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Russell Burke And Julie Burke, V City Of Montesano
48497-8
Wash. Ct. App.
Feb 22, 2017
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Background

  • Burke worked for Montesano Public Works since 1986, ultimately as Public Works Lead after declining a nonunion Director role; he reported to City Administrator Kristy Powell and later Public Works Director Rocky Howard.
  • Burke hosted a 2011 campaign event for Mayor candidate Doug Streeter; Ken Estes won and later became mayor. Powers and Estes had at least one political interaction with Burke after the election.
  • An internal investigation beginning in 2012–2013 into alleged misappropriation of paint found increased paint orders coinciding with Burke’s side painting business; Burke was placed on paid administrative leave in February 2013.
  • The City ordered Burke to attend investigative interviews multiple times; Burke repeatedly refused to attend relying on his attorney’s advice and demanded a different investigator; the City warned that refusal would be insubordination and could lead to discipline.
  • Burke received a 21-day suspension for refusing to attend a Loudermill hearing; after further refusals to appear for interviews and a predisciplinary process, Mayor Estes terminated Burke for insubordination, citing obstruction of the investigation.
  • Burke sued asserting wrongful discharge in violation of public policy (political activity/First Amendment), among other claims; all other claims were dismissed or stipulated away and the superior court granted summary judgment for the City on the wrongful discharge claim; Burke appealed.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether Burke established a prima facie wrongful discharge claim (political activity as a cause of termination) Burke contends his political support for Streeter and post-election interactions show political animus that caused termination City assumes arguendo Burke met prima facie, but insists termination was for insubordination, not politics Court assumed without deciding prima facie met but proceeded to pretext analysis and affirmed summary judgment
Whether the City articulated a legitimate nonretaliatory reason for termination Burke disputes motive but does not contest the facts of his refusals City showed termination was for repeated, warned insubordination that impeded an investigation and followed progressive discipline Court held City met burden to articulate legitimate nonretaliatory reason (insubordination)
Whether Burke produced evidence that the proffered reason was pretextual or that politics was a substantial motivating factor Burke relies on (1) a March 2013 email saying objective was that Burke ‘‘no longer work here’’ and (2) Estes’s deposition mentioning a June Loudermill hearing that was not scheduled City argued email was from Powell in investigation context and not proof of political motive; Estes’s inaccurate recollection does not create an inference of political animus sufficient to defeat summary judgment Court held Burke failed to raise a genuine issue of material fact as to pretext or substantial motivating political factor; summary judgment affirmed

Key Cases Cited

  • Rickman v. Premera Blue Cross, 184 Wn.2d 300 (review of summary judgment standard)
  • Rose v. Anderson Hay & Grain Co., 184 Wn.2d 268 (clarifying public-policy wrongful discharge framework)
  • Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46 (McDonnell Douglas burden-shifting in public-employee political-activity cases)
  • McDonnell Douglas Corp. v. Green, 411 U.S. 792 (burden-shifting framework for discrimination/retaliation claims)
  • Thompson v. St. Regis Paper Co., 102 Wn.2d 219 (foundational wrongful discharge analysis)
  • Gardner v. Loomis Armored, Inc., 128 Wn.2d 931 (enumeration of wrongful discharge categories)
  • Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (due-process Loudermill hearing concept)
Read the full case

Case Details

Case Name: Russell Burke And Julie Burke, V City Of Montesano
Court Name: Court of Appeals of Washington
Date Published: Feb 22, 2017
Docket Number: 48497-8
Court Abbreviation: Wash. Ct. App.