Thoma v. Spokane City of et al
Filing
160
ORDER GRANTING IN PART (AS TO BREACH OF CONTRACT AND PROMISSORY ESTOPPEL) AND RESERVING RULING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; dfts' 71 Motion for Summary Judgment is granted in part (pltf's 2nd, 5th, 6th, 7th, 10th and 11th Claims) and Taken Under Advisement in Part (remainder). Signed by Senior Judge Edward F. Shea. (LE, Case Administrator)
1
2
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
3
4
No.
BRADLEY N. THOMA,
CV-12-0156-EFS
5
Plaintiff,
6
ORDER GRANTING IN PART (AS TO
BREACH OF CONTRACT AND PROMISSORY
ESTOPPEL) AND RESERVING RULING IN
PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
v.
7
8
9
CITY OF SPOKANE, a municipal
corporation in and for the State
of Washington; and ANNE E.
KIRKPATRICK, a single person,
10
Defendants.
11
I.
INTRODUCTION
12
On
February
20,
2014,
the
Court
heard
from
counsel
as
to
13
Defendants’ Motion for Summary Judgment, ECF No. 71.
After reviewing
14
the pleadings and hearing argument, the Court took the matter under
15
advisement and directed the parties to file supplemental briefing on
16
the contract issue.
Having reviewed supplemental briefing the Court
17
is fully informed and for the following reasons grants Defendants’
18
Motion for Summary Judgment as to breach of contract and promissory
19
estoppel.
The Court’s ruling on other pending motions will follow.
20
II.
BACKGROUND
21
A.
Factual History1
22
Plaintiff Bradley Thoma, began working for the City of Spokane
23
Police Department (“SPD”) on October 1, 1989.
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1
25
26
In ruling on the motion for summary judgment, the Court has considered the
facts and all reasonable inferences therefrom as contained in the submitted
affidavits, declarations, exhibits, and depositions, in the light most
favorable to the party opposing the motion.
See Leslie v. Grupo ICA, 198
F.3d 1152, 1158 (9th Cir. 1999).
ORDER - 1
On the evening of September 23, 2009, Plaintiff was involved in
1
2
an
off-duty
vehicle
accident.
He
was
arrested
and
charged
with
3
driving under the influence and failure to remain at the scene of the
4
accident.
5
placed Plaintiff on administrative leave and initiated an internal
6
investigation.
On September 24, 2009, Defendant City of Spokane (“City”)
7
During the prosecution on the criminal charges, Plaintiff sought
8
a deferred prosecution in which he was evaluated, and on October 9,
9
2009, diagnosed by Colonia Clinic with moderate alcohol dependence.
10
ECF Nos. 79-10 & 91-1.
11
District Court entered an Order deferring prosecution.
12
that deferred prosecution agreement, Plaintiff was required to obtain
13
an Ignition Interlock Driver’s License (“IIL”), which limited him to
14
driving
15
(“IID”).
16
prosecution,
17
employers
18
“declaration”) of the IID requirement on employer-owned vehicles used
19
during working hours.
only
vehicles
At
the
equipped
time
Washington
to
issue
On November 13, 2009, the Spokane County
a
of
with
the
State
an
November
law
ignition
13,
allowed,
“waiver”
(referred
As part of
interlock
2009
Order
but
did
to
by
device
deferring
not
require,
statue
as
a
During the City’s internal investigation, on November 9, 2009,
20
21
Plaintiff’s
Spokane
22
that
23
problem.”
24
had informed [his] employer of [his] alcoholism.”
25
47:17-19.
26
DUI, there was no record in Plaintiff’s personnel, civil service, or
Plaintiff
ORDER - 2
“was
Police
Guild
evaluated
ECF No. 79-8, at 19.
representative
and
determined
advised
to
have
Defendants
an
alcohol
This was the “first time [Plaintiff]
ECF No. 79-5, at
The parties agree that “[p]rior to Plaintiff’s arrest for
1
medical files of any report that Plaintiff had any issue with alcohol
2
abuse.”
ECF No. 72 at 4 & 19; ECF No. 113.
3
On December 9, 2009, Defendant Police Chief Anne Kirkpatrick
4
provided Plaintiff with a Notice of Intent to Terminate, pursuant to
5
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).
6
explained
7
Plaintiff’s job which Defendant Kirkpatrick believed Plaintiff was
8
unable to perform because he was required to maintain an IID on any
9
vehicle he drove.
that
driving
was
a
required
essential
The Notice
function
of
Defendant Kirkpatrick further explained that it was
10
not reasonable to place an IID on a police vehicle and that she did
11
not believe it
12
December 11, 2009, Plaintiff filed a complaint with the Human Rights
13
Commission (“HRC”).
was reasonable to waive
the IID requirement.
On
14
On December 14, 2009, Plaintiff’s physician Dr. Mark Hart faxed
15
a short, hand-written letter to Defendants in which he stated that he
16
had diagnosed Plaintiff with alcoholism and suggested accommodations.
17
Whatever Plaintiff’s alcohol consumption may have been up to that
18
time, he had always been able to perform his job duties as a police
19
officer.
20
Plaintiff reported that drinking caused him to drink with friends
21
instead of going to the gym, caused him to spend less time with his
22
daughter, but did not affect his ability to go to work.
23
Plaintiff was never intoxicated while at work for the SPD.
During
the
December
17,
2009
Loudermill
hearing
Defendants
24
declined to equip Plaintiff’s vehicle with an IID or to sign a waiver
25
allowing
26
Instead
ORDER - 3
Plaintiff
Defendant
to
operate
Kirkpatrick
a
police
offered
to
vehicle
put
without
an
IID.
Plaintiff
in
non-
1
commissioned layoff status for two years, the time he was required to
2
have an IIL, during which he would be placed at the top of the Civil
3
Service
4
qualified.
5
period,
6
commissioned Detective, rather than as a Sergeant, as discipline for
7
his
8
Defendants’ offer.
9
list
for
jobs
with
the
City
for
which
he
may
be
As part of the offer, at the conclusion of the two-year
he
would
conduct
On
other
become
leading
December
to
21,
reemployed
the
criminal
2009,
with
the
charges.
Defendants
City
as
a
Plaintiff
terminated
fully-
rejected
Plaintiff’s
10
employment, and issued a Termination of Employment Letter on December
11
30, 2009, finding that the accommodations requested by Plaintiff had
12
been evaluated but rejected as unacceptable and unreasonable.
13
same day, a grievance was filed on behalf of Plaintiff by the Spokane
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Police Guild (“Guild”).
15
That
On October 18, 2010, the Guild filed an unfair labor practices
16
claim against the SPD.
On January 5, 2011, the City and the Guild
17
drafted an agreement between the City and the Guild to resolve the
18
discipline
grievance,
19
Plaintiff.
The Guild did not sign the agreement.
and
read
the
agreement
over
the
phone
to
ECF No. 79-17.
20
Around January 2011, the SPD became aware that the law changed
21
reducing driving restrictions for DUI deferred sentences from two
22
years to one year.
23
On
July
7,
2011,
the
HRC
and
the
City
began
considering
a
24
settlement.
25
the terms of a settlement agreement in which Plaintiff would dismiss
26
his HRC complaint, Guild grievance, and lawsuit in consideration for
ORDER - 4
In December 2011, the HRC, City, and Plaintiff discussed
1
reinstatement as Detective with payment of back wages at a Sergeant’s
2
pay rate.
3
Settlement Agreement between Plaintiff, City, and the HRC.
4
No. 1, at App. C.
5
which stated:
See ECF
The Settlement Agreement had an integration clause
This agreement comprises the entire agreement of the
parties with respect to the above-referenced complaints.
No other agreement, statement, or promise made by any party
with respect to this complaint, which is not included in
this agreement, shall be binding or valid.
6
7
8
9
In February 2012, these terms were reduced to a written
ECF No. 1, at App. C.
Importantly, the agreement was “contingent on
10
approval by the Spokane City Council and will become effective upon
11
approval by the Washington State Human Rights Commission.”
12
Settlement Agreement was signed by Plaintiff, Mayor Condon, and an
13
assistant city attorney.
Id.
The
On February 22, 2012, the HRC informed the parties that it would
14
15
not approve the Settlement Agreement.
16
Council voted unanimously to reject the Settlement Agreement.
17
same day, Plaintiff sent a letter to the City notifying Defendants
18
that Plaintiff had withdrawn his HRC Complaint and offered a new
19
settlement
20
agreement but not including the HRC as a party.
21
the City signed or accepted the newly proposed settlement agreement.
22
Plaintiff filed the instant action the next day.
23
B.
agreement
containing
the
On February 27, 2012, the City
same
terms
as
the
The
previous
No representative of
Procedural History
24
On February 28, 2012, Plaintiff filed suit in Spokane County
25
Superior Court alleging a eleven different claims, including violation
26
of due process under 42 U.S.C. § 1983 and violations of the Americans
ORDER - 5
1
with Disabilities Act, 42 U.S.C. § 12101 et seq., and the Washington
2
Law Against Discrimination (WLAD), RCW Chapter 49.60.
3
March 15, 2012, Defendants removed the lawsuit to this Court pursuant
4
to 28 U.S.C. §§ 1331 and 1441(b)-(c).
5
conference was held on June 19, 2012, ECF No. 12, and a jury trial was
6
set for April 14, 2014, ECF No. 14.
On
7
February
4,
2013,
Id.
Plaintiff
ECF No. 1.
On
A telephonic scheduling
moved
for
partial
summary
8
judgment, asking the Court to find, as a matter of law, that Plaintiff
9
was
“disabled”
within
the
meaning
of
both
the
Americans
with
10
Disabilities Act (ADA) and Washington’s Law Against Discrimination
11
(WLAD).
12
seal eleven of the exhibits.
13
granted in part and denied in part Plaintiff’s Motion to Seal, and
14
denied Plaintiff’s Motion for Partial Summary Judgment.
15
On
ECF No. 17.
September
Plaintiff contemporaneously filed a motion to
27,
ECF No. 21.
2013,
Defendants
On April 3, 2013, the Court
moved
to
ECF No. 32.
exclude
expert
16
witnesses Mark Mays and Scott Stephens, ECF Nos. 37 & 39.
17
3, 2013, Defendants’ moved for a protective order for the continuation
18
deposition of Anne Kirkpatrick.
19
Plaintiff’s moved to compel production of communications and documents
20
pertaining
21
Loudermill hearing.
22
the Court permitted the parties to supplement their expert reports.
23
On November 19, 2013, Defendants filed supplemental replies addressing
24
the new expert reports.
25
Defendants filed for summary judgment.
26
ORDER - 6
to
Plaintiff’s
Subsequently, on October 15, 2013,
employment
ECF No. 49.
On October
history,
termination,
and
After the November 7, 2013 hearing,
ECF Nos. 64 & 66.
On November 25, 2013,
ECF No. 71.
On November 27,
1
2013, Plaintiff moved to exclude Defendant’s expert Michael Brasfield.
2
ECF No. 84.
III. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
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4
A.
Legal Standard
5
Summary judgment is appropriate if the “movant shows that there
6
is no genuine dispute as to any material fact and the movant is
7
entitled to judgment as a matter of law.”
8
Once a party has moved for summary judgment, the opposing party must
9
point to specific facts establishing that there is a genuine dispute
Fed. R. Civ. P. 56(a).
10
for trial.
11
the nonmoving party fails to make such a showing for any of the
12
elements essential to its case for which it bears the burden of proof,
13
the trial court should grant the summary judgment motion.
14
“When the moving party has carried its burden under Rule [56(a)], its
15
opponent must do more than simply show that there is some metaphysical
16
doubt as to the material facts.
17
forward with ‘specific facts showing that there is a genuine issue for
18
trial.’”
19
574, 586-87 (1986) (internal citation omitted) (emphasis in original).
20
When considering a motion for summary judgment, the Court does not
21
weigh the evidence or assess credibility; instead, “the evidence of
22
the non-movant is to be believed, and all justifiable inferences are
23
to be drawn in his favor.”
24
242, 255 (1986).
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//
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/
ORDER - 7
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
If
Id. at 322.
. . . [T]he nonmoving party must come
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
Anderson v. Liberty Lobby, Inc., 477 U.S.
1
B.
Discussion
First, as required by the Court’s Scheduling Order, ECF No. 14,
2
3
Plaintiff
filed
notice
4
completed he would continue to pursue all of his original eleven
5
claims.
6
affirmative defense they planned to pursue at trial.
7
November 25, 2013, Defendants filed for summary judgment on all of
8
Plaintiff’s eleven claims.
9
Plaintiff withdrew his Fifth (Emotional Distress), Sixth (Negligence),
ECF No. 68.
on
November
22,
2013,
that
with
discovery
The same day, Defendants filed notice of each
ECF No. 69.
On
However, at the February 20, 2014 hearing,
10
Seventh (Outrage), and Eleventh (Equitable Estoppel) Claims.
11
The
Court addresses the remaining claims in turn.
12
1.
Second Claim: Breach of Contract
13
Defendant moves for summary judgment on Plaintiff’s breach of
14
contract claim.
15
agreement was reached in a conversation in 2011, and was later reduced
16
to writing in February 2012 to the Settlement Agreement.
17
argues
18
Agreement created an enforceable contract between Plaintiff and the
19
City.
20
that
Plaintiff maintains that an enforceable settlement
either
Washington
the
follows
conversation
the
in
objective
2011
or
the
manifestation
21
contracts.
22
692, 69 (1998).
23
manifest their mutual assent.
24
Dist. No. 12 v. City of Yakima, 122 Wn2d 371, 388 (1993).
25
agreements
26
Stottlemyre v. Reed, 35 Wn. App. 169, 171 (1983).
ORDER - 8
Plaintiff
Settlement
test
for
Wilson Court Ltd. P’ship v. Tony Maroni’s, Inc., 134 Wn2d
are
For a contract to form, the parties must objectively
governed
by
Yakima County (W. Valley) Fire Prot.
general
principles
of
Settlement
contract
law.
Here, the Court finds that no enforceable contract existed.
1
In
2
December 2011, the HRC, City, and Plaintiff discussed a settlement
3
agreement in which Plaintiff would dismiss his HRC complaint, Guild
4
grievance, and lawsuit in consideration for reinstatement as Detective
5
with payment of back wages at a Sergeant’s pay rate.
6
6.
7
Agreement between Plaintiff, City, and the HRC.
8
App. C.
9
stated:
See ECF No. 95-
In February 2012, these terms were reduced to a written Settlement
See ECF No. 1, at
The Settlement Agreement had an integration clause which
This agreement comprises the entire agreement of the
parties with respect to the above-referenced complaints.
No other agreement, statement, or promise made by any party
with respect to this complaint, which is not included in
this agreement, shall be binding or valid.
10
11
12
13
ECF No. 1, at App. C.
14
integration
15
there were no other agreements between the parties.
16
agreement was the requirement that it was “contingent on approval by
17
the Spokane City Council and will become effective upon approval by
18
the
19
acknowledged that at the time he signed the Settlement Agreement he
20
“underst[ood]
21
Rights Commission approved it.”
22
on February 22, 2012, the HRC informed the parties that it would not
23
sign the Settlement Agreement.
24
City Council voted unanimously to reject the Settlement Agreement.
25
Accordingly, no enforceable agreement existed because the necessary
26
approval of both the HRC and City Council did not occur.
clause,
Washington
ORDER - 9
objectively
State
that
Plaintiff signed this agreement with the
it
Human
would
indicating
Rights
not
that
Plaintiff
Commission.”
become
effective
believed
Included in this
Id.
until
ECF No. 79-5, at 71: 8-11.
Plaintiff
the
Human
However,
Furthermore, on February 27, 2012, the
Even if a
1
valid contract existed between the City and Plaintiff at the time
2
Plaintiff
3
approval
4
precedent, which when such approval did not occur, any performance
5
under the agreement was excused.
6
(1964)
7
precedent to specific performance where the contract provided that the
8
offer was made subject to written consent); Restatement (Second) of
9
Contracts § 224 (1981) (A condition is “an event, not certain to
10
occur, which must occur, unless its non-occurrence is excused, before
11
performance under a contract becomes due.”).
12
clear that the only proposed contract was the agreement reduced into
13
writing in the Settlement Agreement, signed by Plaintiff and Mayor
14
Condon, which would reinstate Plaintiff on the terms established in
15
December 2011, upon the approval of HRC and the City Council.
16
approval did not occur meaning a contract either was not formed, or
17
alternatively, any performance did not become due.
by
Mayor
the
(holding
HRC
that
Condon
and
signed
City
obtaining
the
Council
Settlement
were
Agreement,
necessary
the
conditions
See Ross v. Harding, 64 Wn.2d 231
written
consent
was
a
condition
Therefore, the record is
Such
Accordingly, Defendant’s motion as to Plaintiff’s Second Claim
18
19
and
of Relief, breach of contract, is granted.
20
2.
Tenth Claim: Promissory Estoppel / Implied Contract
21
Defendant’s also move for summary judgment on Plaintiff’s claim
22
of promissory estoppel and implied contract.
23
he
24
resigned his employment in Alaska in order to resume his position with
25
SPD.
26
establish:
reasonably
relied
upon
the
promise
of
Plaintiff maintains that
reinstatement
when
he
To succeed on a claim of promissory estoppel Plaintiff must
ORDER - 10
(1) [a] promise that (2) the promisor should reasonably
expect to cause the promisee to change his position and (3)
that does cause the promisee to change his position (4)
justifiably relying upon the promise, in such a manner that
(5) injustice can be avoided only by enforcement of the
promise.
1
2
3
4
5
Bakotich v. Swanson, 91 Wn App. 311, 319 (Wash. Ct. App. 1998) (citing
6
Klinke v. Famous Recipe Fried Chicken, Inc., 94 Wn.2d 255, 259 n.2
7
(1980)).
8
required, and Plaintiff acknowledged, that the reinstatement depended
9
upon the independent decision of two other organizations, the HRC and
However,
City
as
Council.
discussed
the
11
organization rejected the agreement he would not be reinstated.
12
the time Plaintiff resigned his employment in Alaska the condition of
13
approval by HRC and the City Council had not been satisfied.
14
such
15
reliance was unjustified.
16
Wash.App. 552, 559-560 (conditional promise can serve as basis of
17
estoppel claim only if condition is satisfied prior to action taken in
18
reliance on that promise); Havens v. C & D Plastics, Inc., 124 Wash.2d
19
158, 181 (1994) (“Ordinarily, whether reliance was justifiable is a
20
question
21
conclusion,
22
Defendant’s motion as to Plaintiff’s Tenth Claim of Relief, promissory
23
estoppel and implied contract, is granted.
24
//
25
//
26
/
of
ORDER - 11
fact,
Court
but
summary
finds
only
one
knew
possible
that
Agreement
the
the
Plaintiff
Settlement
10
facts,
Accordingly,
above,
if
either
conclusion
At
Under
-
any
See Pacific Cascade Corp. v. Nimmer, 25
when
reasonable
judgment
is
minds
could
appropriate.”).
reach
but
one
Accordingly,
1
3.
2
As
Remaining Claims
to
the
remaining
claims
of
disability
discrimination,
3
violation of due process, vicarious liability, wrongful withholding of
4
wages, and retaliation, the Court continues to take Defendant’s Motion
5
for Summary Judgment under advisement.
IV.
6
7
Accordingly,
IT
IS
CONCLUSION
HEREBY
ORDERED:
Defendants’
Motion
for
8
Summary Judgment, ECF No. 71, is GRANTED IN PART (Plaintiff’s Second,
9
Fifth, Sixth, Seventh, Tenth, and Eleventh Claims) and TAKEN UNDER
10
11
12
13
ADVISEMENT IN PART (remainder).
IT IS SO ORDERED.
The Clerk’s Office is directed to enter this
Order and provide copies to all counsel.
DATED this
28th
day of February 2014.
14
s/ Edward F. Shea
EDWARD F. SHEA
Senior United States District Judge
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Q:\EFS\Civil\2012\0156.order.msj.contract.lc2.docx
ORDER - 12
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