United States District Court, W.D. Washington, Tacoma
ORDER ON DEFENDANTS' MOTION FOR SUMMARY
J. BRYAN UNITED STATES DISTRICT JUDGE
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.
facts herein are recited in favor of Plaintiff, the nonmoving
party, and supported by the record.
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).
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.
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
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.
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.
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.
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.
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.
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
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
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.
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.
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
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.
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.
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.
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.
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.
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).
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).
motion presents the issue of whether, for each discrete
claim, there is an issue of material ...