Appeal from Superior Court of Walla Walla County. Docket No: 93-2-00351-1. Date filed: 07/06/94. Judge signing: Hon. Yancey Reser.
The Publication Status of this Document has been Changed by the Court from Unpublished to Published January 8, 1997.
Authored by Philip J. Thompson, J. Concurring: John A. Schultheis, A.c.j., Ray E. Munson, J.
The opinion of the court was delivered by: Thompson
THOMPSON, J. John R. Molsness appeals the superior court's summary dismissal of his wrongful termination complaint against the City of Walla Walla. He contends the City's threat to fire him for cause was a constructive discharge, and his resignation was involuntary. He also contends the superior court abused its discretion by denying a continuance before considering the City's summary judgment motion. We affirm.
Mr. Molsness began working as the city engineer in 1987. His immediate supervisor was the City's public works director, Duane Scroggins. Mr. Molsness had various conflicts with Mr. Scroggins, resulting in a February 18, 1992, memo from Mr. Scroggins requesting Mr. Molsness' resignation. The memo stated:
Jack, at our last evaluation I pointed out a number of deficiencies in performance revolving around a problem of communication skill, which is probably a large part of a City Engineer's performance requirements. I suggested at that time that you seek employment with some other agency or consulting firm that could make use of your technical skills where your problems with communication, supervisory, and related skills were not as critical as they are in a City Engineer's position.
Based on feedback from contractors, other departments, observing your staff performance, public speaking performances, and related visual observations, I have a distinct impression of a deteriorating communication problem, as opposed to an improvement in communication skills.
Therefore, based upon past performance evaluation and a progressive record, I am asking that you submit a letter of resignation effective March 31. If not, I am prepared to take action. You will be, in that event, given due process as provided by law, but I have three contractors, other department heads, and your supervisees who are prepared to support the problems listed.
You have many good, strong technical points, and I would just as soon part amicably and provide you with a positive recommendation, rather than entering the performance evaluations that we have discussed into the record. According to Mr. Molsness, the memo came as a "shock and surprise," and he disagreed with the allegations. Nevertheless, he sent a handwritten letter of resignation to the city manager on March 4, 1992. The letter stated:
This is my notice that I will be leaving City of Walla Walla employment effective March 31, 1992 for reasons I indicated on March 2, 1992. I understand I will be paid all my accumulated annual leave at that time with my regular pay. Also for the month of April I will be paid effective April 30, 1992 my gross monthly pay of $3930 on a personal services agreement together with medical coverage. In return I will have made myself available for April for spot consultation pertaining to city matters I know about (for example -- [illegible] call questions).
No announcements of my leaving will be made until after March 1992.
I reserve all my rights. Mr. Molsness later stated he resigned because he believed he had no choice; he said the reservation of rights was to allow him "to take any and all appeals available, and to seek recovery from any losses and problems from leaving employment without another job to go to." Two days later, the city manager sent a memo to Mr. Molsness, proposing a personal services contract for the month of April 1992, and explaining various details, "in return for your resignation effective March 31, 1992." Mr. Molsness signed the agreement on March 10, and the city manager signed it a week later. The parties apparently have complied with the terms of this agreement.
Mr. Molsness filed a complaint in January 1994, alleging he was constructively discharged. The superior court granted the City's motion for summary judgment. Mr. Molsness appeals the summary judgment order, as well as the court's denial of his motion for a continuance to obtain more evidence.
In reviewing a summary judgment order, the court engages in the same inquiry as did the superior court. Atherton Condo Apartment-Owners Ass'n Bd. v. Blume Dev. Co., 115 Wash. 2d 506, 515-16, 799 P.2d 250 (1990). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." CR 56(c). The burden is on the moving party to establish its right to judgment as a matter of law, but the opposing party may not rely on mere speculation or unsupported ...