Jonassen v. Port of Seattle

Filing 65

ORDER by Judge Richard A Jones. The court GRANTS the Port's motion for summary judgment. Dkt. # 41 . The court also GRANTS plaintiff's motion to amend its response to conform to the Local Rules. Dkt. # 53 .(CL)

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HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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TRACY JONASSEN,

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Plaintiff,

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CASE NO. C11-34 RAJ
ORDER GRANTING
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT

v.
PORT OF SEATTLE.
Defendant.
I.

INTRODUCTION

This matter comes before the court on defendant Port of Seattle’s (“POS” or the

18 “Port”) motion for summary judgment. Dkt. # 41. Plaintiff Tracy Jonassen alleges two
19 claims against the Port: (1) retaliation in violation of the False Claims Act (“FCA”), 31
20 U.S.C. § 3729, et seq., and (2) breach of the Port’s written policies. Dkt. # 23 (Second
21 Am. Compl.). In its reply, the Port moves to strike plaintiff’s response for failure to
22 comply with the formatting requirements of Local Rules W.D. Wash. CR 10(e)(1), or to
23 strike everything after page 22, line 3. Dkt. # 50 at 1 n.1. On April 24, 2012, after the
24 close of briefing, plaintiff filed a motion seeking leave to file an amended response in
25 conformity with the Local Rules. Dkt. # 54. The Port did not respond to plaintiff’s
26 motion, which the court construes “as an admission that the motion has merit.” Local
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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 1

1 Rules W.D. Wash. CR 7(b)(2). Accordingly, the court GRANTS plaintiff’s motion to
2 amend its response to conform to the Local Rules. Dkt. # 53. The court has only
3 reviewed plaintiff’s amended response in connection with this order. Dkt. # 54-2. The
4 court also notes that it has disregarded the Port’s “Praecipe,” filed three days before oral
5 argument on August 28, 2012. The Praecipe attaches deposition testimony referenced in
6 the Port’s motion. The deposition testimony was “inadvertently omitted” from the
7 excerpts provided to the court on March 15, 2012. The Port could have brought this
8 evidence to the court’s attention earlier with the exercise of reasonable diligence.
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Having considered the memoranda, exhibits, oral argument, and the record herein,

10 the court GRANTS the Port’s motion for summary judgment.
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II. BACKGROUND
Plaintiff has been employed by the Port since 2004, serving a portion of this time

13 as a Waste Water Treatment Plant operator. Dkt. # 48 (Jonassen Decl.) ¶ 2. Plaintiff’s
14 responsibilities included operating certain mechanical or water treatment processes in the
15 Seattle-Tacoma International Airport Industrial Waste Treatment Plant (“IWTP”). Id.
16 During the course of his employment, plaintiff uncovered evidence that the IWTP was
17 not operating properly, resulting in effluent discharges into the Puget Sound Waterway,
18 contrary to the IWTP’s National Pollution Discharge Elimination Systems (“NPDES”)
19 permit. Id. at ¶ 3. Plaintiff notified management personnel of the malfunctioning of the
20 IWTP and associated systems. Id. Plaintiff also complained about contractors
21 wrongfully using and/or stealing POS property and tools, and about the contractors using
22 the “wheel wash” system to process contaminated water at no cost to the contractor. Id. ¶
23 4. The wheel wash systems were erected and operated by the contractors that were
24 contracted to build the third runway. Id. Many heavy trucks were used on the third
25 runway project, and the contractors were required to have mud and dirt washed off the
26 vehicles’ tires before leaving the job site for public roads. Id. The chemical used in the
27 wheel wash solution sprayed on the truck tires was piped and trucked directly to the

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 2

1 IWTP as waste water. Id. Plaintiff claims that the IWTP could not adequately process
2 this chemical, and that the waste water could not be effectively treated by the IWTP
3 because of the chemical. Id. Since POS did not have the ability to remove the wheel
4 wash process chemical at the IWTP, the wheel wash water was diluted to a level that
5 would allow discharge of the chemical into the environment, which plaintiff claims
6 violated the NPDES permit. Id. ¶ 5. Plaintiff also complained of various defective
7 valves. Id. ¶ 6. Plaintiff claims that after reporting these issues, his supervisor, Randy
8 Sweet, and other management began retaliating against him. Id. ¶¶ 9-21, 26-35.1
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III. ANALYSIS
Summary judgment is appropriate if there is no genuine dispute as to any material

11 fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
12 56(a). The moving party bears the initial burden of demonstrating the absence of a
13 genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
14 Where the moving party will have the burden of proof at trial, it must affirmatively
15 demonstrate that no reasonable trier of fact could find other than for the moving party.
16 Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986). On an issue where the
17 nonmoving party will bear the burden of proof at trial, the moving party can prevail
18 merely by pointing out to the district court that there is an absence of evidence to support
19 the non-moving party’s case. Celotex Corp., 477 U.S. at 325. If the moving party meets
20 the initial burden, the opposing party must set forth specific facts showing that there is a
21 genuine issue of fact for trial in order to defeat the motion. Anderson v. Liberty Lobby,
22 Inc., 477 U.S. 242, 250 (1986). The court must view the evidence in the light most
23 favorable to the nonmoving party and draw all reasonable inferences in that party’s favor.
24 Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150-51 (2000).
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The court notes that it has not considered Jonassen’s legal conclusions, speculation, or

27 improper opinion testimony, as discussed below.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 3

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However, the production of “a scintilla of evidence in support of the non-moving
party’s position” is not sufficient. Triton Energy Corp. v. Square D Co., 68 F.3d 1216,
1221 (9th Cir. 1995). Hyperbole, supposition, and conclusory accusations cannot take
the place of evidence. CarePartners LLC v. Lashway, Case No. C05–1104 RSL, 2010
WL 1141450 (W.D. Wash. 2010) (citing British Airways Bd. v Boeing Co., 585 F.2d 946,
955 (9th Cir. 1978)). Nor will the production of a stack of uncited documents in

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opposition to or in support of a motion for summary judgment satisfy a party’s burden.

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The court need not, and will not, “scour the record in search of a genuine issue of triable

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fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996); see also, White v. McDonnel-

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Douglas Corp., 904 F.2d 456, 458 (8th Cir. 1990) (the court need not “speculate on
which portion of the record the nonmoving party relies, nor is it obliged to wade through
and search the entire record for some specific facts that might support the nonmoving
party’s claim”).3

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A.

Evidentiary Analysis
In resolving a motion for summary judgment, the court may only consider

admissible evidence. Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002). At the

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Plaintiff has repeatedly failed to provide pin-point citations to the record in violation of
Local Rule W.D. Wash. CR 10(e)(6). Dkt. #54-2 at ns. 4-5, 7-10, 24 (citing pages 59 through
88), 34 (citing pages 28 through 42), 46-47, 50-58. Counsel for plaintiff has also made several
inaccurate statements that are unsupported by the factual record in the briefing. The court
reminds counsel of his duty of candor to the court. 2 Wash. Prac. RPC 3.3; Local Rules W.D.
Wash. GR 2(f), 3. The consistent failure to provide pin-point citations on key issues, along with
counsel’s hyperbolic arguments and inaccurate representations of the record has confounded the
court’s efforts to determine whether a genuine issue of material fact exists. The court has spent
an inordinate amount of time hunting through the record in an attempt to find the evidentiary
basis for plaintiff’s factual contentions. The court provided plaintiff with an opportunity during
oral argument to provide pin-point citations to the record through a minute order. Dkt. # 61.
During oral argument, the court again requested pin-point citations to the record. Counsel for
plaintiff failed to refer the court to any specific portion of the record, choosing instead to argue
generalities, suppositions, and conclusions.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 4

1 summary judgment stage, a court focuses on the admissibility of the evidence’s content,
2 not on the admissibility of the evidence’s form. Fraser v. Goodale, 342 F.3d 1032, 1036
3 (9th Cir. 2003).
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The Port moves to strike Mr. Jonassen’s declaration because “it is replete with

5 hearsay, speculation, and other ‘facts’ not admissible at trial.” Dkt. # 50 at 1 n.1. The
6 court has read Mr. Jonassen’s declaration. Rather than limit his declaration to statements
7 of fact of which he has personal knowledge, plaintiff’s declaration includes argument,
8 improper opinion testimony, speculation, hearsay, and legal conclusions. Fed. R. Evid.
9 602, 701, 702, 801.
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In accordance with the Federal Rules of Evidence, the court has considered

11 statements of fact that appear to be within plaintiff’s personal knowledge that are not
12 otherwise inadmissible. The court has disregarded all other arguments, legal conclusions,
13 hearsay, speculation, and improper opinion testimony. The court has also considered the
14 exhibits attached to his declaration, except for Exhibit 8 which purports to be an expert
15 report of Gary M. Namie, Ph.D. Dr. Namie has been identified in plaintiff’s expert
16 disclosure list as a “Social-Organization Psychologist, Researcher, Author, Consultant
17 and Educator.” Dkt. # 29 at 3. The disclosure further states that Dr. Namie is expected to
18 provide testimony related to the plaintiff’s injuries relating to workplace retaliation and
19 harassment.” Id.
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An expert witness may testify at trial if such expert’s specialized knowledge will

21 assist the trier of fact to understand the evidence or to determine a fact in issue. Fed. R.
22 Evid. 702(a) (2011). Such a witness must be “qualified as an expert by knowledge, skill,
23 experience, training, or education” and may testify if (1) “the expert’s scientific,
24 technical, or other specialized knowledge will help the trier of fact to understand the
25 evidence or to determine a fact in issue;” (2) “the testimony is based on sufficient facts or
26 data;” (3) “the testimony is the product of reliable principles and methods; and” (4) “the
27 expert has reliably applied the principles and methods to the facts of the case.” Id.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 5

1 Plaintiff has not provided the court with sufficient information to determine whether Dr.
2 Namie’s scientific technical, or other specialized knowledge will help the trier of fact to
3 understand the evidence or to determine a fact in issue. Additionally, the court finds that
4 Dr. Namie’s testimony is not based on sufficient facts or data. Dr. Namie makes his
5 opinion based on a review of “selected case documents which were provided by the
6 plaintiff’s attorney, Douglas R. Cloud, a telephone interview with the plaintiff, the cited
7 relevant scientific literature, and [his] knowledge, skills and experience as consultant and
8 management instructor.” Dkt. # 48 (Jonassen Decl.), Ex. 8 at 1. With respect to the
9 “case documents reviewed,” Dr. Namie only identifies plaintiff’s second amended
10 complaint, plaintiff’s response to the Port’s motion for judgment, Port of Seattle tort
11 claim form, the McKay report, a newspaper article, a 2010 State Auditor’s report, the
12 Port’s employee handbook, a workplace integrity survey, and disciplinary documents and
13 valve repair records contained in the Port’s responses. Id. It appears that Dr. Namie has
14 not reviewed any deposition transcripts or any other evidence before the court, other than
15 the disciplinary documents and valve repair records. Accordingly, the court has
16 disregarded Dr. Namie’s report.
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FCA Retaliation
The FCA protects “whistleblowers” from retaliation by their employers for

19 protected activities. 31 U.S.C. § 3730(h); see United States ex. rel. Hopper v. Anton, 91
20 F.3d 1261, 1269 (9th Cir. 1996). Section 3730(h) provides, in relevant part, that any
21 employee shall be entitled to relief who is “discharged, demoted, suspended, threatened,
22 harassed, or in any other manner discriminated against in the terms and conditions of
23 employment because of lawful acts done by the employee . . . in furtherance of an action
24 under this section or other efforts to stop 1 or more violations of this subchapter.” 31
25 U.S.C. § 3730(h)(1). Plaintiff must establish three elements to prove a FCA retaliation
26 claim: (1) the employee must have been engaging in conduct protected under the FCA;
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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 6

1 (2) the employer must have known that the employee was engaging in such conduct; and
2 (3) the employer must have discriminated against the employee because of his protected
3 conduct. Hopper, 91 F.3d at 1269.
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1. Protected Conduct

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“Section 3730(h) only protects employees who have acted ‘in furtherance of an

6 action’ under the FCA. Specific awareness of the FCA is not required. However, the
7 plaintiff must be investigating matters which are calculated, or reasonably could lead to a
8 viable FCA action.” Hopper, 91 F.3d at 1269. “[A]n employee engages in protected
9 activity where (1) the employee in good faith believes, and (2) a reasonable employee in
10 the same or similar circumstances might believe, that the employer is possibly
11 committing fraud against the government.” Moore v. Cal. Inst. of Tech. Jet Propulsion
12 Lab., 275 F.3d 838, 845 (9th Cir. 2002); see Mendiondo v. Centinela Hospital Med. Ctr.,
13 521 F.3d 1097, 1104 (9th Cir. 2008) (plaintiff engaged in protected activity if reasonably
14 believed that the Port “was possibly committing fraud against the government, and she
15 investigated the possible fraud.”). Additionally, an employee’s investigation of nothing
16 more than his employer’s non-compliance with federal or state regulations is not
17 protected activity. Hopper, 153 F.3d at 1269.
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With respect to the first prong, Jonassen has stated that he investigated what he

19 believed to be fraud of the Federal Government. Dkt. # 48 (Jonassen Decl.) ¶¶ 9, 38-39.
20 The Port does not dispute that plaintiff has met the subjective prong. Rather, the Port
21 argues that plaintiff has failed to establish the objective prong. Dkt. # 41 at 13; # 50 at 4.
22 In support of the objective prong, plaintiff identifies, without citation to the record,
23 “written and oral reports to his supervisors about contractor misappropriation of property
24 and service; failure of numerous mechanical devices at the IWTP; his complaint about
25 contractors receiving sewage treatment services for ‘wheelwash’ water and other factual
26 details established herein . . . .” Dkt. # 54-2 at 12. The court has reviewed the factual
27 record and has attempted to find the evidentiary basis for these complaints.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 7

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a. Violations of NPDES Permit
Jonassen claims that he “uncovered evidence that the IWTP was not operating

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3 properly, resulting in effluent discharges in the Puget Sound Waterway, contrary to” the
4 NPDES permit. Dkt. # 48 (Jonassen Decl.) ¶ 3, ¶ 37; see Dkt. # 47 (Cloud Decl.), Ex. 1
5 (Price Depo.) at 14:6-18. He also identifies complaints about “theft of POS property and
6 services” by using IWTP to process “wheel wash waste water” generated by third runway
7 contractors at no cost to the contractor. Dkt. # 48 (Jonassen Decl.) ¶ 4. With respect to
8 the wheel wash water, Jonassen claims that the Port was treating contractor waste water
9 for free, and that the water had not been adequately treated resulting in a violation of the
10 NPDES permit. Dkt. # 48 (Jonassen Decl.) ¶ 5; see Dkt. # 47 (Cloud Decl.), Ex. 2
11 (Sweet Depo.) at 105:3-15. Jonassen also identifies defective valves in the IWTP system
12 that caused contaminated water to be diluted, which violated the NPDES permit. Dkt. #
13 48 (Jonassen Decl.) ¶ 6. See Dkt. # 47 (Cloud Decl.), Ex. 2 (Sweet Depo.) at 27:8-24,
14 29:2-15, 100:1-9, 101:17-24; id., Ex. 3 (Moikobu Depo.) at 93:9-94:21.
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Complaints of violations of the NPDES permit are not protected activity.

16 Hopper, 153 F.3d at 1269 (investigation of non-compliance with federal or state
17 regulations is not protected activity). Plaintiff’s attempts to save these complaints by
18 characterizing them as “theft of property and services” fail because plaintiff has not
19 provided any evidence that the malfunctioning or other operational issues of the IWTP or
20 the defective valves could reasonably be believed to be possible fraud on the federal
21 government.2 Plaintiff’s conclusory allegations do not create a genuine issue of material
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The court notes that plaintiff has failed to present any evidence that federal funds were

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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 8

b. Contractors’ Use of Property and Tools

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Plaintiff claims he made complaints about “contractors wrongfully using the POS

3 property and tools,” “the use and theft of POS tools by contractors,” and “potable water
4 being stolen by contractors.” Dkt. # 48 (Jonassen Decl.) ¶ 4. Plaintiff provides a 2004
5 email in support of his complaint with respect to the use and/or theft of property and tools
6 by contractors in which he reported that garden hoses and spray nozzles were destroyed,
7 and that contractors were using the hoses to pump water for fire and dust suppression.
8 Id., Ex. 1. Jonassen was thanked “for watching out for [the] equipment” in response. Id.
9 Given this evidence, the court finds that no reasonable employee in the same or similar
10 circumstances could believe that the employer was possibly committing fraud against the
11 government.
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c. FCA Lawsuit
Plaintiff also argues that he was retaliated against as a result of filing the FCA

14 lawsuit on April 1, 2008, Case Number C08-508MJP. Dkt. # 54-2 at 13, 17; Dkt. # 48
15 (Jonassen Decl.) ¶ 39. The court finds that filing an FCA lawsuit is protected activity.
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2. Employer Knowledge and Causal Connection

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An employer must be aware that the employee is investigating fraud against the

18 government to possess the retaliatory intent necessary to establish a violation of section
19 3730(h), and the employer must have discriminated against employee because of his
20 protected conduct. Hopper, 91 F.3d at 1269-70.
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Even if Jonassen had raised an issue of material fact regarding whether he engaged

22 in protected activity with respect to the reports about the IWTP, he cannot show that the
23 Port was aware that he was investigating fraud against the federal government. Jonassen
24 admits that he had “a separate duty as a waste water treatment operator to comply with all
25 NPDES directives for fear of losing [his] license to process and treat water” and to raise
26 concerns about plant operations, including “fraudulent activity.” Dkt. # 48 (Jonassen
27 Decl.) ¶ 8; Dkt. # 51 (Supplemental Cramer Decl.), Ex. 7 (Jonassen Depo.) at 102:7-20.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 9

1 Accordingly, the monitoring and reporting activities described by Jonassen were exactly
2 those activities he was required to undertake as part of his job duties. Jonassen took no
3 additional steps to put the Port on notice that he was acting in furtherance of an FCA
4 action, rather than merely alerting the Port to mechanical, operational, and defective
5 issues. See Robertson v. Bell Helicopter Textron, Inc., 32 F.3d 948, 952 (5th Cir. 1994)
6 (no employer knowledge where employee expressed concerns consistent with his job
7 duties, but “never characterized his concerns as involving illegal, unlawful, or false8 claims investigations”); see also Maturi v. McLaughlin Research Corp., 413 F.3d 166,
9 173 (1st Cir. 2005); Yuhasz v. Brush Wellman, Inc. 341 F.3d 559, 567-68 (5th Cir. 2003);
10 Eberhardt v. Integrated Design & Const., Inc., 167 F.3d 861, 869 (4th Cir. 1999); United
11 States ex rel. Ramseyer v. Century Healthcare Corp., 90 F.3d 1514, 1523, n.7 (10th Cir.
12 1996). Indeed, the only time plaintiff used the term “fraud” to anyone was on April 30,
13 2008. In his declaration, plaintiff claims that he “did specifically indicate to [Cynthia
14 Alvarez] at Sea-Tac on April 30, 2008, that [he] was investigating fraud.” Dkt. # 48
15 (Jonassen Decl.) ¶ 38. Ms. Alvarez confirmed that Jonassen identified “fraud related to
16 water treatment issues not being appropriately reported to the Department of Ecology.”
17 Dkt. # 47 (Cloud Decl.), Ex. 6 (Alvarez Depo.) at 41:6-9. However, there is no evidence
18 that Jonassen reported that the alleged fraud plaintiff complained of was against the
19 federal government, or otherwise connected with the FCA. There is also no evidence that
20 federal funds were used, or reasonably could have been used for the water treatment
21 issues.
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With respect to the FCA lawsuit, Jonassen testified that after he filed the FCA

23 lawsuit, he was interviewed regarding the case by the Department of Justice. He testified
24 that the interviewers asked him to keep the information discussed and the fact of filing
25 the qui tam case confidential and not to discuss it with anyone. Dkt. # 42 (Cramer Decl.),
26 Ex. 4 (Jonassen Depo.) at 85:7-21. Jonassen also testified that he did not report or
27 discuss his involvement in the qui tam case with Mr. Sweet, anyone in human resources,

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 10

1 or management while it was pending. Id. at 86:5-13. Jonassen did testify that he told
2 Paul Price, Rob Voight, Dale Parks, and Omayio Moikobu that he was contemplating
3 filing a lawsuit against the Port. Id. at 88:8-89:12. However, when pressed about
4 whether he discussed filing litigation relating to wheel wash, commissioning, or leaky
5 valve issues with anyone in management or human resources, he replied that he did not
6 know. Id. at 88:13-89:19. More importantly, there is no evidence that he informed his
7 superiors that he was going to file a qui tam action or that the litigation he contemplated
8 filing had anything to do with the FCA or fraud against the federal government.
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Other witnesses have testified that they found out about the qui tam action in the

10 latter part of 2009 or later from Port attorneys. Dkt. # 42 (Cramer Decl.), Ex. 6 (Mathews
11 Depo.) at 101:10-14 (latter part of 2009); Dkt. # 48 (Cloud Decl.), Ex. 6 (Alvarez Depo.)
12 at 55:4-6 (January 2010). However, plaintiff has failed to produce any evidence linking
13 the Port’s knowledge of the FCA action in late 2009 or early 2010 with any alleged
14 retaliatory conduct.
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Accordingly, plaintiff has failed to set forth specific facts showing that there is a

16 genuine issue of fact for trial with respect to his FCA retaliation claim.
17 C.

Breach of Contract

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The Port argues that there is no evidence supporting plaintiff’s breach of contract

19 claim. Dkt. # 41 at 23. Plaintiff has not opposed the Port’s motion with respect to the
20 breach of contract claim, which the court construes “as an admission that the motion has
21 merit.” Local Rules W.D. Wash. CR 7(b)(2). During oral argument, plaintiff referred to
22 various policies as the evidentiary basis for his breach of contract claim. However, the
23 Port’s policies simply recite its obligations under various state and federal statutes.
24 Plaintiff has not produced any evidence that the Port’s policies amount to promises of
25 specific treatment in specific situations. See Quedado v. Boeing Co., 168 Wash. App.
26 363, 368-69, 276 P.3d 365 (2012).
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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 11

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Accordingly, plaintiff has failed to set forth specific facts showing that there is a

2 genuine issue of material fact with respect to his breach of contract claim.
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IV. CONCLUSION
For all the foregoing reasons, the court GRANTS the Port’s motion for summary

5 judgment. Dkt. # 41. The court also GRANTS plaintiff’s motion to amend its response
6 to conform to the Local Rules. Dkt. # 53.
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Dated this 4th day of September, 2012.

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The Honorable Richard A. Jones
United States District Judge

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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 12