Appeal from Superior Court, Pierce County. 91-2-11382-9. Honorable Thomas A. Swayze JR, Judge.
Authored by Richard P. Guy. Concurring: Barbara Durham, James M. Dolliver, Charles Z. Smith, Gerry L. Alexander, Philip A. Talmadge, Richard B. Sanders, Barbara A. Madsen, Charles W. Johnson.
The opinion of the court was delivered by: Guy
GUY, J. -- An employee of a state-operated nursing home brought this action alleging that she was transferred from one position to another in retaliation for reporting an incident of suspected patient abuse. The employee seeks damages, under the federal Civil Rights Act of 1871, 42 U.S.C. sec. 1983, for violation of her First Amendment rights and, additionally, asks this court to recognize an action in tort for "wrongful transfer in violation of public policy." We affirm the trial court's summary dismissal of the employee's action.
Judy White worked as a secretary/clerk typist at the Washington State Soldiers' Home and Colony (Soldiers' Home or Home) in Orting from 1975 to 1992. The Soldiers' Home is a state-operated residence that provides nursing care services to indigent military veterans. Residents of the Soldiers' Home are voluntarily admitted and are free to leave whenever they choose.
The events that form the basis of White's lawsuit occurred in 1988, when White was working as a secretary for Evelyn Blanchard, the director of nursing services at the Soldiers' Home. From the time that Nurse Blanchard became the director of nursing services in 1984, the relationship between Blanchard and White had been strained. The relationship continually deteriorated. The record reflects mutual criticisms and distrust between the two from 1984 to late 1988. *fn1 It was in this atmosphere of mistrust and quiet hostility that the events leading up to this lawsuit occurred.
During March and April 1988, one of the patients *fn2 at the Home became increasingly agitated. On April 11, 1988, the patient burned himself by placing lit cigarettes in his pockets. He began throwing lit cigarettes on the beds of other patients, was eating objects such as plastic pudding containers, scratching himself to the point of causing open sores, and smearing his feces on his arms and on the objects around him. The staff was unable to calm him. Minimal restraints were not successful. Medication was not effective. The staff members involved in the patient's treatment believed that the patient was a danger to himself and to others. Under Nurse Blanchard's direction, the patient ultimately was placed in a "posey jacket" or straightjacket to restrain him. The restraint jacket was in place for approximately two hours and was removed when the Home's medical director refused to sign an order permitting its use.
The Home's policy on use of restraints states in part:
Body restraints may be used only upon a physician's written order. In case of emergency, restraints may be applied to prevent the member from harming himself, but a physician's written order must be obtained as soon as possible. Clerk's Papers at 160.
White observed the patient while he was in the straightjacket. The use of restraints at the Home was rare, and White and other employees were upset that the patient had been placed in a straightjacket. The employees discussed the incident at a union meeting and White assumed that the employees who were directly involved in the incident would report it. When none of them did, White wrote a report on the incident of "patient abuse" and delivered it to the Home's medical director on May 4, 1988. *fn3 The medical director asked Alan Harrah, superintendent of the Home, to look into the matter.
The superintendent requested that a staff member from another soldiers' home investigate the alleged abuse. This investigation resulted in a report, dated June 7, 1988, which determined that "patient abuse" did not occur and that the "staff involved were acting in the best interest of the patient." Clerk's Papers at 82.
White learned the results of the investigation in mid-July 1988 and believed the investigation and report to be a "whitewash."
Beginning in December 1987--about 5 months before White complained of the suspected patient abuse--the Home's management had begun to discuss reorganization. Management determined that Nurse Blanchard was supervising too many departments and employees. When the physical plant at the Home became computerized to allow tracking the use and maintenance of machinery, management recognized that the plant manager would need a computer literate secretary to assist with the new duties. White was one of three secretaries employed at the Home, and the superintendent recommended to management that she be transferred to the plant manager's office. She was selected for transfer because her existing duties could readily be absorbed by remaining staff, and because she had the necessary computer skills and experience to perform the job at the plant. This transfer would not result in the loss of any benefits or salary and would not affect her employment classification. However, her transfer would mean that she was no longer working in the nursing services area. The Home's reorganization also would result in a transfer of two drivers and the entire nursing care custodial department to the physical plant.
White learned of the proposed transfer in August 1988 and, in September, she and her union representative met with the Home superintendent about the transfer. At this meeting the superintendent explained the transfer and the reasons for the transfer. White expressed her belief that the transfer was the result of her involvement in reporting the suspected patient abuse described above.
White's transfer was to be effective in November 1988. The transfer meant that White's office would be moved to the plant manager's former office in the physical plant. That office was remodeled with new carpets, cabinets and drapes. White considered the office an undesirable place to work and declined to participate in the remodeling project. She described the office as "a cinder block concrete dungeon with concrete floors and windows so high you could not even see out of them." She complained that the office was hot in the summer, had inadequate heat in the winter and was noisy.
White filed a union grievance complaining about the transfer. The grievance eventually went to mediation and was settled by agreement. The settlement agreement addressed White's concerns about the physical space in which she had to work but did not result in a transfer back to her original position.
In November 1991, White filed this action against the State of Washington and against Evelyn Blanchard and Alan Harrah, individually, alleging that White had been transferred in retaliation for reporting suspected patient abuse. She seeks damages for violation of her First Amendment rights under 42 U.S.C. sec. 1983 and for the tort of wrongful transfer in violation of public policy.
The trial court granted the State's *fn4 motion for summary judgment, dismissing all of White's claims. White appealed and the Court of Appeals affirmed the trial court's dismissal of White's wrongful transfer claim but reversed the trial court on the First Amendment claim and remanded for trial. White v. State, 78 Wash. App. 824, 898 P.2d 331 (1995), review granted, 128 Wash. 2d 1024 (1996). White petitioned for review of the ruling on the wrongful transfer issue and the State petitioned for review of the First Amendment issue. This court granted both petitions for review.
1. Did the plaintiff-employee present a prima facie case of retaliation in violation of her First Amendment right to freedom of speech sufficient to withstand a motion for summary judgment?
2. Should the court create a cause of action in tort for wrongful transfer in violation of public policy?
In reviewing a grant of summary judgment, an appellate court engages in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wash. 2d 434, 437, 656 P.2d 1030 (1982). A 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 a judgment as a matter of law." CR 56(c); Marincovich v. Tarabochia, 114 Wash. 2d 271, 274, 787 P.2d 562 (1990).
The court should consider the evidence and the reasonable inferences therefrom in a light most favorable to the nonmoving party. Schaaf v. Highfield, 127 Wash. 2d 17, 21, 896 P.2d 665 (1995). However, a nonmoving party may not rely on speculation or on argumentative assertions that unresolved factual issues remain. After the moving party submits adequate affidavits, the nonmoving party must set forth specific facts which sufficiently rebut the moving party's contentions and disclose the existence of a genuine issue as to a material fact. Meyer v. University of Wash., 105 Wash. 2d 847, 852, 719 P.2d 98 (1986). Where reasonable minds could reach but one Conclusion from the admissible facts in evidence, summary judgment should be granted. LaMon v. Butler, 112 Wash. 2d 193, 199, 770 P.2d 1027, cert. denied, 493 U.S. 814, 107 L. Ed. 2d 29, 110 S. Ct. 61 (1989). Summary judgment motions are ...