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Wurts v. City of Lakewood

United States District Court, W.D. Washington, Tacoma

April 29, 2015

BRIAN WURTS, Plaintiff,
CITY OF LAKEWOOD, et al., Defendants.


BENJAMIN H. SETTLE, District Judge.

This matter comes before the Court on Plaintiff Brian Wurts's ("Wurts") motion for summary judgment (Dkt. 29) and Defendants City of Lakewood, Brett Farrar, Choi Halladay, Heidi K. Hoffman, Andrew E. Neiditz, John Unfred's (collectively "Defendants") motion for summary judgment (Dkt. 30). The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and hereby grants in part and denies in part the motions for the reasons stated herein.


On February 5, 2014, Wurts filed a complaint against Defendants in Pierce County Superior Court for the State of Washington. Dkt. 2-10. Wurts asserts causes of action for wrongful discharge in violation of public policy, violations of Washington law against discrimination ("WLAD"), deprivation of First Amendment rights, and deprivation of Equal Protection rights. Id.

On February 6, 2014, Defendants removed the matter to this Court. Dkt. 1.

On June 26, 2014, Defendants filed an amended answer and asserted counterclaims for unjust enrichment and fraud by omission. Dkt. 19.

On March 5, 2014, Wurts filed a motion for summary judgment (Dkt. 29) and Defendants filed a motion for summary judgment (Dkt. 30). Both parties responded (Dkts. 38 & 45), and both parties replied (Dkt. 49 & 50). On April 1, 2014, each party filed a surreply. Dkts. 54 & 55.


Defendant City of Lakewood ("City") hired Wurts in 2004 as an officer with the Lakewood Police Department. Dkt. 29-1, Declaration of Brian Wurts ("Wurts Decl."), ¶ 2. From 2004 to 2010, Wurts consistently received superior performance reviews for his work as an officer and on other projects. Dkt. 29-3, Declaration of Douglas McDermott ("McDermott Dec."), Exhs. 1-7. In addition to serving as a full-time senior patrol officer, Wurts served on the executive board of the Lakewood Police Independent Guild ("Guild"), the collective bargaining unit for commissioned officers and sergeants of the Lakewood Police Department, and as president of the Guild. Wurts Decl. ¶ 4.

In 2006, Wurts became president of the Guild. Id., ¶ 6. As Guild president, Mr. Wurts represented the rights and interests of the Guild and its members, which included engaging in negotiations with the City over the Collective Bargaining Agreement ("CBA") between the Guild and the City, representing Guild members with respect to disciplinary actions, bringing multiple grievances on behalf of Guild members, and filing the Guild's first unfair labor practice complaint ("ULP") against the City in November 2011. Id. ¶ 7.

On February 8, 2012, Wurts's fellow officer, Skeeter Manos ("Manos"), was arrested and charged with ten counts of wire fraud in the United States District Court for the Western District of Washington. McDermott Dec., ¶ 9, Exh. 8. In the charging document, the Government alleged that Manos had embezzled over $112, 000 in charitable donations intended for the families of Lakewood police officers killed in the line of duty, as well and an additional $47, 000 from the funds he managed for the Guild as its treasurer. Id. Manos ultimately pled guilty to the charges against him. Id.

On February 8, 2012, the same day as Manos's arrest, Chief Brett Farrar placed Wurts on administrative leave. Id. ¶ 10, Ex. 9. The reason for this action was listed as "[a]llegations of such a serious nature that termination is the likely outcome if they are found to be true." Id. On that same day, the department initiated an investigation into Wurts's "[t]heft of donated funds" based on allegations from fellow officers. Id., Exh. 10. Wurts was also instructed that, while on paid administrative leave, he was "to be available for duty or investigative purposes during" the period of leave. Id.

The initial investigation was subsequently amended to better describe the allegations against Mr. Wurts and clarify that they "involve[d] his duties as Guild President." Id., Ex. 11. The amended notice contained the following "Summary of Complaint" against Wurts:

It is alleged that Skeeter Manos stole at least $100, 000 from donations intended for the children of our fallen Officers from December 2009 to February 2011 and that he spent this money on personal expenses. It is further alleged that Manos stole at least $30, 000 from the Lakewood Police Independent Guild between 2006 and 2012. Since you were LPIG President during this time, it is alleged that you had knowledge of this activity and took no action.

Id., Ex. 12. The investigation was assigned the number 2012PSS-004. Id.

While investigation 2012PSS-004 was pending, four more investigations of Mr. Wurts were ordered. Investigation 2012PSS-005 involved allegations that Wurts received payment for his off-duty employment as a board member for a legal defense group, WACOPS, and lied to his department about being paid for the work performed. Id., Exh. 13. Investigation 2012PSS-013 involved allegations that Wurts took an out-ofstate vacation while on paid administrative leave and continued to work for WACOPS in a paid capacity while on leave. Id., Exh. 14. Investigation 2012PSS-017 involved allegations that Wurts had engaged in sexual activity with another officer while on duty. Id., Exh. 15. Investigation 2012PSS-020 was described by Assistance Chief Michael Zaro as follows:

The purpose of this investigation was to determine if Officer Wurts violated Department policy by talking to witnesses involved in investigation number 2012PSS-004 before it was finally adjudicated. Officer Wurts admitted in his statement that he talked to Officer Jeff Martin and former employee Shawn Noble about their statements prior to his Loudermill hearing. Officer Wurts acknowledges that this is contrary to department policy but believes it is his right to do so.

Id., Exh. 16.

On December 28, 2012, City Manager Andrew Neiditz and Assistant City Manager Choi Halladay sent Wurts a letter informing Wurts of his immediate termination. Id., Exh. 17 ("Termination Letter"). The letter informed Wurts that the allegations that Wurts violated his oath of office, failed to obey all laws, and violated standards of professional conduct were found to be sustained and true. Id. at 1. Moreover, the letter stated that "the investigation supports the conclusion that [Wurts's] conduct facilitated the theft and fraud committed by Skeeter Manos." Id. at 2. With regard to a discipline determination, the letter provides as follows:

Your performance evaluations are consistently satisfactory or superior and reflect the ability to carry out the day to day duties of an officer with the department.
Given the disciplinary history and day to day performance, misconduct would have to be severe in order to merit significant discipline or termination. The recommendation of Chief Farrar is termination. I concur with this recommendation, because this misconduct reaches that level of severity.

Id. at 3.

With regard to the City's counterclaims, on December 31, 2012, Wurts made a claim to CIGNA Insurance Group ("CIGNA") for disability benefits. Wurts Decl., ¶ 33. CIGNA approved Wurts's claim and paid Wurts $414.70 per month for the months of May through December of 2012. Id. It is undisputed that Wurts was on paid administrative leave during these months.


A. Motions to ...

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