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Purcell v. The American Legion

United States District Court, E.D. Washington

August 26, 2014

DAN PURCELL, et al, Plaintiffs,
v.
THE AMERICAN LEGION, et al, Defendants

Decided August 25, 2014.

Page 1052

For Dan Purcell, Irita Williams, Plaintiffs: Jeffry Keith Finer, LEAD ATTORNEY, Jeffry Finer Law Office, Spokane, WA.

For American Legion, Dept of Washington; a non-profit corporation doing business in Washington, William Powell, et ux, a marital community in Washington State, Defendants: Michael E McFarland, Jr, LEAD ATTORNEY, Frieda K Zimmerman, Evans Craven & Lackie PS - SPO, Spokane, WA.

Page 1053

ORDER GRANTING IN PART & DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

JUSTIN L. QUACKENBUSH, SENIOR UNITED STATES DISTRICT JUDGE.

BEFORE THE COURT is Defendant's Motion for Summary Judgment, Memorandum in Support (ECF No. 23), and supporting Declarations and exhibits.

I. Factual Background

Plaintiff Irita Williams was hired by the American Legion Department of Washington's Spokane office in 2001. In 2004, she was trained to become a Certified Service Officer to assist veterans with their benefit claims and claims for widows' compensation at the U.S. Veterans Administration Hospital in Spokane, Washington. In early 2010, the American Legion hired Plaintiff Dan Purcell, who eventually worked as a service officer along with Ms. Williams. From 2010 to 2012, the Spokane office was led by office manager Barry Blackerby.

In January 2012, after holding other positions with the American Legion, Defendant William Powell was appointed as Department Service Officer for Washington. In this role, he works at the Seattle Federal Building, managing the Seattle, American Lake, and Spokane offices, assuring that volunteers and post service officers receive appropriate training, managing the budget, and handling appeal hearings.

On January 13, 2012, U.S. Department of Veteran's Affairs (VA) Decision Review Officer Beth Magee claims to have been present during a conversation between Mr. Powell and VA employee Tammy Skrinski discussing the Spokane office. (ECF No. 35 at 1). In response to Ms. Magee's claiming she heard that Ms. Williams was going to replace Mr. Blackerby as office manager, Mr. Powell is alleged to have said that Ms. Williams was not qualified to be office manager because of her " mental problems" and Mr. Purcell was not qualified because of his Post Traumatic Stress Disorder (PTSD). (ECF No. 35 at 2). Mr. Powell denies having made these comments. (ECF No. 24 at 12). Nevertheless, Ms. Magee informed Ms. Williams about Mr. Powell's alleged comments in February 2012. (ECF No. 25 at 68).

In early February 2012, Mr. Powell left several voice mail messages with Mr. Purcell, stating that if the Spokane employees do not return his calls " they could all walk." (ECF No. 24 at 9). On February 7, 2012, Mr. Powell called Mr. Purcell and apologized for leaving those messages. (ECF No. 24 at 10).

On February 14, 2012, Mr. Powell visited the Spokane office for the first time, bringing with him American Legion Executive Board member Linda Hazelmeyer because he had a feeling " the meeting may go south..." (ECF No. 31 at 3-4). Indeed it did. Mr. Powell criticized the office for deficiency in the number of claims processed, hours of operation, not answering phones, and accused Mr. Blackerby of falsifying time cards. (ECF No. 31 at 4).

On February 21, 2012, Mr. Purcell and Ms. Williams submitted written complaints about Mr. Powell to then American Legion Department of Washington Commander Jake Cabaug. Among other things, the Plaintiffs took issue with Mr. Powell's perceived hostility towards the Spokane office and complained that he divulged private health matters to Ms. Magee. (ECF No. 25-3 at 2-3). Ms. Williams stated she felt her job was threatened due to her disability. (ECF No. 25-3 at 3). On March 28, 2012, Mr. Purcell emailed Commander Cabaug

Page 1054

inquiring as to the status of the issues Plaintiffs raised and asked whether they were being investigated. (ECF No. 32-10 at 2). On April 10, 2012, Washington Legion Adjutant Dale Davis responded via email to Mr. Purcell and attached a letter from Commander Cabaug stating he had inquired into the facts, taken corrective action where required, and that Mr. Powell would continue to serve. (ECF No. 32-5 at 7). Mr. Purcell responded to Mr. Davis with concern that no one had contacted him, Ms. Williams, or Ms. Magee, " for clarification of the issues." (ECF No. 32-11 at 2).

On April 24, 2012, Mr. Purcell submitted an Equal Employment Opportunity Commission (EEOC) complaint to the Commission against Mr. Powell alleging employment discrimination based upon disability. (ECF No. 32 at 97). The complaint stated " The DSO [Mr. Powll] conveyed to 3rd party VA employee that he intended to fire our supervisor and I was not eligible for promotion because I have PTSD." (ECF No. 32 at 95). While it is unclear when the American Legion received a copy of the EEOC complaint, the form indicates that the EEOC is required to give the employer notice of the charge.

On May 23, 2012, Mr. Powell traveled to Spokane and, among other things, announced that Ms. Williams would take over Mr. Blackerby's position as office manager on July 1, 2012, when Mr. Blackerby retired. Throughout June 2012, Mr. Powell and Ms. Williams exchanged a series of emails regarding the terms of her becoming the office manager. The emails originated from Mr. Purcell's email account, rather than Ms. Williams', but were signed electronically by Ms. Williams. (ECF No. 25-13 at 2-5). Using another's email account is a violation of the VA's computer use policy. (ECF No. 32-6 at 4). Ms. Williams and Mr. Purcell claim that Ms. Williams had been having computer problems with her email, and so she dictated her emails to Mr. Purcell to send from his account. (ECF No 24 at 16). On July 1, 2012, Ms. Williams took over as office manager in Spokane.

On July 26, 2012, Mr. Purcell filed a Health Information Privacy Complaint with the Washington State Department of Health and Human Services Office for Civil Rights. The complaint again alleges that Mr. Powell told another VA employee that Mr. Purcell was not eligible for promotion because of his PTSD. (ECF No. 32-13 at 2). On July 30, 2012 Ms. Williams and Mr. Purcell filed discrimination charges with the Washington State Human Rights Commission again alleging that Mr. Powell discriminated against them because of their disabilities. (ECF No. 32-14 at 2); (ECF No. 32-21 at 2).

On August 9, 2012, Ms. Williams used Mr. Purcell's email account to send a formal complaint to the new American Legion Washington Department Commander Loren Sperry, with Mr. Powell CC'ed. The email began " I would like to file yet another formal complaint against our DSO Bill Powell" and went on to allege " ongoing hostility and spurious accusations" about the Spokane staff by Mr. Powell. (ECF No. 32-16 at 2). That same day, Mr. Powell faxed a letter to Ms. Williams accusing her of being in violation of the VA's computer policy by sending emails from Mr. Purcell's account. He warned her that " you have until August 17, 2012 to have your computer back up and running" and that " if at the end of the next week your computer is not working appropriate disciplinary action will be taken." (ECF No. 32-22 at 2).

The following morning, August 10, 2012, Mr. Powell had the VA Information Security Office revoke computer access for Mr. Purcell and Ms. Williams. (ECF No. 32-6 at 5).

Page 1055

Mr. Powell then faxed Ms. Williams a message stating that " The Spokane office computer access has been revoked for VA computer usage violations and will not be granted back until the Spokane Office Staff comply with VA computer usage for workstation." (ECF No. 25-5 at 2). Ms. Williams handwrote a response on the faxed letter and returned it on August 13, 2012, claiming there was no computer violation and asked for clarification. Nevertheless, later that same day, VA Information Security Officer (ISO) Casey Longacre sent an email to Mr. Powell and the rest of the ISO team advising that " William Powell should investigate, determine action he will take, meet with designated Director's Office representative and explain what happened and agree upon next steps. Accounts to be re-enabled, or deleted dependent upon agreement with Mr. Powell and Director." (ECF 32-6 at 3). Mr. Powell admits that he did not further investigate the matter nor contact either Mr. Purcell or Ms. Williams about the computer violations. (ECF No. 31 at 9). At his deposition, Mr. Powell testified that he orally recommended to the Commander that the Plaintiffs be retrained on the VA's computer policies, but that the Adjutant overruled him by stating " I think they pushed enough to be replaced." (ECF No. 31 at 10). No documentary evidence supports Mr. Powell's assertion that he advocated against firing the Plaintiffs but was overruled.

On August 20, 2012, Mr. Purcell and Ms. Williams took leave time away from the Spokane office. Mr. Powell had their offices sealed by VA police for ...


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