United States District Court, W.D. Washington, Tacoma
ROBERT H. LUKE, Plaintiff,
CITY OF TACOMA, et al., Defendants.
ORDER GRANTING IN PART, DENYING IN PART, AND DEFERING
RULING IN PART ON DEFENDANTS' MOTION TO DISMISS
BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the motion to dismiss of
Defendants Sean Gustafson, Frank Krause, Mike Ake, Donald
Ramsdell, the Tacoma Police Department, and the City of
Tacoma (collectively “Defendants”). Dkt. 8. The
Court has considered the pleadings filed in support of and in
opposition to the motion and the remainder of the file and
hereby grants the motion in part, denies it in part, and
defers ruling in part. The Court also requests supplemental
briefing from the parties and establishes a deadline for any
motion to file a second amended complaint in light of this
March 8, 2018, Plaintiff Robert H. Luke
(“Plaintiff”) filed his original complaint in
this action in Pierce County Superior Court. Dkt. 1-2. On
March 28, 2018, Defendants removed the case to federal court.
April 4, 2018, Defendants moved for partial dismissal of
Plaintiff's claims. Dkt. 8. On April 23, 2018, Plaintiff
filed an amended complaint as a matter of course and
responded to Defendants' motion to dismiss. Dkts. 13, 14.
On April 27, 2018, Defendants replied. Dkt. 15.
worked as a patrolman with the Tacoma Police Department from
November 1995 until October 2015, when he retired at the age
of fifty-five. Dkt. 13 at 3. During his time as a police
officer, Plaintiff occasionally accepted qualified
“off-duty work” assignments that were assigned to
him through his command officer, Defendant Krause.
Id. at 4. Plaintiff also made direct arrangements
with businesses and private persons for qualified
“off-duty work.” Id. at 4-5. Plaintiff
alleges that both methods of obtaining off-duty work were
approved by the Tacoma Police Department. Id. at 4.
As part of Plaintiff's employment with the Tacoma Police
Department, Plaintiff was issued a police vehicle that he was
permitted to use for on-duty and off-duty Tacoma Police
Department work. Id. at 5.
2009, Defendant Gustafson, a captain, informed Plaintiff that
Gustafson had been tasked with getting rid of Plaintiff and
his long-time partner. Id. at 3-4.
2010, Plaintiff began a part-time relief security officer
position with the Port of Tacoma. Id. at 5. The
position was not a qualified “off-duty work”
position, but rather an entirely separate job. Id.
2012, Defendant Krause expressed to Plaintiff and others in
the department that he resented Plaintiff making arrangements
for off-duty work directly with the public rather than
through himself as Plaintiff's command officer. Dkt. 13
August 2013, Plaintiff was performing qualified off-duty work
at a motel which ended at approximately 2:00 am. Id.
at 6. After driving home, Plaintiff received a call from the
Port of Tacoma requesting immediate assistance in the
capacity of his second job as a Port of Tacoma relief officer
due to a protest. Id. at 6. Plaintiff only had his
unmarked Tacoma Police Department vehicle available to him
when he received the call, so he used that vehicle to respond
to his non-Tacoma Police Department position. Id. at
6. After arriving at the scene, Plaintiff found that
Defendant Krause was also at the Port because both Tacoma
Police Department officers and Port employees were responding
to the protest. Id. at 6. Defendant Krause observed
that Plaintiff was using his assigned Tacoma Police
Department vehicle. Id. Krause confirmed that it was
a Tacoma Police Department vehicle and then ordered Plaintiff
to explain why it was being used to travel to his separate
employment at the Port. Id. at 6-7. Before Plaintiff
could explain, Defendant Krause abruptly drove off.
Id. at 7. Defendant Krause later filed a complaint
against Plaintiff with internal affairs. Id.
Internal affairs brought disciplinary charges for
untruthfulness, insubordination, behavior unbecoming an
officer, and improper use of a department vehicle.
Id. After a hearing eight months later, a violation
finding was rendered. Plaintiff grieved that result and
hearing on his grievance is still pending. Id.
March 2014, Plaintiff's son received a traffic ticket in
the city of Lakewood. Id. Plaintiff received
permission from his lieutenant to travel to the city of
Lakewood while on duty to pay the ticket. Id.
Subsequently, a Lakewood Police Department filed a complaint
with the Tacoma Police Department. Id. at 8.
Purportedly, the complaint falsely claimed that Plaintiff
made statements while paying his son's ticket suggesting
that he would retaliate against Lakewood police officers in
his jurisdiction. Id. at 8. Despite having received
permission from his lieutenant to go and pay the ticket while
on duty, Defendant Ake initiated a disciplinary citation
against Plaintiff for conduct unbecoming an officer and
leaving his duty post. Id. Although Plaintiff's
lieutenant informed Defendant Ake that the complaint against
Plaintiff “was without substantive merit, ”
Defendant Ake nonetheless referred the matter to internal
affairs. Id. While it is unclear from
Plaintiff's complaint if this discipline is subject to a
separate grievance or the grievance already mentioned above,
grievance proceedings for this discipline are still pending.
unspecified time in the autumn of 2015, Plaintiff was hired
for a full-time position by the Port of Tacoma. Id.
The position included unspecified union protections, but
could not be held by someone who was charged or had been
convicted of a felony. Id. at 8-9. On September 1,
2015, Plaintiff began to work a graveyard shift at the Port
before starting his day shift at the Tacoma Police
Department. Id. at 9. His shift with the Port ended
at 6:53 am and his shift with the Tacoma Police Department
began at 7:00 am. Plaintiff's direct supervisor at the
Tacoma Police Department informed him that his Port of Tacoma
position was permissible so long as it did not interfere with
his Tacoma Police Department work. Plaintiff's supervisor
also stated that Plaintiff could adjust his shift to
accommodate “necessary deviations from any rigid
preliminary schedule.” Id.
alleges that deviation from the preliminary posted schedule
was the policy and practice of officers in his position with
the Tacoma Police Department. Id. Plaintiff explains
that the Department utilizes a “Telestaff staffing
grid” that is a projection of future coverage and
allows for numerous adjustments by officers in every pay
period. Id. at 12. Plaintiff further alleges that
the system did not require command authority for any
supervisor to deny reasonable schedule adjustments on either
a prior or post conduct basis. Id. Plaintiff made
adjustments to his Tacoma Police Department shift to
accommodate his schedule at the Port of Tacoma, which was not
flexible. See Id. at 9- 11. Each shift adjustment
that Plaintiff made was authorized by an immediate
supervisor. Id. at 13.
an unspecified date in autumn of 2015, Plaintiff informed his
direct supervisor that he was considering retiring in
November 2015 “in order to round-out his full 32nd year
of police work.” Id. at 10. Soon after that,
“various command personnel” announced that they
were unhappy with Plaintiff working double shifts.
“[A]s a consequence of these statements and remarks,
[Plaintiff] immediately gave his notice of retirement on
October 1, 2015. Id. After his retirement from the
Tacoma Police Department, Plaintiff continued to work in his
position for the Port of Tacoma. Id.
Plaintiff retired, Tacoma Police Department command personnel
assigned Detective Sergeant Schieferdecker to investigate
whether Plaintiff had been stealing time from the Tacoma
Police Department by claiming to be on duty when he was in
fact still working at the Port. Id. Detective
Schieferdecker was assigned to the investigation even though
she allegedly had made previous false allegations against
Plaintiff for which she was verbally reprimanded.
Id. at 11. Before the investigation began, Defendant
Ake contacted Plaintiff's supervisor at the Port of
Tacoma. Id. at 11. Defendant Ake informed the Port
supervisor that there was a state regulation prohibiting
Plaintiff from working for the Tacoma Police Department and
the Port of Tacoma at the same time, that it had been against
Tacoma Police Department Policy, and that there was an
investigation being started to determine if Plaintiff had
committed a felony. Id. Detective Schieferdecker
went to the Port during her investigation and obtained
Plaintiff's timecard records. Id. She also
informed the supervisors at the Port that she was
investigating Plaintiff for a crime and that felony charges
would be forthcoming. Id. at 12.
alleges that the investigation and previous statements of
displeasure with Plaintiff's off-duty work were done
discriminatorily on the basis of Plaintiff's age.
Id. at 17. Plaintiff alleges that Defendant Krause
“manufactured discipline” against Plaintiff based
in part on Plaintiff's age and Krause's personal
animosity towards Plaintiff. Id. Plaintiff also
alleges that the discipline he was subjected to was motivated
by his age and constituted a hostile work environment.
Plaintiff further complains that Defendant Ake “made
false statements to third persons and entity representatives
not employed by the City of Tacoma . . . which would place
[Plaintiff] in a false light.” Id. at 18.
the basis of Detective Shieferdecker's investigative
report and at the direction of the individual defendants
herein, [P]laintiff . . . was charged with theft in the
second degree under RCW 9A.56.040.” Id. at 13.
Documents attached to Plaintiff's amended complaint show
that the charges were filed by the Pierce County Prosecuting
Attorney's Office. See Id. at 30-32. Plaintiff
alleges that other Tacoma Police Department officers who had
been investigated and had been proven to have “stolen
time” were not charged with a crime. Id. at
14. He claims that under the command of Defendant Tacoma
Police Department Chief Ramsdell, the use of disciplinary
action “has been selective, inconsistent and frequently
targeted against officers with whom certain command personnel
have animus based on age, race and physical/emotional/mental
disability.” Id. at 18. He claims that there
exists a “de facto policy of use of disciplinary
procedure for punitive and political purposes, at times
personal vendettas, against disfavored officers . . . having
everything to do by certain officers' relationship with
certain command personnel.” Id.
voluntarily presented himself at the courthouse where he was
“fingerprinted, photographed and processed” by
law enforcement before presenting to a judge for arraignment.
Dkt. 13 at 13-14. Plaintiff was then released on his own
recognizance with undefined “conditions that affected
his freedom of movement, residence and association.”
Id. at 14. Plaintiff does not indicate whether he
was required to post bond or was subject to reporting
requirements other than the responsibility to appear at
addition to public humiliation and loss of reputation,
Plaintiff lost his employment at the Port because of the
felony charges that were pending against him. Id. at
11, 14-15. Plaintiff also lost a subsequent job he was
initially hired for at Fred Meyer because of the pending
felony charges. Id. at 14-15. Additionally,
Plaintiff incurred the cost of hiring a criminal defense
attorney. Id. at 14.
October 18, 2016, the Pierce County Prosecuting
Attorney's Office voluntarily dismissed the charges
against Plaintiff without prejudice. Id. at 15,
30-32. After the dismissal of charges, Plaintiff was rehired
by the Port of Tacoma where he presently continues to work.
Id. at 16.