Martin sues his former employer, Gonzaga University, for
discharge in employment in violation of public policy and for
a violation of a statute allowing an employee access to his
personnel file. We affirm a summary judgment dismissal of the
wrongful discharge claim. Martin fails to present evidence to
support the fourth element of the claim, that element being
the absence of an overriding justification for Gonzaga
University to fire Martin. The undisputed facts, including
Martin's own words, establish insubordination. We reverse
the summary judgment dismissal of Martin's claim that the
university denied him access to his personnel file on the
ground that Gonzaga University failed to provide testimony
that it produced all of the file to Martin.
decisions delineate the nature of the overriding
justification element of the wrongful discharge in violation
of public policy cause of action. We devote pages to define
and demarcate the element.
lawsuit arises from the employment of David Martin at Gonzaga
University's Rudolf Fitness Center (RFC). Because the
trial court granted Gonzaga University's summary judgment
motion, we recite the facts in a light most favorable to
David Martin, although we also include some of the
Jesuit school, Gonzaga University, opened the Rudolf Fitness
Center in 2003 for use by students, faculty, and staff. A
basketball fieldhouse and a pool, among other facilities,
occupy the fitness center. During the summer months, the
university rents the fitness center to other organizations
such as youth camps and leagues. The university's
Athletics Department oversees the fitness center.
unknown dates before Gonzaga University's hire of David
Martin in 2008, university students sustained injuries when
playing basketball and striking bare concrete walls behind
the basketball hoops in the Rudolf Fitness Center. Injuries
included concussions, head trauma, broken bones, dislocated
shoulders, and lacerations. No protective padding covered the
walls. Basketball courts at other Gonzaga University
facilities included padding on the walls.
in 2004, Gonzaga University Athletics Department staff
discussed affixing prophylactic padding to the basketball
court walls at the Rudolf Fitness Center. No code requirement
or National Collegiate Athletic Association regulation
requires the use of pads. Nevertheless, in 2004, Senior
Associate Athletics Director Chris Standiford instructed
Assistant Athletics Director Jose Hernandez to hire a risk
management consultant to assess the need for pads along the
walls of the basketball courts. The Athletics Department
later declined to follow the consultant's recommendation
to install pads. The university then estimated the cost of
the padding as $30, 000.
a deposition in this lawsuit, Assistant Athletics Director
Jose Hernandez testified that he "believed" that
Senior Associate Athletics Director Chris Standiford rendered
the 2004 decision rejecting installation of protective pads.
Clerk's Papers (CP) at 66. In 2007, Hernandez again
engaged a consultant to assess the need for safeguarding pads
and the costs of the pads. After the second assessment,
Hernandez recommended to his supervisor, Assistant Athletics
Director Joel Morgan, that Gonzaga University install the
pads. The Athletics Department again declined to install the
recommended pads. Hernandez does not know whether Morgan or
Standiford made the decision. Morgan recalled no such
University hired plaintiff David Martin on January 2, 2008,
to work as an assistant director of the Rudolf Fitness
Center. In addition to his wages, Martin received other
benefits, including health insurance and free tuition. Martin
utilized his tuition benefit and enrolled in Gonzaga's
master's degree program for sports administration.
David Martin gained employment at the Rudolf Fitness Center,
the fitness center's employees included Assistant
Athletics Director Jose Hernandez, Associate Director Shelly
Radtke, and Assistant Directors Andrew Main and Kerri Conger.
Hernandez also enjoyed the title of University assistant
athletics director. The university's Athletics
Department's chain of command encompassed the Rudolf
Fitness Center's employees. We have already mentioned
some of the supervisor's names and titles. The fitness
center's associate and assistant directors initially
reported to the center's Assistant Athletics Director
Hernandez. Later, Associate Director Shelly Radtke directly
supervised David Martin. Hernandez reported to Gonzaga
University Assistant Athletics Director Joel Morgan. Morgan
reported to university Senior Associate Athletics Director
Chris Standiford. Standiford reported to Mike Roth, director
David Martin's hire, Gonzaga University students
continued to sustain injuries while playing basketball in the
Rudolf Fitness Center and striking concrete walls while
running full speed. For several years, David Martin requested
that Gonzaga University install protective padding on the
fieldhouse walls behind the basketball hoops, although we
lack evidence as to the number of times and the dates of the
requests. Martin recalled one request during his second year
of employment after a student sustained serious injuries
while playing basketball. Martin forwarded a concern to his
supervisor, Jose Hernandez, and the pair discussed the need
to install padding to help minimize the risk of injuries.
Martin deemed that Gonzaga University held a legal obligation
to maintain a safe environment for students and employees. He
worried about blood and other bodily fluids spilled during
accidents could create pathogen hazards. In response to
Martin's expression of concern, Fitness Center Assistant
Athletics Director Hernandez informed Martin that requests
for protective padding could only be made once a year at the
deposition, Jose Hernandez confirmed that David Martin spoke
to him about installing pads. According to Hernandez, Martin
repeatedly and passionately spoke about the need for wall
to David Martin, before he raised this safety concern to Jose
Hernandez, he received a raise for good work performance.
Thereafter, Martin received no pay raises despite receiving
complimentary performance evaluations. David Martin does not
present records to support these assertions.
the employment of David Martin, other Rudolf Fitness Center
employees expressed concerns about the lack of protective
wall padding in the basketball courts. According to Associate
Director Shelly Radtke and Assistant Director Andrew Main,
all Athletics Department staff discussed the lack of padding
on the walls of the Rudolf Fitness Center. Neither Radtke nor
Main identified a supervisor to whom either raised a safety
concern about the walls.
more supervisors of David Martin periodically reviewed his
job performance. Martin testifies that supervisors never
advised him of any work performance deficiencies. Records
show, however, that Martin received below average ratings for
his interpersonal skills, problem solving, professional
development, and leadership responsibilities on his April 28,
2011 performance review. The review noted that Martin's
overall performance "was below the quality and standard
that he is capable of." CP at 128. The review further
[Martin's] inconsistent performance kept him from meeting
the basic job requirements. Throughout the academic year, at
times he would displayed [sic] great work ethics and at other
times he would not. This up and down behavior and conduct was
a surprise and uncharacteristic of him.
CP at 128. In addition, the review commented that Martin did
an excellent job developing and implementing a training
program for lifeguards. No supervisor signed the April 2011
Fitness Center Assistant Athletics Director Jose Hernandez
and David Martin exchanged e-mails following the April 28,
2011 performance review. In one e-mail, Hernandez posed two
questions to Martin. Hernandez asked Martin how the latter
could improve his performance to advance the interests of the
fitness center. The second question asked Martin how other
Rudolf Fitness Center staff needed to change or improve.
Martin's response focused on his desire to develop a pool
program, his dissatisfaction with resistance to change from
others, and a lack of teamwork among staff. Martin did not
mention any student safety concerns related to the lack of
protective padding in the basketball courts.
document dated August 16, 2011, an anonymous author, perhaps
Jose Hernandez, summarized in writing David Martin's
April 2011 review. The document lacks a header. The author
identified four deficiencies in Martin's work performance
and correlating expectations and goals. The four highlighted
deficits were a lack of interpersonal and professional
communication skills with coworkers, a lack of teamwork,
abrasive and insensitive written communications, and a
neglect of job responsibilities.
David Martin's April 28, 2011 performance review, Rudolf
Fitness Center Assistant Athletics Director Jose Hernandez
counseled Martin daily about his job performance, his need to
follow protocol, and his interpersonal skills. According to
[Martin] was a young man just removed from college at the
time who was a challenge to work with. Mr. Martin did not
like structure and felt like he could get the job done his
own way. . . . Mr. Martin was very arrogant and simply did
not want to get along with people.
120. Hernandez eventually consulted with Gonzaga
University's Human Resources Office regarding
Martin's job performance issues. Heather Murray,
associate director of human resources, testified in a
declaration that Hernandez continually coached Martin to take
direction and follow protocol. Senior Associate Athletics
Director Chris Standiford observed that David Martin resented
Jose Hernandez being Martin's supervisor.
to Rudolf Fitness Center Associate Director Shelly Radtke,
who supervised David Martin, Martin lacked tact with
employees and students and yelled at her on several
occasions. Assistant Director Andrew Main testified that
Martin lacked interpersonal skills. Main testified that
Martin "liked to do things his own way, even if there
were procedures in place that he was supposed to
follow." CP at 170. Martin acknowledged he experienced
difficulty with Rudolf Fitness Center Assistant Director
Kerri Conger because of attitudinal differences.
of David Martin's thesis project for his masters'
program, Martin wrote a proposal to continue use of the
Rudolf Fitness Center pool and use funds raised from
enjoyment of the pool to purchase protective wall padding for
the basketball courts. We assume that the Gonzaga University
administration considered closing the pool, but no direct
evidence confirms such. Martin wished the university to
maintain a pool on campus for students. The record does not
include Martin's written proposal.
Martin submitted his pool and padding proposal to Rudolf
Fitness Center Assistant Athletics Director Jose Hernandez
and asked if he could submit the proposal to Senior Associate
Athletics Director Chris Standiford. Standiford oversaw the
fitness center budget. According to Martin, Hernandez granted
him permission. During discovery, Hernandez denied that he
granted Martin permission to share his proposal with
Standiford. Hernandez testified that "[h]e cannot stop
[David Martin] from going over there [to Standiford] and
talking to our associate athletics director, but that is not
the proper procedure, proper way to do it." CP at 75.
February 29, 2012, David Martin sent his pool and padding
proposal to Senior Associate Athletics Director Chris
Standiford through an e-mail entitled "Future Pool
Proposal." CP at 115. Martin requested a meeting with
Standiford to discuss "a very specific plan, along with
other ideas, on how to generate revenue to keep the pool
operational and buy time for the future." CP at 115.
Martin's cover e-mail did not mention student safety
concerns resulting from the lack of protective padding in the
basketball courts. Standiford responded to Martin on February
Unfortunately my schedule will not allow for a meeting before
my departure tomorrow. It is more organizationally
appropriate for you to provide Jose [Hernandez] with the
proposal for consideration. If you already done this, and
Jose supports the proposal, I would suggest he meet with Joel
[Morgan] for further consideration and deliberation.
I have asked Joel, and by extension Jose, that we do an
analysis and program[m]atic review that demonstrates the
relative vitality and necessity of the aquatic component as
part of the Rudolf Fitness Center. Hopefully your work helps
expedite that project as it is the most time sensitive. The
response to that question is the primary focus and sole
request at this time. The answer will lead to greater
discussion and instruct us to what parameters and goals we
can construct for that discussion and in response to
Plant's concerns about the viability of further operation
of the pool complex.
Thanks for your work to date and that which still lies ahead.
CP at 114. Martin replied after work hours:
I am aware that this is a time sensitive matter. In the
politest possible way . . . according to our organizational
layout in the Policies and Procedures Manual, pg. 6, there is
no such line of communication or organization hierarchy
established for the RFC [Rudolf Fitness Center] staff to
follow. I have Jose's consent in this matter and I
understand that you are an extremely busy individual, I
wouldn't be asking for your time if I didn't plan on
using it to the fullest. Imagine this as a "golden
ticket" idea. Something that I don't want others
corrupting or taking credit for. I would ask that you please
meet with me and hear my thoughts on this matter. If it needs
to wait until after you return, then so be it, but I have
worked hard on this and would appreciate your audience, and
your audience alone. CP at 114 (alteration in original).
Standiford concluded that Martin, with this latest message,
sought to generate additional income for himself contrary to
Gonzaga University's mission. Following the Leap Day
e-mail exchange, Chris Standiford contacted Jose Hernandez
and Joel Morgan and asked them to contact human resources
regarding David Martin.
to David Martin, Chris Standiford directed him to forward the
thesis proposal to Jose Hernandez for Hernandez to make the
presentation in order to kill the proposal through
administrative inaction. Hernandez lacked the knowledge and
ability to make the presentation.
Fitness Center Assistant Athletics Director Jose Hernandez
scheduled a meeting for the following day, March 1, 2012,
among Assistant Athletics Director Joel Morgan, David Martin,
and Hernandez. Hernandez arranged the meeting in order to
express disappointment to Martin for his disobeying the
direction of Chris Standiford and to deliver Martin a letter
of expectation. When Hernandez informed Martin of the
meeting, Martin responded: '"You cannot make me
go.'" CP at 121. Hernandez advised Martin to attend
because his employment standing would otherwise worsen.
Martin attended the March 1 meeting. Martin argued and
interrupted Jose Hernandez throughout the meeting. Martin
repeatedly asked why his e-mail to Chris Standiford was
inappropriate. Hernandez told Martin that Martin disregarded
a direct order from Standiford when Standiford instructed
Martin to submit his proposal to Hernandez and Morgan.
Hernandez read to Martin a prepared statement. Joel Morgan
demanded that Martin release his proposal to him, but Martin
conclusion of the March 1 meeting, Jose Hernandez and Joel
Morgan told David Martin that he would receive a letter of
expectation and the two would evaluate his performance over
the next week. Martin asked to leave the meeting. After the
meeting concluded, Associate Director of Human Resources
Heather Murray, who did not attend the meeting, assumed the
responsibility for drafting the letter of expectation.
ten minutes after departing the March 1 meeting, David Martin
located Rudolf Fitness Center Associate Director Shelly
Radtke and requested to leave work early. According to
Radtke, Martin approached her "hotter than a
pistol" and yelled:
"I need you to grant me permission to leave.... I
can't be here. I have to get out of here and you need to
163. Martin, who was scheduled to close the Rudolf Fitness
Center that night, wished Fitness Center Assistant Director
Andrew Main to substitute for him. Martin told Main that he
was "[n]ot in a good state of mind." Main offered
to close the facility for him. CP at 170. Martin did not seek
permission from Jose Hernandez to leave work early.
March 1, Shelly Radtke texted Jose Hernandez to notify him
that David Martin asked to leave early and, in an effort to
avoid confrontation, she agreed. After receiving the text,
Hernandez called Radtke, who relayed that a visibly upset
Martin had already left the Rudolf Fitness Center. Hernandez
and Morgan went to the fitness center to speak with Main.
Main told them that Martin said: "Joel is upset I went
over his head and Jose is a push over." CP at 216.
Consequently, Morgan consulted with Heather Murray concerning
Martin's actions during and after the meeting. Morgan and
Murray agreed that Martin should be placed on administrative
leave until further notice. According to Hernandez, the
university placed Martin on administrative leave because he
abandoned his duties and advised Shelly Radtke to tell
Hernandez of his early absence.
March 2, 2012, Jose Hernandez notified David Martin that
Gonzaga University placed him on paid administrative leave.
Hernandez instructed Martin that the terms of his leave
forbad him to contact anyone at Gonzaga University except
human resources staff and Hernandez.
Martin states that, before his termination from employment,
he was wrongfully accused of leaking information to The
Gonzaga Bulletin, a Gonzaga University student
publication. Martin does not identify the accuser or the date
of the accusation. Martin attached, to his declaration, a
copy of a May 10, 2012 Gonzaga Bulletin
article, entitled "Gym safety questioned as employee
fired." CP at 38-39. We wonder if the attachment
contains the entire article. Our copy of the article does not
mention the dismissal of Martin or anyone else from
employment. The article quotes "Martin" without
mentioning his first name or position with the fieldhouse. CP
at 39. The article also mentions Martin's "proposal,
" but does not identify the proposal. CP at 39. The
article reads, in part:
According to Martin, the issue of pads is brought up once a
year at a meeting with facilities. He says he has been told
multiple times that the gym meets requirements and code.
Martin said that in writing his proposal he was not so much
worried about the threat of a lawsuit as he was about the
safety of the clients using the facilities at the RFC.
important passage in Jose Hernandez's deposition, the
following colloquy occurred:
Q. Did you ever share with Mr. Standiford that you believed
that Mr. Martin was leaking information about the pads with a
reporter with The Bulletin, the student publication?
A. I don't believe saying that.
Q. Did you ever believe that Mr. Martin was responsible for
sharing information that led to the articles shown in Exhibit
A. I don't. . . I'm not in a position to just say
that he did.
Q. I'm not asking you whether you're in the position.
Did you personally believe that Mr. Martin was sharing
information with a reporter from The Bulletin?
A. Not necessarily.
Q. What do you mean "not necessarily?"
A. That I don't believe that.
Q. Did you have any thoughts that he might have shared this
information with The Bulletin and the reporter?
A. Well, I can tell you this: One of the reporters told me
that, in a group, he overheard Mr. Martin talking about it.
Q. So did that cause you to believe that maybe Mr. Martin was
the person who was sharing information with the reporter?
A. Not necessarily.
Q. Did you ever share this conversation with Mr. Standiford
or talk to him about Mr. Martin being the person giving