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Wilson v. State

December 20, 1996


Superior Court of Pierce County. Superior Court Docket No. 92-2-05810-9. Date Filed In Superior Court: August 8, 1995. Superior Court Judge Signing: Brian Tollefson. This Opinion Substituted for Withdrawn Opinion of August 29, 1996, Previously

Petition for Review Denied May 6, 1997,

Written By: Seinfeld, C.j. Concurred IN By: Bridgewater, J., Morgan, J.

The opinion of the court was delivered by: Seinfeld

SEINFELD, C.J. -- John Wilson, a pharmacist at Western State Hospital, claimed that Hospital management wrongly removed him as director of the pharmacy department in retaliation for certain comments he made regarding personnel management. A jury agreed and awarded Wilson $9,000,000 for this violation of his constitutional right to free speech. We hold that the Hospital's interest in proper personnel management outweighs the minor "public concern" content of Wilson's comments. Accordingly, Wilson's speech was not protected by the First Amendment and the trial court erred in submitting the free speech claim to the jury. Thus, we reverse with directions to dismiss.


When the Hospital hired Wilson as director of its pharmacy department, it was experiencing difficulties with its Medicare certification and its accreditation by the Joint Commission on Accreditation of Healthcare Organizations. The loss of the certification and accreditation could have cost the Hospital about $40 million in annual revenue from the federal government. As the pharmacy's director, Wilson had supervisory and management responsibility, but his job description and pay scale were the same as the Hospital's other clinical pharmacists.

Wilson took several steps to bring the pharmacy into compliance with federal requirements. He developed policies and procedures; designed a degree-blind, skills-based pharmacist credentialling system; and implemented several workload measurement systems. The pharmacy department improved during Wilson's tenure, and Wilson received positive performance evaluations.

Wilson added two clinical pharmacists to the staff: Kathleen Williams and David Watson. Wilson encouraged Williams during her first two years. He promised that he would give her more desirable assignments as she developed her expertise and passed the competency examination he had developed. In particular, he said he would reduce the number of hours that she was required to dispense drugs, allowing for an increase in clinical work, the more sought after assignment. But this did not occur.

Wilson continued to require Williams to dispense drugs 14 hours per week but limited Watson's dispensing time to a maximum of 10 hours per week. Although Watson had not taken the competency examination and despite Wilson's own "degree-blind" credentialling system, Wilson justified this discrepancy by pointing to Watson's pharmacy degree and post-doctoral training.

Williams complained to Wilson, requesting him to equalize the dispensing hours. When Wilson failed to respond, Williams addressed a written complaint to Dr. Darrell Hamilton, former Hospital superintendent, and then current director of professional services. Dr. Hamilton agreed with Williams and directed Wilson to equalize the dispensing time and provide dispensing time data for each of the clinical pharmacists.

Displeased, Wilson discussed the situation with his pharmacy management team and decided to write a "White Paper" to "educate this man. . . . [because] he doesn't understand gender discrimination criteria." Wilson argued that adjusting Williams's dispensing time would destroy his management system, leading to poorer patient care: "I would have every other pharmacist in the department coming in and saying, well, now I want this and I want that, and we just couldn't -- it would have just caused a terrible situation among our staff. It just would have been unworkable, totally unworkable."

When Wilson failed to provide the data, Dr. Hamilton directed him to stop workload measurement procedures because they were counter-productive and to equalize Williams's and Watson's dispensing times. As a result, Wilson threatened to resign.

In response, John Reynolds, the Hospital's new superintendent, met separately with Wilson, and then with Wilson, Williams and Travis Aiken, the Hospital's personnel officer. Following these meetings, Reynolds requested an Office of Equal Opportunity (OEO) investigation and asked Wilson to try to reconcile with Williams.

Wilson met with Williams but the meeting apparently was unsatisfactory as Williams proceeded to file a gender discrimination complaint with OEO. The OEO investigated the claims and then recommended that the Hospital equalize Williams's dispensing time with Watson's. It also proposed a settlement. Although Williams and Aiken approved the proposal, Wilson refused to agree to it.

About five months after Williams's initial complaint, 11 of the Hospital's 14 pharmacy technicians signed a union-sponsored grievance against Wilson attacking his management practices. Wilson alleged that Williams incited the technicians to grieve and provided them with information supporting their complaint.

After efforts to resolve the grievance failed, Dr. Hamilton, then Director of Professional Services, temporarily removed Wilson. To gain a better understanding of the situation, Dr. Hamilton decided to manage the department himself. He also brought in two outside consultants, Dr. Paul Burkhart, the pharmacy director at the University of Washington Medical Center, and Richard Ager, the pharmacy director at Eastern State Hospital. The consultants recommended a department reorganization and apparently suggested that, under the circumstances, Wilson could no longer be an effective manager.

Dr. Hamilton removed Wilson as director and reassigned him to another pharmacy position with equal pay. Williams was the only clinical pharmacist interested in the then-vacant director position so Dr. Hamilton appointed her as the new director.

When Wilson returned after several months from a leave of absence, he worked under Williams's supervision and according to Wilson, was poorly treated. There were no private offices available at that time so, Wilson had to work at a desk near the reception area. Wilson testified that this was demeaning and embarrassing. Further, Wilson claimed that Watson secretly tape recorded a meeting between the two of them and stole one of his computer disks.

Sometime later, Dr. Ira Klein became Wilson's supervisor. Wilson contends that Dr. Klein offered him additional post-doctoral training, but later delayed in following through on the offer. Eventually, Dr. Klein agreed to the training if Wilson would agree to submit a post-dated letter of resignation. Wilson declined on the grounds that this would be unethical.

At this point, Dr. Klein resigned. Dr. Hamilton, his new supervisor, directed Wilson to work on extracting pharmaceutical profile information from patient charts in the medical records department. His salary and benefits remained the same. Wilson, however, claimed that this task was demeaning and beneath his professional skill level; that the physical work environment was an unpleasant basement room; and that he was not adequately equipped as he did not have a private phone, a computer, or library access.

Meanwhile, Wilson received two outside research grants that required much of his time. To accommodate his schedule, Hospital administration permitted Wilson to work less than half-time and later allowed him to reduce his work hours to 10 hours per week.

Dissatisfied, Wilson sued the State of Washington, Dr. Hamilton, Williams, Watson, and Reynolds (the defendants). He claimed that his comments "against settling a false and frivolous claim of gender discrimination . . . constituted speech on matter of public concern protected by the 1st Amendment and the public policy of the State of Washington." He alleged that the defendants, "in retaliation for said advocacy," "demoted" him by removing his director responsibilities and engaged in a civil conspiracy. *fn1 The jury found for Wilson on the free speech and civil conspiracy claims and awarded him $400,000 in economic damages, $8,000,000 in non-economic damages, and $600,000 in punitive damages *fn2

The defendants contend that the trial court erred in allowing the jury to decide the free speech claim as Wilson's comments were not protected speech. They also challenge the trial court's denial of their motion to ...

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