To: Senior Attorney
From: Henri Vanderhage
Date: April 16, 2002
RE: Darren MacPherson’s claims against the Washington State Department of Fish and Wildlife and Charles Daniels.
1. Does the fact that a plaintiff has had an administrative hearing to determine his wrongful termination, bar a subsequent action for related issues?
2. In the State of Washington, may a State employee bring suit against his supervisor as an individual, and the State as well?
3. If a State agency will not obey the ruling of an administrative body, may a plaintiff seek a writ of mandamus to compel action?
4. May a plaintiff whose employer made libelous and slanderous remarks both within the workplace and to a third party bring a suit for defamation, even though he has suffered no injury?
5. May a public employee bring suit from violation of due process where he was terminated without notice and his honesty, integrity, and competence has been called into question through comments made to a third party?
Statutes:
1. 28 U.S.C.A. § 1343 (2002)
2. 42 U.S.C.A. § 1983 (2002)
3. 42 U.S.C.A. § 1988 (2002)
4. RCWA 4.92.075, 090 (2002)
5. RCWA 7.16.150-280 (2002)
6. RCWA 34.05.030 (2002)
7. RCWA 41.06.220, 450 (2002)
Regulations:
1. WAC 356-34-010, -040 (2002)
2. WAC 358-30-050 (2002)
3. WAC 358-30-180 (2002)
Cases:
4. Rains v. State, 100 Wn.2d 660, 674 P.2d 165 (1983)
5. Reninger v. State of Washington Department of Corrections, 134 Wn.2d 437, 951 P.2d 782 (1998)
6. Shoemaker
v. Bremerton, 109 Wn.2d 504, 745 P.2d 858 (1987)
7. Clark Cy. Sheriff v. Department of Social & Heath Servs., 94 Wn.2d 445, 626 P.2d 6 (1981)
8. Pate v. Tyee Motor Inn, Inc., 77 Wn.2d 819, 467 P.2d 301 (1970)
9. Robel v. Roundup Corporation, 103 Wn.App. 75, 10 P.3d 1104 (Ct. App. Div. 3, 2000), reh’g granted ___ Wn.2d ___, 21 P.3d 391 (2001).
On November 30, 2001 the Washington State Department of Fish and Wildlife issued a reward check for $500 to Frank Anderson and gave it to senior warden Darren MacPherson to deliver. The check was identical to expense checks issued to officers, except it was made out to Anderson. On December 13, 2001, MacPherson went to the Bank of Whitman in Quincy, Washington, where he is stationed, and cashed two checks including the reward made out to Anderson; he endorsed them both with his own name. After discovering that the reward had not been delivered, the department contacted the Washington State Patrol (WSP) to investigate. Based upon the WSP investigation the Douglas County prosecutor decided to file criminal charges against MacPherson. In January 2002, the department issued a letter of termination to MacPherson. The criminal case went to trial in February of 2002 and resulted in a “not guilty” verdict after MacPherson argued that he mistook the check as a reimbursement when he cashed it.
After the criminal trial MacPherson’s supervisor, Charles Daniels, issued a letter to the other officers addressing rumors circulating around the department about MacPherson’s employment status. The letter said that regardless of the verdict in the criminal trial, the department believed that MacPherson had behaved unprofessionally and with degree of negligence inconsistent with his continued employment and that “Mr. MacPherson was terminated because of neglect of duty, incompetence, malfeasance, gross misconduct, and willful violation of published agency procedure.” In a later telephone conversation with an unrelated party, Daniels said that “MacPherson was grossly incompetent,” and that he “would have to sue to get his job back.”
MacPherson appealed his termination to the Personnel Appeals Board (PAB), which reversed the department’s decision on March 1, 2002 and reinstated him. He was also awarded back pay and benefits as a result of the decision. However, the department has failed to provide MacPherson with such basic equipment as a sidearm and a bulletproof vest. The Department has also failed to expunge his employment file of references to the incident involving the check, even though expungment has been ordered by the PAB. MacPherson now wants to litigate against the Department.
In this case there is a jurisdictional issue that must be addressed early as it has implications that affect the damages available on a successful suit. Due to the potential of a federal claim for a civil rights violation the federal district courts have jurisdiction. 42 U.S.C.A §1983 (2002); 28 U.S.C.A. §1343 (2002). Therefore we may bring claims in federal or state court. This has the effect of potentially entitling MacPherson to attorney’s fees on prevailing claims. 42 U.S.C.A § 1988(b) (2002). With this in mind it is necessary to determine whether the administrative decision precludes further litigation before we assess the immunities of the potential parties, and finally address the substantive claims for mandamus, defamation, and constitutional due process violations. In doing so, it appear that there is a high likelihood of prevailing on a mandamus claim and with a lesser degree of certainty, potential for recovery on claims of defamation and violation of constitutional due process.
Res judicata and collateral estoppel
Even though MacPherson has had an administrative hearing to adjudicate his wrongful termination claim, he may be able to bring civil suits based on other causes of action arising out of his termination and the subsequent acts of the Department. However, this depends on the application of the doctrines of res judicata and collateral estoppel.
State and federal courts have held that res judicata precludes a claim when a prior judgment has been entered with respect to the parties on an identical cause of action arising out of the same subject matter. Rains v. State, 100 Wn.2d 660, 663, 674 P.2d 165, 168 (1983). This differs from collateral estoppel which bars a suits arising out of the same or different cause of action if a final judgment has been entered on the merits of an identical issue and it would not work an injustice to preclude litigation. Rains, 100 Wn.2d at 665, 674 P.2d at169 (1983). Specifically applied to administrative agency decisions, the court will consider whether the agency below made a factual decision, the extent of the procedural differences, and policy considerations including the remedies available at the administrative level and the parties’ incentive to vigorously litigate the issue in question. Reninger v. State of Washington Department of Corrections, 134 Wn.2d 437, 449-454, 951 P.2d 782, 788-791, (1998); see also Shoemaker v. Bremerton, 109 Wn.2d 504, 507-508, 745 P.2d 858, 860-861 (1987). In addition, federal courts must give an agency’s fact finding the same preclusive effect to which it would be entitled in the State’s courts. Shoemaker, 109 Wn.2d at 505, 745 P.2d at 859; University of Tennessee v. Elliott, 478 U.S. 788, 799 (1986).
Res judicata and collateral estoppel were both applied in Rains where a citizen filed a complaint for violation of 42 U.S.C. §1983 in state court after a federal district court had already granted judgment in favor of the defendants on virtually the identical claim. Rains, 100 Wn.2d at 662, 674 P.2d 167-168. In holding that the suit was barred by both doctrines, the court reasoned that switching the named defendant from an individual state agent to the state itself did not change the quality of the parties and a suit should not be allowed where a final judgment on the merits of the same issue has been entered by a federal district court. Id. at 663-666, 674 P.2d 168-169.
In MacPherson’s case it appears that the doctrine or res judicata will only apply if there is an attempt to litigate wrongful termination based on his discharge from the department. It is true that the parties in any subsequent action will be essentially the same as those present in the PAB hearing, but the additional claims will not be precluded unless asserting the same cause of action. Shoemaker, 109 Wn.2d at 508, 745 P.2d at 860. It is also true that the only issue presented at the PAB hearing was whether there was sufficient cause to terminate MacPherson. Therefore, issues of defamation and due process should not be precluded. In addition, the PAB would not have authority to grant any form of relief other than reinstatement if these issues were brought to the attention of the board. W.A.C. § 358-30-050 (2002). It therefore follows that there was no reason for MacPherson to attempt to litigate these issues at all. It would also work a great injustice if the court were to invoke collateral estoppel were a plaintiff might not have been aware of all the wrongs committed against him or the potential future implications the actions of Daniels and the department.
The defense may attempt to argue that it is necessary to raise all relevant issues at the administrative hearing or exhaust all potential remedies prior to instigation of a civil action. However, the courts have not recognized this as a valid defense. Patsy v. Board of Regents, 457 US 496, 500 (1982). Even though MacPherson was afforded the privilege of an administrative hearing the findings were focused on the allegations of misconduct and whether reinstatement was proper. In holding that MacPherson was wrongfully terminated, the PAB reinstated him and did not address other potential issues beyond the scope of their authority. This draws the conclusion that MacPherson will probably be allowed to proceed in actions for enforcement of the decision, defamation, and violation of constitutionally protected rights.
Immunities
Before addressing the possibility of favorable outcome in the potential suits, it is necessary to address the respective immunities of the state of Washington and Mr. Daniels. The state of Washington has statutorily waived sovereign immunity in most tort actions, with the exception of federal civil rights cases. R.C.W.A. 4.92.090 (2002); Rains v. State, 100 Wn.2d 660, 674 P.2d 165 (1983). Therefore federal civil rights suits are brought against the individual State officer who is afforded qualified immunity if a reasonable officer would believe his actions were lawful. Id. at 667, 674 P.2d at 170; see also Staats v. Brown, 139 Wn.2d 757, 991 P.2d 615 (2000); Harlow v. Fitzgerald, 457 U.S. 800 (1982); Anderson v. Creighton, 483 U.S. 635 (1987). Upon establishing liability against a State officer, Washington will satisfy the judgment if the individual was acting within the scope of his employment. R.C.W.A. 4.92.075 (2002); Rains, 100 Wn.2d at 667, 674 P.2d at 170.
In affirming the trial court’s summary judgment for the defendant on a §1983 claim, the court in Rains also held that the State is immune from federal civil rights violations and these suits must be brought against the individual officer who will rely on the indemnity provisions of the RCW to satisfy a judgment if qualified immunity is not found. Rains, 100 Wn.2d at 667-668, 674 P.2d at 170. The court reasoned that nothing in the legislative history or the legislation indicated that the state intended to be subject to §1983 actions. However it was intended that the State protect officers who acted within the scope of his duties. Id. at 667-668, 674 P.2d at 170.
Considering the application of Washington’s immunity legislation it appears that we may be able to bring suit against the Department for enforcement of the PAB decision, the tort of defamation, and deprivation of due process protected under Wash. Const. art. I §3 in State court. However, it does not appear that the State has waived its immunity to federal civil rights violations and an attempt to bring such an action against the State would likely fail. Rains, 100 Wn.2d at 667, 674 P.2d at 170.
It is also likely that a suit against Daniels for enforcement of the PAB decision, defamation, and violation of due process may also be instituted. Due to the provisions of 42 U.S.C. §1983 discussed below, it may be able to bring all of these suits in federal court through the liberal joinder rules of Fed.R.Civ.P 18(a). This may allow a pursuit of punitive damages on the federal claims. 42 U.S.C. §1988 provides that state law will control claims where federal law is not sufficient and attorney’s fees may be awarded to the prevailing party. 42 U.S.C.A §1988(a)-(b) (2002). Therefore, claims may be brought in both state and federal court. However, the federal claims may be more appealing due to the possibility of attorney’s fees and punitive damages.
It has appears the MacPherson can pursue a writ of mandamus to compel compliance with the PAB’s orders. In a situation where there is not an adequate remedy in the ordinary course of law, a writ of mandamus may be appropriate to compel a government officer or agency to perform an existing legal duty which has been violated. R.C.W.A. § 7.16.150 - 280 (2002); Clark Cy. Sheriff v. Department of Social & Heath Servs., 94 Wn.2d 445, 626 P.2d 6 (1981), Walker v. Munro, 124 Wn.2d 402, 407-408, 879 P.2d 920, 924 (1994).
In Clark Cy. Sheriff v. Department of Social & Health Servs., the sheriff’s department sought a writ to compel the DSHS to comply with a specific statute. 95 Wn.2d at 446, 626 P.2d 6. The court held that mandamus is the appropriate remedy to compel performance of a precisely defined duty. Id. at 450, 626 P.2d at 8. In so holding, the court reasoned that the statute did not give the DSHS discretion in compliance and the sheriff’s department did not have any other legal remedy available to them. Id. at 449, 626 P.2d at 8.
It is not hard to see that mandamus is the appropriate remedy in this case. Upon reinstatement, MacPherson is entitled to all of employee rights and benefits. R.C.W.A. § 41.06.220 (2002); W.A.C. § 358-30-180 (2002). It may be inferred that a sidearm and bulletproof vest are of the type of rights and benefits to which the statue applies. In addition, MacPherson has an express right to have the records relating to the alleged misconduct destroyed. R.C.W.A. § 41.06.450 (2002). Therefore, it does not appear that the specificity of the legal duty is subject to question. MacPherson also has no other remedy available by which he can compel compliance with the PAB orders due to the fact that actions of the PAB are excluded from the Administrative Procedures Act. R.C.W.A. § 34.05.030(2)(d) (2002). It is hard for the Department to argue that they are justified in disobeying the orders of the PAB. The Department’s only area of contention may be that the decision to provide a sidearm and bulletproof vest is a discretionary decision. Walker, 124 Wn.2d at 410, 879 P.2d 925. However, this argument does not appear to be well founded.
It therefore follows that a court probably will rule in MacPherson’s favor compel the agency to abide by the decision of the PAB. This may be sufficient to satisfy MacPherson’s desire to be fully reinstated in his employment, however it does not cure the other wrongs committed against him that he may want to consider pursuing in court.
Defamation
The written statement issued to the Department employees and those spoken to Mr. Weston may allow a suit based on libel and slander. MacPherson may be able to recover substantial damages if he can prove that Daniels made a false communication that was not privileged and was libelous per se. Robel v. Roundup Corporation, 103 Wn.App. 75, 10 P.3d 1104 (Ct. App. Div. 3, 2000), reh’g granted ___ Wn.2d ___, 21 P.3d 391 (2001); Commodore v. Univ. Mech. Contractors, Inc., 120 Wn.2d 120, 839 P.2d 314 (1992); Gold Seal Chinchillas, Inc. v. State, 69 Wn.2d 828, 420 P.2d 698 (1966). Whether an individual’s privilege may be overcome by proof that he had reason to believe the communication was false or acted with reckless disregard for the truth depends on his level of authority within the organization and the relationship of the communication to the individual’s duty. Robel, 103 Wn.App. at 93 n.8, 10 P.3d at 1114 n.8; Gold Seal Chinchillas, Inc., 69 Wn.2d at 834, 420 P.2d at 701; Pate v. Tyee Motor Inn, Inc., 77 Wn.2d 819, 467 P.2d 301 (1970); see also Doe v. Gonzaga 143 Wn.2d 687, 24 P.3d 390 (2001), cert. granted, ___ U.S. ___, 122 S. Ct. 865 (2002).
In Robel the plaintiff was unable to recover for defamation based on a claim that certain terms and remarks were libelous per se. 103 Wn. App. 75, 10 P.3d 1104. The court held that in order to recover without proof of damages a publication must deprive a person of the benefit of public confidence, social intercourse, or injure him in his business or occupation. Id. at 93, 10 P.3d at 1114, citing Purvis v. Bremer’s, Inc., 54 Wn.2d 743, 344 P.2d 705 (1959). This holding is based on the reasoning that the spoken words were not capable of a defamatory meaning. Robel, 103 Wn. App. At 92, 10 P.3d 1114.
The court also addressed a case of intra-company slander in Pate v. Tyee Motor Inn, Inc., and held that privilege in communication exists so long as the communication is within the ordinary course of a persons work. 77 Wn.2d at 819-822, 467 P.2d 302-304. The court based this holding on the stare decisis of Prins v. Holland-North America Mortgage Co., 107 Wn. 206, 181 P. 680 (1919). Pate, 77 Wn.2d at 820, 467 P.2d 302.
One of the most illustrative cases on defamation is the recent case of Doe v. Gonzaga, where a student contended that university employees defamed him. 143 Wn.2d at 693-697, 24 P.3d at 390-395. The court held that the employees were afforded a qualified privilege that could be overcome by proof of malice or reckless disregard for the truth. Id. at 703, 24 P.3d at 399. The court did not see any reason to extend privilege to employees acting outside of the scope of their duties in a malicious manner. Id. at 703, 24 P.3d at 399. However, the authority of this case is not clear as certiorari has been granted. ___ U.S. ___, 122 S. Ct. 865 (2002).
Based on these standards for defamation and MacPherson’s lack of actual injury, it appears that it is essential that Daniels’ statements be considered libelous per se if there is going to be any chance of recovery. The standard set by Robel seems quite difficult to meet, however the derogatory remarks in Robel amounted to mere name calling where the statements of Daniels are more susceptible to an expression of fact concerning MacPherson’s competence and ability to complete his job duties.
If it is possible to prove that Daniels’ statements are libelous per se we must still overcome the issue of privilege before recovery will be allowed. If it can be shown that the letter issued to the Department employees had little relation to Daniels’ job duties there will be a chance of overcoming his privilege in communication. Additionally, the conversation with the third party does not appear to be related to Daniels duties whatsoever and thus are likely to be afforded no privilege. Other points of consideration is the “not guilty” verdict in the criminal trial and MacPherson’s contention that he made an honest mistake as factors such as this tend to show that Daniels had reason to know his statements were untrue or acted with reckless disregard for the truth of the statements he issued. The additional statement that MacPherson “would have to sue to get his job back” may be convincing in proving actual malice on behalf of Daniels. The cumulative effect of these factors may lead to a ruling in our favor on the issue of defamation.
The defense will probably argue that Daniels should be afforded absolute privilege due to his position as a state agent. However, it is unclear where the court will draw the line on granting absolute privilege to state officers. Compare Gold Seal Chinchillas, Inc., 69 Wn.2d 828, 420 P.2d 698, and Liberty Bank v. Henderson, 75 Wn. App. 546, 878 P.2d 1259 (Ct. App. Div. 1, 1994) (discussing rules of absolute privilege afforded to various ranks of state officers), with Gonzaga, 143 Wn.2d 687, 24 P.3d 390 (explaining qualified immunity).
There is reason for a court to only grant qualified privilege to Daniels, as his position does not appear to be at the same level of officials granted absolute privilege in the cases cited above. If the court holds that Daniels only has qualified privilege in his communications, it is likely that this will be overcome by his reckless disregard for the truth, potential malice, and could possibly amount to libel per se. If there is a finding of defamation, this could become a factor in proving a due process violation.
Constitutional violation
In the unfortunate series of events that has concluded with MacPherson’s decision to litigate, it is likely that one of his constitutional rights has been violated. Generally a court will weigh a number of policy factors to determine if a person should be afforded a hearing before they are deprived of a property or liberty right; however, in some circumstance no amount of procedural protection will be sufficient to justify deprivation of one of these rights. Zinermon v. Burch, 494 U.S. 113 (1990), Cleveland Board of Education, v. Loudermill, 470 U.S. 532 (1985), Parratt v. Taylor, 451 U.S. 527 (1981), Matthews v. Harney County, Oregon, School District No. 4, 819 F.2d 889 (1987); Danielson v. City of Seattle, 108 Wn.2d 788, 742 P.2d 717 (1987).
In a case dealing with a mental patient’s allegation that his liberty right was violated when he was admitted to a mental facility without a determination of his competence to sign the admissions forms, the court had the opportunity to explain the relationship between the holdings in Loudermill and Parratt. Zinermon, 494 U.S. at 118-130. In holding that the patient’s due process rights were violated, the court determined that under the Loudermill test of balancing the public and private interests the individual was entitled to some kind of hearing before the state deprived him of liberty or property, and the deprivation was not the sort of unpredictable or negligent act that would have justified only a post deprivation remedy under the Parratt test. Zinermon, 494 U.S. at 127-139. The court reasoned that the State could have foreseen such a deprivation might occur under the circumstances and already has established procedures to prevent involuntary placement in a mental facility. Id. at 136-137.
Likewise,
where a teacher was not a given a pre-termination notice or a hearing and was
terminated on grounds that called into question her honesty or morality, the
court addressed the issue due process violations relating to property and
liberty interests. Matthews, 819
F.2d 889. The court remanded the case
to the trial court, holding that the plaintiff’s property and liberty rights
both may have been violated. Id. at
891-893. On the issue of liberty, the
court reasoned that a termination that questions a person’s honesty and
morality may infringe on a liberty right where the charge is contested, there
is public disclosure, and it is made in connection with the termination of
employment. Id.
In a very
analogous case, concerning a police officer charged with felony was terminated
without notice. Danielson, 108
Wn.2d 788, 742 P.2d 717. The court held
that it was necessary to give the officer an opportunity for a pre-termination
hearing. Id. The court recognized the property interest
in continued employment and the existence of procedures intended to protect
these rights need to be followed. Id.
When a due process violation is committed by state officials within the scope of their employment, 42 U.S.C. §1983 provides a remedy by allowing federal enforcement. 42 U.S.C.A §1983 (2002); 42 U.S.C.A. §1988 (2002); 28 U.S.C.A. §1343 (2002). The test to establish violation of the protected right is the same as discussed above, so the only additional determination is whether the individual is acting under color of state law.
The court
had the opportunity to determine if prison officials were acting under color of
state law when they lost a prisoner’s mail package in Parratt. 451 U.S. at 530-531. On this matter the court held “[I]t can no
longer be questioned that the alleged conduct by the petitioners in this case
satisfies the ‘under color of state law’ requirement. Petitioners were after all, state employees in positions of
considerable authority.” Id. at
535-536. Even though the petitioners
did not contest whether they were acting under color of state law, it appears
that the court will not give the issue much consideration when dealing with a
state employee in an authoritative position.
Id.
MacPherson may first complain that he has been deprived of a property right in his employment. Due to the fact that the Department can only terminate an employee “for cause” and must give 15 days notice prior to termination, it may be argued that MacPherson had a vested property interest in his continued employment. W.A.C. § 356-34-010 (2002); W.A.C. § 356-34-040 (2002). This property interest is also evidenced by the existence of the wardens union, which is likely to have contractual rights and benefits that extend to the union members and thus reinforce the contention that MacPherson had a right to continued employment. Danielson and Matthews also support this proposition as the courts have clearly recognized the need for a pre-termination notice and hearing. Matthews, 819 F.2d 889; Danielson, 108 Wn.2d 788, 742 P.2d 717.
Next MacPherson may argue that he has been deprived of his liberty interest in employment. With the courts decision in Matthews, it appears that MacPherson has some support for this contention. If a case for defamation may be established there MacPherson will have a substantial amount of support. Because he was terminated on charges that brought his honesty and morality into question, the accuracy of the charge was contested, and it was disclosed to a third party there may be room to argue this point. See Matthews, 819 F.2d 889. The defendant will definitely argue against such an assertion, however it appears that there may be enough evidence to make it into court and allow argue the finer points of due process.
If MacPherson can establish either a property or liberty interest in his employment, it may be necessary to conduct a Loudermill balancing test to determine if he should have had notice or a hearing. The defendant may argue that the PAB hearing and reinstatement was sufficient to cure any potential due process violation. However, this only appears to be a sufficient remedy in situations where the deprivation could not be avoided. Parratt, 451 U.S. 527. They may additionally argue that it was necessary to terminate MacPherson immediately because of the alleged theft, but the facts of Danielson are analogous to this situation and the court still held that a hearing was required in the Danielson case. 108 Wn.2d 788, 742 P.2d 717.
It therefore appears that there is a potential claim for deprivation of a property or liberty right without due process of the law. It appears that it will be somewhat difficult to prove, but there is a lot of evidence in MacPherson’s favor. If we can get into court federal court through the use of §1983 there is the potential to win punitive damages and attorney’s fees.
As seen there is potential for a case on a number of different grounds. Mr. MacPherson should be able get enforcement of the PAB decision through a writ of mandamus. In addition, a couple favorable ruling on the issues of privileged communication and libel per se could lead to an award in a defamation suite without proof of damages. If we are able to win on the defamation claim it will add a great deal of weight to the claim of violation of due process. However, it appears that MacPherson may have been entitled to a pre-termination hearing anyway. Therefore there is a pretty strong argument for deprivation of due process. Even though his actual damages may be quite small, there is potential for a punitive award. Depending on the procedural and jurisdictional workings of 42 U.S.C. §1983.