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McCallum v. Grays Harbor County

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

August 7, 2017

DONNA McCALLUM, Plaintiff,



         THIS MATTER comes before the Court on Defendants' Motion for Summary Judgment Dkt. 17. The Court has considered Plaintiff's Response (Dkt. 20), Defendants' Reply (Dkt. 21), and the remainder of the file herein.


         The facts herein are recited in favor of Plaintiff, the nonmoving party, and supported by the record.

         Beginning in October 2003, Plaintiff Donna McCallum worked as Clerk for the Grays Harbor County Board of Commissioners. An Employee Agreement signed by both Ms. McCallum and Grays Harbor County gave the County the prerogative to terminate Ms. McCallum's employment without cause, with 30 days' notice, or with cause, with no notice. Dkt. 20-1 at 12, 13. The agreement defined “cause” as, inter alia, an “act or failure to act which, in the judgment of the Board . . . is sufficient to show the Administrative Assistant to be an unsuitable and unfit person[.]” Id. at 13. Under the terms of the Employment Agreement, “prior to any decision to terminate [for cause]. . . the County will hold an informal due process meeting[, ]” also referred to as a Loudermill hearing, wherein the County must give the employee (1) notice of the allegations, (2) an explanation of the evidence in support of the allegations, and (3) an opportunity to provide the employee's side of the story. Id. at 13, 14 (emphasis added).

         The County terminated Ms. McCallum during January of 2015 under the leadership of three elected commissioners, Wesley Cormier, Frank Gordon, and Vickie Raines, who together constituted the Grays Harbor County Board of Commissioners. Preceded by another commissioner, Herb Welch, Commissioner Raines was elected during Fall of 2014 and began her term on January 1, 2015. According to County employees, Ms. McCallum expressed dislike for Commissioner Raines during Fall of 2014, which Ms. McCallum denies. Dkt. 18 at 71, 80.

         On December 2, 2014, for reasons unclear in the record, the County initiated severance package negotiations with Ms. McCallum. Dkt. 20-1 at 39. When negotiating the terms of the severance agreement, Ms. McCallum did not “fill out FMLA paperwork” because she “was not offered any.” Id. at 38, 72, 73. Ms. McCallum discussed separation terms with HR Manager Marilyn Lewis, who recalls that Ms. McCallum wanted three months' severance, all vacation paid out, and the word “terminate” to not appear anywhere in the agreement. Id. at 67. The proposed severance agreement specified December 31, 2014 as Ms. McCallum's last day of work and gave Ms. McCallum twenty-one (21) days to review, sign, and return the agreement.

         Ms. McCallum underwent retinal vascular surgery on December 14, 2014. Dkt. 20-1 at 30. Prior to surgery, she verbally informed all three then-commissioners individually and “at a public meeting” that she planned to return to work after surgery recovery, which she expected to take four to six weeks. Id. at 26, 27, 43. Ms. McCallum expected to return mid-to-late January, but concedes that she did not inform the commissioners of a date certain for her return. Id. Ms. McCallum advised all three commissioners individually that she wanted to stay on with the County as Clerk to the Board. Id. at 28.

         On December 26, 2014, Ms. McCallum's husband, Daryl McCallum, emailed to the County documentation of “Donna's return to work status from her surgeon.” Dkt. 18 at 100. The email requested that the commissioners be informed of her status and attached a signed note on letterhead from a doctor stating that Ms. McCallum “may return to school or work on 1/12/15” and that “patient has limited depth perception due to recent eye surgery.” Id. at 101. Ms. McCallum did not initially provide the Board with a doctor's note vouching for her absence post-surgery because, in her experience, “there was none required.” Dkt. 20-1 at 30, 31.

         On December 31, 2014, the Board of Commissioners held a session that included discussion of the severance agreement, which the Board approved. According to the meeting minutes:

Commissioner Gordon made a motion, with Commissioner Welch seconding . . . to approve a severance package agreement with Donna McCallum with the understanding that she wants to end her employment under the terms of this agreement.

Dkt. 20-1 at 41. Later that day, the County's attorney emailed Ms. McCallum's attorney. Dkt. 18 at 98. The subject line to the email reads, “DONNA McCALLUM-SEPARATION RELEASE (Execution).” Id. The email states:

. . . The Commissioners approved the attached [separation agreement] with the understanding that Donna would like to end her employment with the County under these terms and conditions. I have an executed copy being held until we have Donna's signature-at which time I will release the County Commissioners' signatures to you.
I understand that Donna has 21 days to consider this agreement-and may end up not signing it. She is scheduled to report . . . on January 12 so it would be good to have this resolved by then . . . She remains employed by the County until she signs this agreement or until the parties make another decision.

Id. (emphasis added). Ms. McCallum did not sign the separation agreement. Ms. McCallum did not report to work on January 12, 2015.

         On January 14, 2015, the Board of Commissioners held a special session, with all three commissioners present, “to discuss the performance of a public employee.” Dkt. 20-1 at 7.

         According to meeting minutes:

A motion was made, seconded and passed by all Commissioners to revoke the severance agreement with Donna McCallum.
A motion was made by Commissioner Raines and seconded by Commissioner Cormier to terminate Donna McCallum, Clerk of the Board, with cause for job abandonment and violating Section G of her employment agreement, inability to work with the commissioners and vocalizing to staff her unwillingness to work for a specific Commissioner. Commissioner Gordon voted against the motion . . . stat[ing] he would rather terminate without cause, but agrees Ms. McCallum did not act appropriately [and] has been a good employee of the County for 11 years.


         On January 15, 2015, Commissioner Cormier on behalf of the County notified Ms. McCallum in writing that the commissioners had voted to revoke the severance agreement and “to consider termination of your employment for cause[.] Dkt. 18 at 107. The “cause” for termination, according to the letter, was stated:

According to the documentation we received from your husband on December 16, 2014, you were to report to work on January 12, 2015, which you failed to do. You also failed to call in to report the absence and request additional time off. You have been absent for four days without calling in and without authorization . . . in violation of County policy and your Employment Agreement[.]
Additionally, you have voiced to many people in the County that you will not work with the new commissioner, Vickie Raines. Your refusal to work with [her] is tantamount to insubordination and it also makes you unfit and unsuitable . . . The position of the Clerk to the County Board serves the entire Board and your statements . . . are inconsistent with this requirement.
I [Commissioner Cormier] would like to meet with you and [HR Manager] Marilyn Lewis on Tuesday, January 20, 2015 . . . You will have an opportunity to present any information you would like us to consider prior to making our final decision.


         On January 20, 2015, Ms. McCallum attended the Loudermill hearing, along with Commissioner Cormier, HR Manager Lewis, and an attorney for the County. Ms. McCallum provided to the County a second doctor's note, which stated that Ms. McCallum “[m]ay not return to work on: 1/12/15-1/21/15” but “[m]ay return to work on: 1/22/15.” Dkt. 20-1 at 9; Dkt. 18 at 109. The note also added: “Remarks/limitations: Active floaters from eye surgery, causing visual disturbances.” Id. The Loudermill hearing was “very short, ” and Ms. McCallum took the meeting as a chance to remind the County that she had notified everyone that she would be out for four to six weeks; she had been available by phone; and she had never verbalized an unwillingness to work with Commissioner Raines. Id. at 45.

         On January 21, 2015, the Board of Commissioners held a special session “to consider three items, ” the second of which related to Ms. McCallum. According to the meeting minutes:

2. Executive Session-At 4:20 p.m. Commissioner Cormier moved the meeting into Executive Session . . . to consider the performance of a County Employee . . . At 4:30 p.m. the Commissioners moved back into open special session. A motion was made by Commissioner Cormier and seconded by Commissioner Raines to uphold the decision to terminate Donna McCallum with cause, after consideration of the information provided during the loudermill hearing. Commissioner Gordon voted against the motion. Commissioner Raines noted the cause is due to job abandonment and violating Section G of the employment agreement, inability to work with the commissioners, vocalizing to staff her unwillingness to work for a specific commissioner.

Dkt. 20-1 at 22.

         Also at the January 21, 2015 the meeting, the Board appointed Jenna Amsbury to replace Ms. McCallum as Clerk of the Board. Prior to surgery, Ms. McCallum had arranged for Ms. Amsbury, the deputy clerk, to cover the Clerk for the Board responsibilities in Ms. McCallum's absence. Ms. Amsbury was significantly younger in age, whereas Ms. McCallum was approximately age sixty-two. Commissioner Gordon admits that at one point he “could have” said to Ms. McCallum “that [Commissioner] Cormier didn't like taking direction from older women, ” a comment that “was more in jest than anything else.” Dkt. 20-1 at 47, 56. Ms. McCallum did not report age-related comments by Commissioner Gordon or Commissioner Cormier, but she reports that these comments began during 2013, when Commissioner Cormier started, and occurred “continually . . . over the period of time that Mr. Cormier was working in the office.” Dkt. 18 at 33, 38.

         Prior to the January 14, 2015 and January 21, 2015 Board meetings, Ms. Amsbury, acting on behalf of the Board as Clerk, sent email notice of the meetings to various individuals, including Ms. McCallum, more than 24 hours in advance of each meeting. Dkt. 18 at 131, 133. Included in the email recipients were two individuals responsible for posting the special meeting agendas to the County website. Id. at 78, 79.

         In a January 21, 2015 letter to Ms. McCallum from Commissioner Cormier on behalf of the County, the commissioner states that “we have considered the information you presented at the meeting and we have made the decision to terminate . . . for cause.” Dkt. 18 at 113. The letter, signed by all three commissioners, continues: “your refusal to work with Commissioner Raines and your failure to report to work provides us with a basis for your termination for cause, and in some respects your failure to work is consistent with your refusal to work with Commissioner Raines.” Id.

         Defendants seek summary judgment of dismissal from all claims. The Complaint alleges violations of the Washington Law Against Discrimination, the Americans with Disabilities Act, the Family Medical Leave Act, the Age Discrimination in Employment Act, and the Washington Open Public Meeting Act, as well as Washington common law claims for wrongful discharge, intentional infliction of emotional distress, negligent infliction of emotional distress, and breach of contract. Dkt. 1-1 at 7-9.


         Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)(nonmoving party must present specific, significant probative evidence, not simply “some metaphysical doubt.”). See also Fed.R.Civ.P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 .S. 242, 253 (1986); T.W. Elec. Service Inc. v. Pacific Electrical Contractors Association, 809 F.2d 626, 630 (9th Cir. 1987).

         The determination of the existence of a material fact is often a close question. The court must consider the substantive evidentiary burden that the nonmoving party must meet at trial - e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254, T.W. Elect. Service Inc., 809 F.2d at 630. The court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the moving party. The nonmoving party may not merely state that it will discredit the moving party's evidence at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. Elect. Service Inc., 809 F.2d at 630 (relying on Anderson, supra). Conclusory, nonspecific statements in affidavits are not sufficient, and “missing facts” will not be “presumed.” Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990).


         Defendants' motion presents the issue of whether, for each discrete claim, there is an issue of material ...

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