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Marquez v. Harborview Medical Center

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

February 7, 2018





         This matter comes before the Court on Defendant's Motion for Summary Judgment. Dkt. #19. Defendant seeks dismissal of all of Plaintiff's claims, asserting that the evidence in the record demonstrates a legal basis for Plaintiff's employment termination. Id. Plaintiff essentially responds that too many issues of material fact preclude summary judgment. Dkt. #21. For the reasons set forth below, the Court disagrees with Plaintiff, and GRANTS Defendant's Motion for Summary Judgment.


         This is an employment action in which Plaintiff raises claims for age discrimination, defamation, violation of Washington State's Employee Whistleblowing Protection Act, negligent investigation (breach of contract), and violation of 42. U.S.C. § 1983. Dkt. #1-2 at ¶ ¶ 5.1-5.2[5].

         Plaintiff, Gregoria Marquez, worked at Harborview for over 43 years, starting in a permanent capacity on August 31, 1970. Dkts. #1-2 at ¶ 4.1 and #2-3 at 9. From January 1, 2007, to her termination in 2014, she held the position of Patient Service Specialist II on the Medicine/Telemetry Unit, 3 East Hospital. Id. That position is administrative in nature, and involves coordination of clerical and support activities for patient care on a nursing unit, answering the phones, responding to patient call lights, receiving patients and visitors to the unit, and facilitating contact between patients, their families, and appropriate personnel. Id. at pp.12-14.

         Several years prior to her termination, in May 2011, Plaintiff complained to the Harborview Human Resources Department that another employee had not accurately reported her time on her timesheets. Dkt. #2-2 at 51, lns. 2-7. An Internal Audit Department investigation revealed that Plaintiff's allegations had merit. Id. at 54, lns. 15-18. As a result, the employee received a final counseling. Dkt. #2-3 at 3, ¶ 5. The employee was also required to repay the money she had been erroneously overpaid. Id. The matter was then closed.

         In early 2013, Theresa Valdez, a part-time Hospital Assistant who worked in the same area as Plaintiff, made a comment in front of several other employees that Plaintiff had copies of other employees' schedules in her car. Dkt. #2-2 at 72, ln. 10-73, ln. 10. Laura Newcomb, Nurse Manager, Patient Services, learned of this comment and asked Ms. Valdez for more information about the documents in Plaintiff's vehicle.[1] Dkt. #2-3 at 3, ¶ 6. Ms.

         Newcomb also scheduled an interview with Plaintiff. Id. at 50. In a letter dated March 8, 2013, Ms. Newcomb notified Plaintiff of the interview, and included the following language:

I have attached the University of Washington's “Complaints Against University Employees” Administrative Policy Statement (46.3) to this notice. Please review the policy statement to gather information regarding complaint investigation and expectations regarding non-retaliation. It is my expectation that you will keep the allegations confidential and not discuss the matter with your fellow employees. It's important that I caution you that confronting fellow employees with these allegations may be reasonably perceived as retaliation. Engaging in retaliatory behavior will result in corrective action, up to and including dismissal.

Dkt. #2-3 at 50 (underline in original). Human Resource Consultant Nora Balch, who assisted in drafting this letter, states that she frequently uses this quoted language because it gives employees practical advice regarding what constitutes retaliation and helps them to be successful in complying with the policy. Dkt. #2-2 at 55, ln. 6-56, ln. 14. Plaintiff has admitted receiving the letter and understanding the language. Dkt. #2-2 at 87, lns. 1-14.

         Ms. Newcomb and Ms. Balch met with Plaintiff to discuss the issue on March 15, 2013. Dkt. #2-3 at 68, ¶ 2. Plaintiff's union representative, Ray Trice, was also present. Id. After that meeting, Ms. Newcomb and Ms. Balch determined no further investigation or action was necessary. Id. and Dkt. #2-2 at 67, ln. 5-68, ln. 6. They notified Plaintiff that there would be no further action related to this issue. Id. Ms. Balch also informed Plaintiff that she was not to engage in any form of retaliation, including contacting other employees to find out more information, in order to “preserve workplace relationships” and avoid interrupting investigations. She further informed Plaintiff that she should work with her Union Representative, Human Resources, or her manager if she had questions or concerns about the non-retaliation policy or the investigatory process. Dkt. #2-2 at 57-59.

         Despite that directive, Plaintiff confronted her coworkers in an effort to find out who had “turned her in.” Maria Gonzaga reported to Ms. Newcomb that Plaintiff called her and said, “Maria tell me the truth, are you the one who told [] Laura regarding the copied papers in my car?” Dkt. #2-3 at 3, ¶ 8 and Ex. F thereto. When Ms. Gonzaga denied that she had reported Plaintiff, Plaintiff apparently stated, “It's Theresa then, ” referring to Ms. Valdez. Id. Plaintiff then approached Ms. Valdez. In an email describing the incident, Ms. Valdez wrote:

[Plaintiff] told me in a loud voice, “you turned me in to Laura” and then she started confronting me about the details of a said meeting in HR. . . . [W]hen I denied it she then accused me of [being] the only person who has rid[d]en in her car. . . . I was so terrified of what was happening because [I] have no idea about the meeting. I again denied her allegations and told her I don't know who told Laura. She then asked me “swear on your mother's grave[.]” I was so afraid of her that I said, “ok, I swear” then she made me raise my hand in [] front of her and said []“say it again[.]”

Dkts. #2-3 at 3, ¶ 8 and Ex. G thereto and #2-2 at 74, lns. 6-23. Plaintiff admits that she confronted both Ms. Valdez and Ms. Gonzaga, but denies that the conversations were threatening in any way. Dkt. #2-2 at 88-91.

         Ms. Newcomb and Ms. Balch interviewed Plaintiff regarding her coworkers' allegations that she had threatened them on March 29, 2013. Dkt. #2-3 at 4, ¶ 9. Plaintiff was accompanied by a union representative. Id. In that meeting, Plaintiff admitted to speaking to Ms. Valdez and Ms. Gonzaga, although she again denied that she was threatening in any way. Id. at 16-19. As a result, on May 8, 2013, Ms. Newcomb issued a Final Counseling to Plaintiff. Id. Ms. Newcomb informed Plaintiff that her behavior was “retaliatory and disrespectful” and “in direct violation of the directive given to [her].” Id. Ms. Newcomb also stated the behavior violated the UW Policy on Complaints, the UW Complaints Process, and Harborview's Professional Conduct Policy, and enclosed the referenced policies. Dkt. #2-3 at 18-19. Plaintiff was instructed to “abide by HMC's Professional Conduct policy and not engage in unprofessional behavior that includes, but is not limited to retaliatory, threatening, disrespectful or disruptive behavior.” Id.

         On May 21, 2013, Ms. Newcomb provided Plaintiff with a Final Counseling Action Plan. Id. at 20. She was again directed to comply with the referenced policies. Id. For example, she was instructed “not [to] approach other employees regarding their involvement in complaint processes or investigations. Confronting other employees to determine ‘what they know' can be perceived as retaliation and is disruptive to the work environment.” Id. She was also warned that “[f]ailure to improve in the above areas may result in further corrective action up to and including dismissal.” Id. Plaintiff signed the document, indicating she had reviewed it.[2] Id.

         Following the Final Counseling, employees continued to report negative interactions with Plaintiff. Ms. Gonzaga complained to Ms. Newcomb that Plaintiff had mimed scratching out Ms. Gonzaga's picture (an action the two had previously discussed as having the ability to actually harm a person), had been speaking negatively about her to other employees, and had accused Ms. Gonzaga of making the complaints that led to Plaintiff's Final Counseling. Dkt. #2-3 at 4, ¶ 10 and 21. Ms. Gonzaga told Ms. Newcomb she was fearful of Plaintiff. Id. Dorothy Padilla, whom Plaintiff had previously reported for timecard issues, complained to Human Resources that Plaintiff was harassing her: “Gregoria Marquez has made my life miserable and won't stop until she gets rid of me. I feel that this person has such an agenda against me and it had become more of hostile and harassment towards me.” Dkt. #2-3 at 74 ([sic] throughout) and 21-22.

         Ms. Newcomb and Ms. Balch investigated these allegations, and interviewed Plaintiff. Dkt. #2-3 at 4, ¶ 11. After the interview, Plaintiff telephoned a new employee, Laura Vo, at home to discuss a scheduling issue. Id. at 4, ¶ 12 and 26-27. During that conversation, Plaintiff described Maria Gonzaga as a “snake” and a “brown-noser” and Dorothy Padilla as a “thief.” Id. and Dkt. #2-2 at 97, ln 12-99, ln. 20. Plaintiff also asked Ms. Vo not to tell anyone about their conversation because she did not want it to “blow out of proportion.” Id. at 99, lns. 19-22. Ms. Vo sent Ms. Newcomb an email about this conversation:

Greg . . . warned me to watch out for [Maria Gonzaga] because she (Maria) was a, “snake, a brown-noser and would double cross me.” . . . Greg then began to launch into [a] lengthy tirade against Dorothy Padilla, Management and fraudulent behavior. . . . Further along in the conversation she came to talking about what a snake Maria, the HA, was, and how the HA's and CMT's were either not competent, lazy or shirked their duties in some way. . . . At this point I was completely exhausted from the conversation, and tried to end it when she recapped on everything she covered, reminded me to call Staffing and informed me that she didn't want me to tell anyone because she would get fired.

Dkt. #2-3 at 26-27.

         As a result, on February 25, 2014, Harborview placed Plaintiff on paid administrative leave “pending a recommendation for [her] dismissal.” Dkt. #2-3 at 28. That evening, around 9:00 p.m., Plaintiff went (uninvited) to the home of Ms. Valdez. Id. at 4, ¶ 13 and 24. She stayed for two hours talking about her employment situation. Dkt. #2-3 at 24. A few days later, Plaintiff asked Ms. Valdez to write a statement supporting her, but Ms. Valdez declined. Dkt. #2-3 at 24. According to Ms. Valdez, Plaintiff became very upset. Id. However, shortly thereafter, ...

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