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Quinn v. City of Vancouver

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

August 21, 2019

DEBRA QUINN, Plaintiff,
CITY OF VANCOUVER, et al., Defendants.



         This matter comes before the Court on Defendant Eric Holmes's (“Holmes”) motion for summary judgment, Dkt. 100, Defendants Bronson Potter (“Potter”) and Jonathan Young's (“Young”) joint motion for summary judgment, Dkt. 102, and Defendant the City of Vancouver's (“City”) motion for summary judgment, Dkt. 107. The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and hereby grants the motions in part and denies the motions in part for the reasons stated herein.


         On November 21, 2017, Plaintiff Deborah Quinn (“Quinn”) filed a complaint against the City, City Manager Holmes, City Attorney Potter, and Chief Assistant City Attorney Young (collectively, “Defendants”) asserting causes of action for sex discrimination in violation of federal and state laws, retaliation in violation of federal and state laws, violation of her First Amendment right to free speech, outrage, negligent supervision, breach of implied contract, and violation of her Fourteenth Amendment right to equal protection. Dkt. 1. Quinn's claims against Holmes, Potter, and Young are in both their individual and official capacities. Id.

         On April 25, 2019, the City filed a motion to dismiss. Dkt. 74. On June 12, 2019, the City filed a motion to disqualify Quinn's counsel. Dkt. 109. Also on June 12, 2019, Holmes filed a motion for summary judgment, Dkt. 100, Potter and Young filed a joint motion for summary judgment, Dkt. 102, and the City filed a motion for summary judgment, Dkt. 107. On July 8, 2019, Quinn responded to each of the three motions for summary judgment. Dkts. 126, 127, 128. On July 12, 2019, Defendants replied to Quinn's responses to their motions. Dkts. 133, 134, 135. On August 8, 2019, the Court denied the City's motion to dismiss and denied the City's motion to disqualify Quinn's counsel. Dkt. 142.


         On April 18, 1993, the City hired Quinn as an Assistant City Attorney. Dkt. 1, ¶ 9. Quinn worked on labor and employment matters. Dkt. 92, Declaration of Debra Quinn, ¶ 3.

         A. 2010 to 2013

         In 2010, Holmes became City Manager. Dkt. 126 at 2. Quinn testified that the City government's culture began to deteriorate on gender diversity and discrimination issues in 2010 or 2011. Dkt. 129-1, Deposition of Debra Quinn, at 163.[1] For example, Quinn testified that the City “stopped consistent harassment diversity training, we stopped our diversity committee, committees that we had, we stopped employee get-together functions that, similar functions that we had previously.” Id. at 164. Quinn also testified that whether these events occurred was within Holmes's control in his position as City Manager. Id. at 485. Without employer-sponsored diversity events, female City employees had to seek space in the public library to continue their support group. Id. at 176. At some point, during an all-staff meeting, Holmes referred to the idea of diversity as either a shiny object or a shiny ball. Id. at 200. Quinn was not present at the meeting but testified that three other City employees, Monique Coleman (“Coleman”), Lee Lofton (“Lofton”), and Terry Rodriguez told her about the statements. Id. at 486. Quinn testified that Coleman and Lofton, who are African-American, told her they were very offended by Holmes's statement. Id. at 487.

         In 2011, Young was hired as an Assistant City Attorney. Dkt. 126 at 2. Young declared that between June 2011 and March 2013, he worked as the City's lead civil litigator, and in March 2013, became lead civil counsel for the Vancouver Police Department. Dkt. 105, Declaration of Jonathan Young, ¶ 4. In 2013, Potter was hired as Chief Assistant City Attorney from outside the City Attorney's office. Dkt. 126 at 2. Potter was hired by then-City Attorney Ted Gathe (“Gathe”). Dkt. 102 at 2. In December 2013, Alison Chinn (“Chinn”), a City employee, told Quinn that she had heard Potter refer to another female staff member as “the one with the big tits” (the “December 2013 comment”). Dkt. 1, ¶ 14; Dkt. 129-1 at 267. Quinn testified that there were “many, many conversations that [were] widespread throughout the City and even the County that Mr. Potter had made that comment.” Dkt. 129-1 at 269. Quinn testified that at this point, neither Quinn nor Chinn went to HR due to fear of retaliation. Id. at 267. Quinn testified that at some point between the December 2013 comment's occurrence and November 2015, she talked to Young about “these statements that [Potter] had made” and Young told her he had talked to Holmes “and that they both had decided that they would take care of it.” Id. at 263.[2] Quinn also testified that she was told that Young spoke to Potter about the comment at some point between its occurrence and the spring of 2015 but that she understood Young never went to HR. Id. at 268.

         B. 2014

         In mid-2014, Potter became City Attorney following Gathe's retirement. Dkt. 126 at 2; Dkt. 102 at 2. Potter testified that he understands the City Manager's decision to hire the City Attorney has to be confirmed by the City Council, but otherwise, the City Manager holds all authority to hire and fire employees of the City. Dkt. 103-5, Deposition of E. Bronson Potter, at 74-75.

         Quinn testified that an incident occurred in a meeting in August 2014 where she felt that she was called out on something by Potter, but Young was also involved and was not called out. Dkt. 129-1 at 102, 219.[3]

         In October 2014, the Chief Assistant City Attorney position was open following Potter's promotion. Dkt. 1, ¶ 15. Quinn applied for the position and was the only woman interviewed. Id. Quinn had worked for the City longer than anyone else in the applicant pool. Id. The interview stage of the application process consisted of interviews with two panels, one “comprised primarily of the City Attorney's Office staff” which preferred Quinn, and another, “consisting solely of male members of the management leadership team (MLT)” which “did not rank [Quinn] highly.” Id. Quinn alleges that “[b]efore the MLT panel made their recommendation, [Potter] made sexist and derogatory comments about [Quinn] to the panel and discouraged them from selecting her.” Id. Quinn testified that Chief Molina, a member of the MLT panel, told Quinn that Potter told the panel something to the effect that the other panel was going to support Quinn and the MLT panel needed to be united against that. Dkt. 129-1 at 386. Potter testified that after the MLT panel heard interviews, each member of the panel gave their input. Dkt. 103-5 at 169-72. Potter testified that he expressed his opinion to the panel that Dan Lloyd (“Lloyd”), another Assistant City Attorney, would be a better candidate than Quinn. Id. Potter testified that he told the MLT panel he agreed with opinions which had been expressed that Lloyd's legal abilities were stronger than Quinn's, Quinn's interview answers seemed shallow, and Lloyd was a stronger candidate. Id. at 171-72. The MLT panel recommended Lloyd over Quinn. Dkt. 102 at 3.

         Holmes testified that primary authority to hire and fire employees at the City was vested in him by the City charter, the municipal code, and the administrative policies. Dkt. 101-1, Deposition of Eric John Holmes, at 99-100. Potter testified that when he hires a Chief Assistant in the civil division, that decision involves “a fair amount of consultation with Mr. Holmes.” Dkt. 103-5 at 75. Potter testified that due to the panels' conflicting recommendations, he began to consider hiring Young, and he testified that he believes he told Holmes and City Human Resources (“H.R.”) Director Suzi Schwabe (“Schwabe”) about his intent to hire Young. Id. at 173-75. Holmes testified that when Potter consulted with him, Holmes expressed his concern that in his experience with Quinn she did not “consistently provide thorough and sound legal advice that also supported the client meeting their objectives.” Dkt. 101-1 at 154. Potter then offered the position to Young, who had not applied for the position and had served on one of the interview panels. Dkt. 1, ¶ 16. Quinn testified that she believed she was better qualified than Young because she had substantially more legal experience with the City (both in subject matter and in duration), knew many City employees well, and was already doing the budget for the City Attorney's Office, which was typically the responsibility of the Chief Assistant City Attorney. Dkt. 129-1 at 533-34.

         Quinn alleges that Potter wanted to position Young to take Potter's place as City Attorney when Potter retired. Dkt. 1, ¶ 16. Quinn also testified that at some point, Potter told her that whomever he appointed would be the next City Attorney, or that he wanted that person to become the next City Attorney. Dkt. 129-1 at 220. Quinn also testified that the incident in August 2014 was one of the factors leading her to believe that Potter sought a male candidate for the Chief City Attorney position. Id. at 219.

         Potter declares that Young “addressed the topic of the 2013 comment” with him in October 2014. Dkt. 104, Declaration of Bronson Potter at 2. Young testified that this took place on October 31, 2014. Dkt. 103-8 at 109.

         C. 2015

         Quinn testified that in spring 2015, Schwabe asked Quinn about Potter's December 2013 comment, and Quinn confirmed to Schwabe that Chinn had told her Chinn had heard the comment at the time it occurred. Dkt. 129-1 at 267. Quinn testified that in late spring 2015, she had a conversation with Potter about his comment. Id.

         In summer 2015, the City terminated a female Assistant City Attorney named Suzanne Lampkin (“Lampkin”) who had worked in the criminal division of the City Attorney's Office. Dkt. 126 at 6; Dkt. 104 at 4. Quinn worked on the Lampkin matter as part of her employment law responsibilities for the City. Dkt. 104 at 4. Quinn testified that she began taking notes about the City's treatment of female employees in September 2015. Dkt. 129-1 at 262. In October 2015, a female attorney whom Potter had recruited resigned her position. Dkt. 1, ¶ 17. During a meeting Quinn participated in with Potter and Young about Lampkin's case, Potter referred to the female attorney who had resigned as a “bitch” (the “bitch comment”). Id. Referring to Lampkin, who had had cancer and wore a wig as a result of her cancer treatment, Potter commented either that he needed to “go put his wig on” or that he would be willing to throw in a wig as part of her termination agreement (the “wig comment”). Id; Dkt. 129-1 at 199, 407. Quinn testified that Potter also commented at some point that any hiring decisions had to be run past “Debra and her girls in HR” and at another point stated that “[Quinn] won't let you hire anyone under the age of 50” or possibly “[hire] anyone who's not a woman under the age of 50.” Dkt. 129-1 at 233. Quinn testified that when she spoke to Young about the bitch comment and the wig comment shortly after they occurred, she told him she was not planning to report the comments to H.R. because she was “1000%” afraid of retaliation. Id. at 408. Young “told [Quinn] he didn't even hear [the bitch comment] because it's just so commonly said in the workplace.” Id. at 199-200, 407. Quinn testified that Young told her he would report the comments to Holmes, id, and alleges that Young later told her that he had reported to Holmes. Dkt. 1, ¶ 17. Young testified that on October 14, 2015, he told Quinn that he had talked to Holmes. Dkt. 103-8 at 63. Quinn alleges that at some point she did report the “bitch” and “wig” comments to H.R. Dkt. 1, ¶ 17.

         Potter declared that at some point in October 2015, Quinn failed to provide him effective legal advice on the Lampkin matter and that Young told him Quinn had “admitted to him that she had made a mistake.” Dkt. 104, ¶ 5. Young declared that “[o]n or about October 9, 2015, Ms. Quinn told him that she had ‘missed an issue' when providing some legal advice to Mr. Potter and that he seemed upset by it.” Dkt. 105, ¶ 9. Young declared that Quinn “appeared visibly upset; [Young] encouraged her to take responsibility for the mistake and learn from it, and [Young] stated that [he] had missed the issue as well.” Id. Young declared that after this conversation, Quinn “had denied any responsibility for the error to Mr. Potter and seemingly blamed [Potter] for it.” Id. ¶ 10. Potter declared that because Young told him Quinn had admitted making the mistake, Potter “was surprised and concerned when she told [Potter] that she had made no mistake but had tried to tell [Potter] something different than what she actually told [Potter].” Dkt. 104 at 5.

         On November 4, 2015, Quinn met with Holmes, Schwabe, and Coleman on issues including whether the City should hire outside counsel to investigate Lampkin's termination. Dkt. 126; Dkt. 129-1 at 512. Quinn argues that at this meeting she told Holmes and Schwabe that she was concerned that discriminatory comments Quinn had heard Potter make were potentially material to the Lampkin matter. Dkt. 126 at 7.[4] Quinn testified that Holmes told her to hire Bob Christie (“Christie”) as an outside investigator. Dkt. 129-1 at 553. Holmes told Quinn he would tell Potter that he had been the one to make the decision to hire Christie. Dkt. 126 at 7; Dkt. 129-1 at 553-43.

         On November 5, 2015, Quinn met with Potter and Young regarding the Lampkin matter. Dkt. 126 at 7. Potter declared that at this meeting Quinn was in her capacity as legal counsel to the City and to Potter and Young. Dkt. 104 at 5. Quinn testified that it was evident to her that at the meeting Holmes had not informed Potter of his decision to hire Christie. Dkt. 129-1 at 554. Quinn argues that this lack of communication put her “in a very difficult position because apparently now she would have to be the one to inform Potter, and she was very fearful that Potter would be angry with the decision and retaliate against her or worse.” Dkt. 126 at 7. At the meeting, Quinn argues that “Potter and Young badgered her about what actions she had taken on the Lampkin matter” and “repeatedly accused her of being ‘coy' for appearing to be very worried about something but not telling them what.” Id. Potter declared that Quinn “refused to answer basic questions regarding the status of tasks she had been assigned to do in her role as legal counsel.” Dkt. 104 at 5. Quinn argues that Potter and Young's badgering increased her fear of retaliation or harm and caused her to state “I can't do this anymore” and leave the meeting without further explanation. Dkt. 126 at 7. Young testified that he perceived Quinn to be extremely distressed. Dkt. 103-8 at 65. Young testified that he stopped by Quinn's office that afternoon to try to hear her side of the story, but her door was locked, and she mouthed the words “I can't” through the window. Id.

         On November 6, 2015, Schwabe scheduled Christie to interview Quinn on November 12, 2015 at 8:30 a.m. regarding the Lampkin matter. Dkt. 126 at 8; Dkt. 129-1 at 513. Quinn alleges that the subject of the interview was Potter's “conduct toward female employees” and Holmes's “refusal to promptly or effectively address it.” Dkt. 1, ¶ 18. Potter testified that between November 6th and November 12th, 2015, he discussed with Young and Deputy City Manager Dave Mercier (“Mercier”) the possibility of putting Quinn on leave. Dkt. 103-6, at 263-64. Potter testified that he talked to Mercier instead of Schwabe about the possibility of putting Quinn on leave because he knew Schwabe and Quinn were friends and because he believed Schwabe had been untruthful with him about the Lampkin matter. Dkt. 103-6 at 283. Specifically, Potter testified that he believed Schwabe had told him that a decision to extend Lampkin's paid status two weeks past a previously proposed date was a decision that she and Holmes made jointly when it was actually Schwabe's decision that Holmes approved. Dkt. 103-6 at 283-84. Young testified that he and Potter decided not to follow City policy and to speak to Mercier instead of Schwabe because of Potter's concerns about Schwabe's honesty and because of an email Schwabe had sent Young on November 6th, 2015 “where she was asking to work with [Quinn] on a matter that was outside of [Quinn's] usual practice suggested that part of the stress [Quinn] might be laboring under may have related to Suzi Schwabe . . . .” Dkt. 103-8 at 204-05. Holmes testified that he was out of the country when Quinn was placed on leave and was not notified in advance of Potter and Young's decision. Dkt. 101-1, at 231.

         On November 12, 2015, five minutes before Quinn was scheduled to speak with Christie, Young instructed Quinn to meet instead with him and Potter about a disciplinary matter. Dkt. 1, ¶ 18; Dkt. 126 at 8; Dkt. 129-1 at 408. Quinn requested that Lofton be permitted to attend the meeting as her witness. Dkt. 1, ¶ 19; Dkt. 129-1 at 408. Potter and Young told her the meeting would address issues protected by attorney client privilege and suggested Lloyd, a white male colleague of Quinn's, be Quinn's witness. Dkt. 1, ¶ 19. Quinn then requested that Schwabe, the female HR director, be her witness because department heads could hear privileged communications. Id. Potter and Young denied her request and instead asked Facilities Director/Risk Manager Tim Haldeman (“Haldeman”), a white man, to be Quinn's witness. Id; Dkt. 129-1 at 409. Quinn testified that Haldeman attended the meeting even though she did not agree to his presence. Dkt. 129-1 at 409.

         The meeting took place in a small “glass encased” conference room where participants were visible to Quinn's colleagues and the general public. Id. Young informed Quinn she was the subject of an investigation, but Quinn alleges that he “refused to tell her the nature or subject of the investigation.” Dkt. 1, ¶ 20. Quinn testified that Potter and Young asked her why she had suddenly left the November 5, 2015 meeting, and she answered their questions. Dkt. 129-1 at 397. Quinn testified that she told Potter and Young she “felt she was being retaliated against for objecting to Potter's conduct and being willing to report it to an investigator.” Dkt. 126 at 8; Dkt. 129-1 at 409.[5] Potter also accused Quinn of failing to provide him with a specific piece of information related to an assignment she had completed in October 2015. Dkt. 126 at 9. Young said Quinn had admitted to Young that she had failed to provide the information, though Quinn denies having done so. Id. Potter testified that Quinn began yelling at him about his December 2013 comment and his reference to a female employee as a “bitch” and did not provide an explanation in response to his questions about the October legal advice issue and her behavior in the November 5th meeting. Dkt. 103-6 at 289-91.

         At the meeting, Potter and Young informed Quinn that she was being placed on administrative leave. Dkt. 1, ¶ 18; Dkt. 92, ¶ 5. Young produced a pre-signed letter relating to the leave and did not inform Quinn “why or for how long she was being placed on paid administrative leave.” Dkt. 1, ¶ 20; Dkt. 129-1 at 409. Later that day, Potter and Young emailed Quinn's colleagues and clients advising them she had been placed on paid administrative leave. Dkt. 1, ¶ 20. Quinn argues that “[n]ormally administrative leave was used only for very serious matters such as police shootings and other terminable offenses, and the reasons for the leave were always discussed with the employee and documented by the supervisor at the outset of the leave.” Dkt. 126 at 9; Dkt. 129-1 at 409. Quinn argues that her administrative leave was outside City policy or practice in a number of ways including failure to seek approval from the City Manager or HR director, the public notification of her administrative leave, and the extent of time she remained on leave. Dkt. 126 at 10. Quinn testified that she was on leave longer than any other case she was aware of other than in the police department. Dkt. 129-1 at 520.

         Potter testified that over the first week Quinn was on leave, he “attempt[ed] to determine a cause of her very unusual behavior on November 5th and November 12th” through speaking with Young and Holmes and through reviewing Quinn's emails. Dkt. 103-6 at 270. Potter testified that because he knew Quinn believed the City did not do enough to overcome gender discrimination and because he knew she did not support his appointment as City Attorney, he speculated that Quinn's behavior could be explained by a scenario where Quinn was colluding with Lampkin's counsel on Lampkin's case of discrimination against Potter and the City. Id. at 279-80. Potter testified that he discussed his speculation with Young, Young confirmed that he also did not trust Quinn, and they discussed what they could do about it, such as searching Quinn's emails. Id. at 280.

         Potter declared that on November 17, 2015, he and Young met with Holmes, Mercier, and Schwabe to discuss Quinn's leave, and “the group confirmed that the decision to place her on leave was appropriate under the circumstances and determined she should remain on paid leave.” Dkt. 104 at 6.

         On November 18, 2015, Quinn filed a workplace complaint with the City and retained counsel shortly thereafter. Dkt. 92, ¶ 6. The complaint alleged Potter and Young had subjected Quinn to discrimination, retaliation, and hostile work environment. Dkt. 1, ¶ 20; Dkt. 129-6 at 17. The complaint described how (1) Quinn had raised concerns about Potter's December 2013 comment with both Potter and Young and Potter had immediately given Quinn the cold shoulder, (2) Quinn was the only female applicant and one of two finalists for the Chief Assistant City Attorney position but was not hired, (3) Potter had referred to another female attorney as a bitch and referred jokingly to another female staff member's wig, (4) Quinn was told in the November 12, 2018 meeting that she was subject of an investigation but not informed of the nature or subject of the investigation and was immediately placed on administrative leave, (5) Quinn's fear and uncertainty about the future of her career, and (6) the work environment created by Young and Potter caused her to “lose sleep, lose weight, throw up and suffer anxiety and panic for which [she has] sought medical treatment, ” “have nightmares about the discriminatory work environment, ” and feel “physically afraid of Mr. Potter.” Dkt. 129-6 at 18-19. On November 23, 2015, the City hired Katherine Weber (“Weber”) to investigate the claims in Quinn's complaint. Dkt. 101-2 at 13.[6]

         Following four requests from Quinn that the City explain why she had been placed on leave, Quinn received a letter from Potter and Young dated December 14, 2015. Dkt. 129-1 Exhibits at 166-67.[7] The letter explained that she had been placed on leave so that the City could investigate the incident in October 2015 when Potter believed Quinn had failed to “own” a mistake, as well as Quinn's alleged unprofessionalism in failing to answer questions posed to her in the November 5th meeting and in leaving the meeting without explanation. Id. The letter concluded: “[s]ince November 12, the City has determined that it is appropriate that pending conclusion of an investigation to be conducted by an outside investigator, you should remain on paid administrative leave.” Id. at 167. Potter declared that after Young sent this letter, he understood that the City Manager's Office retained an outside attorney for legal advice, Colleen Kinerk (“Kinerk”) and retained Weber to investigate Quinn's complaint. Dkt. 104, ¶¶ 21-22. Potter and Young declare that as the subjects of Quinn's complaint, they had no role in the investigation or consultation with outside counsel. Id., ¶ 22; Dkt. 105, ¶ 16.

         Quinn testified that Holmes received an email from Kinerk “advising him on December 29th, 2015 to bring Debra back to work, and he did not do so. Instead he engaged in a meeting with Mr. Potter and Mr. Young, and I don't know what happened after that.” Dkt. 129-1 at 465. In December 2015 and January 2016, Weber interviewed Quinn and other witnesses. Dkt. 1, ¶ 20. Quinn alleges that Weber tabled her investigation in January 2016 “without explanation and without having interviewed” Potter or Young. Id. Potter declared that he attended an investigatory interview with Weber in December 2015, where, based on the questions Weber asked him, he believed Quinn may have disclosed the City's “privileged communications and confidences” to Weber. Dkt. 104, ¶ 23. Potter declared that he did not have authorization from the City to speak about privileged information so the interview was suspended. Id. Young also declared that his interview with Weber in December 2015 was suspended based on concerns about privilege. Dkt. 105, ¶ 17. Potter and Young also both declared that they were interviewed in January 2016 by another outside attorney, Marcella Fleming Reed, regarding their decision to place Quinn on administrative leave. Dkt. 104, ¶ 24; Dkt. 105, ¶ 18. Potter also declared that he “did not have a role in deciding if or when Ms. Quinn would return to work.” Dkt. 104, ¶ 25.

         Quinn testified that through a public records request, she became aware of emails between Holmes and Mercier stating that the Quinn investigation should not be completed until after the City Council approved the Lampkin settlement. Dkt. 129-1 at 465. She testified that “the only two individuals who were interviewed following the Lampkin settlement were Mr. Potter and Mr. Young.” Id. at 465.

         Quinn testified that based on information she received through a public records request, she believes she was kept on leave while the Lampkin matter and another discrimination matter, the Armstrong matter were settled to prevent her from providing “damaging information” about Holmes, Potter, and Young's conduct “and the pervasive hostile work environment towards older female employees.” Dkt. 129-1 at 209-10; Dkt. 1, ¶ 21. Quinn testified that she came to believe that “by putting off interviewing Mr. Potter and Mr. Young until after the Lampkin settlement, there would only be hearsay information about the comments made by Mr. Potter. And once they were interviewed it was actual evidence that the city had, which I believe should have been disclosed to both Ms. Armstrong's attorney and Ms. Lampkin's attorney.” Dkt. 129-1 at 466.

         D. 2016

         At some point, Holmes hired Linda Walton (“Walton”) to work as a facilitator with Potter, Young, and Quinn around Quinn's return to work. Dkt. 103-2 at 285-86. Holmes testified that he targeted February 8, 2016 as the day Quinn would be able to return to work from administrative leave “with time and effort spent on facilitation in the meantime.” Dkt. 101-1 at 241. Quinn testified that Holmes did advise her of the February 8th, 2016 intended return date, but she asked to extend the leave “because the facilitator who had been assigned to contact me did not contact me for a while.” Dkt. 103-2, at 329.

         Quinn alleges that while she was on leave, she heard “many rumors circulating in the community regarding the reasons for her leave, including that she had done something wrong” and “miss[ed] many important meetings and events which adversely affected her ability to effectively and efficiently do her work upon her return.” Dkt. 1, ¶ 22. On March 1, 2016, Quinn returned from administrative leave. Dkt. 92, ¶ 5. Potter declared that when Quinn returned to work, he “welcomed her back and encouraged the office to do the same.” Dkt. 104, ¶ 27. Upon her return to work, Quinn met with Holmes and informed him that she had retained an attorney. Dkt. 1, ¶ 8. Holmes testified that upon Quinn's return, she was subject to no workplace discipline, corrective counseling, or verbal reprimand on the basis of the reasons the City had cited for placing her on administrative leave. Dkt. 103-11, at 237-38. Quinn alleges that when she returned to work, she found Potter and Young had reassigned some of her responsibilities. Dkt. 1, ¶ 21. Quinn testified that the City delayed her merit pay increase while she was on leave. Dkt. 129-1 at 262.

         On April 14, 2016, Weber resumed her investigation and interviewed Young and Potter. Dkt. 1, ¶ 22. Weber issued her report on May 4, 2016. Dkt. 101-2 at 13. The report sustained Quinn's allegations that Potter had made four offensive gender-based comments. Dkt. 1, ¶ 22; Dkt. 100 at 5; Dkt. 101-2 at 13. Quinn alleges that Holmes should have placed the investigation's findings in Potter and Young's personnel files but did not and should have provided the investigation's findings to the City HR office but did not. Dkt. 1, ¶ 22. Holmes argues that he met with Quinn and Weber on May 23, 2016 to discuss Weber's findings. Dkt. 100 at 6. Holmes argues that at this meeting he explained to Quinn that “due to extenuating circumstances, the investigatory process had been necessarily prolonged.” Id.

         In April or May 2016 Quinn filed a complaint with the EEOC. Dkt. 127 at 13. In August 2016 Quinn filed a complaint with the Washington State Human Rights Commission. Dkt. 127 at 13. On September 21, 2016, Holmes wrote a memo documenting verbal counseling he argues he gave Potter at some time following Weber's report. Dkt. 100 at 5; Dkt. 1, ¶ 22. In November 2016, Homes, Potter, and Young modified Quinn's duties by removing her from representing the City in labor and employment matters. Dkt. 1, ¶ 22; Dkt. 92, ¶ 9. Holmes argues that this decision was made following a conversation he had with an ethics expert regarding his concern that Quinn's EEOC complaint conflicted with her employment work on behalf of the City. Dkt. 100 at 6. In September 2017, Quinn filed an internal whistleblowing complaint with the City “after learning that several other female employees of the City ha[d] also filed gender discrimination and hostile working environment claims in the preceding year.” Dkt. 1, ¶ 23; Dkt. 92, ¶ 9. Quinn alleges that though she pointed out that these multiple claims were costly to the City and that the City intentionally covered up evidence of discrimination in some cases to avoid impacting others, the City failed to contact her in any manner regarding these claims. Dkt. 1, ¶ 23. The complaint references emails between Holmes, Weber, Young, Potter, and others regarding resuming Weber's investigation of Quinn's complaint following the settlement of the Lampkin matter. Dkt. 129-1 Exhibits at 176. Quinn reviewed these emails after placing a public records request. Id.; see also Dkt. 129-1 at 209-10 (Quinn testified: “I believe . . . that my investigation was delayed on purpose for the reasons of withholding evidence, and that came out in my public records request.”)

         In November 2017, Quinn filed the instant complaint. Dkt. 1.[8] Potter declared that “[a]t times since she filed her claims against the City, Ms. Quinn's job duties and access to confidential employment matters have been restricted at request of our client, the City of Vancouver and pursuant to my ethical obligations as a supervisory attorney” based on concerns about conflict of interest. Dkt. 104, ¶ 33. On June 26, 2019, the City terminated Quinn's employment. Dkt. 118.


         The Court will address each motion for summary judgment in the order filed.

         A. Summary Judgment Standard

         Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present specific, significant probative evidence, not simply “some metaphysical doubt”). See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

         The determination of the existence of a material fact is often a close question. The Court must consider the substantive evidentiary burden that the nonmoving party must meet at trial-e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the moving party. The nonmoving party may not merely state that it will discredit the moving party's evidence at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, 477 U.S. at 255). Conclusory, nonspecific statements in affidavits are not sufficient, and missing facts will not be presumed. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888-89 (1990).

         B. Holmes's Motion for Summary Judgment

         Holmes's motion for summary judgment focuses on lack of causation. Dkt. 100 at 2. Holmes argues Quinn cannot show he was responsible for the decision not to hire Quinn as Chief Assistant City Attorney or for the decision to place her on paid administrative leave. Id. at 1.

         Quinn alleges claims against Holmes for sex discrimination in violation of RCW 49.60.30 & .180, retaliation in violation of RCW 49.60.180, retaliation for speech on matters of public concern in violation of the First Amendment, outrage, and negligent supervision. Dkt. 1.

         1. Holmes's Motion to Strike

         Holmes argues that “[t]hroughout her brief and deposition testimony, Quinn makes countless assertions that are not based on personal knowledge or constitute inadmissible hearsay” and requests that the Court strike all such evidence. Dkt. 135 at 9. At summary judgment, a court may consider evidence that “could be presented in an admissible form at trial.” Fraser v. Goodale, 342 F.3d 1032, 1037 (9th Cir. 2003). Pursuant to Fed.R.Civ.P. 56(c)(2) “[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” The Court will consider Holmes's motion to strike under these standards as applicable to Quinn's specific contentions addressed throughout this section of the Order.

         2. Disparate Treatment Claims

         a. Sex-based Disparate Treatment

         To establish a prima facie disparate treatment claim, Quinn “must show that [her] employer simply treats some people less favorably than others because of their protected status.” Alonso v. Qwest Commc'ns Co., 178 Wn.App. 734, 743 (2013) (citing Johnson v. Dep't of Soc. & Health Servs., 80 Wn.App. 212, 226 (1996)). She may either satisfy “the McDonnell Douglas burden-shifting test that gives rise to an inference of discrimination” or show direct evidence that Holmes “acted with a discriminatory motive in taking an adverse employment action against [her] based on [her] protected status, ” id. at 743-44 (citing Kastanis v. Educ. Employees' Credit Union, 122 Wn.2d 483, 491 (1993)), and show that she was doing satisfactory work, Marin v. King Cty., 194 Wn.App. 795, 808-09 (2016). See also Scrivner v. Clark College, 181 Wn.2d 439, 445 (2014) (en banc) (“Where a plaintiff lacks direct evidence, Washington courts use the burden-shifting analysis in McDonnell Douglas . . . to determine the proper order and nature of proof for summary judgment.”) (internal citations omitted).[9] Once the prima facie case is established, the employer must show a legitimate reason for the treatment. McDonnell Douglas, 411 U.S. at 802-04. Finally, the plaintiff must show pretext, and in Washington, the plaintiff “may satisfy the pretext prong of the McDonnell Douglas framework by offering sufficient evidence to create a genuine issue of material fact either (1) that the employer's articulated reason for its action is pretextual or (2) that although the employer's stated reason is legitimate, discrimination nevertheless was a substantial factor motivating the employer.” Scrivener, 181 Wn.2d at 441-42.

         Quinn argues that “Holmes's approval of Potter's promoting Young instead of Ms. Quinn in October 2014 constitutes prima facie discrimination.” Dkt. 127 at 16. Applying the McDonnell Douglas burden-shifting test to this claim, the prima facie case is established. Quinn, a woman, belongs to a protected class, she applied for a job for which she was qualified, she was not hired for the job, and the person hired, Young, a man, had substantially less experience than Quinn. See Mikkelsen v. Public Utility District No. 1 of Kittitas Cty., 189 Wn. 2d 516, 532 (2017).

         Holmes's primary argument appears to challenge this prima facie case and is unpersuasive. Holmes argues that the full extent of his involvement in the hiring decision was that “[a]fter Potter determined that he did not believe that either Lloyd or Quinn were qualified, he consulted with Holmes about his intention to appoint Young to the position.” Dkt. 100 at 9. Quinn counters that Potter consulted Holmes before making his final decision, and Holmes “approved of Potter's plan to completely abandon the interview ...

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