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