United States District Court, W.D. Washington, Seattle
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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. Dkt. #2-3 at 3, ¶ 6. Ms.
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
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
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.
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.
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
[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.
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.
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
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.
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
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
Dkt. #2-3 at 26-27.
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, ...