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Oliver v. Spokane County Fire Dist. 9

United States District Court, E.D. Washington

August 5, 2013


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For Charles Richard Oliver, Plaintiff: Donna L Mack, LEAD ATTORNEY, Erica Shelley Nelson, Scott Kinney Fjelstad & Mack, Seattle, WA.

For Spokane County Fire District 9, Robert Anderson, Fire Chief, Defendants: Michael Alexander Patterson, LEAD ATTORNEY, Sean David Jackson, Patterson Buchanan Fobes Leitch & Kalzer Inc PS, Seattle, WA.


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BEFORE THE COURT is Defendants' Motion for Summary Judgment (ECF No.

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17). Plaintiff has filed a Response (ECF No. 29) and Defendants have filed a Reply (ECF No. 37). Oral argument was heard on July 12, 2013. Erica Shelley Nelson appeared for Plaintiff. Sean David Jackson argued on behalf of Defendants. The court allowed the parties the opportunity to file supplemental briefs. Plaintiff filed a supplemental brief on July 22, 2013, and the Defendants responded on July 26, 2013. The court has also considered those submissions. (ECF No. 41 & 42).

I. Introduction and Procedural History

This action was commenced by the filing of a Complaint on March 27, 2012. Plaintiff Charles Richard Oliver is a 61-year-old firefighter employed by the Spokane County Fire District 9 (the " District" ), and has been so employed since 1981. Oliver has an unblemished record of service both as a firefighter and also in positions of leadership in the firefighters' Union. He is currently a Lieutenant.

The gist of Plaintiff's Complaint is that he was discriminated against due to his union participation and based on his age. Plaintiff's Complaint alleged violations of Washington's Unfair Labor Practices statute, a claim for age discrimination under state law, and a claim under 42 U.S.C. 1983 for violation of his First Amendment rights. (ECF No. 1). Before an Answer was filed, Plaintiff filed a First Amended Complaint (" FAC" ) on April 13, 2012. The FAC added a claim for violation of the federal Age Discrimination in Employment Act (" ADEA", 29 U.S.C. 621 et seq ). Defendants filed an Answer largely denying the allegations, and on May 23, 2013, Defendants filed a Motion for Summary Judgment seeking summary judgment on all four counts of the FAC to which Plaintiff has properly responded.

II. Factual Background

The following factual recitation is largely undisputed, as evidenced by Plaintiff's Response to Defendants' Statement of Facts. (ECF No. 30). Plaintiff began working for the District in 1981, and has worked there for 32-years. He was hired as a firefighter/paramedic and became president of Local Union 2916 (the " Union" ) in 1984. He served as Union president until 1993. Defendant, Fire Chief Robert Anderson (hereafter " Chief Anderson" ) was appointed as Chief of the Fire District in 1987. Relations between the Union and the District could be described as turbulent, rough, and contentious.

Plaintiff was promoted to Lieutenant in 1990, after a competitive examination process. Since that time, Plaintiff has sought two promotions: to Line Captain in 2003 and to EMS Captain in 2011. Plaintiff contends he did not seek additional promotions because he believed the promotion process was unfair. In regard to the 2003 Line Captain position, Plaintiff competed in a written examination process. On that examination, Plaintiff's score put him " dead last" in the rankings. The person with the highest score, Greg Anderson, was promoted to Line Captain. Plaintiff filed a grievance with the Union. The Union determined not to advance Plaintiff's grievance, and Plaintiff opted not to initiate legal proceedings concerning the grievance.

In October 2011, Plaintiff sought promotion to the EMS Captain position. At that time, he was 60-years old. The one other individual who sought the promotion was Steve Tevlin, who is 6-months younger than Plaintiff. The job description for EMS Captain was approved by the Board of Fire Commissioners at a regular open meeting in December 2010. A copy of the job description was posted to the District's on-line employee handbook in December

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2010. The EMS Captain job description contains several minimum qualifications that must be possessed by applicants, including that the applicant maintain and possess a Washington State Senior EMT Instructor certification. Plaintiff did not meet several of the minimum certification qualifications at the time his application was made. Plaintiff contends he had previously possessed the required certifications, and just needed to re-certify. It is undisputed that Plaintiff was unable to obtain the required certifications prior to the time the EMS Captain position was filled. Plaintiff contends he was unable to do so due to actions of the District. He argues that his request for CPR instructor course was denied as too expensive and that an International Fire Safety Accreditation Congress (" IFSAC" ) course was cancelled because it did not receive minimum enrollment. It is undisputed that Steve Tevlin did meet the minimum qualifications, and in fact was the only person so qualified when he was promoted to EMS Captain.

Plaintiff has been assigned to Station 94 since 1990. He was first assigned to Station 94 because the District needed a Lieutenant at Station 94. Plaintiff contends that Station 94 is a rural station. The call volume is lower at Station 94 and Plaintiff contends that training and instruction opportunities are lower at this station. Plaintiff states that because this Station is more isolated, employees tend to be " out of the loop with regard to information dissemination." (ECF No. 30, p. 40). In his more than twenty years at Station 94, Plaintiff only once requested a transfer from Station 94, and the request was denied. The transfer request was in the 1990's, and Plaintiff did not file a grievance regarding the denial of that transfer request.

III. Discussion

Defendants argue that there were no actionable unfair labor practices in this case, that the statute of limitations for such claims is six-months, and Plaintiff's claims are time-barred. On the First Amendment claims Defendants argue that Plaintiff did not speak on matters of public concern, and that many of such claims are barred by the three-year statute of limitations under 42 U.S.C. § 1983. Additionally, Defendants argue that even if Plaintiff could establish that his speech was on a matter of public concern and made as a private citizen, there was no adverse employment action by the District. Defendants also contend that Plaintiff does not have an actionable claim for age discrimination. Defendants argue that the age discrimination complaint relates to a 2003 Line Captain position and is untimely. Defendants further argue that if the court finds the claim was timely, Plaintiff cannot establish that his age was the " but for" cause as to why he did not get the promotion. Plaintiff disputes these arguments and opposes summary judgment as to all four counts in the FAC.

A. Summary Judgment Standard

The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the material facts before the court. Northwest Motorcycle Ass'n v. U.S. Dept. of Agriculture, 18 F.3d 1468, 1471 (9th Cir. 1994). The moving party is entitled to summary judgment when, viewing the evidence and the inferences arising therefrom in the light most favorable to the nonmoving party, there are no genuine issues of material fact in dispute. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 ...

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