United States District Court, W.D. Washington, Tacoma
ORDER ON PLAINTIFF'S MOTION FOR ORDER OF PARTIAL
SUMMARY JUDGMENT AND VARIOUS OTHER MOTIONS
J. BRYAN United States District Judge
matter comes before the Court on the Plaintiff's Motion
for Order of Partial Summary Judgment (Dkt. 38), the
Defendants' opposition, or in the alternative, motion to
delay the Plaintiff's motion under Fed.R.Civ.P. 56 (d)
(Dkt. 54), and Defendants' Motion to Continue Trial Date
and Extend Deadlines (Dkt. 62). The Court has considered the
pleadings filed regarding the motions and the remaining
December 15, 2015, Plaintiff, a gay man, filed this case
asserting claims for violation of his procedural due process
and equal protection rights under the U.S. Constitution
(pursuant to 42 U.S.C. § 1983) and for violations of the
Washington Law Against Discrimination, RCW 49.60, et.
seq. (“WLAD”) in connection with the
termination of his employment. Dkt. 1. Plaintiff seeks
damages, attorney's fees and costs. Id.
before the Court is Plaintiff's motion for partial
summary judgment in which he moves for an order that: (1)
Defendant Lewis County Hospital District No. 1
(“Hospital District”) violated Plaintiff's
rights under WLAD, (2) Plaintiff's equal protections
rights were violated, and (3) his procedural due process
rights were violated. Dkt. 38. Defendants oppose the motion,
arguing that it should be denied outright. Dkt. 54. If the
motion is not denied at this point, Defendants move for a
delay on consideration of the motion, pursuant to
Fed.R.Civ.P. 56 (d), until the deposition of Seth Whitmer.
Dkt. 54. For the reasons provided, the Plaintiff's motion
(Dkt. 38) should be denied as to his claims under the WLAD
and equal protection clause, denied without prejudice as to
his due process claims, and the Defendants' Rule 56(d)
motion regarding Plaintiff's due process claims (Dkt. 54)
should be granted. Defendants' motion to continue the
case deadlines (Dkt. 62) should be granted.
FACTS AND PENDING MOTIONS
Eric Carlson was hired by the Hospital District as the Chief
Financial Operator of Morton General Hospital
(“Morton”) on November 21, 2014. Dkt. 51-1, at
11. Seth Whitmer, the Chief Executive Officer
(“CEO”) of Morton, made the decision to hire
Plaintiff the day he interviewed him. Id., at 12. In
his application, Plaintiff did not provide references from
people for whom he had worked; the references listed were
“character references.” Dkt. 51-1, at 17.
Hospital District is governed by an elected board of
commissioners (“board”), who are the individually
named Defendants here along with Shannon Kelly, the Human
Resources Director for Morton. Dkt. 55-1, at 77. The board
hires and fires the CEO (that is the only position for which
they make personnel decisions), acts as a liaison between the
hospital and the community, and monitors the hospital's
finances. Dkt. 55-1, at 77. The CEO reports to the board.
Dkt. 55-1, at 78.
parties dispute the state of Morton's accounting system
at the time Plaintiff was hired. Plaintiff asserts it was
“a disaster” (Dkt. 1) while Defendants state that
there were “challenges, ” they deny that the
accounting system was in as dire straits as asserted by
Plaintiff (Dkt. 10).
December of 2014, Mr. Whitmer awarded Plaintiff a retention
bonus. Dkt. 55-1, at 27. This was not unusual, though,
because Mr. Whitmer gave “bonuses to nearly every
person he hired.” Dkt. 55-1, at 27.
testified that a former employer, Dr. Floyd Smith, played a
role in sabotaging his position at Morton. Dkt. 55-1, at 9.
Plaintiff states that he believes that Dr. Smith
“started it, ” in fact. Dkt. 55-1, at 10.
Plaintiff indicates that he believes that Dr. Smith contacted
the “board of directors and told them that not only was
[he] a homosexual but that [he] was a fraudulent person and
that [he] somehow had this magical ability to send the
hospital's money around the world to secret bank accounts
and all sorts of stories.” Dkt. 55-1, at 9.
Shannon Kelly, the Human Resources Director for Morton,
states that she thinks that she was the first person to tell
Mr. Whitmer about an opinion by a Western District of
Washington bankruptcy judge that Plaintiff may have been
involved in a fraud. Dkt. 55-1, at 29. That opinion is
attached. In dicta, the opinion provides, in part:
“[t]he Court believes there was a fraud perpetrated
here, and [Plaintiff] Carlson was at least part of it. He was
in difficult financial straits . . . He saw an opportunity to
obtain control over an elderly woman's finances, and
ultimately received $300, 000, money he used to finance his
new venture.” Dkt. 54, at 34. In any event, Defendant
Kelly became aware of this court opinion when she was
contacted by Diane Markham. Dkt. 55-1, at 29. Ms. Markham,
the Executive Director of the Eastern Lewis County Hospital
Foundation, testified that she first heard about the
bankruptcy opinion from other foundation members. Dkt. 55-2,
at 24-27. Ms. Markham told Defendant Kelly that the document
was publically available on the internet and that there were
public “concerns.” Dkt. 55-1, at 29. Defendant
Kelly told Mr. Whitmer about the document, but she did not
read it. Dkt. 55-1, at 29-30.
board member Kenton Smith first learned of the fraud
allegation regarding Plaintiff in the bankruptcy court's
opinion a few weeks before Plaintiff was fired. Dkt. 55-1, at
79. Defendant Smith testified that:
An almost James-Bondish lady came up to me in church and was
walking by me. And I thought, well, I don't know the
lady, but she's walking by me rather - - -rather close to
me, and she was carrying some papers. And as we walked by,
she slapped the papers under my arm, pulled my arm down, and
said simply, “Read this” and kept walking. . .
And even a week or two later, her husband met me at the door
as I was leaving church . . . and he wanted to know if I had
read those papers that his wife had given me a week earlier.
Dkt. 55-1, at 79. Defendant Smith later learned that the
couple's (“last name Ferch”) adult daughter
was a nurse at a doctor's office in Packwood, Washington.
Dkt. 55-1, at 80. The record is not clear on the Ferch's
connection with Plaintiff. Defendant Smith states that he
read the bankruptcy court's opinion and then contacted
Mr. Whitmer. Dkt. 55-1, at 81. Defendant Smith testified that
he told Mr. Whitmer how he ended up getting the opinion and
that “[he] thought [Mr. Whitmer] should take a look at
[the opinion] and that's all [Defendant Smith]
said.” Dkt. 55-1, at 81.
board member Marc Fisher states that around that time, he was
in a hardware store owned by Joy Watt. Dkt. 55-1, at 96. Ms.
Watt called Defendant Fisher into her office and handed him
the bankruptcy court's opinion regarding Plaintiff, and
said, “you better read [this].” Dkt. 55-1, at 97.
Defendant Fisher states that he did not read or discuss the
document further with Ms. Watt. Dkt. 55-1, at 98. He later
read the opinion. Dkt. 55-1, at 98. Defendant Fisher called
Defendant Smith. Dkt. 55-1, at 98. Defendant Fisher states
that he and Defendant Smith felt that this was serious - they
had “a man that committed a fraud heading our finance
department.” Dkt. 55-1, at 100.
board member Ross Jones states that he first learned of
ethical concerns the community had about Plaintiff's
suitability for the CFO position at Morton through two
community members: Don Bishop and Glenn Allen. Dkt. 55-1, at
46-47. Both men referred Defendant Jones to the bankruptcy
judge's opinion. Dkt. 55-1, at 47. After reading the
portion of the opinion that discusses the bankruptcy
court's belief in Plaintiff's participation in the
fraud, Defendant Jones contacted Defendant Fisher, who had
also recently become aware of the opinion, and they discussed
it. Dkt. 55-1, at 48. Defendant Jones expressed his concern
that Plaintiff had engaged in “unethical
behavior.” Dkt. 55-1, at 49.
board member Judy Ramsey states that Joy Watt also told her
about the bankruptcy court's opinion involving Plaintiff,
and the next day, Defendant Fisher gave her a copy. Dkt.
55-2, at 7. While she did not read the entire document, she
read the portion that discussed Plaintiff and allegations of
fraud. Dkt. 55-2, at 6.
December 17, 2014 executive session, the board members
(except Defendant board member Sheri Hendricks who was in
Arizona) discussed their concerns with Mr. Whitmer, about the
judicial opinion and community members' “grave
concerns” that Plaintiff had engaged in
“unethical behavior” involving a fraud. Dkts.
55-1, at 50; 55-2, at 8-9. The board instructed Mr. Whitmer
to look into it further. Dkt. 55-2, at 9. The board did not
order a private investigator be hired. Dkt. 55-1, at 54.
Further, each of the board members present at the meeting
deny that any discussion of Plaintiff's sexual
orientation occurred, particularly as a reason to fire
Plaintiff. Dkts. 56, at 2; 57, at 2; 58, at 2; 59, at 2; and
61 at 2.
December 24, 2014, Defendant board member Sheri Hendricks
received an email from Glenn Allen. Dkt. 55-1, at 58. She was
in Arizona. Dkt. 39-6, at 5. Defendant Hendricks testified
that was the first time she heard that there was a fraud
allegation against Plaintiff. Dkt. 55-1, at 58. Defendant
Hendricks states that Mr. Allen attached the bankruptcy
court's opinion to the email. Dkt. 55-1, at 58. Defendant
Hendricks read the opinion and then talked with Defendant
Fisher and Defendant Smith. Dkt. 55-1, at 59. She told both
men she was concerned. Dkt. 55-1, at 61.
Smith states that one evening, while Defendant Fisher was at
his home, he received a call from Dr. Floyd Smith. Dkt. 55-1,
at 82. Dr. Smith, one of Plaintiff's prior employers,
wanted to discuss Plaintiff's employment at Morton. Dkt.
55-1, at 82 and 100. The phone was placed on speaker. Dkt.
55-1, at 82 and 100. Dr. Smith told them that he lost money
to Plaintiff, and that “no matter what, [Plaintiff]
should not be in a position where he could handle money or
accounts.” Dkts. 55-1, at 82. Dr. Smith testified that
while Plaintiff worked for him, there were “financial
irregularities, ” including “transfer of funds
that couldn't adequately be explained.” Dkt. 55-2,
Smith and Fisher then called Mr. Whitmer. Dkt. 39-3, at 5.
Defendant Fisher states that he explained to Mr. Whitmer,
“what we had, ” and asked “what he [was]
going to do about it?” Dkt. 39-3, at 5. Defendant
Fisher testified that he knew that Mr. Whitmer had the
bankruptcy judge's opinion, but was “resisting,
” and was not going to read it. Dkt. 39-3, at 5.
Defendant Fisher told Mr. Whitmer, “You have got to
make a decision” about whether to keep Plaintiff. Dkt.
39-3, at 5. In response to Mr. Whitmer's concern that his
job as CEO was at risk, Defendant Fisher replied that
“[w]ell I don't know. I am just one vote.”
Dkt. 55-1, at 110.
Smith testified that he received a call from Mr. Whitmer
about Plaintiff. Dkt. 55-2, at 19. The record does not
provide the date of the call, but it was after Dr. Smith
talked with Defendant Smith. Dkt. 55-2, at 19. Dr. Smith told
Mr. Whitmer about his concerns regarding the financial
irregularities he thinks Plaintiff engaged in while handling
Dr. Smith's billing and accounts, and gave him a list of
other people that would have information about
Plaintiff's financial misconduct. Dkt. 55-2, at 19.
Kelly testified that she was hesitant for them to terminate
Plaintiff's employment. Dkt. 39-2, at 15. She states she
“felt like [she] didn't have enough
information” because the only information she had at
the time was “[j]ust Seth [Whitmer] saying that he was
terminating [Plaintiff] because of this statement the judge
made regarding fraud.” Dkt. 39-2, at 15. Defendant
Kelly states that she did not talk with any of board members
about the termination of Plaintiff's employment. Dkt.
55-1, at 31.
December 28th or 29th, Mr. Whitmer
called Defendant Hendricks (who was still in Arizona) and
asked whether she was aware of the fraud allegation in the
bankruptcy opinion involving Plaintiff. Dkt. 55-1, at 64.
Defendant Hendricks told Mr. Whitmer that she read the
opinion, was concerned about its implications, and had spoken
to both Defendant Fisher and Defendant Smith. Dkt. 55-1, at
little later, Mr. Whitmer called Defendant Hendricks again
and told her that he was “setting [the termination of
Plaintiff's employment] in motion.” Dkt. 55-1, at
December 31, 2014, a hearing was held between Mr. Whitmer and
Plaintiff. Dkt. 39-2. Defendant Kelly was there as a note
taker. Dkt. 39-2, at 7. Shana Garcia (Mr. Whitmer's
assistant) was also present, at Mr. Whitmer's request, to
“notate” Plaintiff's “mannerisms and
his reactions” and to record his responses. Dkt. 55-2,
at 33. Ms. Garcia testified that Plaintiff came in and Mr.
Whitmer gave Plaintiff an opportunity to share what he knew
about the bankruptcy case. Dkt. 55-2, at 34. Ms. Garcia
states that Plaintiff “walked us through his side of
the case” and Mr. Whitmer asked him questions. Dkt.
55-2, at 35. According to Defendant Kelly, at that meeting,
Mr. Whitmer put Plaintiff on a leave of absence because
“[Mr. Whitmer] was going to look into it further and
[Plaintiff] would have an opportunity to share information
about that.” Dkt. 55-1, at 31-32. Plaintiff testified
that, at the first hearing, he told them he had not committed
fraud. Dkt. 55-1, at 18. They decided to meet again. Dkt.
55-1, at 32.
asked his attorney from the bankruptcy proceeding, Larry
Fagerness, to contact Mr. Whitmer, and explain what happened
in the case. Dkt. 55-1, at 19. Plaintiff believes that Mr.
Fagerness did call Mr. Whitmer and gave him information about
it. Dkt. 55-1, at 19.
January 5, 2015, Mr. Whitmer held another hearing with
Plaintiff. Plaintiff states that at this hearing, he brought
portions of the bankruptcy code to explain “why this
was a completely made-up thing.” Dkt. 55-1, at 19. He
explained the general factual context in both hearings, and
at this second meeting, tried to show that he did not commit
fraud under the bankruptcy code. Dkt. 55-1, at 20. Ms. Garcia
reports that Mr. Whitmer informed Plaintiff that due to the
fraud allegation, he could no longer serve as CFO. Dkt. 55-2,
at 38. Ms. Garcia states that Plaintiff was not pleased. Dkt.
55-2, at 38. Plaintiff was told at this second hearing that
Mr. Whitmer would be “in touch.” Dkt. 55-1, at
was then sent a letter terminating his employment. Dkt. 55-2,
at 41. Plaintiff acknowledges that the letter does not
contain the word “fraud” and is merely
“boilerplate” language. Dkt. 51-1, at 21-22.
the termination of Plaintiff's employment at Morton, Mr.
Whitmer related to the board that he let Plaintiff go. Dkt.
55-1, at 61. Defendant Hendricks thought Mr. Whitmer appeared
“boastful” about firing Plaintiff. Dkt. 55-1, at
63. Each of the board members present at the meeting deny
that any discussion of Plaintiff's sexual orientation