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Bathke v. City of Ocean Shores

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

October 4, 2019

DAVID W. BATHKE, Plaintiff,



         This matter comes before the Court on Defendants City of Ocean Shores (“City”) and Crystal Dingler's (“Dingler”) (collectively “Defendants”) motion for partial summary judgment and motion to compel arbitration. Dkt. 13. 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 in part and denies in part the motion for the reasons stated herein.


         On April 23, 2019, Plaintiff David Bathke (“Bathke”) filed a complaint against Defendants asserting numerous claims. Dkt. 1. On May 17, 2019, Bathke filed an amended complaint asserting claims for violations of his due process rights under 42 U.S.C. § 1983 and breach of contract. Dkt. 11.

         On June 28, 2019, Defendants filed the instant motion requesting summary judgment on the § 1983 claims and arbitration on the breach of contract claim. Dkt. 13. On July 19, 2019, Bathke responded. Dkt. 18. On July 26, 2019, Defendants replied and included a motion to strike.[1] Dkt. 19.


         Bathke has over 35 years of experience in firefighting and managing fire departments and has served as the fire chief of three different city fire departments. Dkt. 18-2, ¶ 2. In April of 2017, Bathke interviewed for the fire chief position with the City. Id. ¶ 4. After the interview, the City's mayor, Dingler, offered Bathke the position of fire chief starting in June and a temporary position as consultant until June. Id. ¶ 10. As part of the hiring process, Bathke and the City entered into an agreement stating that he could not be terminated except for “cause” and included an attorney's fees provision as follows:

The City and Employees shall each be responsible for their own attorney's fees in any Court action or arbitration proceeding involving this Agreement. The City shall pay any and all costs of arbitration relating to this Agreement. The Employees or the City, pursuant to the then-existing rules of the American Arbitration Association, may demand arbitration concerning any alleged breach of this Agreement, provided the aggrieved party/ies do so within ninety (90) days of any alleged breach.

Dkt. 14-1 at 5. In November 2017, Bathke completed his probationary period, and the City converted his position to a full-time position.

         In November 2018, Dingler met with the City's Human Resource Specialist Dani Smith (“Smith”) regarding concerns about Bathke and the fire department. Smith informed Dingler that the union firefighters were considering a vote of “no confidence” against Bathke. Dkt. 14, ¶ 22. Dingler then spoke with one of the senior firefighters who confirmed that Bathke had lost the confidence of the department. Id. ¶ 23. Dingler contends that she then spoke with Bathke regarding the impending vote of “no confidence.” Id. Bathke declares that this meeting did not happen. Dkt. 18-2, ¶ 17.

         On December 13, 2018, Dingler attended a meeting with Smith and senior firefighters. Dingler declares that Fire Lieutenant Corey Kul informed her “that 100% of the union members had issued a vote of ‘no confidence' concerning” Bathke. Dkt. 14, ¶ 24. Two senior firefighters

then proceeded to describe the significant areas of concern regarding Chief Bathke's management of the department, including his disregard for and alienation of staff; his arrogant and narcissistic manner; the fact that his conduct was causing some members to seek employment with other agencies; his poor relations with Grays Harbor Emergency Management (GHEMS); and other areas of significant concern.

Id. On December 14, 2018, Dingler placed Bathke on administrative leave to conduct an investigation into the allegations against him. Id. ¶ 25. Bathke declares that the suspension “came as a complete surprise.” Dkt. 18-2, ¶ 19.

         After Dingler and Smith conducted an initial investigation, Dingler decided to retain the services of an outside investigator, Robin Nielsen. Dkt. 14, ¶ 27. “Based on Ms. Nielsen's initial verbal report of what she was learning from speaking with the various witnesses, [Dingler] decided to have [Nielsen] suspend her investigation.” Id. ¶ 28. Dingler essentially concluded that it would be better for the City to “explore the possibility ...

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