Clark v. TRC Environmental Corporation
Filing
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ORDER granting in part and denying in part dft's 45 Motion for Summary Judgment; denying dft's 58 Motion to Exclude Evidence by Judge John C Coughenour.(RS)
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Honorable John C. Coughenour
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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PAUL CLARK,
Plaintiff,
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C09-1854-JCC
v.
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ORDER
TRC ENVIRONMENTAL CORP.,
Defendant.
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This matter comes before the Court upon Defendant’s motion for summary judgment. (Dkt. No.
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45). In addition to Defendant’s motion, the Court has also considered Plaintiff’s response (Dkt. No. 53),
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Plaintiff’s reply (Dkt. No. 56), and the parties’ various supporting exhibits and declarations. Having
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therefore reviewed the relevant record and having concluded that oral argument is unnecessary, the
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Court hereby GRANTS the motion in part and DENIES the motion in part for the reasons explained
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below.
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Also before the Court is Defendant’s motion to exclude evidence. (Dkt. No. 58). The Court
hereby DENIES the motion.
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ORDER, C09-1854-JCC
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I.
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BACKGROUND
This case sounds in allegations of wrongful termination. Plaintiff Paul Clark alleges that
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Defendant TRC Environmental Corporation terminated his employment because he refused to falsify
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air-quality data and because he insisted that the company protect his own medical privacy and the
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medical privacy of his fellow employees. (Clark Decl. passim (Dkt. No. 53-1)). Defendant
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acknowledges having terminated Plaintiff’s employment, but argues that it did so for an altogether
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different reason than the reason alleged by Plaintiff. According to Defendant, Plaintiff’s employment
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was terminated because Plaintiff “displayed increasingly aggressive and disruptive behavior in the
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workplace.” (Motion 1 (Dkt. No. 45)).
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A.
Air-Quality Data
Plaintiff, who has worked in air-quality testing since 1982, started working for Defendant in
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August 2001. (Clark Decl. 2 (Dkt. No. 53-1)). He alleges that he witnessed falsification of air-quality
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data within a few years of beginning his term of employment with Defendant. Specifically, Plaintiff
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alleges that co-workers falsified air-quality data which was submitted to the coordinators of a pipeline
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project and that another co-worker falsified data which was submitted to a glass company. (Id. 2–3).
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According to Plaintiff, he reported each of these incidents to his supervisors. In each case, Plaintiff
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alleges, his supervisors failed to take any corrective action. (Id.).
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Starting in January 2008, Plaintiff was charged with the responsibility of supervising the
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company’s air-measurements group in the western United States. He immediately encountered what he
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considered to be irregularities in the group’s practices. (Clark Decl. 3–7 (Dkt. No. 53-1)). Specifically,
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Plaintiff grew concerned that group members were manipulating gas-chromatography data in order to
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provide customers with passing results that were fraudulent. In June 2008, Plaintiff reported these
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concerns to several of his supervisors, including one of the two individuals who handles ethics
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complaints on behalf of the company. (Id. 7). Two weeks after reporting his concerns, Plaintiff was
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ORDER, C09-1854-JCC
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removed from his position as group manager for the western United States and re-assigned to the post
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which he had held previously—manager of the company’s northwest office. Plaintiff describes this
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transfer as a demotion. (Id. 8).
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After he was transferred, Plaintiff persisted in his efforts to address what he considered to be
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ethical lapses by his employer. In September 2008, he sent a lengthy email message to Mr. Martin Dodd,
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Defendant’s general counsel. In the message, Plaintiff described his concerns about Defendant’s practice
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of falsifying air-quality data and its further practice of covering up its wrongdoing. (Clark Email
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Message (Dkt. No. 54-1 at 29–32)). Defendant responded to this message and to other expressions of
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Plaintiff’s concern by launching an internal investigation, which was headed by Mr. Andrew Johnson,
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an in-house attorney. As the investigation proceeded, Plaintiff sent an email message to Mr. Johnson
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with the names of other individuals who may have information about Defendant’s alleged misdeeds. Mr.
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Johnson responded by telling Plaintiff that he was to cease speaking with his fellow employees about the
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alleged irregularities. Mr. Johnson further stated that Plaintiff had violated the attorney-client privilege
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by communicating with other employees. (Johnson Email Message (Dkt. No. 54-1 at 34–39)). After
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receiving this email message, Plaintiff concluded that Mr. Johnson’s investigation was launched in order
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to cover up problems, not to rectify them. (Clark Decl. 8–9 (Dkt. No. 53-1)).
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The brewing conflict between Plaintiff and Defendant finally came to a head in mid-July 2009.
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Plaintiff alleges that his supervisor asked him to perform a trial air-quality test with an individual whom
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Plaintiff knew to have previously falsified air-quality data. (Clark Dec. 9 (Dkt. No. 53-1)). According to
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Plaintiff, he refused this request, and was then ordered by his supervisor to appear at an early-morning
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meeting on July 16, 2009 to address the issue. (Id.). At the meeting, company representatives gave
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Plaintiff the choice of quitting or being fired. Plaintiff refused to quit. His employment was therefore
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terminated. (Id. 9–10).
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//
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ORDER, C09-1854-JCC
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B.
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Medical Records
Starting in late 2007, Plaintiff began to experience concerns about Defendant’s procedures with
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respect to the medical privacy of employees. According to Plaintiff, he first became worried after he and
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three other employees failed to pass a routine drug pre-test.1 As he and the other employees were driving
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to a medical facility for further testing, one employee received a telephone call from his supervisor
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asking why he had failed a drug test. (Clark Decl. 11 (Dkt. No. 53-1)). Because of this call, all four
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employees became concerned that their company maintained faulty medical-privacy policies. Plaintiff
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was chosen as their spokesman with company management. Plaintiff sent an email message to the
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company’s human-resources department in September 2007, complaining that the company’s actions
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had served to “spread [the employees’] names around the company as drug users.” (Medical Email
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Message (Dkt. No. 54-1 at 36)). The email ends with a request that the human-resources representative
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remind company managers of “the need to keep any medical test results confidential.” (Id.).
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Just as the issues related to data falsification reached a climax in mid-2009, so too did the issues
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related to medical privacy. In June 2009, Plaintiff and other employees were asked to complete certain
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medical-history forms and return them to their managers. (Clark Decl. 12 (Dkt. No. 53-1)). In an email
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message to his supervisor, Plaintiff again expressed concern about his company’s medical-privacy
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policies. (Second Medical Email Message (Dkt. No. 54-1 at 53–55)). The supervisor told Plaintiff that
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the matter had been referred to the company’s legal department. The supervisor also implicitly told
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Plaintiff to focus on other matters and to ignore medical-privacy issues by telling him that “there is
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plenty of critical work that needs to be done,” and asking whether he had followed up on a matter
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unrelated to his medical-privacy concerns. (Id.).
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//
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According to Plaintiff, neither he nor the other three employees ever tested positive for drugs. Instead, they failed to
pass an “indicator cup test,” which in turn triggered a second test of their urine samples. All four employees passed the
second drug test without a problem. (Clark Decl. 11 (Dkt. No. 53-1)).
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C.
Defendant’s Account
Defendant insists that all of Plaintiff’s concerns about data falsification and medical privacy
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were seriously considered and appropriately resolved. Defendant further insists that Plaintiff’s
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employment was terminated for a single reason—because of Plaintiff’s “aggressive and disruptive
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behavior” and his “insubordinate attitude.” (Motion 1, 11 (Dkt. No. 45)).
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Shortly after Plaintiff first reported his concerns about potential data falsification, company
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management sent an email message to all air-measurement staff reminding employees of the importance
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of data integrity. The email message contained excerpts from the company’s quality-management plan
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dealing with ethics and integrity. In part, the relevant section reminded employees that “altering or
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fabricating test results is strictly prohibited,” and that “professional care must be used to ensure that the
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processing or manipulation of field data . . . preserves the integrity of all data.” (Ethics Email Message
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(Dkt. No. 46-1 at 20–21)). Defendant also takes issue with Plaintiff’s characterization of the internal
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company investigation headed by Mr. Andrew Johnson. Defendant argues that Plaintiff’s description of
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Mr. Johnson’s internal investigation as a “cover-up” amounts to nothing more than a “bald allegation.”
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(Reply 8 (Dkt. No. 56)).
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Defendant also insists that Plaintiff’s employment was terminated because of his poor
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performance, and not out of any retaliatory motive. According to Defendant, Plaintiff took personal
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affront to legitimate business decisions. For example, Defendant describes the decision to re-assign
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Plaintiff to the company’s northwest office as a “reorganization decision based on budgeting and
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efficiency issues.” (Motion 7 (Dkt. No. 45)). Defendant notes that Plaintiff received the same salary and
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benefits after his re-transfer to the company’s northwest office that he had received while working as the
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company’s group manager for the western United States. Finally, Defendant also notes that a company
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supervisor sent an explanatory email message to all people affected by the decision which expressly
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disclaimed any intention to punish Plaintiff. (Id.).
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Defendant argues that Plaintiff ignored these realities, and that he instead interpreted legitimate
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economic decisions as personal attacks upon him. Defendant further argues that Plaintiff responded by
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behaving in an insubordinate manner. In support of this argument, Defendant offers the declaration of an
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employee whom Plaintiff supervised. In relevant part, the employee describes comportment which she
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characterizes as “continued mismanagement, poor communication, disruptive behavior, unwarranted
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finger-pointing, and flat-out dishonesty.” (Aasland Decl. 3 (Dkt. No. 48)). The employee’s problems
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with Plaintiff culminated in June 2009, when she composed a letter to company supervisors describing
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her complaints in full. In the letter, she alleges, inter alia, that Plaintiff expressly forbade her from
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communicating with certain company supervisors, and that Plaintiff himself consistently ignored direct
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orders from company supervisors. (Aasland Letter (DKt. No. 48-1)).
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II.
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LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure states that this Court should render summary
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judgment “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that
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that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a
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matter of law.” FED. R. CIV. P. 56(c). Under the terms of Rule 56, a defendant may move for summary
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judgment by alleging that the plaintiff cannot produce evidence to support an essential element of the
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plaintiff’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). “In such a situation, there can be
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‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential
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element of the [plaintiff’s] case necessarily renders all other facts immaterial.” Id. A plaintiff
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overcomes such a motion by producing some quantum of evidence with respect to the disputed
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element. Id. at 324. In attempting to meet his or her burden, the plaintiff cannot rely on the allegations
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contained in the complaint itself, but must instead produce evidence that could be reduced to a form
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which is admissible at trial. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574,
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587 (1986).
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If this Court wrongly enters summary judgment against a plaintiff, it has invaded the province of
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the jury and deprived the plaintiff of his Seventh Amendment right to a jury trial. Cox v. English-
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American Underwriters, 245 F.2d 330, 333 (9th Cir. 1957). In some circumstances, summary judgment
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is improper even when the material facts are undisputed: “Summary judgment should not be granted
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where contradictory inferences may be drawn from undisputed evidentiary facts.” United States v.
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Perry, 431 F.2d 1020, 1022 (9th Cir. 1970).
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III.
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RELEVANT LAW
In order to prevail on a claim for wrongful employment termination in violation of public policy,
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a plaintiff must demonstrate (1) the existence of a clear public policy; (2) that discouraging the conduct
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in which he or she engaged would jeopardize the public policy; (3) that his or her public-policy-based
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conduct was the cause of the employment termination. Gardner v. Loomis Armored, Inc., 913 P.2d 377,
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382 (Wash. 1996). If a plaintiff demonstrates all three of the elements, a defendant can nonetheless
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prevail if the defendant successfully demonstrates “an overriding justification for the dismissal.” Id.
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The existence of a “clear public policy” is a pure question of law, reserved to the Court.
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Korslund v. DynCorp Tri-Cities Services, Inc., 125 P.3d 119, 126 (Wash. 2005). In order to resolve the
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inquiry, this Court generally confines its analysis to expressions of popular will, considering only
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“whether the employer’s conduct contravenes the letter or purpose of a constitutional, statutory, or
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regulatory provision or scheme.” Thompson v. St. Regis Paper Co., 685 P.2d 1081, 1089 (Wash. 1984).
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While Washington State law is clear that “[p]rior judicial decisions may also establish relevant public
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policy,” it is equally clear that “courts should proceed cautiously if called upon to declare public policy
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absent some prior legislative or judicial expression on the subject.” Id. (emphasis omitted).
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In order to demonstrate that the termination of his or her employment “jeopardizes a clear public
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policy,” a plaintiff must show that he or she “engaged in particular conduct, and that the conduct
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directly relates to the public policy, or was necessary for the effective enforcement of the public
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policy.” Gardner, 913 P.2d at 945 (emphasis in original). To meet this burden, a plaintiff must
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demonstrate that “other means for promoting the policy are inadequate,” and that “the threat of dismissal
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will discourage others from engaging in the desirable conduct.” Id. (internal markings omitted).
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Finally, in order to establish that the public-policy-based conduct was the cause of the
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termination, a plaintiff must demonstrate the existence of “a nexus between his discharge and the
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alleged public-policy violations.” Havens v. C&D Plastics, Inc., 876 P.2d 435, 446 (Wash. 1994). A
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plaintiff cannot satisfy this burden merely by establishing that he or she was discharged after having
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engaged in behavior that implicates public-policy concerns. Campbell v. Lockheed Shipping Co., 785
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P.2d 459, 461 (Wash. App. 1990) (“The timing of the discharge alone . . . is insufficient evidence of
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improper motive[.]”). It is possible, however, for a plaintiff to satisfy his or her burden with respect to
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the element of causation by relying exclusively on circumstantial evidence. As the Washington State
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Supreme Court has explained: “Proof of the employer’s motivation may be difficult for the employee to
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obtain. Ordinarily, the prima facie case must, in the nature of things, be shown by circumstantial
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evidence, since the employer is not apt to announce retaliation as his motive.” Wilmot v. Kaiser
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Aluminum & Chemical Corp., 821 P.2d 18, 30 (Wash. 1991) (internal markings omitted).
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Even if a plaintiff manages to establish all three elements of the tort for wrongful termination in
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violation of public policy, a defendant can nonetheless prevail. A defendant prevails under such
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circumstances if he or she demonstrates “an overriding reason for terminating the employee despite the
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employee’s public-policy-linked conduct.” Gardner, 913 P.2d at 385. This affirmative defense
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“acknowledges that some public policies, even if clearly mandated, are not strong enough to warrant
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interfering with employers’ personnel management.” Id.
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IV.
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PUBLIC POLICY
Plaintiff argues that Defendant violated two separate public policies when it terminated his
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employment. Plaintiff argues that Defendant’s alleged conduct violated the public-policy goals of the
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United States Clean Air Act of 1963 and the Washington State Health-Care Information Act of 1991.
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A.
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Clean Air Act of 1963
Having found that air pollution creates “mounting dangers to the public health and welfare,”
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Congress passed the Clean Air Act in order to “protect the nation’s air resources so as to promote the
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public health and welfare and productive capacity of its population.” Clean Air Act of 1963, Pub. L. 88-
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206, 77 Stat. 392–401 (1963), codified in relevant part at 42 U.S.C. §§ 7401 et seq.
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The Clean Air Act contains a comprehensive enforcement scheme that relies upon both public
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and private actors. The Act generally authorizes the administrator of the Environmental Protection
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Agency to promulgate and enforce necessary regulations, 42 U.S.C. § 7601, and expressly authorizes
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her to require polluting companies to sample emissions and to maintain records of such emissions. Id. §
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7414. The Act also contains a provision which forbids employers from discharging or otherwise
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disciplining employees for commencing a proceeding that arises under the Act, for testifying in such a
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proceeding, or for otherwise assisting in such a proceeding. Id. § 7622(a)(1)–(3). In the event that an
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employer unlawfully disciplines an employee who attempts to participate in such a proceeding, the Act
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provides that the employee may file a complaint with the Secretary of Labor within thirty days after the
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unlawful discipline occurs. Id. § 7622(b)(1).
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B.
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Washington State Health-Care Information Act
Having found that “[h]ealth-care information is personal and sensitive information,” and that
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improper use or release of such information “may do significant harm to a patient’s interest in privacy,
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health care, or other interests,” the Washington State Legislature enacted the Uniform Health-Care
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Information Act in 1991, codified at WASH. REV. CODE § 70.02.005 et seq. The Act, which governs the
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terms under which health-care providers can disclose confidential patient information, creates a general
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rule that “an agent and employee of a health-care provider may not disclose health-care information
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about a patient to any other person with the patient’s written authorization.” WASH. REV. CODE §
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70.02.020.
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V.
DISCUSSION
Because Plaintiff has demonstrated that the United States Government has a clear public policy
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of protecting employees who take steps to maintain accurate air-quality records against reprisals from
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their employers who seek to falsify such records, and because Plaintiff has submitted some evidence that
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Defendant terminated his employment because he actually took such steps, his claim sounding in
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allegations of air-data falsification survives. With respect to this first claim, Defendant’s motion for
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summary judgment is therefore denied.
Because Plaintiff has failed to demonstrate that Washington State has an equally clear public
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policy requiring employers to maintain the health records of their employees in a confidential manner,
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his claim sounding in allegations of medical-privacy violations fails. On this second claim, Defendant’s
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motion for summary judgment is therefore granted.
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A.
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Public Policy
The Clean Air Act of 1963 contains a variety of provisions demonstrating a clear public policy
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of protecting whistleblower employees against reprisal from their employers. The Act requires that
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certain polluters sample their emissions and that they maintain records of such emission-sampling. See
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42 U.S.C. § 7414. The Act also expressly forbids an employer from terminating the employment of an
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individual who participates in any proceeding that arises under the terms of the Act. See id. §
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7622(a)(1)–(3). These provisions of law demonstrate a clear public policy of requiring polluting
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companies to monitor their own pollution levels by using air-quality-testing companies like Defendant
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TRC Environmental Corporation, and to protect the integrity of the data produced by protecting
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whistleblowers who allege that companies are falsifying data. Defendant allegedly falsified air-quality
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data and terminated the employment of an individual who insisted on data integrity. Defendant’s alleged
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conduct therefore “contravene[d] the letter or purpose” of the Clean Air Act, which means that the
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alleged conduct violated a clear public policy. See Thompson, 685 P.2d at 1089.
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Washington State’s Uniform Health-Care Information Act of 1991, on the other hand, nowhere
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discusses the obligations that employers have with respect to the medical privacy of employees. The Act
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is focused exclusively on “agents and employees of health-care providers.” See WASH. REV. CODE §
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70.02.020 (emphasis added). The Act defines health-care provider to mean “a person who is licensed,
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certified, registered, or otherwise authorized by the law of this state to provide health care in the
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ordinary course of business or practice of a profession.” See id. § 70.02.010(9). Under the plain terms of
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the Act, therefore, employers are not subject to its strictures. Without a clear expression of popular will
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governing the treatment of medical information by employers, this Court heeds the Washington State
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Supreme Court’s injunction that “courts should proceed cautiously if called upon to declare public
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policy absent some prior legislative or judicial expression on the subject.” See Thompson, 685 P.2d at
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1089. The Court therefore finds that Plaintiff has failed to establish a clear public policy protecting
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employees who complain about their employers’ medical-privacy policies.
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B.
Jeopardy
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Plaintiff has successfully demonstrated that Defendant’s alleged conduct would jeopardize the
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efficacy of the nation’s clean-air policies. If an air-testing company could require all its employees to
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face the Hobson’s choice of either participating in the falsification of air-quality data or losing their
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jobs, many employees would place their own well-being above whatever qualms they experience about
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data falsification. The Clean Air Act of 1963 requires, however, that accurate air-quality data be
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provided to the appropriate regulatory authorities. See 42 U.S.C. § 7414. Because Defendant’s alleged
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conduct would require employees to choose between supplying inaccurate information and losing their
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jobs, the allegedly wrongful termination would “discourage others from engaging in the desirable
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conduct,” and thereby jeopardize the nation’s clean-air policies. See Gardner, 913 P.2d at 945. Plaintiff
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has therefore submitted evidence tending to indicate that under the circumstances of this case,
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employment protections for whistleblowers is “necessary for the effective enforcement of public
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policy.” See id. (internal emphasis removed).
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C.
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Cause
Finally, Plaintiff has also presented evidence which tends to indicate that his employment was
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terminated because of behavior which triggers public-policy protections. Approximately six months
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after Plaintiff was charged with the responsibility of supervising Defendant’s air-management group in
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the United States, and only two weeks after he reported ethical concerns to management, Defendant
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removed Plaintiff from his new position and re-assigned him to the company’s northwest office. (See
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Clark Decl. 7–8)). Plaintiff has also submitted evidence from which a jury could conclude that
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Defendant’s internal investigator Mr. Andrew Johnson was more concerned about silencing Plaintiff’s
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criticisms than he was about rectifying irregularities. This evidence includes an email message from Mr.
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Johnson to Plaintiff expressly warning Plaintiff to refrain from discussing his concerns with other
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employees. (See Johnson Email Message (Dkt. No. 54-1 at 34–39)). Some of this evidence is
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circumstantial. Plaintiff’s case nonetheless survives the motion for summary judgment. As the State
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Supreme Court has stated: “Ordinarily, the prima facie case must, in the nature of things, be shown by
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circumstantial evidence, since the employer is not apt to announce retaliation as his motive.” See
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Wilmot, 821 P.2d at 30.
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D.
Overriding Reason
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Defendant argues that this Court should dismiss Plaintiff’s claim because Defendant “has
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provided an overriding justification for the termination decision.” (See Motion 20 (Dkt. No. 45)).
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Defendant argues that Plaintiff’s employment was terminated because he behaved in an inappropriate
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and insubordinate manner, and not because he expressed concerns about air-data falsification. (See id.).
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Defendant offers substantial evidence to support its position, including the testimony of one of
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Plaintiff’s subordinates, who describes “continued mismanagement, poor communication, disruptive
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behavior, unwarranted finger-pointing, and flat-out dishonesty.” (See Aasland Decl. 3 (Dkt. No. 48)).
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Defendant shall have the opportunity to present this argument and supporting evidence to the
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jury. If the jury believes Defendant’s account, Defendant shall prevail. At this stage of the proceedings,
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however, judgment for Defendant is improper. Because different inferences can arise from the facts of
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this case, and because “[s]ummary judgment should not be granted where contradictory inferences may
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be drawn from undisputed evidentiary facts,” see Perry, 431 F.2d at 1022, this Court must deny
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Defendant’s motion for summary judgment. If this Court were to do otherwise, it would be invading the
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province of the jury and thereby depriving the plaintiff of his Seventh Amendment right to a jury trial.
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See Cox, 245 F.2d at 333.
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VI.
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CONCLUSION
For the aforementioned reasons, the Court hereby GRANTS Defendant’s motion for summary
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judgment in part and DENIES the motion in part. (Dkt. No. 45). The Court therefore DISMISSES
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Plaintiff’s claims which sound in allegations of medical-privacy violations.
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Because Defendant has failed to demonstrate that it would suffer prejudice if this Court were to
admit Plaintiff’s proffered evidence, the Court DENIES Defendant’s motion to exclude evidence.
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SO ORDERED this 19th day of August, 2011.
A
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JOHN C. COUGHENOUR
United States District Judge
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