAL CAPACITIES, RESPONDENT.


[6] SOURCE OF APPEAL Appeal from Superior Court of Snohomish County Docket No: 03-2-06009-5 Judgment or order under review Date filed: 11/02/2004 Judge signing: Hon. Richard J Thorpe.


[7] Counsel OF Record


[8] Counsel for Appellant(s) Cristobal Joshua Alex MacDonald Hoague & Bayless 705 2nd Ave Ste 1500 Seattle, WA 98104-1745


[9] Katrin E. Frank Mac Donald Hoague & Bayless 705 2nd Ave Ste 1500 Seattle, WA 98104-1745


[10] Counsel for Respondent(s) Paul J. Triesch Attorney General's Ofc 900 4th Ave Ste 2200 Seattle, WA 98164-1076


[11] The opinion of the court was delivered by: Schindler, J.


[12] JUDGES Concurring: C. Kenneth Grosse Ronald Cox


[13] UNPUBLISHED OPINION


[14] Shortly after Jayne Morse and other Monroe Correctional Complex (MCC) employees delivered a 'letter of concern' to MCC management, Morse was terminated from her position as an intermittent nurse. Morse appeals the trial court's order granting MCC's motion for summary judgment on her claims for retaliatory discharge in violation of the First Amendment and wrongful termination in violation of public policy. Morse contends there are genuine issues of material fact that preclude summary judgment. We agree and reverse.


[15] FACTS


[16] Because this is an appeal of a dismissal on summary judgment, the facts are presented in the light most favorable to Morse, the nonmoving party. See Right-Price Recreation, LLC v. Connells Prairie Com. Council, 146 Wn.2d 370, 381, 46 P.3d 789 (2002).


[17] Jayne Morse worked at MCC as a Licensed Practical Nurse (LPN) from 1992 until she was formally terminated on March 24, 2000. In May 1999, Morse resigned from her position as a permanent LPN and became an 'intermittent' employee.*fn1 As an intermittent nurse, Morse could work each month on available shifts and was expected to work when a nurse called in sick or did not want to work a double shift. Intermittent nurses are not required to work any specific number of hours each month. Since 1999, Morse has worked an average of 77 hours per month as an intermittent nurse.


[18] In January 2000, Morse expressed concerns to her supervisor, Karen Dahlbeck, about working with full-time registered nurse (RN) Joey Bernstein.


[19] I am so afraid of working with Joey that I seriously contemplated calling in the next scheduled day. I worry that I will be 'set up by her' or that she may go as far as messing with my medications. In part I accept that we have a personality conflict and I have made every attempt to not let that cloud my perception or create more fear for myself. It is difficult to work with someone that you have no trust of and are in fear of. After our conversation I was relieved to know you listened and that you validated my emotions. Thank you. When I learned that she had told you I refused to take a patient it further confirmed my fear. I have taken my name of {sic} the sign up sheet do {sic} to the fact she signed up for the days I usually try to work. Sunday and Tuesday. I can not work while I am so afraid, it is not safe for myself or for my patients. I will try to reschedule myself for times that I would not be forced to work with her. If you can otherwise accommodate this situation let me know and I will try to pick up some more time.*fn2


[20] On January 27, February 6 and February 27, Morse submitted other written complaints to Dahlbeck. Morse alleged Bernstein altered an inmate's medical chart, made an error in counting narcotic medications, and had an improper conversation with an inmate in which she criticized Morse. On March 4, Morse and other MCC employees met to discuss Bernstein and the unsafe work environment caused by her failure to follow proper procedures. The employees wrote a five-page 'letter of concern' (Letter of Concern) describing more than twenty-five times when Bernstein violated Department of Corrections (DOC) policies or procedures including inappropriate contact with inmates, giving some inmates special treatment with respect to meals, bringing inmates items including movies and magazines, failing to crush narcotic pills, administering medication without an order and altering medical charts.*fn3 According to the Letter of Concern, nearly all of the incidents had been reported to Dahlbeck or MCC staff. Copies of the complaints submitted by Morse and other MCC employees regarding Bernstein were attached to the Letter of Concern. The Letter of Concern concludes, The continued allowance of favored and special treatment of the inmates by RN Bernstein results in hostility and disregard towards other medical staff that are following policy and rules.


[21] The continued allowance of bringing in special treats and favors for the inmates is a violation with serious consequence. That it continues with management's being aware is a serious violation and breech {sic} in what the Dept. of Corrections stands for.


[22] The question is not who reports it, in what time frame, but that it happens repeatedly with management being aware. The facts enclosed can be verified, although it is believed that Karen Dahlbeck RN3 has destroyed by shredding the majority of documents filed with her regarding RN Bernstein.*fn4


[23] The letter listed the names of eighteen employees, including Morse, who could be contacted to verify the concerns outlined. On March 5, Morse gave the Letter of Concern to Sergeant Brian Ferguson and asked him to forward it up through the chain of command. At some point shortly thereafter, MCC Health Care Manager Paul Root received the Letter of Concern. In a subsequent meeting, Root provided the Letter of Concern to Dahlbeck and others.


[24] On March 17, Dahlbeck called Morse and left a message telling her not to come in to work as scheduled that weekend. On March 22, Morse received a letter from MCC Superintendent Leslie Ryder (signed by acting-superintendent Willie Daigle) terminating her employment effective March 24.


[25] The MCC human resources consultant, Dat Nguyen, told Morse she was terminated due to her unavailability. Morse provided information to Daigle, custody officer Captain Evans, DOC Secretary Joseph D. Lehman and Ryder showing that she worked more shifts than other intermittent nurses and that she offered to work at least nine shifts in April. When Morse met with Root about her termination, Root told her it was a 'bean counter' issue, she had not worked enough hours and shifts, and all the intermittent nurses were going to be terminated.


[26] Morse contacted Sam Grant, a supervisor of Twin Rivers at MCC. Morse said she was available to work and wanted to know if there were any positions available. Grant said, 'From what I knew of Jayne and my experiences with her, I thought she was a great employee and I would have hired her for any position, full-time or part-time.'*fn5 Grant had positions available and told Morse he wanted to hire her as an intermittent nurse, but he had to get permission from Root. Root refused to let Grant hire Morse. Root told Grant that Morse was '?not acceptable to work on the hill anymore.'*fn6 Morse filed a lawsuit against DOC and Lehman, and Ryder, Root and Dahlbeck in their official and individual capacities. Morse alleged retaliatory discharge under 42 U.S.C. sec. 1983 based on violation of the First Amendment and wrongful discharge in violation of public policy. Morse dismissed her claims against DOC and Lehman and against Ryder, Root and Dahlbeck in their official capacities, leaving only her claims against Ryder, Root and Dahlbeck in their individual capacities. Ryder, Root and Dahlbeck (the Supervisors) filed a motion for summary judgment. The trial court granted the motion for summary judgment and dismissed Morse's lawsuit. Morse appeals.


[27] ANALYSIS


[28] I. First Amendment Retaliatory Discharge


[29] Morse contends the trial court erred in dismissing her retaliatory discharge claim on summary judgment because her speech was constitutionally protected and there are genuine issues of material fact regarding whether her protected speech was a substantial or motivating factor in the decision to terminate her employment at MCC. The Civil Rights Act of 1871, 42 U.S.C. sec. 1983, provides a cause of action for damages against any person who, under color of law, subjects another to the deprivation of any right guaranteed under the Constitution. Morse alleges the Supervisors deprived her of her right to freedom of speech guaranteed under the First Amendment.


[30] For a prima facie retaliatory employment cause of action based on speech protected by First Amendment, a pubic employee must establish (1) the speech is protected by the First Amendment and (2) the speech was a substantial or motivating factor in the adverse employment decision. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed. 2d 471 (1977); White v. State, 131 Wn.2d 1, 10, 929 P.2d 396 (1997). The burden then shifts to the employer to demonstrate, by a preponderance of the evidence, that it would have made the same decision regardless of the employee's protected speech. Mt. Healthy, 429 U.S. at 287.


[31] A. Protected Speech


[32] Deciding whether speech is protected by the First Amendment is a question of law. White, 131 Wn.2d at 11. This determination 'necessarily entails striking 'a balance between the interests of the {employee}, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.' Mt. Healthy, 429 U.S. at 284 (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed. 2d 811 (1968)). First, the court must decide whether the speech involves a matter of public concern. White, 131 Wn.2d at 11. If it does, the court must then decide whether the employee's interest in exercising his or her right to freedom of speech is greater than the government's interest in promoting efficiency in the public service it performs. Id.


[33] Whether an employee's speech addresses a matter of public concern depends on the content, form and context of the statement, as revealed by the entire record. Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 75 L.Ed. 2d 708 (1983); White, 131 Wn.2d at 11. Content is the most important factor. White, 131 Wn.2d at 11.


[34] Morse claims her speech is protected by the First Amendment because the Letter of Concern raised issues of public concern related to the safety of inmates and employees, management of the prison, competence of public officials, and violation of health care practices. We agree.


[35] Most of the Letter of Concern describes incidents of improper contact with inmates including off-duty conversations, spending time alone with an inmate in a stairwell, bringing photos of herself in bed clothes, bringing in unauthorized movies, magazines and treats, and giving certain inmates special treatment such as administering medication at a time preferred by the inmate, providing additional food, and administering narcotics without crushing them. According to the Letter of Concern, special treatment of inmates 'results in hostility and disregard towards other medical staff that are following policy and rules.'*fn7 The letter raises concerns about the operation of the prison and putting other staff at risk, which involve matters of public interest. See Hyland v. Wonder, 972 F.2d 1129, 1137-38 (9th Cir. 1992) (A memorandum that exposed abuses, inefficiency, threats to public safety, potential civil rights violations, and incompetence of public law enforcement officials at juvenile hall involved matters of public concern because such issues are of vital interest to citizens in evaluating the performance of their government.).*fn8


[36] The quality of nursing care given to a group of people, including inmates, and whether nurses are complying with nursing practices, especially if their actions directly affect patient care, are also matters of public concern. Frazier v. King, 873 F.2d 820, 825 (5th Cir. 1989) (A report that inmates were being denied medical care, and nurses were changing doctors' orders, completing prescription forms, and making medical diagnoses involved matters of public concern.); cf. Wilson v. State, 84 Wn. App. 332, 347, 929 P.2d 448 (1996) (A pharmacist's disagreement about running pharmacy did not involve public interest because it was an internal office matter and was only tenuously connected with quality of patient care.). According to the Letter of Concern, Bernstein administered medication without a doctor's order, gave false reports regarding patients to other nurses, administered the wrong medication, and altered patients' charts. As in Frazier, the Letter of Concern raises serious questions of public concern about nursing practices that directly affected inmate care.*fn9


[37] Even if the Letter of Concern was protected speech, Morse must establish as a matter of law that her interest in exercising her right to freedom of speech is greater than the government's interest in promoting efficiency. Pickering, 391 U.S. at 568; White, 131 Wn.2d at 11. Relevant factors to determine whether governmental interests outweigh an employee's right to freedom of speech include (1) the time, place and manner of the employee's speech; (2) whether the statement would create problems in maintaining discipline by immediate supervisors or harmony among co-workers; (3) whether the employment relationship is one in which personal loyalty and confidence are necessary; and (4) whether the speech impeded the employee's ability to perform daily responsibilities. White, 131 Wn.2d at 15. The more the speech involves matters of public concern, the more disruption the government is required to show. Connick v. Myers, 461 U.S. at 152.*fn10


[38] The Letter of Concern was drafted at an offsite meeting by off-duty employees and given to a custody officer to forward up the chain of command. The letter contains a detailed description of incidents and citations to applicable DOC rules and policies. Attached were copies of previous reports submitted to Dahlbeck and other staff members. There is no evidence that the time, place, and manner of the speech disrupted the operation of MCC. While the Letter of Concern reflects discord among the employees at the MCC, it did not contain new allegations or discuss the employees' concerns in a way that was likely to arouse more conflict than already existed.


[39] The Supervisors argue they need discretion and control over staffing, but they do not address their interest in limiting the protected speech or claim Morse's speech hindered the operation of MCC. On this record, Morse's interest in exercising her right to freedom of speech is greater than the Supervisors' interest in promoting efficiency in the workplace. We conclude as a matter of law that the Letter of Concern is protected speech under the First Amendment.


[40] B. Substantial or Motivating Factor


[41] Morse must next establish the protected speech was a substantial or motivating factor in her termination. Mt. Healthy, 429 U.S. at 287; White, 131 Wn.2d at 16. This is a question of fact. White, 131 Wn.2d at 16.


[42] Because this is a review of a summary judgment, we consider the facts and all reasonable inferences in the light most favorable to the nonmoving party. Right-Price Recreation, LLC, 146 Wn.2d at 381. Summary judgment is properly granted when the pleadings and affidavits show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). Only when reasonable minds could reach but one conclusion on the evidence should the court grant summary judgment. Smith v. Safeco Ins. Co., 150 Wn.2d 478, 485, 78 P.3d 1274 (2003). A court should not resolve a genuine issue of credibility on summary judgment. Howell v. Spokane & Inland Empire Blood Bank, 117 Wn.2d 619, 626, 818 P.2d 1056 (1991) (citing Amend v. Bell, 89 Wn.2d 124, 129, 570 P.2d 138 (1977)).*fn11 Morse relies in large part on the temporal proximity between the protected speech and when she was fired to meet her burden of proving that her speech was a substantial or motivating factor in the decision to fire her.*fn12 Where an adverse employment action immediately follows protected speech it is reasonable to infer that the protected speech was a substantial or motivating factor for the employment decision. Bell v. Clackamas County, 341 F.3d 858, 866 (9th Cir. 2003) (Temporal proximity between a plaintiff's First Amendment conduct and an adverse action is persuasive evidence of retaliatory motive.); see also Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1069 (9th Cir. 2004) ('Temporal proximity between protected activity and an adverse employment action can by itself constitute sufficient circumstantial evidence of retaliation in some cases.'). Our Supreme Court has also decided that proximity in time between the adverse action and the protected activity suggests an improper motive and that 'evidence of an actual pattern of retaliatory conduct is, of course, very persuasive.' Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 69, 821 P.2d 18 (1991). Ordinarily, proof of the employer's motivation must be shown by circumstantial evidence because the employer is not apt to announce retaliation as his motive. Id.


[43] Morse and other MCC employees met on March 4 to talk about their concerns regarding Bernstein and draft the Letter of Concern. The next day, Morse gave the Letter of Concern to Sergeant Ferguson and asked him to pass it up the chain of command. As of March 16, Morse was scheduled to work four more shifts in March, including Sunday March 19. On March 16, Morse told Dahlbeck she would work every Sunday and Wednesday in April. According to Morse, Dahlbeck seemed pleased with her April schedule. The next day, Morse received a message from Dahlbeck telling her not come to work on Sunday, March 18. Dahlbeck said, 'I am just letting you know that your service is no longer needed here at MCC .. pause .. for Sunday the eighteenth of March and .. pause .. um, just to let you know that, so you don't need to worry about coming in .'*fn13 Because March 18 was a Saturday and Morse was scheduled to work Sunday, March 19, Morse called MCC. According to the nurse on duty, Morse was still scheduled to work on Sunday, March 19, and MCC was one nurse short on that shift. When Morse talked to Dahlbeck again, Dahlbeck reiterated that Morse was not needed for Sunday, March 19. When pressed, Dahlbeck said she would not discuss it and Morse would get a letter from the MCC superintendent. On March 22, Morse received a letter from the MCC superintendent terminating her employment effective March 24.


[44] The record indicates Root and Dahlbeck saw the Letter of Concern at a meeting in Root's office. Although it is not clear from the record exactly when this meeting occurred, Morse alleges this meeting took place on March 16.*fn14 Based on the evidence in the record, it is reasonable to infer that Root and Dahlbeck saw the Letter of Concern before the decision to terminate Morse and that her participation in drafting the Letter of Concern was a substantial or motivating factor in the decision to terminate her.*fn15


[45] In addition, although Root and Ryder stated Morse was terminated because she was unavailable, there is evidence that Morse worked more than other intermittent nurses at MCC and had offered to work at least nine shifts in April. Root also told Morse he was terminating all the intermittent nurses, but Ryder later testified that the MCC continued to need and use intermittent nurses.*fn16 Root also said Morse was terminated because the shifts she normally worked were filled by new full-time RNs. Ryder contradicts Root. Ryder testified that intermittent employees were generally not terminated. If they were not needed for work, they were not called in. Grant's declaration also contradicts Root. Grant had worked with Morse and as a supervisor of Twin Rivers at MCC, Grant said he would hire Morse for any open position. But when Grant tried to hire Morse as an intermittent nurse, Root told him Morse was not acceptable to work at MCC. Viewing the evidence in the light most favorable to Morse, there are material issues of fact regarding whether her protected speech was a substantial or motivating factor in the decision to terminate her employment.


[46] II. Wrongful Discharge in Violation of Public Policy


[47] Morse also contends the trial court erred in dismissing her claim for wrongful discharge in violation of public policy. Under a narrow exception to the employment-at-will doctrine, a terminated employee has a cause of action for wrongful discharge if the discharge 'contravenes a clear mandate of public policy.' Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 232, 685 P.2d 1081 (1984). For a claim of wrongful discharge on public policy grounds, a plaintiff must prove (1) the existence of clear public policy;*fn17 (2) that discouraging conduct in which they engaged would jeopardize the public policy; and (3) that the public-policy-linked conduct caused dismissal. Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 941, 913 P.2d 377 (1996). Finally, the 'defendant must not be able to offer overriding justification for dismissal.' Id.


[48] Morse argues that recognized public policy prohibits employers from interfering with, restraining or coercing an employee's concerted activities for the purpose of mutual aid or protection. In her complaint, Morse alleged, 'the actions of Defendants Dahlbeck, Ryder, and Root violated Plaintiff's right to be free from retaliation for association with others to promote mutual aid or protections in the work place.'*fn18 Morse relies on RCW 49.32; Bravo v. Dolsen Co., 125 Wn.2d 745, 888 P.2d 147 (1995) (interpreting RCW 49.32.020); and the National Labor Relations Act (NLRA), 29 U.S.C. sec.sec. 151 - 169, to support her wrongful discharge in violation of public policy claim.


[49] RCW 49.32.020 protects employees' participation in self-organization and other concerted activities for the purpose of mutual aid or protection.*fn19 Our Supreme Court has held that RCW 49.32.020 expressly declares the public policy of this state and establishes substantive rights for employees to be free from interference, restraint or coercion. Bravo, 125 Wn.2d at 758. A discharge that violates RCW 49.32.020 also gives rise to a tort of discharge in violation of a clear mandate of public policy. Id. Similarly, under NLRA sec. 7, 29 U.S.C. sec. 157, employees have the right to self-organization and to engage in other concerted activities for the purpose of mutual aid or protection.*fn20


[50] Like her claim for retaliatory discharge under sec. 1983, Morse's claim for wrongful discharge in violation of public policy is based on her allegation that she was terminated because of her involvement in drafting the Letter of Concern. Morse claims that meeting with co-workers to draft the Letter of Concern falls squarely within the protections afforded by RCW 49.32.020 and NLRA sec. 7. The Supervisors do not dispute that discouraging employees from meeting to cooperate in voicing grievances and concerns about the conditions of their employment will jeopardize the established public policy of protecting an employee's right to self-organize and engage in other concerted activities for the purpose of mutual aid or protection.*fn21 They argue, however, that Morse's claim for wrongful discharge in violation of public policy fails on the same grounds as her sec. 1983 claim - she cannot prove her public policy related conduct caused her dismissal.


[51] Because we conclude there are genuine issues of fact regarding whether Morse's participation in the Letter of Concern was a substantial or motivating factor in the decision to terminate her employment under sec. 1983, we similarly conclude there are genuine issues of material fact regarding whether her participation in drafting the Letter of Concern with her fellow MCC employees caused her dismissal.


[52] III. Supervisory Liability and Qualified Immunity


[53] In the motion for summary judgment, the Supervisors asserted Morse could not maintain a sec. 1983 claim against Ryder and Dahlbeck because they were not personally involved in the termination of Morse's employment. Both parties cite and rely on Cunningham v. Gates, 229 F.3d 1271 (9th Cir. 2000), as describing the standard for supervisory liability under sec. 1983. According to Cunningham:


[54] Supervisors can be held liable for: (1) their own culpable action or inaction in the training, supervision, or control of subordinates; (2) their acquiescence in the constitutional deprivation of which a complaint is made; or (3) for conduct that showed a reckless or callous indifference to the rights of others.


[55] Cunningham, 229 F.3d at 1292.*fn22 State officials are subject to suit under sec. 1983 only if 'they play an affirmative part in the alleged deprivation of constitutional rights.' King v. Atiyeh, 814 F.2d 565, 568 (9th Cir. 1987).*fn23


[56] Morse argues Ryder and Dahlbeck were personally involved in the decision to terminate her. According to Morse, Ryder instructed the MCC human resources consultant to write the letter of termination. Root testified in his deposition that he decided to terminate Morse and then communicated his 'recommendation' to Ryder. But Ryder in his declaration denies any involvement in making the decision. Dahlbeck told Root that Morse was not meeting the needs of MCC. According to Morse, Dahlbeck knew the information she provided to Root was incorrect and would lead to termination. On this record, we conclude there is a material issue of fact regarding Ryder's role and Dahlbeck's role in Morse's termination.


[57] Morse argues the Supervisors are not entitled to qualified immunity because their decision to terminate her violated 'clearly established statutory or constitutional rights of which a reasonable person would have known.' Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed. 2d 396 (1982). For a right to be clearly established, '{t}he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.' Brewster v. Bd. of Educ. of Lynwood, 149 F.3d 971, 977 (9th Cir. 1998) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed. 2d 523 (1987)). While some portions of the Letter of Concern did not involve matters of public concern, most of the letter addresses matters of public concern. Because the Supervisors failed to point to any real interests weighing in their favor for purposes of the Pickering test, we conclude that Morse's right is clearly established. See Brewster, 149 F.3d at 981. If the Letter of Concern was a substantial or motivating factor in the decision to terminate Morse, the Supervisors are not entitled to qualified immunity.


[58] CONCLUSION


[59] As a matter of law, the Letter of Concern is protected speech under the First Amendment. Because there are material issues of fact regarding whether Morse's protected speech was a substantial or motivating factor in the decision to terminate her from her position at MCC as an intermittent nurse, and the role of each of the Supervisors in the decision to terminate Morse, we reverse and remand for trial.



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Opinion Footnotes

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[60] *fn1 The Washington Administrative Code defines 'intermittent employment' as '{e}mployment without any understanding of continuity, fitting no particular pattern and performed for no more than a total of (nine months) 1560 hours during any consecutive 12-month period.' WAC 365-05-200 (1984).


[61] *fn2 Clerk's Papers (CP) at 409.


[62] *fn3 CP at 228-32.


[63] *fn4 CP at 418.


[64] *fn5 CP at 306.


[65] *fn6 CP at 306.


[66] *fn7 CP at 418.


[67] *fn8 Other portions of the Letter of Concern describe incidents when Bernstein had personal conflicts with fellow employees and negatively impacted employee morale. These portions of the Letter of Concern do not involve matters of public concern. See Havekost v. U.S. Dept. of Navy, 925 F.2d 316, 319 (9th Cir. 1991) ('Speech by public employees may be characterized as not of 'public concern' when it is clear that such speech deals with individual personnel disputes and grievances and that the information would be of no relevance to the public's evaluation of the performance of governmental agencies.') (quoting McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983)).


[68] *fn9 None of the other cases Morse or the Supervisors cite supports a different result. See Waters v. Churchill, 511 U.S. 661, 681, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) (The Court did not address whether nurse's criticism of supervisor and hospital training program involved a matter of public concern.); Gillette v. Delmore, 886 F.2d 1194, 1197-98 (9th Cir. 1989) (Firefighter's criticism of other officer's response to an emergency call was a comment on a matter of public concern because it raised issues regarding whether people should be taken to the hospital against their will, what notice they should receive, and what level of force is appropriate.); Roth v. Veteran's Admin. Of United States, 856 F.2d 1401, 1406 (9th Cir. 1988) (Speech involved matters of public concern where employee alleged administrators and staff wasted resources, acted unethically, mismanaged personnel, and violated safety regulations, putting safety of patients in jeopardy.).


[69] *fn10 The Supervisors do not admit they took any action to punish Morse for her participation in drafting the Letter of Concern. We must therefore assume for this portion of the analysis that the decision to terminate Morse was connected to her speech. See White, 131 Wn.2d at 14.


[70] *fn11 In addition to granting MCC's motion for summary judgment, the trial court also granted MCC's motion to strike some of the evidence Morse relied on in her response to the summary judgment motion. We review the trial court's evidentiary rulings for summary judgment de novo. Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998); Seybold v. Neu, 105 Wn. App. 666, 678, 19 P.3d 1068 (2001). Although Morse challenges some aspects of the trial court's ruling on the motion to strike, because the evidence that establishes the existence of a material issue of fact was not subject to the motion to strike, we need not address the trial court's evidentiary rulings except as otherwise noted.


[71] *fn12 Although the Letter of Concern was not signed, Morse contends the Supervisors knew she was involved because her name was on the letter, she had frequently expressed concerns about Bernstein in the past, and several of her prior written complaints about Bernstein were attached to the Letter of Concern. In his declaration, Root denied that he knew who wrote the Letter of Concern. But viewing the evidence in a light most favorable to Morse, the Supervisors' knowledge that Morse previously and repeatedly complained about Bernstein, the inclusion of her name on the letter and the fact that several of her prior complaints were attached to the Letter of Concern create an issue of fact regarding whether Root, Ryder and Dahlbeck knew Morse was involved in writing the Letter of Concern.


[72] *fn13 CP at 419.


[73] *fn14 This allegation appears in Morse's declaration. The document she relied on to support this statement was stricken by the trial court and Morse does not challenge that ruling on appeal.


[74] *fn15 Unlike in White, where the State began formulating a reorganization plan months before the plaintiff engaged in protected speech and was transferred, here, there is no evidence the Supervisors contemplated terminating Morse long before she was fired. See White, 131 Wn.2d at 17.


[75] *fn16 Morse in her affidavit said Root told her he was terminating all intermittents. The trial court granted the Supervisors' motion to strike this statement on the grounds it contradicted Morse's deposition testimony.
Q: So when you spoke with Mr. Root in March of 2000, he told you that it was a bean counter issue, that you were not the only one, that there was another person in the same situation, and that there wouldn't be as many intermittents, correct?
A: Yes.
CP at 372-73. Under McCormick v. Lake Washington Sch. Dist., 99 Wn. App. 107, 111, 992 P.2d 511 (1999), a self-serving affidavit contradicting a prior deposition cannot be used to create an issue of material fact. Morse argues the statement in her affidavit that 'Mr. Root told me he was terminating all the intermittents,' does not contradict her prior deposition testimony that Root told her 'there wouldn't be as many intermittents.' CP at 194, 373. We agree and conclude the trial court erred granting the motion to strike this statement.


[76] *fn17 The public policy that serves as a basis for a wrongful discharge claim must be clearly expressed in the constitution, a statute, or a prior court decision. Roberts v. Dudley, 140 Wn.2d 58, 63, 993 P.2d 901 (2000) (citing Thompson, 102 Wn.2d at 232).


[77] *fn18 CP at 464.


[78] *fn19 RCW 49.32.020 provides:
In the interpretation of this chapter and in determining the jurisdiction and authority of the courts of the state of Washington, as such jurisdiction and authority are herein defined and limited, the public policy of the state of Washington is hereby declared as follows:
WHEREAS, Under prevailing economic conditions, developed with the aid of governmental authority for owners of property to organize in the corporate and other forms of ownership association, the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment, wherefore, though he should be free to decline to associate with his fellows, it is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protections; therefore, the following definitions of, and limitations upon, the jurisdiction and authority of the courts of the state of Washington are hereby enacted.


[79] *fn20 29 U.S.C. sec. 157 provides,
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title.


[80] *fn21 The Supervisors criticize the value of the complaint the employees assembled, and they argue that the court does not need to recognize Morse's claim for wrongful termination in violation of public policy because Morse can vindicate the alleged violations of her freedoms of speech and association under 42 U.S.C. sec. 1983. But these are not elements of a claim for wrongful termination in violation of public policy. Moreover, a claim for wrongful termination in violation of public policy could be available even if an employee is unable to prove a sec. 1983 claim based on freedom of speech because unlike for the sec. 1983 claim, there is no requirement for a violation of public policy that the speech involves a matter of public concern.


[81] *fn22 The Ninth Circuit has also described the standard to hold a supervisor personally liable as requiring the plaintiff to prove (1) the supervisor's personal involvement in the constitutional deprivation or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir. 2001) (citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)).


[82] *fn23 Liability is not imposed under theories of vicarious liability or respondeat superior. Graves v. City of Couer D'Alene, 339 F.3d 828, 848 (9th Cir. 2003).