Quinn v. City of Vancouver et al

Filing 332

ORDER ADOPTING REPORT AND RECOMMENDATION re 324 Report and Recommendations. Signed by Judge Benjamin H. Settle. (MGC)

Case 3:17-cv-05969-BHS Document 332 Filed 09/15/21 Page 1 of 13

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CASE NO. C17-5969 BHS

DEBRA QUINN,
Plaintiff,

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v.

ORDER ADOPTING REPORT
AND RECOMMENDATION

CITY OF VANCOUVER,

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Defendant.

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THIS MATTER is before the Court on Magistrate Judge Creatura’s Report and

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Recommendation (“R&R”), Dkt. 324, recommending the rulings on the parties’ pending

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summary judgment motions, Dkts. 260, 262, 266, and 268. The parties and the Court are

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familiar with the long factual and procedural history of this case, and the Court need not

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repeat it here.

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Defendant City of Vancouver seeks summary judgment on two claims Quinn first

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asserted after she was terminated by the City: Claim 7, a § 1983 claim asserting that the

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City violated her Fourteenth Amendment due process rights with respect to her liberty

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interest in her reputation by failing to provide her the opportunity for a “name-clearing

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hearing,” and Claim 8, a state law claim asserting that the City discharged her in violation

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ORDER - 1

Case 3:17-cv-05969-BHS Document 332 Filed 09/15/21 Page 2 of 13

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of public policy. Dkt. 260. The R&R recommends granting the motion as to Quinn’s due

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process claim because Quinn has not established that she ever requested a name-clearing

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hearing, even though she was entitled to one. Dkt. 324 at 11–12. The R&R recommends

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denying the City’s motion as to Quinn’s discharge in violation of public policy claim,

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because her Title VII (42 U.S.C. § 2000e) and Washington Law Against Discrimination

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(RCW Chapter 49.60, “WLAD”) claims are not “exclusive” remedies and they do not

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effectively preempt her state law discharge in violation of public policy claim. Dkt. 324

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at 14–16.

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The City does not object to the denial of its motion for summary dismissal of

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Quinn’s discharge in violation of public policy claim. The R&R’s recommendation on

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that issue is therefore ADOPTED and the City’s Motion for Summary Judgment on

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Quinn’s state law discharge in violation of public policy claim, Dkt. 260, is DENIED.

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Quinn objects to the former recommendation, claiming that she was not required

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to request a name-clearing hearing; the onus was on the City to offer her one before

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terminating her for reasons that impugned her professional reputation. Dkt. 329 at 2.

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Quinn’s objections are discussed below.

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Quinn seeks partial summary judgment on her Title VII and WLAD Retaliatory

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Discharge claims. Dkt. 262. The City argues that she did not even assert such claims, and

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that even if she had she is not entitled to judgment as a matter of law on them. Dkt. 289 at

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2. The R&R recommends denying Quinn’s motion, without resolving whether she

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effectively asserted the claims. Dkt. 324 at 19. Quinn objects to the R&R on this point,

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arguing that while the R&R implicitly recognized that she stated such claims, it did not

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“clearly recognize” that her Amended Complaint asserts retaliatory discharge claims

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under Title VII and WLAD. Dkt. 329 at 10. She asks this Court to so conclude, but she

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does not object to the R&R’s recommended denial of her summary judgment motion on

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these claims. Id. at 11. The City strenuously opposes an “after-the-fact petition for a sua

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sponte declaration” that Quinn asserted claims that are facially not in her operative

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complaint. Dkt. 330 at 1.

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Defendants Young and Potter seek summary judgment on Quinn’s WLAD

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Retaliation claims against them. Dkts. 266 and 268. They also seek dismissal of Quinn’s

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claim for punitive damages, arguing that such damages are not permitted under

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Washington law. The R&R recommends denying the motions because there is

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circumstantial evidence supporting Quinn’s claim that the defendants’ proffered reasons

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for their actions were pretextual. Dkt. 324 at 31. It also recommends denial of Potter’s

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motion for summary judgment on Quinn’s claim that he discriminated against her by

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failing to promote her, based largely on the same evidence. Id. at 32–38. Young and

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Potter object to the R&R, Dkt. 328, and ask the Court to grant their summary judgment

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motions. Young and Potter’s objections are discussed below.

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Quinn does not object to the dismissal of her punitive damages claims against

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Young and Potter. The R&R dismissing such claims is ADOPTED, and Quinn’s punitive

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damages claims against Young and Potter are DISMISSED with prejudice.

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The R&R is ADOPTED as to all proposed resolutions that are not the subject of

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an objection. The parties’ objections to the R&R’s proposed resolution of their respective

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motions are discussed in turn.

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ORDER - 3

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I.
A.

DISCUSSION

Rule 72 standard.
A district judge must determine de novo any part of a magistrate judge’s proposed

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disposition that has been properly objected to. The district judge may accept, reject, or

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modify the recommended disposition; receive further evidence; or return the matter to the

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magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3). A proper objection requires

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specific written objections to the findings and recommendations in the R&R. United

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States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Objections to a

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R&R are not a vehicle to relitigate the same arguments carefully considered and rejected

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by the magistrate judge. See, e.g., Fix v. Hartford Life & Accident Ins. Co., CV 16–41–

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M–DLC–JCL, 2017 WL 2721168, at *1 (D. Mont. June 23, 2017) (collecting cases).

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B.
The City’s Motion for Summary Judgment on Quinn’s § 1983 liberty interest
due process claim is GRANTED.

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The R&R correctly determined that due process entitled Quinn to a name-clearing
hearing related to her termination for reasons that reflected poorly on her reputation. The
parties agree that Quinn did not ask for such a hearing, and that the City did not offer her

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one. The R&R recommends granting the City’s summary judgment motion, Dkt. 260,

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dismissing with prejudice Quinn’s Fourteenth Amendment claim for deprivation of her

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liberty interest in her reputation without due process. Dkt. 324 at 39. It concludes that
while she had a right to a name-clearing hearing, she failed to demonstrate she availed
herself of that right. Dkt. 324 at 11 (citing Reiber v. City of Pullman, 918 F. Supp. 2d
1091, 1102 (E.D. Wash. 2013) (“a plaintiff who fails to request a name-clearing hearing

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is precluded from asserting a substantive due process claim on an injury to reputation

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theory”).

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Quinn objects, arguing that the City was required to offer her an opportunity to

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clear her name and reputation when it terminated her for unprofessional and unethical

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behavior as its attorney. Dkt. 329. The City argues that no binding case has ever held that

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a plaintiff may assert such a claim based on the lack of a hearing when she did not ask for

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one. Dkt. 330.

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When a government employee is terminated for reasons that impugn the

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employee’s character, her liberty interest in her reputation entitles her to a name-clearing

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hearing. See Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 573 (1972). Federal

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district courts in this district and state have recognized the dearth of published cases here

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addressing whether an employee must request a name-clearing hearing before she may

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sue for the deprivation of her liberty interest:

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Although there does not appear to be a published opinion directly on point
in the Ninth Circuit, several circuit courts have ruled that a plaintiff who
fails to request a name clearing hearing is precluded from asserting a
substantive due process claim on an injury to reputation theory. See Quinn
v. Shirey, 293 F.3d 315, 322 (6th Cir. 2002) (“[B]efore asserting [a] liberty
interest claim, [a] Plaintiff [is] required to show that he requested a nameclearing hearing and was denied that opportunity.”); Gillum v. City of
Kerrville, 3 F.3d 117, 121 (5th Cir. 1993) (listing a request for nameclearing hearing and a subsequent denial of that request as elements of
substantive due process claim); Winskowski v. City of Stephen, 442 F.3d
1107, 1110 (8th Cir. 2006).

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Reiber v. City of Pullman, 918 F. Supp. 2d 1091, 1102 (E.D. Wash. 2013); see also

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Humann v. City of Edmonds, No. 13-cv-101-MJP, 2014 WL 4161974 at *10 (W.D.

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Wash. Aug. 19, 2014). The R&R relied on these authorities in recommending the

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dismissal of Plaintiff’s Fourteenth Amendment claim. Dkt. 324 at 11.

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Quinn claims that these cases are distinguishable—several of them involved

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plaintiffs (including Reiber) who were offered and declined such a hearing—and

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similarly argues that there is not a binding case holding that she was required to ask for a

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hearing. Dkt. 329 3–5. She cites other out-of-district cases holding that the terminated

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employee is entitled to notice of the right to a hearing. Id. at 5–8 (citing O’Donnell v.

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Barry, 148 F.3d 1126, 1132 (D.C. Cir. 1998); Buxton v. Plant City, 871 F.2d 1037, 1046

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(11th Cir. 1989); and others)).

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The most thorough, and persuasive, analysis of the issue is the Eighth Circuit’s in

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Winskowski.1 There, as here, the terminated employee did not seek a name-clearing

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hearing, and the government employer did not offer one. Id. at 1111. The issue, then, was

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whether authorities holding that one who was offered but failed to avail themself of a

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hearing has not been deprived of due process as a matter of law applied equally where the

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employee failed instead to seek such a hearing. The Eighth Circuit held that it did:

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Unlike the employer in Schleck, [the City] did not unilaterally offer
Winskowski a name-clearing hearing. Accordingly, we must decide
whether the principle enunciated in Schleck applies with equal force where
the employer never offered a hearing, but the employee nevertheless failed
to ask for one. We hold that it does. Nothing in our jurisprudence
suggests that a government employee can legitimately sue for
deprivation of the right to a post-termination hearing where he never
asserted the right before suing for damages. Allowing an employee to
claim damages for being deprived of a hearing never requested would
greatly expand government employers’ potential liability and force such

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Winskowski distinguished O’Donnell, which dealt with a lawsuit seeking a nameclearing hearing as a remedy. 442 F.3d at 1111.
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employers prophylactically to offer name-clearings when it is not at all
clear that the employee is entitled to—or even desires—one. It would
also reward employees for lying in wait and later asserting a right that the
employer had no reason to suspect the employee wanted to exercise in the
first place. Although it appears that we have not directly answered this
question before, we agree with the case law developed in other circuits that
holds that an employee who fails to request post-termination process
cannot later sue for having been deprived of it.

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Winskowski, 442 F.3d at 1111 (citing Schleck v. Ramsey County, 939 F.2d 638, 643 (8th
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Cir. 1991); Quinn, 293 F.3d at 321–22; Rosenstein v. City of Dallas, 876 F.2d 392, 396
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(5th Cir. 1989)) (emphasis added); see also Reiber, 918 F. Supp. 2d at 1102 (“Th[is]
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reasoning . . . applies with greater force” where plaintiff was expressly offered but
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declined a hearing.). The Court finds this reasoning sound generally, and in the context of
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this case.
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Plaintiff Quinn is an attorney, she was represented by an attorney, and she was
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already embroiled in this litigation when she was terminated. The City suggests that
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Quinn did not want a name-clearing hearing—a public airing of the charges against her
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and her response—because a deprivation claim must also demonstrate that the
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“stigmatizing” basis for the termination was false. The City claims that Quinn violated
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her duties to her client (the City) when she filed a “whistleblower” complaint against it,
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opining that the City was discriminating and retaliating against its female employees in
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violation of Title VII and other statutes. The City argues it terminated Quinn for violating
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her ethical responsibilities to it, and that while these reasons impugn Quinn’s professional
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reputation, she has not shown and cannot show that they were untrue. They argue
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persuasively that Quinn cannot meet her burden of demonstrating that they were
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stigmatizing or defamatory, or otherwise untruthful. See Dkt. 260 at 13, 16–19; Dkt. 330

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at 4 (quoting Judge Creatura’s R&R, Dkt. 324 at 11); see also Campanelli v. Bockrath,

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100 F.3d 1476, 1484 (9th Cir. 1996) (“In order to state a due process claim, [Plaintiff]

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also must allege that the defendants’ statements were substantially false.”).

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Quinn’s failure to request a name-clearing hearing is fatal to her Fourteenth

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Amendment claim that the City deprived her of a liberty interest in her reputation without

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due process. The R&R on this point is ADOPTED. The City’s Motion for Summary

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Judgment on Quinn’s Fourteenth Amendment claim (Claim 7), Dkt. 260, is GRANTED

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and that claim is DISMISSED with prejudice.

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C.
Quinn did not assert retaliatory discharge claims under Title VII or WLAD
and her Summary Judgment Motion on those claims is DENIED.

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Quinn seeks summary judgment on what she asserts are retaliatory discharge
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claims under Title VII (“Claim 3”) and WLAD (“Claim 4”), both based on her 2019

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termination. Dkt. 262 at 2. The City asserts that Quinn never asserted such claims. Dkt.
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289 at 2–5. The R&R recommends denying the motion. Dkt. 324 at 19.
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Quinn sued in 2017, alleging discrimination in the way she was treated at work
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and passed over for the Vancouver City Attorney position. Among other things, she
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asserted claims for retaliation under Title VII and WLAD (Claims 3 and 4 in her initial
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complaint, Dkt. 1). In June 2019, the City terminated Quinn, based on its claim that she
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violated her professional and ethical duties to it, her client.
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In August 2019, Quinn sought leave to supplement her complaint to add two
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claims based on her termination. Dkts. 141 and 141-2. She sought to add a § 1983
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Fourteenth Amendment claim asserting that the City deprived her of her liberty interest in

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her reputation without due process by failing to provide her a name-clearing hearing, and

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a state law claim for wrongful discharge in violation of public policy. Id. The defendants

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opposed amendment. Dkts. 150 and 152. Specifically, the City argued that Quinn was

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required to file a new EEOC complaint before asserting a Title VII claim for retaliatory

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discharge—a claim different than, and based on different facts than, her previously-

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asserted Title VII retaliation claim, which was the basis of a pre-suit and pre-termination

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EEOC charge and right to sue letter. Dkt. 150. In her Reply, Dkt. 153, Quinn expressly

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disavowed any effort to assert a new Title VII claim based on her termination; she was

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instead asserting a Section 1983 claim, which has no pre-claim prerequisites:
However, Plaintiff’s Equal Protection2 claim is not a Title VII claim. The
EEOC charge requirement of 42 U.S.C. § 2000e-5(e) applies by its own
terms only to claims under “this section,” i.e., 42 U.S.C. § 2000e. In
contrast, Plaintiff’s new Equal Protection claim is brought under a different
section, 42 U.S.C. § 1983. Fort Bend did not address § 1983 claims at all,
and Plaintiff is not aware of any authority requiring that § 1983 claims be
submitted to the EEOC.
Dkt. 153 at 5.

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On August 21, 2019, the Court allowed Quinn to amend her complaint to assert a

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§ 1983 Fourteenth Amendment liberty interest, due process claim, based on the lack of a

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name-clearing hearing. It recognized that the newly-alleged facts potentially supported a

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Title VII retaliatory discharge claim, but concluded that since she was not asserting such

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The “Equal Protection” reference is unclear. Quinn sought to and ultimately did assert a
Fourteenth Amendment claim based on the deprivation of her liberty interest in her reputation
without due process. See Dkt. 172 at 12. She has not asserted an Equal Protection claim.
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a claim, that statute’s administrative exhaustion (an EEOC charge and a right to sue

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letter) were not required before she asserted her new § 1983 claim. Dkt. 171 at 9 (“[T]he

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City has failed to establish as a matter of law that claims based on facts which could form

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the basis of a Title VII violation, but are not alleged under Title VII, must be

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administratively exhausted under Title VII.”) (emphasis added).

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The Court also agreed with the City that Quinn could not yet assert her state law

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termination in violation of public policy claim because she had not provided the required

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60 days’ pre-claim notice. Id. at 8. It ruled that when that period was complete, she could

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again supplement her complaint to assert the state law claim. Id. at 10. Quinn filed her

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First Amended Complaint3 the next day. Dkt. 172. In October 2019, Quinn supplemented

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her complaint again, without opposition, after the pre-claim notice period expired for her

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discharge in violation of public policy claim. Dkts. 184-2 and 186. Her Second Amended

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Complaint, Dkt. 186, is the operative complaint.

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Quinn’s Title VII and WLAD retaliation claims have remained unchanged in all

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iterations of her complaint. Her Title VII retaliation claim has consistently asserted only

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that

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Defendants retaliated against QUINN in violation of 42 U.S.C. §2000e-17
because of QUINN’s complaints of Defendants’ unlawful conduct by
placing QUINN on involuntary leave for nearly four months; publishing
stigmatizing statements about QUINN to her colleagues while she was on

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Quinn’s First Amended Complaint, Dkt. 172, differs from the her proposed, red-lined
version, Dkt. 141-2, because the Court dismissed other claims and defendants on summary
judgment in the interim. Dkt. 170. Quinn’s § 1983 Fourteenth Amendment claim, Claim 7 in her
First Amended Complaint, Dkt. 172, is substantively identical to the proposed version, Dkt.
141-2, and to the claim that remained in both iterations of her Second Amended Complaint,
Dkts. 184-2 and 186.
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forced leave; delaying investigation of her discrimination and hostile
workplace complaints until after the City’s other pending gender
discrimination claims were resolved; delaying QUINN’s merit pay increase
for three months after she should have received it; and altering QUINN’s
regular workload.

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Dkt. 186 at 10; see Claims 3 and 4 in Dkts. 1, 141-2, 172, and 184-2. It is undisputed that

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Quinn did not make a EEOC charge based on her termination, and she persuasively

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denied that she was seeking to add the claims upon which she now seeks summary

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judgment. Indeed, she does not even object to the R&R’s recommended denial of that

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motion; she instead objects that it did not “find” that she had in fact asserted such claims.

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Dkt. 329 at 10.

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Quinn’s attempt to assert, in an objection to an R&R, claims that are not in her

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Second Amended Complaint, is procedurally improper and ineffective. The R&R’s

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recommended denial of the Motion is ADOPTED, Quinn’s Motion for Summary

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Judgment, Dkt. 262, is DENIED, and the Court HOLDS that Quinn has not asserted

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retaliatory discharge claims under Title VII or WLAD.

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D.

Young and Potter’s Motions for Summary Judgment are DENIED.
Defendants Young and Potter seek summary judgment on Quinn’s remaining

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WLAD retaliation claims against them. Dkts. 266 and 268. They acknowledge that the

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Court previously denied their similar motions on this claim. See Dkt. 170. They assert,

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however, that subsequent discovery has only demonstrated that their reasons for placing

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Quinn on paid administrative leave were legitimate and non-pretextual. Dkts. 266 and

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268.

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The R&R recommends denying the individual defendants’ summary judgment

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motions, concluding that Quinn had established her prima facie retaliation claim, and that

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questions of fact regarding the defendants’ legitimate, non-pretextual reasons for their

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adverse employment action precluded summary judgment. Dkt. 324 at 31.

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Young and Potter object, arguing that the R&R incorrectly “found” that they failed

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to provide additional evidence that their reason for placing Quinn on paid administrative

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leave was legitimate and not pretextual, Dkt. 328 at 2. They argue the R&R incorrectly

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concluded that Potter’s allegedly derogatory comment about women, coupled with

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reasonable inferences from other circumstantial evidence supports the conclusion that

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gender played a role in their decision. Id. at 4. They (like the City) emphasize that Quinn

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engaged in behavior adverse to her client’s interests and in violation of her duties as an

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attorney, id. at 8.

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The defendants’ arguments and evidence are persuasive, and they may ultimately

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prevail. But they still do not lead to the conclusion that they are entitled to judgment as a

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matter of law on Quinn’s retaliation claims against them. The rich and lengthy factual

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context of Quinn’s employment, her leave (and her ultimate dismissal) will necessarily

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await a jury’s fact-finding. This is true for the legitimacy of the defendants’ purported

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non-discriminatory and non-pretextual reasons for their actions.

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The R&R’s recommended denial of Young and Potter’s summary judgment
motions is ADOPTED, and those Motions, Dkts. 266 and 268, are DENIED.
The R&R is ADOPTED.

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The City’s Motion for Summary Judgment, Dkt. 260, is GRANTED in part and
DENIED in part. Quinn’s Fourteenth amendment claim is DISMISSED with prejudice.
Quinn’s Motion for Summary Judgment, Dkt. 262, is DENIED, and her request

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for the Court to find she asserted Title VII and WLAD retaliatory discharge claims is

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DENIED.

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Young and Potter’s Summary Judgment Motions, Dkts. 266 and 268 are
DENIED.

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IT IS SO ORDERED.

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Dated this 15th day of September, 2021.

A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 13