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Luke v. City of Tacoma

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

June 14, 2018

ROBERT H. LUKE, Plaintiff,
v.
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.

         This 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 order.

         I. PROCEDURAL HISTORY

         On 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. Dkt 1.

         On 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.

         II. FACTUAL BACKGROUND

         Plaintiff 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.

         In 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.

         In 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.

         In 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 at 5.

         In 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.

         In 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. Id.

         At some 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.

         Plaintiff 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.

         Also at 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.

         After 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.

         Plaintiff 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.

         “On 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.

         Plaintiff 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 hearings.

         In 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.

         On 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.

         III. ...


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