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Scholz v. Washington State Patrol

Court of Appeals of Washington, Division 3

May 17, 2018

PAUL A. SCHOLZ, Appellant,
v.
WASHINGTON STATE PATROL, AN AGENCY OF THE STATE OF WASHINGTON Respondent.

          SIDDOWAY, J.

         Paul Scholz appeals the summary judgment dismissal of a disability discrimination claim through which he sought damages for the termination of his employment by the Washington State Patrol.[1] The trial court concluded that his claim was barred by collateral estoppel on account of a labor arbitration determination that his employment was terminated for just cause. Mr. Scholz challenges whether the labor arbitration presented an issue identical to any issue presented by his disability discrimination claim, argues that applying preclusive effect will work an injustice, and argues that the arbitrator's decision reveals an erroneous finding on a material fact.

         As a matter of first impression, we hold that with one modification, three special considerations applied in determining whether facts determined in an administrative hearing have preclusive effect should also apply to facts determined in an arbitration hearing. Finding that all of the elements required to apply collateral estoppel are present, we affirm.

         FACTS AND PROCEDURAL BACKGROUND

         Paul Scholz sued the Washington State Patrol (Patrol) for terminating his employment based on the results of an investigation of his involvement in a semitruck pileup on a winter morning in January 2012. Then-Officer Scholz had stopped his patrol vehicle in the right lane of westbound Interstate 90 (I-90) on Snoqualmie Pass in bad weather and had been speaking with the driver of a semitruck parked in the lane to his left. When he found himself at the front end of what quickly became a six-semitruck pileup, Officer Scholz was in fear for his life.

         In his complaint for damages, Mr. Scholz alleges that within hours of the accident and despite his obvious emotional distress-later described by his expert as an acute anxiety disorder-he was taken to the Patrol's scale house and was questioned about the accident. His answers led to an accusation that he lied and to a formal investigation by the Patrol's Office of Professional Standards. Following completion of the Patrol's investigation, his employment was terminated.

         Mr. Scholz's complaint asserted a claim for disability discrimination in violation of chapter 49.60 RCW. A little less than a year after it was filed, the Patrol moved for summary judgment, contending that his discrimination claim was precluded by a 2014 labor arbitration determination that the Patrol terminated Mr. Scholz's employment for just cause. Mr. Scholz responded that the 2014 arbitration decision should not be given preclusive effect because the issue decided in the arbitration was not identical to issues presented by the lawsuit, and applying preclusive effect would work an injustice.

         With the context framed, we delve into more detail about the arbitration.

         The labor arbitration

         At the conclusion of the Patrol's investigation of the pileup, it terminated Mr. Scholz's employment based on untruthfulness and violations of other Patrol rules. The Professional and Technical Employees Local 17 (Union) and Patrol's collective bargaining agreement (Agreement) provides in article 29 that permanent employees shall only be disciplined for "just cause." Clerk's Papers (CP) at 77. "Discipline" as used in the Agreement includes discharges. Mr. Scholz's Union grieved the termination, which was denied. The Union and the Patrol then requested arbitration under the Agreement and mutually selected an arbitrator. Arbitration was conducted over four days. The following facts are taken from the arbitrator's decision.

         In Mr. Scholz's position as a commercial vehicle officer for the Patrol, his main responsibility was to inspect and weigh vehicles at the Cle Elum scale house. In winter months, when snowy conditions required the use of tire chains, he was authorized to enforce chain requirements in the Snoqualmie Pass and Blewett Pass areas. As a limited authority officer, he was not empowered to enforce the rules of the road, such as citing drivers for speeding.

         Bad weather and bad road conditions existed on the morning of the pileup. Officer Scholz was sent out to conduct chain enforcement on I-90 in an area east of Snoqualmie Pass. He was specifically directed to watch for drivers of trucks parked and chaining up improperly on the right shoulder of the westbound lanes and to instruct them to move a few miles ahead to a safer, designated chain-up area. He encountered two large semitrucks parked on the shoulder at a location that was a particularly dangerous place to chain up because it was approached on a curve, making it difficult for an approaching driver to see the semis until the driver was almost upon them. He turned on his emergency lights and came to a stop in the right lane next to the two stopped semis.

         What happened as Officer Scholz approached the two semis and stopped was disputed. A semitruck with double trailers being driven by Rigoberto Flores-Garcia was traveling westbound at the same time as Officer Scholz, and there is some evidence that upon stopping and getting out of his vehicle, Officer Scholz flagged Flores-Garcia to stop. For whatever reason, Flores-Garcia did stop in the lane to the left of, and next to, Officer Scholz's vehicle, thereby blocking the second lane for westbound traffic. Leaving his motor running and his emergency lights flashing, Officer Scholz walked around the cab of the Flores-Garcia vehicle to tell him the road was extremely icy and he needed to slow down.

         As Officer Scholz started to walk back toward his patrol vehicle, a fourth semi-truck came along at high speed and crashed first into the patrol vehicle, and then into the two semitrucks on the shoulder before coming to a stop mostly in the right lane. Within moments or even seconds, two more westbound commercial vehicles came upon the scene and crashed into the four stopped vehicles, creating a massive pileup that totally blocked westbound traffic. Hearing the crashing sounds but with his visibility blocked by the cab of the Flores-Garcia truck, Officer Scholz-afraid of being hit and killed-ran to the safety of a snowbank in the median.

         Trooper Darren Wright arrived on the scene within minutes of the collision and was told by Officer Scholz that he had parked in the right lane, next to the semitrucks parked on the shoulder, and that he had flagged the Flores-Garcia vehicle down for speeding. Asked how he was doing, Officer Scholz told Trooper Wright and other arriving officers that he was "okay, " "not hurt, " and was not injured, but the officers described Scholz as shaken up and "kind of" or "a little bit" in shock. CP at 35. When his immediate supervisor arrived, Officer Scholz was upset and crying and hugged her- an unusual gesture for him.

         Sgt. Kevin Overbay was dispatched from Wenatchee to investigate and arrived at the Cle Elum scale house a couple of hours after the accident, where he interviewed Officer Scholz. When Sgt. Overbay asked what had happened, Officer Scholz told the sergeant he had parked on the shoulder, behind the two semitrucks whose drivers were chaining up. He also told the sergeant that he had not flagged down Flores-Garcia but had merely signaled for Flores-Garcia to slow down by pumping his arms up and down, palms down. When Sgt. Overbay pressed Officer Scholz on whether he had stopped in the right lane of traffic, Officer Scholz said he had been "completely on the shoulder." CP at 53. Officer Scholz's statements to the sergeant were overheard by others. Later that day, investigators at the scene reported to Sgt. Overbay that based on the tire marks, Officer Scholz's vehicle had been parked in the right lane, not on the shoulder.

         Within a few days after the pileup, Officer Scholz went to a medical clinic and saw a physician's assistant and a counselor. He had three counseling sessions with the counselor and within a few weeks of the pileup saw a psychologist, Dr. James W. Cole, who treated him for acute stress disorder.

         Officer Scholz was placed on special assignment at home and an extensive investigation ensued. Officer Scholz was reinterviewed in May and September 2012. In the May interview, which took place after the investigation called into question his statements to Sgt. Overbay, Officer Scholz denied ever having told the sergeant that he parked on the shoulder. He admitted parking in the right lane. But he insisted that his position relative to Flores-Garcia had left ample room for travel between their vehicles, drawing a sketch to support his explanation. The arbitrator characterized Officer Scholz's description and depiction of I-90 and the vehicles' positions as "clearly untruthful." CP at 58. Officer Scholz also insisted in the May interview that he was still inside his patrol vehicle when he merely motioned with a finger for Flores-Garcia to slow down, telling interviewers that Flores-Garcia decided to stop in a traffic lane on his own. He claimed not to recall having told Sgt. Overbay that he motioned Flores-Garcia to slow down by pumping his arms up and down.

         In his final, September interview, Scholz stuck by his statements in May.

         Investigators found violations by Officer Scholz of four regulations, the most serious being the prohibition of untruthfulness. Following a Loudermill[2] predetermination hearing, the Patrol issued a final determination letter citing the same violations and terminating his employment.

         Other matters were factually and legally at issue in the labor arbitration, but relevant for our purpose is only whether in deciding there was "just cause" for Officer Scholz's termination, the arbitrator necessarily determined that he had been intentionally untruthful in making false statements and that his evidence of a mental disorder did not explain or excuse the untruthfulness.

         Since the parties' Agreement did not define "just cause" and the Patrol's process for determining just cause had not been negotiated with the Union, the arbitrator relied on labor arbitration common law, citing a currently favored four element test for just cause:

1. That the grievant had notice of the rules to be followed and the consequences of noncompliance;
2. That the grievant engaged in the misconduct of which he/she is charged;
3. That there was procedural regularity in the investigation of the misconduct; and
4. That the employer applied the discipline in a reasonable and even-handed manner, considering the seriousness of the proven offense(s), the employee's disciplinary record and any aggravating or mitigating circumstances, using progressive discipline when appropriate.

CP at 48 (emphasis omitted). The arbitrator explained that where untruthfulness was alleged, she would apply the standard of clear and convincing proof, "because of the serious consequences of being accused of untruthfulness." Id.

         As summarized by the arbitrator, the Union's defense to the charge that Scholz was untruthful was that "[his] state of mind after the traumatic event caused him to be unclear or mistaken in his explanations about what had happened." CP at 43. The arbitrator's decision recounts Dr. Cole as diagnosing acute anxiety disorder because of the trauma:

He said such trauma can impact the individual's perception of the traumatic incident itself as well as his ability to communicate about the trauma. A traumatized individual may say things they wish they had been able to do ...

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