Superior Court County: King. Superior Court Cause No: 93-2-05346-1. Date filed in Superior Court: 9/2/94; 1/12/95. Superior Court Judge Signing: Charles Johnson.
Written by: Judge Kennedy, Concurred by: Judge Cox; Judge Coleman
KENNEDY, A.C.J. -- Douglas Selix appeals the order of summary judgment in favor of The Boeing Company dismissing his claim for wrongful termination of employment. Selix contends that Boeing's decision to terminate him based on his conviction of fourth degree assault contravenes the public policy set forth in RCW 9.96A.010, as articulated by his sentencing judge. We conclude that the statement of public policy contained in the statute does not prohibit a private employer from dismissing an employee based solely on a criminal conviction, and affirm.
In March of 1989, Selix was hired as a systems analyst by Boeing Aerospace. He worked in that capacity until the spring of 1991, when he transferred to Boeing Computer Services. While he was with Boeing Computer Services, Selix served as an acting first level manager reporting to Kjell Carlson.
On December 31, 1991, Selix was charged in Snohomish County Superior Court with three counts of felony child molestation. The case went to trial in June of 1992. Selix was acquitted of one count of child molestation and convicted of one count of the lesser included misdemeanor offense of fourth degree assault. The third count was dismissed by the court for insufficient evidence. The court sentenced Selix to twelve months, with ten months suspended, one month converted to 240 hours of community service, and one month of actual jail time. In structuring Selix's sentence, the court allowed him to serve his jail time on weekends so that he could preserve his employment. Selix was ordered to have no unsupervised contact with minor children.
On August 8, 1992, Selix informed Carlson of his conviction. Carlson testified in deposition that based on the information provided him by Selix, he "personally wasn't planning to take any action". Clerk's Papers at 162. In late July or early August of 1992, Boeing discovered Selix's conviction through other sources. On August 13, 1992, Laurence Cunningham, a Boeing security officer, interviewed Selix regarding his conviction. Following the interview, Cunningham prepared a report for Tracy Buren, the discipline coordinator at Boeing Computer Services. After reviewing the certification of probable cause contained in the Superior Court file in the criminal matter, as well as the judgment and sentence, Buren recommended Selix's termination based on Boeing's strict policy against offenses of a sexual nature. Diana Peterson, a personnel manager, and her supervisor Barry Noel agreed with Buren's recommendation.*fn1
On August 25, 1992, Boeing terminated Selix for violating a Boeing Company Rule forbidding the "commission of a penal offense." Clerk's Papers at 98.*fn2 On September 8, 1992, Selix's sentencing judge wrote Selix a letter expressing his "surprise and dismay" at Boeing's decision to terminate Selix. The judge stated:
Although I cannot modify your sentence, I strongly urge the Boeing Company to review its termination decision in light of the fact that I consider your unemployed status as being inconsistent with the goals of my sentence, and as being detrimental to your ultimate rehabilitation.
Clerk's Papers at 143. Boeing reviewed the letter but maintained its decision to terminate Selix.
Selix filed suit on March 2, 1993, alleging, inter alia, wrongful termination in violation of public policy. On September 2, 1994, the trial court granted Boeing's motion for summary judgment on the wrongful termination claim, and denied Selix's cross motion on the same issue. The case proceeded to trial on the remaining issues on December 12, 1994, and the verdict was in favor of Boeing. Selix appeals only the trial court's grant of summary judgment in favor of Boeing on the wrongful termination claim.
Selix contends that the trial court erred in ordering summary judgment in favor of Boeing because Boeing's decision to terminate him based on his conviction of fourth degree assault contravenes the mandate of public policy set forth in RCW 9.96A.010, as articulated by his sentencing judge. Boeing responds that summary judgment was proper because RCW 9.96A, by its express terms, relates only to public employers and thus is not applicable to its decision to terminate Selix.
When reviewing an order granting summary judgment, an appellate court engages in the same inquiry as the trial court. Failor's Pharmacy v. D.S.H.S., 125 Wash. 2d 488, 493, 886 P.2d 147 (1994); Fisher v. Aldi Tire, Inc., 78 Wash. App. 902, 906, 902 P.2d 166 (1995), review denied, 128 Wash. 2d 1025 (1996). This court will affirm an order granting summary judgment if there are no genuine ...