United States District Court, W.D. Washington, Tacoma
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
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.
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
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.
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,
2010 to 2013
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
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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. 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.
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.
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.
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.
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. 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.
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
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.
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
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
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. 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.
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.
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.
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.
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.
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.
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.
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.”)
November 2017, Quinn filed the instant complaint. Dkt.
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.
Court will address each motion for summary judgment in the
Summary Judgment Standard
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.
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).
Holmes's Motion for Summary Judgment
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.
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.
Holmes's Motion to Strike
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.
Disparate Treatment Claims
Sex-based Disparate Treatment
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). 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.
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,
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 ...