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King v. Garfield County Public Hospital District No. 1

United States District Court, E.D. Washington

May 1, 2014

DENNIS KING and TRICIA KING, husband and wife, Plaintiff,
v.
GARFIELD COUNTY PUBLIC HOSPITAL DISTRICT NO. 1, a municipal corporation, et al., Defendant

For Dennis King, Husband, Tricia King, Wife, Plaintiffs, Counter Defendants: Ronald A Van Wert, LEAD ATTORNEY, Jeffrey Ryan Galloway, Etter McMahon Lamberson Clary & Oreskovich PC, Spokane, WA.

For Garfield County Public Hospital District No 1, a municipal corporation, Susan Morrow, Wife, James D Morrow, Andrew Craigie, Husband, Barbara Craigie, Michele Beehler, Wife, Blaine Beehler, Defendants: Susan Wilder Troppmann, LEAD ATTORNEY, Andrea L Asan, Paukert & Troppmann PLLC, Spokane, WA.

For Terence Sean McGee, MD, Husband, Kim McGee, Defendants: Michael E McFarland, Jr, LEAD ATTORNEY, Markus William Louvier, Evans Craven & Lackie PS - SPO, Spokane, WA.

For OHS Health & Safety Services Inc, a California Corporation, Defendant: Edward Joseph Bruya, Keefe, Bowman & Bruya, P.S., Spokane, WA; Jason Matthew Lamb, Joseph Arthur Walker, PRO HAC VICE, The Walker Law Firm, Newport Beach, CA.

For Blaine Beehler, Barbara Craigie, Garfield County Public Hospital District No 1, a municipal corporation, Andrew Craigie, Husband, Michele Beehler, Wife, Counter Claimants: Susan Wilder Troppmann, LEAD ATTORNEY, Andrea L Asan, Paukert & Troppmann PLLC, Spokane, WA.

OPINION

ORDER RE: PENDING MOTIONS

THOMAS O. RICE, United States District Judge.

BEFORE THE COURT are Defendant Terrence McGee, M.D., and Jane Doe McGee's Motion for Summary Judgment (ECF No. 60); and Defendants Garfield County Hospital District No. 1, Blaine Beehler, Michele Beehler, Andrew Craigie, and Barbara Craigie's Motion for Summary Judgment (ECF No. 70),[1] Motion to Strike Statement of Facts (ECF No. 86), Motion to Shorten Time to Hear Motion to Strike (ECF No. 97), and Motion to Expedite (ECF No. 96). This matter was heard with oral argument on April 16, 2014. Ronald Van Wert and Jeffrey Galloway appeared on behalf of the Plaintiff. Susan Troppman appeared on behalf of Defendants Craigie, Beehler, Morrow, and Garfield County Public Hospital District No. 1. Mark Louvier appeared on behalf of Defendant Dr. McGee. The Court has reviewed the briefing and the record and files herein, and is fully informed.

BACKGROUND

This case concerns a hospital employee's termination for alleged drug diversion and use after the employee tested positive in a drug test. Plaintiff Dennis King sued his former employer, Garfield County Hospital District No. 1 and hospital employees (collectively, " GCHD" ), as well as a company and physician allegedly involved in the drug test. GCHD and the physician here move for summary judgment on the claims against each.

FACTS

Plaintiff Dennis King, a registered nurse, was employed with Defendant GCHD prior to the termination forming the basis for the instant lawsuit. Pl.'s Statement of Facts, ECF No. 73 at 2. At the time of the events in question, Defendant Andrew Craigie was the GCHD's Chief Executive Officer; Defendant Michele Beehler was Human Resources Director; Susan Morrow was Chief Nursing Officer; and Barbara DeHerrera was Long-Term Care Manager and King's direct supervisor. Id. at 3.

On February 1, 2011, a Tuesday, King had a tooth extracted, which resulted in a painful bone spur for which his dentist prescribed Tylenol #3 with codeine. ECF No. 73 at 4; King Depo. at 36:9-11. The prescription dosage was 300 milligrams of acetaminophen and 30 milligrams of codeine; the prescription indicated that King could " take 1 or 2 tablets by mouth every 4-6 hours as needed for pain." ECF No. 73-6; Pl.'s Statement of Facts, ECF No. 73 at 5.

King worked a 12-hour weekend day shift, making his regularly scheduled working days Saturday, Sunday, and Monday, starting at 7 a.m. ECF No. 73 at 4. He worked his regularly scheduled shifts on February 5, 6 and 7. Pl.'s Statement of Facts, ECF No. 73 at 5; King Depo. at 41:12-15.

Medications dispensed to GCHD patients are documented in the " medication administration report." Pl.'s Statement of Facts, ECF No. 73 at 6; King Depo. at 48:15-24. Procedure dictated that when staff members administering medication would pull the dose from the locked medication cart or cabinet, they would record the amount that should be remaining after the dose was removed. King Depo. 47:1-47:24, ECF No. 68-1 at 13. The staff member signs the medical administration record. King Depo. 48:23-48:24, ECF No. 68-1 at 14. Nurses also perform a narcotic count at the end of each shift and sign to indicate who is responsible for the count. Morrow Depo. 61:16-61:24, ECF No. 68-3 at 8.

During his shifts on February 5 and 6, King gave four doses of morphine each day; on February 7, he administered one dose. King Depo. 55:18-56:3, ECF No. 68-1 at 16-17. King's last signature on the morphine sulphate log is for February 7 at 8 a.m. Morrow Depo. 48:5-48:11, ECF No. 73-2 at 18. Another staff member, Ms. Jilek, signed out morphine sulphate doses at 8 p.m. and 11:15 p.m. on February 7, and at 2 a.m. and 5:15 a.m. on February 8. Morrow Depo. 50:14-51:12, ECF No. 73-2 at 19-20. At the end of his shift on February 7, at 7:30 p.m., King's signature appears on the narcotic count log. King Depo. 56:3-57:19, ECF No. 68-1 at 17-18.

The next day at 7 a.m., another nurse, Ms. Bell, notified King's supervisor Barbara DeHerrera that there was a discrepancy; DeHerrera then notified Morrow. Morrow Depo. 66:12-66:22, ECF No. 68-3 at 9. Bell had discovered a 19 milliliter overage in the morphine sulphate bottle; the doses accounted for indicated that the remaining medication should be 15 milliliters, but the actual amount in the bottle of morphine was 34 milliliters. Morrow Depo 55: 23-56:6, ECF No. 62-2 at 7.

GCHD did not test the morphine to determine whether it had been diluted; rather, the bottle of morphine was returned to the manufacturer, where it was destroyed. Morrow Depo. 56:18-56:25, 57:22-57:23, ECF No. 62-2 at 7.

After his shift ended on February 8, King was not scheduled to work for several more days. On February 8, 9, and 10, King ingested between two and four tablets of Tylenol #3 with codeine each day. Pl.'s Statement of Facts, ECF No. 73 at 9. He received a call on the evening of February 10 informing him that a mandatory meeting would take place at GCHD the next day. Id. On February 11, a scheduled day off for King, King took one tablet of Tylenol #3 with codeine before attending the mandatory meeting. Id. at 9-10.

When King arrived at GCHD he was informed that the mandatory meeting was a drug test and the employees were required to submit a urine sample for analysis. Id. Morrow informed the employees that the drug testing was in response to a discrepancy in the narcotic count. Morrow Depo. 77:19-78:11, ECF No. 73-2 at 32-33. Morrow indicated that King showed no signs of drug use or impairment. Morrow Depo. 79:20-82:9, ECF No. 73-2 at 34-36.

The drug test was conducted by QCL, Inc. Pl.'s Statement of Facts, ECF No. 73 at 13. QCL contracted with OHS Health & Safety Services for medical review officer professional services. See Exhibit 11, ECF No. 73-11 at 2. Defendant Dr. Terrence McGee was the medical review officer responsible for interpreting the test results, and interpreted King's test results. Morrow Depo. 19:9-13, ECF No. 62-2 at 4; Exhibit 11, ECF No. 73-11 at 5; Pl.'s Statement of Facts, ECF No. 73 at 15.

On February 18, Morrow called King and informed him that the test results had shown that his morphine levels were very high, that he was being put on leave, that he could not come into work, and that there would be a meeting on February 22 to discuss. King Depo. 88:3-88:23, ECF No. 68-2 at 1. King requested that Dr. McGee be present at the meeting. Pl.'s Statement of Facts, ECF No. 73 at 17.

During the February 22 meeting, Beehler, DeHerrera and Morrow were present from GCHD, and Dr. McGee appeared telephonically. Pl.'s Statement of Facts, ECF No. 73 at 17. King brought the prescription bottle containing his remaining tablets of Tylenol #3 with codeine. Pl.'s Statement of Facts, ECF No. 73 at 18. Though disputed, King states that Dr. McGee told him that his urinalysis produced near fatal levels of morphine and contained a trace of codeine. Pl.'s Statement of Facts, 3ECF No. 73 at 19. King told Dr. ㇁ that he had taken a tablet of Tylenol #3 on the morning of the drug test. Pl.'s Statement of Facts, ECF No. 73 at 19. King claims that Dr. McGee never asked him how many doses he had taken. Pl.'s Statement of Facts, ECF No. 73 at 19-20. At the time of the meeting, Dr. McGee does not appear to have submitted a report with the results of King's urinalysis.

A February 25, 2011 report from OHS, signed by Dr. McGee, indicates King's urinalysis test as negative. Pl.'s Statement of Facts, ECF No. 73 at 21. McGee claims this was signed (with a stamp) and sent without his authority. Pl.'s Statement of Facts, ECF No. 73 at 21. On February 28, 2011, Dr. McGee wrote and email that was sent on to Morrow stating that

While the Rx explains the presence of the drugs...the levels are in my opinion likely abusive levels...in DOT type testing an opiate level above 15,000 ng/mL shifts the burden of proof from the doctor to the donor. Mr. King needs to provide some reasonable explanation for these levels.

Exhibit 18, ECF No. 73-18 (emphasis in original).

Codeine metabolizes into morphine. Richard Barclay, Ph.D Depo., ECF No. 73-13 at 3. Plaintiffs' expert testified that the results of King's drug test were not consistent with the use of morphine suspected to be diverted from the hospital because the codeine and morphine ratio was much higher than would be expected had morphine been used in addition. Id. at 3. The expert stated that " the amount of codeine and morphine found in that sample taken on that morning [of the drug test administered by GCHD] is a result of multiple doses and sequential doses of codeine, not from a single tablet." Id. at 6. He also testified that Dr. McGee's finding that King's dose was " near fatal" was " way out of line." Id. at 5.

GCHD terminated King March 29, 2011. Exhibit 25, ECF No. 73-25. The termination letter informed King that his " termination is the result of failure to comply with section 3.16 of the employee handbook Substance Abuse and Testing." Id. The letter further provided that " The reasonable suspicion test was performed on 2/11/11 was found to have positive test results for Opiates of Codeine and Morphine." Id.

An unemployment benefits hearing was conducted on June 22, 2011. Pl.'s Statement of Facts, ECF No. 73 at 26, 31. For the hearing, Dale Tuvey on behalf of GCHD submitted a response to King's request for benefits, in which he stated that

We believe that the most likely explanation of what happened here and that is consistent with all the evidence in this case is that Mr. King did indeed take morphine from the bottle used for the patient for whom he cared, and that he did have high levels of morphine in his system that could only be explained by his having taken high levels of morphine, certainly more than contained in one Tylenol 3 tablet. The " near fatal" levels in his urine as described by Dr. McGee could only have been found in someone taking large quantities of the drug, possibly over a significant period of time.

ECF No. 73-30.

Under GCHD's drug policy set forth in its employee handbook,

Employees are prohibited from the illegal use, sale, dispensing, distribution, possession, or manufacture of illegal drugs, controlled substances, narcotics, or alcoholic beverages on GCHD premises or work sites, in addition, GCHD prohibits the off-premise abuse of alcohol and controlled substances as well as the possession, use, or sale of illegal drugs, when those activities adversely affect job performance, job safety or GCHD's reputation in the community.

ECF No. 66-1 at 7. The policy further provides:

Reasonable suspicion testing: Employees shall submit to a drug and/or alcohol test when the employer reasonably suspects that this Policy may have been or is presently being violated. A referral for testing will be based on current, clearly described observations. Such referrals will be made by management/supervisory personnel of an employee showing signs and symptoms of drug and alcohol use and confirmed by a second supervisor or manager. When reasonable suspicion exists, the affected employee will be questioned and observed. A decision to request a specimen will be based on eyewitness reports, facts of the event and observed physical and behavioral characteristics of the affected employee. The employee will be interviewed in a private area.

ECF No. 66-1 at 10.

Positive test results: If the result of a drug or alcohol test under this policy is positive, the test will be reviewed by a physician/provider who will determine if the positive test I s the result of the employee's legitimate and authorized prescription medication. The physician/provider will notify the employee and the employer of his/her finding in writing. If the positive test is determined to be the result of a legitimate and authorized prescribed medication, it is not the intention of the employer to request specific information about the prescription unless it is likely that the effects of the medication would compromise safety in the workplace.

ECF No. 66-1 at 11.

MOTIONS FOR SUMMARY JUDGMENT

A. Legal Standard

Summary judgment may be granted to a moving party who demonstrates " that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-moving party to identify specific genuine issues of material fact which must be decided by a jury. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). " The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252.

For purposes of summary judgment, a fact is " material" if it might affect the outcome of the suit under the governing law. Id. at 248. A dispute concerning any such fact is " genuine" only where the evidence is such that a reasonable jury could find in favor of the non-moving party. Id. In ruling upon a summary judgment motion, a court must construe the facts, as well as all rational inferences therefrom, in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Only evidence which would be admissible at trial may be considered. Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir. 2002).

B. Defendant McGee's Motion for Summary Judgment (ECF No. 60)

Defendant McGee moves for summary judgment dismissal of the claims against him, arguing that he did not owe a legal duty to Mr. King, nor was any duty allegedly breached. ECF No. 60 at 4. He also contends that Plaintiffs lack the requisite expert witness testimony causally relating any injuries to Dr. McGee's alleged negligence. ECF No. 60 at 9.

1. Whether Dr. McGee Owed a Legal Duty to Plaintiffs

Defendant Dr. McGee contends that Plaintiffs alleged a health care negligence cause of action against him under RCW 7.70, et seq., because they allege that he negligently performed the drug testing, analysis and interpretation. ECF No. 60 at 4. Defendant contends that under this standard, Plaintiffs' claim fails because Dr. McGee did not owe Mr. King a duty of care because he did not injure him or fail to warn him of an injury; Defendant contends that his only duty is to properly report to GCHD. ECF No. 60 at 4-8. Plaintiffs counter that Dr. McGee's liability to King is based on common law negligence, not medical negligence. ECF No. 75 at 3. Plaintiffs contend that whether a duty exists at common law depends on the foreseeability of the risk created. Id.

The question before the Court, then, is what standard applies when an employee alleges that a medical review officer negligently interpreted results of a drug test administered by an employer, resulting in the employee's termination. No Washington case directly addresses this issue. The Court accordingly turns, as it must, to the language of the statute. The Washington statute on actions for injuries resulting from health care sweeps broadly:

The state of Washington, exercising its police and sovereign power, hereby modifies as set forth in this chapter and in RCW 4.16.350, as now or hereafter amended, certain substantive and procedural aspects of all civil actions and causes of action, whether based on tort, contract, or otherwise, for damages for injury occurring as a result of health care....

RCW § 7.70.010 (emphasis added). Thus, " whenever an injury occurs as a result of health care, the action for damages for that injury is governed exclusively by RCW 7.70." Branom v. State, 94 Wash.App. 964, 969, 974 P.2d 335 (1999). However, " [s]tatutes such as the medical malpractice act that are in derogation of the common law[] must be construed narrowly." Sherman v. Kissinger, 146 Wash.App. 855, 865-66, 195 P.3d 539 (2008). In determining the scope of the phrase " health care," Washington courts have construed it to mean " the process in which [a physician is] utilizing the skills which he had been taught in examining, diagnosing, treating or caring for the plaintiff as his patient." Branom, 94 Wash.App. at 969-70.

Defendant contends that case law mandates applicability of the medical negligence statute, citing Eelbode v. Chec Medical Centers, Inc., 97 Wash.App. 462, 984 P.2d 436 (1999), and Daly v. United States, 946 F.2d 1467 (9th Cir. 1991). The Court disagrees, as both cases are distinguishable from the instant factual scenario. See Daly, 946 F.2d 1467 (holding that a radiologist interpreting an x-ray from a pre-employment physical at the behest of an employer had a duty to inform the applicant of an abnormality in the lung, despite the fact that there was no physician-patient relationship); and Eelbode, 97 Wash.App. 462, 984 P.2d 436 (holding that physical therapist performing pre-employment health exam owed a duty of care for injuries incurred during the course of the exam). In these cases, where the court found liability under RCW 7.70, et seq., the question centered on the relationship between the health care provider and the plaintiff; the provision of health care--in interpreting x-rays that found a lung mass, and determining if an employee was physically capable of performing her job, for example--did not appear to be in dispute.

Here, in contrast, there is no suggestion that Dr. McGee provided any health care to King. Rather, the undisputed evidence indicates that Dr. McGee worked for a company (OHS) that was engaged by another company (QCL) that was engaged by King's employer (GCHD) to interpret --from California--the results of a drug test from a nurse in rural Washington State. Neither party has suggested that Dr. McGee diagnosed or treated King, or had reason to know of King's health status other than as related to a single urinalysis solely intended to identify drug use. Under its plain language, the statute applies to " causes of action...for damages for injury occurring as a result of health care...." See RCW 7.70.010. This definitional application of the term " health care" is supported in other cases. See Hines v. Todd Pac. Shipyards Corp., 127 Wash.App. 356, 374, 112 P.3d 522 (2005) (" It is undisputed that the purpose of the drug screening test was not health care or medical treatment," in the context of the Health Care Disclosure Act, RCW 70.02 ).[2] For these reasons, RCW 7.70 does not apply in this instance.

The Court next considers common law negligence. Under general negligence principles, " A duty of care is necessarily limited to the level of care that is reasonable in the particular circumstances." Affiliated FM Ins. Co. v. LTK Consulting Servs., Inc., 170 Wash.2d 442, 455, 243 P.3d 521 (2010). Washington courts have held that, for example, " the measure of reasonable care for an engineer undertaking engineering services is the degree of care, skill, and learning expected of a reasonably prudent engineer in the state of Washington acting in the same or similar circumstances." Id. Here, a similar standard is appropriate: the measure of reasonable care for an interpreter of drug tests is the degree of care, skill, and learning expected of a reasonably prudent drug test interpreter in the State of Washington acting under the same or similar circumstances.

Here, the Court finds that there is a question of material fact as to whether Dr. McGee was negligent. Plaintiffs point out that, in the meeting to discuss urinalysis results, Dr. McGee told GCHD that King had near-fatal morphine levels. King Depo. at 99:21-22, ECF No. 73-5 at 25. However, Plaintiffs' medical review officer indicates that " one cannot determine the drug dose based on the urine concentration from a workplace test result." ECF No. 73-14 at 6. Plaintiffs' MRO also indicated that Dr. McGee, if following standard procedure, should have taken into account the valid, recent prescription for Tylenol with codeine. Id. Thus, there is at least a question of fact as to whether Dr. McGee breached his duty to Plaintiff.

Defendant next argues that Plaintiff's negligence claim against Dr. McGee fails for want of proximate cause. ECF No. 87 at 8. Defendant contends that Plaintiffs' theory that King was terminated as a result of Dr. McGee's pronouncement that the drug test was positive fails because Dr. McGee did not have the authority to terminate King and GCHD was free to disregard Dr. McGee's analysis. Id. at 10. Defendant contends that King alleges that if he had been given a Loudermill or name-clearing hearing, he would not have been terminated. Id.

First, the Court disagrees with Defendant's reading of Plaintiffs' complaint. Plaintiffs do not give up a claim that Dr. McGee's negligence resulted in King's termination simply because they claim that King was constitutionally entitled to a name-clearing hearing. Those two arguments are not mutually exclusive. Even if Dr. McGee interpreted the urinalysis without any negligence, King's constitutional rights with respect to his public employer are not affected.

Legal causation " rests on policy considerations as to how far the consequences of defendant's acts should extend. It involves a determination of whether liability should attach as a matter of law given the existence of cause in fact." Hartley v. State, 103 Wash.2d 768, 779, 698 P.2d 77 (1985) (emphasis in original). This is a question of law to be decided by the court rather than by a jury. Colbert v. Moomba Sports, Inc., 163 Wash.2d 43, 51, 176 P.3d 497 (2008). The primary focus of the legal causation analysis " is whether, as a matter of public policy, the connection between the ultimate result and the act of the defendant is too remote or insubstantial to impose liability." Michaels v. CH2M Hill, Inc., 171 Wn.2d 587, 611, 257 P.3d 532 (2011) (quotation and citation omitted). This inquiry " depends upon mixed considerations of logic, common sense, justice, policy and precedent." Kim v. Budget Rent A Car Sys., Inc., 143 Wash.2d 190, 204, 15 P.3d 1283 (2001) (quotations and citations omitted).

Common sense dictates that a medical review officer's misreporting of drug test results could have serious consequences for the employee's continued employment. Such a result is not too remote or insubstantial to impose liability. Dr. McGee interpreted the urinalysis as part of an employer's testing of an employee. That the employee could lose his job as a result of a negligently performed interpretation is foreseeable. For these reasons, Defendant's motion for summary judgment on this issue fails.

2. Whether Plaintiffs Require Expert Witness Testimony Causally Relating Injuries to Dr. McGee's Alleged Negligence

Defendant next contends that Plaintiffs have failed to allege sufficient causal connection between the negligence alleged against Dr. McGee and that expert medical testimony is required on the issue of proximate cause. ECF No. 60 at 10. Defendant contends that " the causal relationship of the alleged negligence of the defendants to the resulting condition of the [plaintiff] must be established by medical testimony beyond speculation and conjecture." Young v. Group Health, 85 Wash.2d 332, 340, 534 P.2d 1349 (1975). While this is likely true of medical negligence cases involving medical treatment and resulting physical conditions, that is not the case here. The negligence alleged against Dr. McGee did not result in an injury that requires a doctor to explain.

C. Defendant GCHD's Motion for Summary Judgment (ECF No. 70)

Defendants Garfield County Public Hospital District No. 1, Susan Morrow, Andrew Craigie, and Michele Beehler (collectively " GCHD" ) move the court for summary judgment dismissal of Plaintiffs' claims. They argue that the drug test was a reasonable search under the Fourth Amendment, and thus that constitutional claim fails. They argue that King's claim that he was deprived of a liberty interest in his employment without due process fails because he has not met the standard described in case law. They also contend that, even if the Court is disinclined to grant their motion for summary judgment on these grounds, the individual officials are entitled to qualified immunity for their actions. They further argue that King's state law claims fail.

1. Whether GCHD's Drug Test Was Reasonable Under the Fourth Amendment

Plaintiffs' Second Amended Complaint alleges in a 42 U.S.C. § 1983 claim that GCHD's drug testing was an unreasonable search in violation of the Fourth Amendment. ECF No. 33 at 15. GCHD moves for summary judgment on this claim, arguing that the decision to test was supported by reasonable suspicion, that the nature of Mr. King's job warranted suspicionless testing, and that GCHD's interest in protecting the health and safety of its patients outweighs King's privacy interest. ECF No. 70 at 2-7.

" [T]he Fourth Amendment protects individuals from unreasonable searches conducted by the Government, even when the Government acts as an employer...." National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). " [U]rinalysis drug tests necessarily invade reasonable expectations of privacy rendering them searches within the meaning of the Fourth Amendment." Am. Fed'n of Gov't Employees, AFL-CIO, Local 2391, (AFGE) v. Martin, 969 F.2d 788, 791 (9th Cir. 1992) (citing Von Raab, 489 U.S. at 665.) The warrant and probable cause requirements of the Fourth Amendment, however, do not necessarily apply in the drug testing context. AFGE, 969 F.2d at 791. Rather, whether the government may validly require its employees to submit to drug testing is determined " 'by balancing its intrusion on the [employees'] Fourth Amendment interests against its promotion of legitimate governmental interests.'" Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 619, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (quoting Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)). " When the balance of [these] interests precludes insistence on a showing of probable cause, ... 'some quantum of [reasonable or] individualized suspicion' " generally must be shown before a search may be deemed reasonable under the Fourth Amendment. AFGE, 969 F.2d at 791-792 (quoting Skinner, 489 U.S. at 624). " Where the government has a legitimate public health and safety or national security interest in confirming whether an employee is using illegal drugs on- or off-duty, the existence of reasonable suspicion weighs in favor of finding that a resulting search is reasonable." Id. (citing Skinner, 489 U.S. at 624; O'Connor v. Ortega, 480 U.S. 709, 726, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987).

Here, the government hospital's interest in protecting its patients is a " legitimate public health" interest in " confirming whether an employee is using illegal drugs" ; in such a case, " the existence of reasonable suspicion weighs in favor of finding that a resulting search is reasonable." See AFGE, 969 F.2d at 791-792, " legitimate regulation." ). Undisputed facts support a finding of reasonable suspicion to drug test King. He had recent access to the morphine vial that GHCD officials suspected had been tampered with. See Pl.'s Statement of Facts, ECF No. 73 at 6. He had administered the morphine to a patient the morning before the discrepancy was noted. Id. He had performed the narcotics count the evening before. Id. King was told that the drug test was being performed because of a suspected diversion based on a discrepancy in the narcotics count. Id. at 10. While these circumstances may not be those enumerated in GCHD's employee handbook drug testing policy, they are certainly circumstances giving rise to reasonable suspicion to test for drug use, particularly for a public hospital charged with maintaining the safety of its patients and the security of its medications.

The Court is unpersuaded by Plaintiffs' contention that GCHD's drug testing policy in its handbook " established Mr. King's expectation of privacy and provided the safeguards to protect his constitutional rights." ECF No. 77 at 6. GCHD's employee handbook provides that " Employees shall submit to a drug...test when the employer reasonably suspects that this policy may have been...violated." ECF NO. 66-1 at 10. The policy states that a " decision to request a specimen will be based on current, clearly described observations," that incident testing will take place within 24 hours of the incident, for example. Id. at 10-11. The undisputed facts indicate that no one from GCHD believed King exhibited physical indications of narcotic use, and that King was tested three days after the discrepancy was discovered. Plaintiffs contend that because GCHD did not comply with its own policies in administering the drug test, King's reasonable expectation of privacy was violated because a public employee's expectation of privacy may be reduced or enhanced by the practices and procedures of the employer. ECF No. 77 at 4. However, a company's policy cannot itself set the parameters of Fourth Amendment reasonableness. Plaintiffs claim that AFGE v. Martin, 969 F.2d 788, stands for the proposition that the Ninth Circuit's holding that the drug test did not violate the employee's constitutional rights was based on the premise that the employer followed its own policy in conducting the drug test. ECF No. 77 at 5. However, AFGE concerns a facial challenge to a public employer's drug testing plan, 969 F.2d at 791; thus, Plaintiffs' argument that the court found the employer did not violate an employee's constitutional rights because the employer followed its own policy is inaccurate, since the court did not consider the policy as applied to any factual situation. See AFGE, 969 F.2d at 793.

Plaintiffs also cite O'Connor v. Ortega, 480 U.S. 709, 717, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987), for the proposition that practices and procedures can alter the employee's reasonable expectation of privacy. (" The employee's expectation of privacy must be assessed in the context of the employment relation" ; " Public employees' expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate regulation." ). While this arguably could be extended to the realm of drug testing, the Court notes that the handbook does establish an expectation that drug testing may be ordered. See ECF No. 66-1 at 7 (" Employees believed to be under the influence of drugs, narcotics, or alcohol will be required to leave the premises or may be asked to take a drug or alcohol test." ).

In other words, the Court finds no compelling support for Plaintiffs' suggestion that Fourth Amendment protections are coextensive with the employee handbook's drug testing policy. Accordingly, Defendant's motion for summary judgment on this issue is granted.

2. Fourteenth Amendment Claim

Plaintiffs' Second Amended Complaint alleges that King " had a liberty interest in his name and reputation" and that as a public employee he was " entitled to" and not offered " a hearing giving him an opportunity to clear his name prior to termination from GCHD." ECF No. 33 at 16. Plaintiffs further allege that this failure to provide name-clearing hearings was an " official policy." Id. Defendants GCHD contend that this § 1983 due process claim fails because (1) the allegedly stigmatizing statements made about him have not prevented him from obtaining employment as a nurse; (2) a name clearing hearing is required only if an employee alleges the employer's statements were " substantially false" ; (3) statements made during King's unemployment hearing were not made in the course of his termination; (4) King was not denied an opportunity to clear his name prior to termination; and (5) King could have requested a post-termination name-clearing hearing but did not do so. ECF No. 70 at 9-14.

The Fourteenth Amendment's guarantee of procedural due process applies when a constitutionally protected property [3] or liberty interest is at stake. See Vanelli v. Reynolds Sch. Dist. No. 7, 667 F.2d 773');"> 667 F.2d 773, 777 (9th Cir. 1982). Where the State seeks to bar forever an individual from public employment, makes a charge of " dishonesty," or attaches a " stigma" to an employment decision, it must afford due process. Board of Regents of State Colleges v. Roth, 408 U.S. 564');"> 408 U.S. 564, 573, 92 S.Ct. 2701');"> 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). But mere harm to reputation alone is insufficient to implicate an individual's liberty interest. Paul v. Davis, 424 U.S. 693');"> 424 U.S. 693, 711-712, 96 S.Ct. 1155');"> 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). " [D]ue process protections will apply if 1) the accuracy of the charge is contested; 2) there is some public disclosure of the charge; and 3) it is made in connection with the termination of employment or the alteration of some right or status recognized by state law." Llamas v. Butte Cmty. Coll. Dist., 238 F.3d 1123');"> 238 F.3d 1123, 1129 (9th Cir. 2001). " Failure to provide a 'name-clearing' hearing in such a circumstance is a violation of the Fourteenth Amendment's due process clause." Cox v. Roskelley, 359 F.3d 1105');"> 359 F.3d 1105, 1110 (9th Cir. 2004). Placing the stigmatizing information in the employee's personnel file, " in the face of a state statute mandating release upon request, constitute[s] publication sufficient to trigger [the employee's] liberty interest under the Fourteenth Amendment." Cox v. Roskelley, 359 F.3d at 1112. In such a case, " [t]he lack of an opportunity for a name-clearing hearing [would violate a plaintiff's] due process rights." Id.

The Court addresses each of Defendants' specific contentions in turn.

1. Whether King Has Been Prevented From Obtaining Employment

Defendants contend that King cannot show that his dismissal destroyed his ability to take advantage of employment opportunities in his field because he was able to obtain temporary employment as a nurse and accepted two permanent nursing positions. ECF No. 70 at 9. Defendants cite Blantz v. California Dep't of Corr. & Rehab., Div. of Corr. Health Care Servs., 727 F.3d 917, 925 (9th Cir. 2013), for the proposition that " liberty interests protected by the Fourteenth Amendment are implicated only when the government's stigmatizing statements effectively exclude the employee completely from [his] chosen profession." However, while liberty interests are indeed implicated when the government's stigmatizing statements effectively exclude an employee from his chosen profession, this is not the only means by which due process protections are triggered. See Board of Regents of State Colleges v. Roth, 408 U.S. 564');"> 408 U.S. 564, 573, 92 S.Ct. 2701');"> 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (where the State seeks to bar forever an individual from public employment, makes a charge of " dishonesty," or attaches a " stigma" to an employment decision, it must afford due process).[4] Rather, an employee may also claim the right to a name-clearing hearing if " 1) the accuracy of the charge is contested; 2) there is some public disclosure of the charge; and 3) it is made in connection with the termination of employment or the alteration of some right or status recognized by state law." Llamas, 238 F.3d at 1129. Thus, the Court finds Defendants' argument unpersuasive in that it inaccurately states that King's claim fails if he can find work elsewhere; that is not the standard.

2. " Public Disclosure"

Defendants contest the " public disclosure" requirement of the Ninth Circuit's elements for finding a due process violation, claiming that King " has failed to identify a substantially false stigmatizing statement that was publicly disclosed," and specifically arguing that " there is no evidence the termination letter has been publicly disclosed or is available for public inspection." ECF No. 84 at 6-7. Accordingly, the Court here considers what statements form the basis of King's claim and whether they were " published" for the purposes of the due process analysis under Llamas. The parties refer throughout the briefing to three statements regarding King's termination: (1) the termination letter from GCHD; (2) the notification GCHD sent to the Nursing Care Quality Alliance regarding the reasons for King's termination; and (3) statements from GCHD official Dale Tuvey regarding King's unemployment benefits hearing.

First, King's termination letter, once placed in his file, may be considered published for due process purposes in a state--like Washington--where statutory provisions make personnel files subject to public records requests. See Cox v. Roskelley, 359 F.3d 1105');"> 359 F.3d 1105, 1112 (9th Cir. 2004) (" absent expungement, placement of stigmatizing information in an employee's personnel file constitutes publication when the governing state law classifies an employee's personnel file as a public record." ). The Washington Public Records Act (" PRA" ), RCW 42.56, et seq., provides for the disclosure of such personnel files. Cox v. Roskelley, 359 F.3d at 1111. Thus, King's termination letter, presumably placed in his personnel file, is subject to public disclosure under the Public Records Act and is " published" for the purposes of the due process analysis.

The second alleged publication is GCHD's complaint to the Nursing Care Quality Assurance Commission. Morrow described the complaint as follows: " Random testing of LTC nurses for reasonable suspicion of narcotic diversion relate to incorrect narcotic count. Test results were positive for Mr. King for opiates." ECF No. 73-27 at 3. Morrow further stated that they were " unable to prove actual patient diversion." Id. The Nursing Care Quality Assurance Commission appears to be a public entity. Thus, there is public disclosure for the purposes of the due process analysis.

Third, GCHD official Dale Tuvey submitted a letter regarding King's termination in a petition for review of the Employment Security Department's finding that King was entitled to unemployment benefits. The letter stated in part that:

We believe that the most likely explanation of what happened here and that is consistent with all the evidence in this case is that Mr. King did indeed take morphine from the bottle used for the patient for whom he cared, and that he did have high levels of morphine in his system that could only be explained by his having taken high levels of morphine, certainly more than contained in one Tylenol 3 tablet. The " near fatal" levels in his urine as described by Dr. McGee could only have been found in someone taking large quantities of the drug, possibly over a significant period of time.

ECF No. 73-30. Though the record does not state precisely how this letter was used, it appears to be submitted in the course of an appeal of an unemployment benefits hearing--a public or semi-public context.

Thus, all three events meet the " public disclosure" requirement.

3. Whether the Statements Were Made in the Course of his Termination

Defendants argue that the statements made during King's unemployment hearing were not made in the course of his termination, as required. ECF No. 70 at 11.

The Ninth Circuit held that:

there must be some temporal nexus between the employer's statements and the termination. At some point, defamatory statements may become too remote in time from the termination to be considered made " in the course of the termination."

Campanelli v. Bockrath, 100 F.3d 1476');"> 100 F.3d 1476, 1483 (9th Cir. 1996) (quoting Hadley v. County of Du Page, 715 F.2d 1238, 1246 (7th Cir. 1983)) (" seven- to nine-day interval between the termination date and the publication of the defendants' statements did not attenuate the temporal connection between the statements and the termination" ). See also Hamilton v. Mayor & City Council of Baltimore, 807 F.Supp.2d 331, 359 (D. Mass. 2011) (" an e-mail sent two months after an employee's termination cannot be characterized as temporally related to the termination, so as to be characterized as made 'in the course of termination.'" ). However, the Eleventh Circuit has stated that it " hesitate[s] to set a temporal limit on the relationship between the alleged defamation and the other deprivation action." Ray v. Tennessee Valley Authority, 677 F.2d 818, 824 (11th Cir. 1982) (finding that six years was too attenuated).

King was terminated on March 29, 2011, and his unemployment hearing was conducted on June 22, 2011. Pl.'s Statement of Facts, ECF No. 73 at 26, 31. On July 21, 2011, Dale Tuvey wrote the letter regarding the reasons GCHD terminated King. ECF No. 73-30. The Court agrees that nearly four months, from a purely temporal perspective, is not too attenuated for the temporal nexus between the statements and the termination required under Campanelli. Tuvey's statements related directly to GCHD's reasons for termination, and could certainly have had a serious impact on King's ability to access unemployment benefits. In that sense, the statements are closely linked to termination, and while somewhat temporally removed, are inherently linked to the termination action itself.

Defendant does not appear to contest the temporal nexus between the other two statements and King's termination. Because the termination letter was the document informing King of his discharge, it was clearly made " in the course of termination." Morrow's complaint to the nursing commission was made approximately eight days after King's termination, and directly concerned King's termination; thus, the temporal nexus is established with respect to that statement as well.

4. Whether the Stigmatizing Statements Were Substantially False

GCHD next contends that a name-clearing hearing is only required if an employee alleges that the employer's statements were substantially false; thus, an uncontested statement cannot form the basis of a due process claim. ECF No. 70 at 9-10. Defendants claim that King says he was terminated for substance abuse and drug diversion, but that GCHD never stated that King was discharged for drug diversion or abuse. Id. Rather, Defendants argue GCHD terminated King because he tested positive for opiates.

The employee must contest the accuracy of the charge. See Llamas, 238 F.3d at 1129. Defendants additionally contend that the employee must allege that the statement against him was " substantially false," ECF No. 70 at 9 (quoting Campanelli v. Bockrath, 100 F.3d 1476');"> 100 F.3d 1476, 1484 (9th Cir. 1995)). As the Supreme Court put it, " if the hearing mandated by the Due Process Clause is to serve any useful purpose, there must be some factual dispute between an employer and a discharged employee which has some significant bearing on the employee's reputation." Codd v. Velger, 429 U.S. 624');"> 429 U.S. 624, 627, 97 S.Ct. 882');"> 97 S.Ct. 882, 51 L.Ed.2d 92 (1977) (holding that an employee's failure to assert that the statement at issue was " substantially false" was fatal to his claim).

GCHD reported to the Nursing Care Quality Alliance that the long-term care nurses were tested " for reasonable suspicion of narcotic diversion related to incorrect narcotic count," and that King's test results were positive, though GCHD was " [u]nable to prove actual patient diversion." ECF No. 73-27 at 3. Defendants point out that the statements made by witnesses were true and thus distinguishable from the negative inferences that King suggests. ECF No. 70 at 11.[5]But GCHD's contention that hospital staff never stated that King was terminated for drug diversion is not dispositive of this issue. First, GCHD reported to the Nursing Care Quality Assurance Commission that King was tested under reasonable suspicion related to an incorrect narcotic count, King's test results were positive, and that GCHD was unable to prove that there was an " actual patient diversion." While the statements to the nursing board appear to be true, and King does not appear to contest them, stated together there is at least question of material fact as to whether they create an inference that King was terminated for drug diversion, as Plaintiffs contend. The bare facts of suspected narcotic diversion and King's positive drug tests results support a strong inference that King was terminated on suspicion of drug diversion. The statement that GCHD was unable to prove actual diversion does not negate the implication; in fact, it implies that GCHD simply could not prove that King was the diverter. The plaintiff in Stewart did not contest the accuracy of the dean's order to go get a mental evaluation, but took issue with the implication of mental stability; in the same way, King contests the implication the three statements create together, that he was terminated for suspected drug diversion. See Stewart v. Pearce, 484 F.2d 1031, 1034 (9th Cir. 1973).

Again, " an employee's liberty interest is implicated if a charge of improper conduct impairs the employee's reputation for honesty or morality." Cox v. Roskelley, 359 F.3d 1105');"> 359 F.3d 1105, 1112 (9th Cir. 2004). A nurse's diversion of morphine certainly implicates his " reputation for honesty or morality." Accordingly, King's claim survives this argument.

5. Whether King Was Afforded an Opportunity to Clear His Name Prior to Termination

" [A] terminated employee has a constitutionally based liberty interest in clearing his name when stigmatizing information regarding the reasons for the termination is publicly disclosed." Cox v. Roskelley, 359 F.3d at 1110. " Failure to provide a 'name-clearing' hearing in such a circumstance is a violation of the Fourteenth Amendment's due process clause." Id. At-will employees are " entitled only to a name-clearing hearing, not to a pretermination hearing concerning the discharge itself." Eklund v. City of Seattle Mun. Court, 628 F.3d 473, 484, n.1 (9th Cir. 2010). " [W]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.'" Board of Regents of State Colleges v. Roth, 408 U.S. 564');"> 408 U.S. 564, 573, 92 S.Ct. 2701');"> 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (internal quotation and citation omitted).

Having found that Plaintiff meets the three-prong test for entitlement to a name-clearing hearing above, the Court must next consider whether Plaintiff has had a name clearing hearing. Plaintiffs contend that " GCHD did not provide Mr. King with any type of hearing, " name clearing" or otherwise." ECF No. 77 at 13. But in the very next sentence, Plaintiffs note that a meeting occurred on February 22, 2011, in which King was informed that his drug tests " showed near fatal levels of morphine," and King provided GCHD with his prescription for Tylenol #3. Id. Thus, the issue for the Court is whether King's pretermination meeting was a " name-clearing hearing" in satisfaction of constitutional due process requirements. It was not. Plaintiffs contend that King was not provided with the actual laboratory results of the test, nor had Dr. McGee certified his results as positive or negative at that time. Id. Without these, Plaintiffs claim, King could not demonstrate Dr. McGee's errors. Id. at 14. While King had notice that his urine drug screen would be discussed, he did not have the results from his drug test. ECF No. 73 at 17. As Plaintiffs correctly contend, without his test results, King could not adequately address the potential seriousness of the findings. Nor had GCHD at the time of the meeting made the damaging statements that form the basis for King's need to clear his name. Without these, King certainly could not have had an opportunity to clear his name. Accordingly, Defendants' argument fails.

6. Whether King Should Have Requested a Post-Termination Name-Clearing Hearing

Defendants contend that King's due process claim should be dismissed because he failed to request a post-termination hearing. ECF No. 70 at 15. Defendants cite several cases from other circuits indicating that an employee's failure to take advantage of post-termination process that is available to him is sufficient to defeat his case. See, e.g., Winskowski v. City of Stephen, 442 F.3d 1107, 1110 (8th Cir. 2006) (holding that a government employee cannot recover for a due process violation where the employee simply failed to avail himself of the available post-termination procedure).

These cases are distinguishable however, unlike here, a post-termination procedure was apparently available yet not invoked. Defendant's statement of facts indicates that King tried to rebut the accusations against him verbally and in writing. ECF No. 69 at 23. He also requested a meeting with the nursing staff and Craigie regarding the " events and processes," which GCHD denied. Id. at 24. While King may not have used the phrase " name clearing hearing," that is not dispositive of his claim. There is no suggestion that GCHD offered him any other meeting to address the charges after the statements giving rise to his claim of injury to his reputation.

Furthermore, Ninth Circuit law is clear that due process rights provide that a terminated employee be given notice and opportunity to be heard:

The key component of due process, when a decisionmaker is acquainted with the facts, is the assurance of a central fairness at the hearing. Essential fairness is a flexible notion, but at a minimum one must be given notice and an opportunity to be heard " at a meaningful time and in a meaningful manner." An individual must have an opportunity to confront all the evidence adduced against him, in particular that evidence with which the decisionmaker is familiar.

Vanelli v. Reynolds Sch. Dist. No. 7, 667 F.2d 773');"> 667 F.2d 773, 779-80 (9th Cir. 1982) (internal citations omitted). " The purpose of such notice and hearing is to provide the person an opportunity to clear his name." Roth, 408 U.S. at 573-574, n.12. Thus, the burden is on the government to " provide the person an opportunity to clear his name." The out-of-circuit cases Defendant cites indicate that Plaintiff must take advantage of the opportunities provided. Here, the undisputed evidence indicates that no such opportunity was provided to King; thus, he had no means to avail himself of it. For these reasons, Defendants' argument fails.

3. Qualified Immunity Defense

Defendants contend, in the alternative, that Craigie, Morrow, and Beehler are entitled to qualified immunity because their conduct did not violate clearly established constitutional rights. ECF No. 70 at 16.

Determining whether a defendant is entitled to qualified immunity involves a two-pronged analysis: (1) whether " [t]aken in the light most favorable to the party asserting the injury, [] the facts alleged show the officer's conduct violated a constitutional right" and (2) " whether the right was clearly established." Lacey v. Maricopa Cnty., 693 F.3d 896, 915 (9th Cir. 2012) (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223, 235-236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). A right is clearly established if " it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. (quoting Saucier, 533 U.S. at 201). The Court has the discretion to decide " which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson, 555 U.S. at 236; see also Mueller v. Auker, 576 F.3d 979, 993-94 (9th Cir. 2009). " Only when an officer's conduct violates a clearly established constitutional right--when the officer should have known he was violating the Constitution--does he forfeit qualified immunity." Id.

In 2004, the Ninth Circuit held that a reasonable public official would have been aware that placing stigmatizing information in an employee's personnel file when state law mandates disclosure is unlawful absent a name-clearing hearing. Cox v. Roskelley, 359 F.3d at 1112. In Cox v. Roskelley, a termination letter placed in an employee's personnel file alleged improper conduct, and Washington law provides for public record disclosure of personnel files. Id. As the Ninth Circuit explained, " by 1998 it was clearly established that such public disclosure meant that the procedural protections of due process applied," and Ninth Circuit cases " plainly informed" the defendant employer of their obligations. Id.

Here, Cox v. Roskelley 's very similar facts mandate a finding that GCHD officials are not entitled to qualified immunity for their actions. The Cox v. Roskelley opinion made clearer the rights it cited; an employee's entitlement to due process under analogous circumstances is even more firmly established now, nearly ten years later, and the burden of public employers to know the law just as compelling. Here, as in Cox v. Roskelley, GCHD officials terminated King via a termination letter alleging that he violated the drug policy handbook. And here, as in Cox v. Roskelley, hospital officials should have known that doing so triggered King's right to notice and an opportunity for a name-clearing hearing. Thus, they are not entitled to qualified immunity.

4. State Law Claims

In addition to these constitutional claims, Plaintiffs also allege causes of action for breach of promise of specific treatment in specific circumstances and negligence. ECF No. 33 at 19. Defendants move for summary judgment, arguing that the cause of action for breach of promise of specific treatment is inapplicable in this situation, and that Plaintiffs have not shown an agency relationship with Dr. McGee that could give rise to vicarious liability. ECF No. 70 at 16.

a. Breach of Promises of Specific Treatment

Plaintiffs' Second Amended Complaint alleges that " GCHD has, by and through the enactment of employment practices, policies, and procedures, created an employment contract in fact between itself and Mr. King effectively creating an atmosphere of job security and fair treatment with specific promises of specific treatment in specific situations." ECF No. 33 at 17. These policies and procedures, Plaintiffs contend, " created a specific procedure that was to be followed when conducting drug tests on employees," but " GCHD did not follow its procedures concerning drug testing of employees when it drug tested Mr. King." Id. at 18. GCHD moves for summary judgment on this claim, arguing that King was an at-will employee and the narrow " handbook exception" to the at-will employment rule is inapplicable in this situation. ECF No. 70 at 19.

The Washington Supreme Court has held that:

if an employer, for whatever reason, creates an atmosphere of job security and fair treatment with promises of specific treatment in specific situations and an employee is induced thereby to remain on the job and not actively seek other employment, those promises are enforceable components of the employment relationship. We believe that by his or her unilateral objective manifestation of intent, the employer creates an expectation, and thus an obligation of treatment in accord with those written promises.

Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 230, 685 P.2d 1081 (1984) (emphasis in original). Despite this, Thompson court explained that employers are not always bound by statements in employment manuals, including when they " specifically state in a conspicuous manner that nothing contained therein is intended to be part of the employment relationship and are simply general statements of company policy." Id. See also Swanson v. Liquid Air Corp., 118 Wash.2d 512, 530, 826 P.2d 664 (1992) (" At a minimum, the disclaimer must state in a conspicuous manner that nothing contained in the handbook, manual, or similar document is intended to be part of the employment relationship and that such statements are instead simply general statements of company policy." ). " [A] disclaimer must be effectively communicated to an employee in order to be effective." Swanson, 118 Wash.2d at 519. But " merely having an employee sign a disclaimer" will not necessarily " render it effective in every instance." Id. at 530 (citing Scholz v. Montgomery Ward & Co., 437 Mich. 83, 468 N.W.2d 845 (1991) (recognizing that " once a disclaimer providing employment at will is signed by an employee, excepting any subsequent modification, the employee may be terminated for any, or no, reason." ). " [T]he crucial question is whether the employee has a reasonable expectation the employer will follow the discipline procedure, based upon the language used in stating the procedure and the pattern of practice in the workplace." Nelson v. Southland Corp., 78 Wash.App. 25, 32, 894 P.2d 1385 (1995).

Here, as Defendants argue, GCHD disclaimed any intent to make the employment manual part of the employment relationship. ECF No. 70 at 19. On the signature page of the employee handbook, the penultimate paragraph states,

I acknowledge that the handbook does not contain promises of specific treatment in specific situation and that my employment with the Hospital District is at will. At will employment means that either the District or I may terminate the employment relationship at any time for any reason or no reason at all.

ECF No. 66-2 at 2. King signed after the next paragraph. Id. Plaintiffs do not dispute that the disclaimer existed, or that King signed on the page where the disclaimer appeared. The disclaimers, set apart on a separate page--a page King signed--clearly indicate that GCHD disclaimed promises of specific treatment and reiterated King's at-will employment status. The language is plain and called out by its position on the " handbook receipt" page. Plaintiffs have not identified a pattern of practice of behavior at the hospital that would belie the plain language established the disclaimer. Accordingly, the Court grants Defendants summary judgment on this issue.

b. Vicarious Liability

Plaintiff's Second Amended Complaint also alleges that " GCHD owed King a duty to follow the accepted standard of care in performing the testing, conducting the analysis, and interpreting the urinalysis" and that " GCHD, as principal, is liable for the actions of its ostensible agent, Dr. McGee." ECF No. 33 at 18-19. GCHD argues that it is not vicariously liable for any negligence imputed to Dr. McGee, because there was no agency relationship between GCHD and the doctor. ECF No. 70 at 19.

" Before the sins of an agent can be visited upon his principal, the agency must be first established." Matsumura v. Eilert, 74 Wash.2d 362, 363, 444 P.2d 806 (1968). " An agency relationship may exist, either expressly or by implication, when one party acts at the instance of and, in some material degree, under the direction and control of another." Stansfield v. Douglas County, 107 Wn.App. 1, 17, 27 P.3d 205 (2001) (citing Matsumura, 74 Wash.2d at 368). " The burden of establishing the agency relationship rests upon the party asserting its existence." Id. (citing Hewson Constr., Inc. v. Reintree Corp., 101 Wash.2d 819, 823, 685 P.2d 1062 (1984)). Under Washington law, an agency relationship is created, either expressly or by implication, " when one party acts at the instance of and, in some material degree, under the direction and control of another." Hewson, 101 Wash.2d at 823. Consent and control are the essential elements of the relationship. Stansfield, 107 Wash.App. at 17. " 'Control is not established if the asserted principal retains the right to supervise the asserted agent merely to determine if the agent performs in conformity with the contract. Instead, control establishes agency only if the principal controls the manner of performance....'" Uni-Com Northwest, Ltd. v. Argus Publ'g Co., 47 Wash.App. 787, 796-97, 737 P.2d 304 (1987) (quoting Bloedel Timberlands Dev., Inc. v. Timber Indus., Inc., 28 Wash.App. 669, 674, 626 P.2d 30 (1981)). Generally, a principal is not vicariously liable for the acts of an independent contractor. Phillips v. Kaiser Aluminum & Chem. Corp., 74 Wash.App. 741, 749, 875 P.2d 1228 (1994) (citing Epperly v. City of Seattle, 65 Wash.2d 777, 785, 399 P.2d 591 (1965)). An owner who employs an independent contractor is already liable to all third persons for his or her own negligence and for negligence in the hiring of the independent contractor. Tauscher v. Puget Sound Power & Light Co., 96 Wash.2d 274, 281-82, 635 P.2d 426 (1981).

Here, there is simply no indication that Dr. McGee was GCHD's agent. Plaintiffs acknowledge that QCL conducted the drug testing, that QCL hired OHS to interpret the drug tests, and that OHS hired Dr. McGee as a medical review officer to interpret the drug tests. Pl.'s Statement of Facts, ECF No. 73 at 13-14. The only facts Plaintiffs cite in support of their contention that Dr. McGee was GCHD's agent is that Dr. McGee corresponded with QCL, OHS, and GCHD; that Dr. McGee offered opinions to GCHD regarding the toxicology of King's drug test; that GCHD provided Dr. McGee with information prior to his testimony at the June 22, 2011, unemployment benefits hearing; and that Dr. McGee testified at the hearing. See Pl.'s Statement of Facts, ECF No. 73 at 14-15. None of these facts suggest that GCHD exercised any control over Dr. McGee's performance of his duties. Rather, all facts indicate that GCHD hired a company to drug test, which in turn hired another company to interpret that test, which in turn hired a doctor to interpret the test. There is no suggestion that Dr. McGee was anything other than an employee or independent contractor of another company, providing services to GCHD.

Nor does the Court find persuasive Plaintiffs' argument that Dr. McGee had apparent authority.

Apparent agency occurs, and vicarious liability for the principal follows, where a principal makes objective manifestations leading a third person to believe the wrongdoer is an agent of the principal. Restatement, (Second) of Agency § 267 (1957). The doctrine is intended to protect third parties who justifiably rely upon the belief that another is the agent of a principal. The doctrine has three basic requirements: the actions of the putative principal must lead a reasonable person to conclude the actors are employees or agents; the plaintiff must believe they are agents; and the plaintiff must, as a result, rely upon their care or skill, to her detriment.

D.L.S. v. Maybin, 130 Wash.App. 94, 98, 121 P.3d 1210 (2005).

Here, as above, Plaintiffs fail to explain how Dr. McGee's appearance at the unemployment benefits hearing led King to believe that he was GCHD's agent, or how King relied on such a belief, taking place, as it did, after his termination. Accordingly, this argument fails as well, and Defendants' motion for summary judgment on the issue of vicarious liability is granted.

MOTION TO STRIKE

Defendant GCHD also moves to strike Plaintiffs' Fact Nos. 108, 111, 130, and 131, on grounds that these facts, and the opinion of the expert supporting them are contrary to law and incorporate inadmissible legal opinions. ECF No. 86 at 1, 5. Because the expert Dr. Lantsberger has no legal training and is not qualified to provide legal opinions, Defendant argues, these facts should be stricken and all testimony that constitutes or incorporates opinions on law should be excluded. Id. at 5-6.

Here, the Court has not relied upon the statements of fact to which Defendant objects. Accordingly, Defendant's motion is denied as moot.

ACCORDINGLY, IT IS HEREBY ORDERED:

1. Defendant Terrence McGee, M.D., and Jane Doe McGee's Motion for Summary Judgment (ECF No. 0) is DENIED.
2. Defendants GCHD, Blaine Beehler, Michele Beehler, Andrew Craigie, and Barbara Craigie's Motion for Summary Judgment (ECF No. 70) is DENIED in part and GRANTED in part as follows:
a. Defendants' request for summary judgment on Plaintiffs' claim that the drug testing violated the Fourth Amendment is GRANTED.

b. Defendants' request for summary judgment on Plaintiffs' Fourteenth Amendment due process violation is DENIED.

c. Defendants' request for summary judgment for the hospital officials on qualified immunity grounds is DENIED.

d. Defendants' request for summary judgment on Plaintiffs' claim of specific treatment under the employee handbook is GRANTED.

e. Defendants' request for summary judgment on Plaintiffs' claim of vicarious liability for Defendant McGee's actions is GRANTED.

3. Defendants' Motion for Summary Judgment (ECF No. 63) is TERMINATED because it is superseded by Defendant's corrected motion for summary judgment at ECF No. 70.

4. Motion to Strike Statement of Facts (ECF No. 86) is DENIED as moot. The Court will consider motions to exclude testimony at the time stated in the scheduling order.
5. Motion to Shorten Time to Hear Motion to Strike (ECF No. 97) is GRANTED.
6. Motion to Expedite (ECF No. 96) is GRANTED.

The District Court Executive is hereby directed to enter this Order and provide copies to counsel.

Page 1085

ORDER DENYING MOTION FOR RECONSIDERATION

THOMAS O. RICE, United States District Judge.

BEFORE THE COURT is Defendants Garfield County Public Hospital District No. 1, Susan Morrow, Andrew Craigie, and Michele Beehler's Motion for Reconsideration (ECF No.102). This matter was submitted for consideration without oral argument and according to the Court's scheduling order, ECF No. 15 at 7, without

Page 1086

a response from Plaintiff. The Court has reviewed the briefing and the record and files herein, and is fully informed.

BACKGROUND

This case concerns a hospital employee's termination for alleged drug diversion and use after the employee tested positive in a drug test. Plaintiff Dennis King sued his former employer, Garfield County Hospital District No. 1 and hospital employees (collectively, " GCHD" ), as well as a company and physician allegedly involved in the drug test. The Court granted in part and denied in part GCHD's motion for summary judgment. In the motion now before the Court GCHD seeks reconsideration of the Court's denial of its request for summary judgment on Plaintiff's Fourteenth Amendment due process violation and its request for summary judgment on the issue of qualified immunity for hospital officials.

DISCUSSION

A motion for reconsideration may be reviewed under either Federal Rule of Civil Procedure 59(e) (motion to alter or amend a judgment) or Rule 60(b) (relief from judgment). Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). Under Rule 59(e), " [r]econsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." Id. at 1263; United Nat. Ins. Co. v. Spectrum Worldwide, Inc., 555 F.3d 772, 780 (9th Cir. 2009). Rule 60(b) allows a district judge to provide relief from a final judgment if the moving party can show

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud ..., misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.

Fed. R. Civ. Pro. 60(b). Whether to grant a motion for reconsideration is within the sound discretion of the court. Navajo Nation v. Confederated Tribes and Bands of the Yakama Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003). The Ninth Circuit has held that

A district court does not abuse its discretion when it disregards legal arguments made for the first time on a motion to amend, and a party that fails to introduce facts in a motion or opposition cannot introduce them later in a motion to amend by claiming that they constitute " newly discovered evidence" unless they were previously unavailable.

Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001) (internal citations omitted). Reconsideration is also properly denied when a litigant " present[s] no arguments in his motion for [reconsideration] that had not already been raised in opposition to summary judgment." Taylor v. Knapp, 871 F.2d 803, 805 (9th Cir. 1989).

A. Deprivation of a Tangible Interest

Defendant first requests reconsideration of the Court's ruling that due process protections are triggered when an employer makes a charge of dishonesty or attaches stigma to an employment decision, arguing that because there is no " stigma-plus" here, King's due process claim should be dismissed. ECF No. 102 at 3.

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The Court declines to reconsider its ruling because GCHD again misstates the legal standard. As clearly stated in the Order Re: Pending Motions, ECF NO. 101 at 23, in the public-employment context an employee may claim the right to a name-clearing hearing if " 1) the accuracy of the charge is contested; 2) there is some public disclosure of the charge; and 3) it is made in connection with the termination of employment or the alteration of some right or status recognized by law." Llamas v. Butte Cmty. Coll. Dist., 238 F.3d 1123');"> 238 F.3d 1123, 1129 (9th Cir. 2001). Defendant argues that something more than defamation by a state official must be involved to establish a due process claim--" stigma-plus," citing Paul v. Davis, 424 U.S. 693');"> 424 U.S. 693, 96 S.Ct. 1155');"> 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). The stigma-plus requirement is appropriate in situations like that in Paul, which involved police officials' distribution of a flyer stating that plaintiff had shoplifted. But as the Paul court went on to explain, citing public employment, " it was not thought sufficient to establish a claim under § 1983 and the Fourteenth Amendment that there simply be defamation by a state official; the defamation had to occur in the course of termination of employment." Id. at 710 (citing Board of Regents v. Roth, 408 U.S. 564');"> 408 U.S. 564, 92 S.Ct. 2701');"> 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (" [The State] did not base the nonrenewal of [Plaintiff's] contract on a charge, for example, that he had been guilty of dishonesty or immorality. Had it done so, this would be a different case. For '(w)here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.' In such a case, due process would accord an opportunity to refute the charge...." ). Thus, the standard for public employment is defamation plus the requirement that the defamation occur in the course of termination. There is no question that King was terminated; thus, contrary to GCHD's argument, there is " stigma plus."

B. The Three-Prong Test

Defendant next requests reconsideration of the determination that the three defamatory events considered (1) were publicly disclosed, (2) were false, or (3) occurred in the course of termination, as required. ECF No. 102 at 4. Defendant argues (1) that the termination letter was not publicly disclosed, and that it was not substantially false, (2) that the statement in the NCQAC complaint was not false, and (3) that the Tuvey letter was too temporally attenuated to qualify for consideration. The Court addresses each contention in turn.

The termination letter. Defendant argues that the undisputed evidence shows that documents related to King's positive test results were maintained in confidential files at GCHD. ECF No. 102 at 7. Defendant appears to contend that the letter was not published in satisfaction of the first prong of the three-prong test enumerated above. Id.

The Court disagrees. As discussed in the Court's order on GCHD's motion for summary judgment, GCHD is a public employer, subject to the Washington Public Records Act (" PRA" ), RCW 42.56, et seq. See Progressive Animal Welfare Soc. v. Univ. of Washington, 125 Wash.2d 243, 250, 884 P.2d 592 (1994) ( the act requires all state and local agencies to disclose any public record upon request). " Washington's public records act...is a strongly worded mandate for broad disclosure of public records." Limstrom v. Ladenburg, 136 Wash.2d 595, 603, 963 P.2d 869 (1998). Under the PRA, " [e]ach agency, in accordance with published rules, shall make available for public inspection and copying all public records, unless the record falls within" an exemption. RCW 42.56.070.

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As the Court stated in its order, the Ninth Circuit makes clear that " absent expungement, placement of stigmatizing information in an employee's personnel file constitutes publication when the governing state law classifies an employee's personnel file as a public record." Cox v. Roskelley, 359 F.3d 1105');"> 359 F.3d 1105, 1112 (9th Cir. 2004). The Washington PRA provides for the disclosure of such personnel files. Cox v. Roskelley, 359 F.3d at 1111.

Defendant contends that because in Cox v. Roskelley the parties agreed that the letter was public record under Washington law, the case is distinguishable. GCHD also cites--without explanation as to how they apply--RCW 42.56.050, .230(3), and .360 for its contention that the termination letter is not subject to public disclosure. The Court finds these arguments unpersuasive. RCW 42.56.230 provides a disclosure exemption for " [p]ersonal information in files maintained for employees, appointees, or elected officials of any public agency to the extent that disclosure would violate their right to privacy...." RCW 42.56.230 (provision unaltered by enacted legislation WA LEGIS 142 (2014), 2014 Wash. Legis. Serv. Ch. 142 (S.B. 6522)). The PRA's privacy provisions state:

A person's " right to privacy," " right of privacy," " privacy," or " personal privacy," as these terms are used in this chapter, is invaded or violated only if disclosure of information about the person: (1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public.

RCW 42.56.050 (emphasis added).[1] Thus, in order for personal information in employee files to be exempt from disclosure, it must " violate their right to privacy." See RCW 42.56.230. To violate an employee's right to privacy, disclosure of information must not only be " highly offensive to a reasonable person," it must also be " not of legitimate concern to the public." See RCW 42.56.050. Here, disclosure of termination due to a positive drug test is certainly " highly offensive to a reasonable person," but it is also certainly of legitimate concern to the public, where the employee is a nurse--with access to narcotics--in a public hospital. Thus, in the light most favorable to the Plaintiff--as the summary judgment standard requires--the termination letter is not subject to the PRA's exclusion and, under Cox v. Roskelley, is published for the purposes of triggering a name-clearing hearing.

GCHD also contends that the letter does not meet the falsity requirement. ECF No. 102 at 8. The Court disagrees. The termination letter states that King was terminated for " failure to comply with Section 3.16 of the employee handbook Substance Abuse and Testing" and that the " reasonable suspicion test that was performed on 2/11/11 was found to have positive test results for Opiates of Codeine and Morphine." ECF No. 73-25 at 2. GCHD contends that King was terminated because he tested positive for opiates, in violation of the handbook provision; thus, nothing in the letter is false. While King does not dispute that his test was positive, he does dispute that his positive test result is due to his misconduct, which the letter certainly implies by its reference to his violation of the handbook provisions and " reasonable suspicion test." Accordingly, in the light most favorable to the Plaintiff, the accuracy of the charge is contested, and Defendant has failed to demonstrate

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that the Court manifestly erred on this issue.

Defendant also argues that the Court's determination that qualified immunity should be denied because the termination letter was placed in King's file was manifest error, or at minimum presents a question of law under Washington's Public Records Act. ECF No. 102 at 7. This was precisely the issue and Washington statute addressed in Cox v. Roskelley, in which the Ninth Circuit affirmed the district court's denial of qualified immunity, holding " that the contours of the right to a name-clearing hearing upon placement of stigmatizing material in a personnel file were clearly established, such that a reasonable official in these defendants' position would have known that his conduct was unlawful." 359 F.3d at 1113. Accordingly, this argument fails as well.

The NCQAC Complaint.

Defendant contends that Court erred in finding that the true statements giving rise to a negative inference can trigger due-process rights. ECF No. 102 at 4.

As explained in the Court's order on GCHD's motion for summary judgment, the accuracy of the charge must be contested. Llamas., 238 F.3d at 1129. " If the hearing mandated by the Due Process Clause is to serve any useful purpose, there must be some factual dispute between an employer and a discharged employee which has some significant bearing on the employee's reputation." Codd v. Velger, 429 U.S. 624');"> 429 U.S. 624, 627, 97 S.Ct. 882');"> 97 S.Ct. 882, 51 L.Ed.2d 92 (1977).

Defendant argues that the fact that each individual statement in the NCQAC complaint was true forecloses King from using the complaint as a basis for seeking a name-clearing hearing. ECF No. 102 at 4. GCHD reported to the Nursing Care Quality Alliance that the long-term care nurses were tested " for reasonable suspicion of narcotic diversion related to incorrect narcotic count," and that King's test results were positive, though GCHD was " [u]nable to prove actual patient diversion." ECF No. 73-27 at 3. The form also specifies that King was terminated. Id. The Court reiterates that while the very brief statements contained in the NCQAC complaint are not necessarily individually contested, they create a strong inference that King was terminated as a result of the positive test results and suspected diversion, particularly since there is no other suggestion of why he was terminated. Furthermore, the factual dispute turns on a very fine distinction: King does not dispute that he took a prescription medication that may have resulted in a positive test for opiates, but he does dispute that his positive test result should be imputed to drug diversion or another improper source. Thus, King does dispute the " substantial truth" of the clear inference of the statements. In the light most favorable to Plaintiffs, the Court must decline to reconsider its denial of summary judgment on this issue.

The Tuvey Letter.

GCHD contends that the Court erred in finding that that hospital administrator Dale Tuvey's letter in support of GCHD's position in King' unemployment benefits hearing was not too attenuated to meet the temporal nexus requirement. ECF No. 102 at 8.

" [T]here must be some temporal nexus between the employer's statements and the termination. Campanelli v. Bockrath, 100 F.3d 1476');"> 100 F.3d 1476, 1479, 1483 (9th Cir.1996). The Campanelli court refused, however, to adopt a bright line rule " that defamatory statements made by an employer any time after the date of termination are not made 'in the course of the termination.' " Id. at 1482. Instead, the court held that the statements must be " so closely related to discharge from employment that the discharge

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itself may become stigmatizing in the public eye." Id.

GCHD cites several cases for the proposition that four months is too attenuated; the Court finds these cases unpersuasive. See Tibbetts v. Kulongoski, 567 F.3d 529, 536 (9th Cir. 2009) (finding that defendant should be granted qualified immunity because at the time the stigmatizing press release issued, a reasonable person in defendant's position " could not have known by recourse to then-extant case law whether a stigmatizing statement made nineteen days after Plaintiffs' termination would violate Campanelli 's 'temporal nexus' test." ); Bishop v. Wood, 426 U.S. 341, 348-49, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976) (" the asserted reasons for the City Manager's decision ... were stated in writing in answer to interrogatories after this litigation commenced.... [S]ince the latter communication was made in the course of a judicial proceeding which did not commence until after petitioner had suffered the injury for which he seeks redress, it surely cannot provide retroactive support for his claim. A contrary evaluation of either explanation would penalize forthright and truthful communication ... between litigants...." ). Here, the question is not-- as it was in Tibbetts --whether the right to a name clearing hearing is clearly established by a press release issued 19 days after termination. Nor is a statement during the course of an unemployment hearing the same as answers to interrogatories in litigation over the very issue before the court.

Nor has Ninth Circuit foreclosed the possibility that stigmatizing statements could occur after termination. See Campanelli, 100 F.3d at 1483. Thus, the out-of-circuit cases Defendant cites in support of that proposition are likewise unpersuasive. See, e.g., Albamonte v. Bickley, 573 F.Supp. 77, 81 (N.D.Ill. 1983); Gentile v. Wallen, 562 F.2d 193, 197-98 (2d Cir. 1977). Accordingly, Defendant has not demonstrated that the Court erred in finding that, under Campenelli, four months was not too attenuated under the facts of this case. At this stage of the proceeding, the Court must look at the evidence in the light most favorable to the Plaintiff.

C. Adequacy of the Pre-Termination Hearing

Defendants argue that the Court erred in concluding that the February 22, 2011, pre-termination meeting GCHD had with King did not satisfy due process requirements for a name clearing hearing. ECF No. 102 at 11. GCHD contends that though Dr. McGee did not issue its final determination until March 24, 2011, King had been informed that his test results showed an unacceptable level of opiates and that his continued employment depended on the final laboratory results and interpretation by Dr. McGee. Id. at 12. GCHD also argues that the name-clearing hearing need not take place after the damaging statements were made. Id.

These arguments are unpersuasive. As the Court already noted in its order on GCHD's motion for summary judgment,

While King had notice that his urine drug screen would be discussed, he did not have the results from his drug test. As Plaintiffs correctly contend, without his test results, King could not adequately address the potential seriousness of the findings. Nor had GCHD at the time of the meeting made the damaging statements that form the basis for King's need to clear his name. Without these, King certainly could not have had an opportunity to clear his name.

ECF No. 101 at 33-34 (internal citations omitted). Defendants admit that Dr. McGee had not yet made his final determination at the time of the meeting, and that

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such a determination would form the basis of their decision. See ECF No. 102 at 11-12. Without the results or the decision based on the results, the pretermination meeting offered no meaningful opportunity for King to clear his name, and due process requirements were not satisfied.

D. Adequacy of the Post-Termination Procedures

Next, Defendants contend the Court erred by stating that no post-termination procedure was available to King. Defendants cite to the grievance procedure in the employees' handbook, ECF No. 66-1 at 22-23, and a series of emails to and from Mr. Craigie and Plaintiff. However, neither the grievance procedure policy nor the emails reference their applicability to a name clearing hearing.

Defendants misunderstand that the burden is on the government to " provide the person an opportunity to clear his name" with notice of the evidence adduced against him " at a meaningful time and in a meaningful manner." See Court's Order, ECF No. 101 at 35 (ci ting Vanelli v. Reynolds Sch. Dist. No. 7. ).

Furthermore, " [e]ven though a post-termination hearing provides one with an opportunity to clear his name, as well as to regain any improperly withheld benefits, compensable damages may arise for mental and emotional distress arising from the initial denial of due process. Vanelli v. Reynolds School Dist. No. 7, 667 F.2d 773');"> 667 F.2d 773, 779 n.8 (9th Cir. 1982). This is not something unusual to the Ninth Circuit. See Buxton v. City of Plant City, Fla., 871 F.2d 1037, 1046 (11th Cir. 1989) (" We hold that a public employer is required to provide the opportunity for a post-termination name-clearing hearing when stigmatizing information is made part of the public records, or otherwise published. Notice of the right to such a hearing is required." ).

ACCORDINGLY, IT IS HEREBY ORDERED:

Defendant GCHD's Motion for Reconsideration (ECF No. 102) is DENIED.

The District Court Executive is hereby directed to enter this Order and provide copies to counsel.


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