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Case Number: 3:21-CV-05570
Judge: David G. Estudillo
Court: United States District Court for the Western District of Washington (Pierce County)
Defendant's Attorney: Derek Allan Bishop, Matthew M. Deeg
Description: Seattle, Washington employment law lawyer represented Plaintiff on a wrongful termination theory.
CACI is an information technology company and defense contractor that provides services to various clients, including the United States Government, which is CACI's largest customer. (Dkt. No. 27-1 at 17-18.) Plaintiff's employment with CACI began in January 2016 following CACI's purchase of a business unit of Plaintiff's then employer, L3 Communications Holdings. (Id. at 12-13.) Plaintiff was an at-will employee. (Dkt. No. 27-7 at 16.) Plaintiff signed a form acknowledging he reviewed CACI's Standards of Ethics and Business Conduct. (Id. at 19-20.)
CACI has offices in the Middle East, and CACI employees are often required to travel for work. Employees of CACI travelling to Iraq are required to use military transportation for international travel. (Dkt. No. 29-1 at 2.) “Flying commercial is reserved solely for personnel ending in Kuwait due to VISA constraints.” (Id.) [A] ‘Mil Air waiver' is only used if there are no seats available on the CRC flight. This is so that [t]he person is not delayed arriving into theater.” (Dkt. No. 27-6 at 8.)
In early 2018, System Administrator Paul Gilmore travelled to Iraq on a commercial flight. On April 3, 2018, Deputy Program Manager Richard Needham sent Gilmore an email asking Gilmore to provide a formal email summary concerning the Mil-Air Waiver he used to travel. (Dkt. 29-1 at 4-5.) Needham asked Gilmore to explain how he modified the waiver and who authorized him to submit the waiver “without running it through the proper chain of command.” (Id.)
Gilmore responded to Needham's email the same day. (Id. at 3-4.) Gilmore explained he had already purchased a non-refundable ticket when he learned his waiver request was being denied. (Id. at 4.) Gilmore stated he purchased his ticket as soon as he was cleared by the company's medical staff to travel because his travel agent informed him the ticket price “could balloon from $2500 to in between $4500 and $5500” if he waited until closer to his departure date to buy a ticket. (Id. at 3.)
Gilmore stated that at a briefing shortly before his trip, his waiver was rejected because it did not include the proper language, and he understood he would be required to take a military flight even though he had already purchased a commercial ticket. (Id.) Gilmore said he submitted a new waiver with the proper language for proofreading, and he was informed that it would take several days for approval. (Id. at 4.) Gilmore stated he was concerned the company would lose money on the non-refundable ticket, and informed his supervisors he had modified the waiver so he could make his scheduled flight. (Id.) Gilmore apologized for his conduct, stating that his behavior was “by no means” an attempt to commit forgery, and his only intention was for his updated travel memo to be proofread prior to being resubmitted. (Id.)
Needham responded to Gilmore's email the same day, stating he recognized the “Catch 22” situation Gilmore was in and acknowledged Gilmore was under pressure to provide a correctly worded memo before his flight. (Id. at 2.) However, Needham informed Gilmore that making changes without following the correct process “was wrong even if it meant impact to departure.” (Id.)
Plaintiff was not included on the emails concerning Gilmore's travel situation, which Needham forwarded Plaintiff at his request. (Dkt. No. 1-1 at 5.)
On April 12, 2018, Plaintiff submitted an anonymous complaint on the website of Convercent, a third-party administrator that manages CACI's internal complaint system.(Dkt. No. 27-6 at 2-3.) Plaintiff accused Gilmore of falsifying a document so he could fly commercial and then “play[ing] it off” as an accident. (Id. at 2.) Plaintiff stated Gilmore “knew exactly what he was doing” and should have been investigated and his employment terminated for a “grievous breach of ethics.” (Id.) Plaintiff criticized Needham's response to the incident, saying Needham “did little more than email [Gilmore] that he shouldn't do stuff like that.” (Id.) Plaintiff stated Needham improperly overlooked the incident, despite the recommendation of other managers that Gilmore be terminated, because Needham was “desperate to fill slots in SWA (Southwest Asia).” (Id.)
Plaintiff stated Needham “may have covered up or glossed over several key points” so Gilmore's explanation would seem more plausible. (Id.) Plaintiff claimed Gilmore “knew full well what he was doing” and exhibited a lack of moral and ethical standards. (Id. at 3.) Plaintiff further claimed Gilmore was a possible security risk, arguing that his security clearance should have been suspended pending review, and stating that “[i]f he will do this for his own personal comfort what will he do for money.” (Id.) Plaintiff argued that Gilmore was a sub-par employee who played the “Race Card” to maintain his position. (Id.)
Plaintiff's complaint was investigated by Human Resources Business Partner Michael Griffith and Talent Acquisition Operations Specialist Amy Pedroni. (Dkt. No. 29-2.) Griffith and Pedroni reviewed the emails between Needham and Gilmore and had follow up discussions with Needham, Program Manager Dave Ely, and Vice President of Workplace Relations Brian Churchey. (Id. at 2.) Griffith and Pedroni found Gilmore acted in the company's best interests, since had he acted otherwise, his departure would have been delayed by a week, costing the company around $5,000.00. (Id. at 3.) Griffith and Pedroni concluded Gilmore's conduct was “[v]alid, without nefarious intent”, and recommended several measures to ensure CACI's waiver form could not be modified and to educate company personnel about proper travel procedures (Id.) The investigation was closed on June 18, 2018. (Id.)
B. Gilmore's Complaint about Plaintiff
On June 8, 2018, Gilmore submitted an anonymous complaint about Plaintiff via the Convercent website. (Dkt. No. 29-3.) Gilmore also complained directly to management. (Dkt. No. 30 at 2-3.) Gilmore stated Plaintiff was making him and other African American employees uncomfortable by speaking to them in a patronizing manner, affecting a condescending tone, and using racial epithets. (Dkt. No. 29-3 at 2.) Gilmore said Plaintiff used Needham as an “instrument of intimidation” any time Plaintiff's leadership was questioned, and always added a racial dimension to any conversation. (Id.) Gilmore stated Plaintiff called him “boy” on several occasions, which he considered equivalent to calling an African American a “N*****”. (Id.)
The first incident cited by Gilmore occurred during a telephone conversation with Plaintiff on April 13, 2018. (Id.) During a disagreement about whether Gilmore needed to submit a status report prior to travel, Gilmore told Plaintiff he was planning to email a third party for clarification. (Id.) Gilmore contends Plaintiff then cursed at him and stated “Boy just shut up and do what I say.” (Id.) The second incident occurred during a conversation between Gilmore and Plaintiff on June 8, 2018. (Id.) Gilmore claims he questioned Plaintiff's directive
to hand over certain passwords to an employee Gilmore felt was not authorized for administrative access. (Id.) Gilmore claims that after he told Plaintiff he wanted to verify the directive with Needham, Plaintiff cursed at him again and stated “God Damn it boy you will do I as I say.” (Id.) (sic).
Gilmore claimed Plaintiff's “unprofessional attitude and behavior” made the workplace a hostile environment, and provided a list of eleven other employees who had negative experiences with Plaintiff. (Id. at 2-3.)
Plaintiff disputed Gilmore's account, admitting to cursing during a conversation with Gilmore, but denying using the term “boy”. (Dkt. No. 30 at 2.) Ms. Pedroni, who interviewed Plaintiff and Gilmore following Gilmore's complaint, stated Plaintiff came off as defensive, and she expressed doubts about his credibility. (Dkt. Nos. 27-2 at 2; 30 at 2.) Pedroni found Gilmore to be credible. (Dkt. No. 30 at 2.)
Gilmore's complaint was investigated and found to be valid. (Dkt. No. 29-4 at 2.) Plaintiff was issued a written warning and demoted from his position as Operations Lead. (Dkt. Nos. 27-7 at 2; 29-4 at 2.) Plaintiff signed the warning letter, stated he was taking full responsibility for his actions, and said he was sorry his actions caused the company to lose faith in his ability to function in his position. (Dkt. No. 27-8 at 2.)
Plaintiff underwent a performance appraisal shortly after Gilmore's complaint was resolved. (Dkt. No. 27-5.) Plaintiff's appraisal was largely positive, with Needham calling him a “very valuable” employee and finding he consistently met expectations. (Id. at 2.) Needham noted some of Plaintiff's actions did “not reflect very well” on him, but that those actions were not representative of who Plaintiff was as an employee. (Id.) Needham encouraged Plaintiff to learn from the incident, move past it, and continue to perform well. (Id.) Plaintiff stated he
disagreed with the outcome of his encounter with Gilmore, but said he was moving on from the experience and sought to be a productive team member. (Id.)
C. Sturgis' Complaint about Plaintiff
On May 15, 2019, CACI employee Trevecca Sturgis submitted an anonymous online complaint about Plaintiff. (Dkt. No. 29-5 at 2.) Sturgis claimed Plaintiff made “multiple comments” about minority employees during a meeting, and while expressing frustration about African American government employee Marcus Allen stated “Someone needs to noose [Allen] in.” (Id.) Plaintiff denied making this comment. (Dkt. No. 27-1 at 55-56.)
Griffith investigated Sturgis' complaint, interviewing Plaintiff, Sturgis, Needham, and several other individuals. (Dkt. No. 29-6 at 2.) In a report dated May 15, 20219, Griffith found Sturgis' complaint valid, and considering Gilmore's previous complaint, stated Plaintiff's conduct indicated a “pattern of racial insensitivity.” (Id. at 3.) Griffith noted to Churchey that Sturgis was not involved in prior complaints against Plaintiff and had no apparent motivation to lie. (Dkt. No. 31 at 2.) Griffith recommended terminating Plaintiff's employment. (Dkt. No. 29-6 at 3.)
On May 16, 2019, Marcus Allen sent an email in which he revealed that he had been made aware of Plaintiff's alleged comments about him. (Dkt. No. 28-1 at 7-8.) Allen stated he regarded the “noose” comment as a threat on his life and would do what was necessary to protect himself and his family. (Id. at 8.) Allen said this was the third incident involving Plaintiff of which he was aware, citing Gilmore's complaint and an incident he observed in which Plaintiff yelled at another person during a telephone call. (Id.)
In an email dated May 21, 2019, Program Manager Ely expressed ambivalence about terminating Plaintiff's employment. (Dkt. No. 28-1 at 13.) Ely stated there was a “difference of opinion” concerning whether Plaintiff made the “noose” comment at the meeting. (Id.) Ely noted one witness present at the meeting was unsure if Plaintiff made the comment, while two other witnesses said he did not. (Id.) Ely noted the previous incident involving Plaintiff and concluded there was no reason to believe Sturgis would fabricate the complaint. (Id.) Ely stated terminating Plaintiff's employment was a “difficult decision” due to the ambiguity surrounding the incident, but that it was not “tenable” to continue Plaintiff's employment given how “furious” Mr. Allen was about the comment and the likelihood that the government would ultimately insist on Plaintiff's removal. (Id.) Plaintiff was terminated on May 21, 2019. (Dkt. No. 29-7 at 2.)
D. Plaintiff's Complaint in this Court
On July 19, 2021, Plaintiff filed a complaint in the Pierce County Superior Court against CACI and its subsidiaries, alleging he was wrongfully terminated in violation of public policy. (Dkt. No. 1-1.) Plaintiff argues he raised good faith concerns of interest to public policy by questioning CACI's decision to “cover up” Gilmore's transgression rather than fire him. (Id. at 12.) Plaintiff contends CACI's decision to pay for Gilmore's commercial air travel violated company policy and was a waste of state resources. (Id.) On August 9, 2021, Defendants removed this case to federal court. (Dkt. No. 1.)
On April 11, 2023, Defendants filed a motion for summary judgment. (Dkt. No. 26.) Defendants argue Plaintiff has failed to establish a prima facie case of wrongful termination in violation of public policy. (Id.) Plaintiff responded to Defendants' motion (Dkt. No. 32) and Defendant replied. (Dkt. No. 33.)...
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In Washington, “[a]n employer may discharge an at-will employee for ‘no cause, good cause or even cause morally wrong without fear of liability.'” Roe v. TeleTech Customer Care Mgmt. (Colo.) LLC, 257 P.3d 586, 594-595 (Wash. 2011) (quoting Thompson v. St. Regis Paper Co., 685 P.2d 1081, 1085 (Wash. 1984)). However, a narrow exception to the at-will employment doctrine prohibits an employer from terminating an employee “for reasons that contravene a clear mandate of public policy.” Martin v. Gonzaga Univ., 425 P.3d 837, 842-843 (Wash. 2018) (quoting Thompson, 685 P.2d at 1089).
The tort for wrongful discharge in violation of public policy has generally been limited to four scenarios: “(1) where employees are fired for refusing to commit an illegal act; (2) where employees are fired for performing a public duty or obligation, such as serving jury duty; (3) where employees are fired for exercising a legal right or privilege, such as filing workers' compensation claims; and (4) where employees are fired in retaliation for reporting employer misconduct, i.e., whistle-blowing.” Gardner v. Loomis Armored, Inc., 913 P.2d 377, 379 (Wash. 1996) (citing Dicomes v. State, 782 P.2d 1002, 1006-1007 (Wash. 1989)).
If an employee's public policy tort action falls into one of the four Dicomes categories, the employee establishes a prima facie case of wrongful discharge in violation of public policy by showing: 1) that the discharge may have been motivated by reasons that contravene a clear mandate of public policy; and 2) that the public policy linked conduct was a “significant factor” in the decision to discharge the worker. Martin, 425 P.3d at 725-726 (internal citations omitted). If the employee succeeds in presenting a prima facie case, the burden then shifts to the employer to “articulate a legitimate nonpretextual nonretaliatory reason for the discharge.” Id. If the employer articulates such a reason, the burden shifts back to the plaintiff either to show that the reason is pretextual, or by showing that although the employer's stated reason is legitimate, the public policy linked conduct was nevertheless a substantial factor motivating the employer to discharge the worker. Id. at 726.
When the employee's case does not fit neatly within one of these scenarios, a court applies a four-part framework articulated in a 1991 treatise written by Henry H. Perritt, Jr. Mackey v. Home Depot USA, Inc., 459 P.3d 371, 385, n. 4 (Wash.Ct.App. 2020). Under the four-part Perritt test, a plaintiff must prove: (1) the existence of a clear public policy (the clarity element); (2) that discouraging the conduct in which they engaged would jeopardize the public policy (the jeopardy element); (3) that the public policy linked conduct caused the dismissal (the causation element); and (4) defendant must not be able to offer an overriding justification for the
dismissal (the absence of justification element). Martin, 425 P.3d at 723 (quoting Gardner, 913 P.2d at 382.
The Perritt framework should not be applied to a claim that falls within one of the four Dicomes scenarios of wrongful discharge in violation of a public policy. Martin, 425 P.3d at 723-724.
Owens v. CACI Int'l (W.D. Wash. 2023)
Outcome: Defendants' motion for summary judgment (Dkt. No. 26) is GRANTED. Plaintiff's claim is DISMISSED with prejudice. Plaintiff's motion to continue the trial date (Dkt. No. 35) is DENIED as moot.