Henry v. Washington Department of Health

1 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 Mar 29, 2024 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 ERIKA HENRY and DANIEL No. 2:22-cv-00046-MKD HENRY, wife and husband, K.H., a 8 minor child, and B.H. a minor child, ORDER DENYING PLAINTIFFS’ MOTION TO CERTIFY 9 Plaintiffs, AND 10 v. GRANTING IN PART AND 11 WASHINGTON STATE DENYING IN PART DEPARTMENT OF HEALTH, DEFENDANTS’ MOTION FOR 12 UMAIR A. SHAH, JESSICA SUMMARY JUDGMENT AND TODOROVICH, ROY CALICA, and PLAINTIFFS’ MOTIONS FOR 13 JOHN DOES 1-10, SUMMARY JUDGMENT 14 Defendants. ECF Nos. 39, 46, 48, 51 15 On October 13, 2023, the Court conducted a hearing on pending motions. 16 ECF No. 78. Marshall Casey and Marcus Sweetser appeared on behalf of Plaintiffs. 17 Nicholas Ulrich appeared on behalf of Defendants. The Court has reviewed the 18 motions and the record, has heard from counsel, and is fully informed. The Court 19 (1) denies Plaintiffs’ Motion to Certify Questions to the Washington Supreme Court, 20 ECF No. 48; (2) grants in part and denies in part Defendants’ Motion for Summary 1 Judgment, ECF No. 39; (3) grants in part and denies in part Plaintiffs’ Motion for 2 Summary Judgment on Preliminary Elements Under U.S. Constitution, ECF No. 46, 3 and (4) denies as moot Plaintiffs’ Summary Judgment Motion on Wrongful 4 Termination in Violation of the Washington Constitution, ECF No. 51. 5 BACKGROUND 6 A. Factual History 7 On September 16, 2014, Plaintiff Erika Henry began working for Defendant 8 Washington State Department of Health (“Department”). ECF No. 69 at 2 ¶ 1; ECF 9 No. 42-1 at 8. She previously worked for the Spokane Regional Health District 10 (“SRHD”), a local health jurisdiction. ECF No. 40 at 1 ¶ 2; ECF No. 56 at 2 ¶ 2; 11 ECF No. 69 at 2 ¶ 3. SRHD is governed by its Board of Health (“SRHD Board”), 12 whose members are local elected officials and appointees. ECF No. 47 at 2 ¶ 1.1; 13 ECF No. 62 at 2 ¶ 1.1. During the period relevant to this case, Henry lived within 14 SRHD’s jurisdiction and was a constituent of Mary Kuney, an SRHD Board 15 member. ECF No. 25 at 35 ¶ 2.103; ECF No. 32 at 13 ¶ 2.103. 16 On July 1, 2020, Henry took the position of Assistant Secretary of Health for 17 Emergency Preparedness and Response for the Department, as an acting 18 appointment. ECF No. 40 at 2 ¶ 4; ECF No. 56 at 2 ¶ 3; ECF No. 42-1 at 2. 19 Defendant Jessica Todorovich, the Department’s Chief of Staff, was Henry’s direct 20 supervisor and appointing authority. ECF No. 69 at 2 ¶ 2. 1 On October 30, 2020, media outlets reported that SRHD’s Public Health 2 Officer, Bob Lutz, had been fired. ECF No. 69 at 2 ¶ 4. That day, Henry emailed 3 the following message to SRHD’s Board members and Administrative Officer 4 Amelia Clark from a personal, @gmail.com email address: 5 Subject: expect better from [the SRHD Board] 6 I’m writing to say that I am appalled by the [SRHD Board] support of Amelia Clark’s baseless claims against Dr Lutz. 7 Many of you know him personally and professionally, have for years. Yet you let an insecure weakling of a 8 leader strong arm you into ousting him based on vague claims of what.... personality conflict? Tell her to grow up 9 and do her job. People disagree with her because she makes impulsive decisions based on her own ego and 10 inability to appear wrong. She is weak, and today the [SRHD Board] is no better. You sought no further 11 evidence or testimonials from peers who actually know what they’re talking about. You didn’t consider his 12 demonstrated performance and leadership before and during a global pandemic, the fact that his work is lauded 13 regionally and statewide. Instead you’ve supported an action that endangers our public health response and, more 14 egregiously, the actual health of the public. 15 I anticipate this will come to a public forum, perhaps within a few hours. When it does, I hope Amelia’s 16 inadequacies are exposed; she has been promoted to the level of her incompetence. One who cowers from 17 criticism can’t possibly lead in a time as trying as this, and certainly not for an agency as critical to our community as 18 SRHD. It is the leader’s responsibility to step beyond the comfort of their ego, to confront the challenges of our 19 community, and to work with her own staff at all levels to ensure the most appropriate response to this public health 20 crisis. She is unable to do that, instead calling on her friends to just make her problem go away. 1 Do you see that your actions have validated her lack of fortitude? You’ve shown her and our community that she 2 can continue leading through conflict avoidance, selfish motives, and a little help from her [SRHD Board] buddies. 3 What an embarrassment to this community. 4 Not all of you support Amelia. I hope you argued loudly and expect you will continue to do so. Let her know how 5 insufficient her “leadership” is. 6 There could be an opportunity to right this wrong, though the consequences of [the SRHD Board’s] initial actions 7 will unfortunately ripple for months. What you do next will be an historic display of your values and alliances. 8 Are you with facts and reason, or are you with baseless accusations and whining? Your community is watching 9 intently. Erika Henry 10 ECF No. 40 at 3-4 ¶ 13; ECF No. 56 at 3-4 ¶ 13; ECF No. 42-2 at 3 (“email from a 11 personal account”), 35. 12 On December 20, 2020, Defendant Umair Shah was appointed as the 13 Department’s Secretary of Health. ECF No. 69 at 2 ¶ 6. Shah traveled to Spokane 14 to meet with the SRHD Board on February 8, 2021, and Todorovich asked Henry to 15 accompany Shah. ECF No. 40 at 5 ¶¶ 20-21; ECF No. 56 at 5 ¶¶ 20-21. 16 At the meeting, an SRHD Board member confronted Shah about Henry’s 17 email. ECF No. 40 at 6 ¶ 26; ECF No. 56 at 6 ¶ 26. Henry was distraught and 18 texted Todorovich afterward, stating the SRHD Board member “tore [her] a new one 19 in front of” Shah. ECF No. 40 at 7 ¶ 31; ECF No. 56 at 7 ¶ 31; ECF No. 42-2 at 36. 20 1 In that text conversation, Henry told Todorovich about her email, describing it as 2 “an email as a private citizen (I never identified myself as a [Department] employee 3 or having any connection to [public health]).” ECF No. 42-2 at 36-38; ECF No. 69 4 at 3 ¶ 11. Todorovich responded, “you have every right to express yourself as a 5 private citizen to your local board.” ECF No. 42-2 at 36. An SRHD Board member 6 later gave Shah a copy of the email. ECF No. 40 at 8 ¶ 37; ECF No. 56 at 8 ¶ 37. 7 A few days later, Todorovich reported Henry to the Department’s Office of 8 Human Resources because of the email. ECF No. 40 at 9 ¶ 40; ECF No. 56 at 8-9 9 ¶ 40. The Office of Human Resources assigned Defendant Roy Calica to 10 investigate, and he completed an investigation report in March 2021. ECF No. 40 at 11 9 ¶ 41; ECF No. 56 at 9 ¶ 41; ECF No. 42-2 at 16-34. 12 On May 19, 2021, Todorovich sent Henry a disciplinary letter terminating her 13 employment, citing the email, and Henry’s failure to inform Department leadership 14 of the email before February 8, 2021, as the reasons for the decision. ECF No. 69 at 15 3-4 ¶ 13; ECF No. 42-2 at 3-4, 7. 16 B. Procedural History 17 In February 2022, Erika Henry, her husband Daniel Henry, and their children, 18 K.H. and B.H., filed suit in Spokane County Superior Court against the Department, 19 Shah, Todorovich, and Calica. ECF No. 1-1. Defendants removed the case to 20 1 federal court. ECF No. 1. On October 18, 2022, Plaintiffs filed an Amended 2 Complaint. ECF No. 25. 3 The Amended Complaint brings claims alleging (1) Henry’s wrongful 4 termination in violation public policy under the Washington Constitution; 5 (2) Henry’s wrongful termination in violation of public policy under the First 6 Amendment of the U.S. Constitution; (3) violation of Henry’s First Amendment 7 right by retaliation, pursuant to 42 U.S.C. § 1983; and (4) loss of consortium for 8 Henry’s husband and children. ECF No. 25 at 53-73. 9 PLAINTIFFS’ MOTION TO CERTIFY 10 Plaintiffs seek to certify the following five questions to the Washington 11 Supreme Court: 12 1. Does the Washington Constitution give less protections to a government employee than to every other 13 person in Washington, when the government employee speaks outside of their employment, in their private 14 capacity, and in a public forum? 2. Does the government’s status as an employer give it 15 a compelling interest to restrict speech done in a public forum under the Washington Constitution? 16 3. Does terminating a government employee for 17 petitioning the government as a private citizen violate the public policy of the Washington Constitution? 18 4. Can the Department of Health policies that restrict outside activities and use of state resources for private gain, 19 restrict a government employee from communicating on their own personal time to their elected and appointed 20 government leaders? 1 5. Is one who has established a cause of action for the violation of a fundamental right entitled to recover damages 2 for (a) the harm to the interest resulting from the violation; (b) the mental distress proved to have been suffered; and (c) 3 special damages of which the violation is a legal cause? 4 ECF No. 48 at 2-3. 5 A. Legal Standard 6 In a diversity case, a federal court must seek “to approximate state law as 7 closely as possible in order to make sure that the vindication of the state right” is not 8 affected by the federal forum. Murray v. BEJ Minerals, LLC, 924 F.3d 1070, 1071 9 (9th Cir. 2019) (en banc) (quoting Ticknor v. Choice Hotels Int’l, Inc., 265 F.3d 931, 10 939 (9th Cir. 2001)) (quotation marks omitted). “If the state’s highest appellate 11 court has not decided the question presented,” then the federal court “must predict 12 how the state’s highest court would decide the question.” Id. (citation omitted). If 13 allowed by state law, the federal court may “exercise [its] discretion to certify a 14 question to the state’s highest court.” Id. (citing Lehman Bros. v. Schein, 416 U.S. 15 386, 391 (1974)). The Ninth Circuit instructs courts to consider four factors in this 16 analysis: 17 (1) whether the question presents “important public policy ramifications” yet unresolved by the state court; 18 (2) whether the issue is new, substantial, and of broad application; 19 (3) the state court’s caseload; and (4) “the spirit of comity and federalism.” 20 1 Id. at 1072 (quoting Kremen v. Cohen, 325 F.3d 1035, 1037-38 (9th Cir. 2003)). 2 “[C]ertification is especially appropriate when a question of law has not been clearly 3 determined by the Washington courts, and the answer to [the] question is outcome 4 determinative.” Potter v. City of Lacey, 46 F.4th 787, 791 (9th Cir. 2022) (citation 5 and quotation marks omitted). 6 RCW 2.60.020 authorizes certification “[w]hen in the opinion of any federal 7 court before whom a proceeding is pending, it is necessary to ascertain the local law 8 of [Washington] in order to dispose of such proceeding and the local law has not 9 been clearly determined . . . .” See also Nwauzor v. GEO Grp., Inc., 62 F.4th 509, 10 513 (9th Cir. 2023). Certification is governed by the Washington Supreme Court’s 11 Rules of Appellate Procedure (RAP). In relevant part, Wash. RAP 16.16(a) provides 12 as follows: 13 The Supreme Court may entertain a petition to determine a question of law certified to it under the [Certification 14 Act] if the question of state law is one which has not been clearly determined and does not involve a question 15 determined by reference to the United States Constitution. 16 B. Discussion 17 Under the federal and state standards for certification, certification of 18 Plaintiffs’ proposed questions would not be appropriate here. 19 Washington courts have “adopted the tort of wrongful discharge in violation 20 of public policy as a narrow exception to the at-will [employment] doctrine.” 1 Martin v. Gonzaga Univ, 425 P.3d 837, 842 (Wash. 2018). To succeed on such a 2 claim, a plaintiff must first demonstrate that her discharge “may have been 3 motivated by reasons that contravene a clear mandate of public policy.” Id. at 843 4 (citation and quotation marks omitted). This tort applies to limited scenarios, 5 including “where employees are fired for exercising a legal right or privilege.” Id. 6 The Washington courts have emphasized that the tort of wrongful termination 7 in violation of public policy is “narrow,” “should be applied cautiously,” and must 8 be premised on a policy that is “truly public and sufficiently clear.” Danny v. 9 Laidlaw Transit Servs., Inc., 193 P.3d 128, 131 (Wash. 2008) (quoting Sedlacek v. 10 Hillis, 36 P.3d 1014, 1019-20 (Wash. 2001)) (quotation marks omitted); see also 11 Rose v. Anderson Hay & Grain Co., 358 P.3d 1139, 1142 (Wash. 2015). The 12 Washington Supreme Court has expressed its reluctance to recognize new state 13 public policy without legislative involvement: “the Legislature is the fundamental 14 source for the definition of [Washington’s] public policy, and [this court] must avoid 15 stepping into the role of the Legislature by actively creating the public policy of 16 Washington.” Sedlacek, 36 P.3d at 1019. “An argument for the adoption of a 17 previously unrecognized public policy under Washington law is better addressed to 18 the Legislature.” Id. (citing State v. Jackson, 976 P.2d 1229, 1235 (Wash. 1999)). 19 This approach “protects employers from having to defend against amorphous claims 20 of public policy violations . . . .” Rose, 358 P.3d at 1142. 1 Similarly, the Washington courts have consistently rejected invitations to 2 recognize a state common-law constitutional tort. See Sys. Amusement, Inc. v. State, 3 500 P.2d 1253, 1254 (Wash. Ct. App. 1972); Spurrell v. Bloch, 701 P.2d 529, 534- 4 35 (Wash. Ct. App. 1985), review denied, 104 Wash.2d 1014 (Wash. 1985); Reid, 5 961 P.2d at 342-43; Blinka v. Wash. State Bar Ass’n, 36 P.3d 1094, 1102 (Wash. Ct. 6 App. 2001) (citing Reid v. Pierce Cnty., 961 P.2d 333 (Wash. 1998)), review denied, 7 52 P.3d 520 (Wash. 2002); Hannum v. Wash. State Dep’t of Licensing, 181 P.3d 8 915, 919 (Wash. Ct. App. 2008); Janaszak v. State, 297 P.3d 723, 734 (Wash. Ct. 9 App. 2013); U4IK Gardens, LLP v. State, 18 Wash. App. 2d. 1029, at *6 (Wash. Ct. 10 App. 2021) (unpublished), review denied, 498 P.3d 960 (Wash. 2021). The Court is 11 unpersuaded that the Washington courts would reconsider these holdings simply 12 because Plaintiffs have characterized their common-law constitutional tort claims as 13 common-law wrongful-termination tort claims. 14 The proposed questions do not concern state-law issues that have not been 15 clearly determined. See Wash. RAP 16.16(a). Plaintiffs’ Motion to Certify is 16 denied. 17 CROSS MOTIONS FOR SUMMARY JUDGMENT 18 A. Legal Standard 19 A party may move for summary judgment on part of a claim or defense. Fed. 20 R. Civ. P. 56(a). The court must grant summary judgment “if the movant shows that 1 there is no genuine dispute as to any material fact and the movant is entitled to 2 judgment as a matter of law.” Id.; see also Celotex Corp. v. Catrett, 477 U.S. 317, 3 322-23 (1986). The court “must view the evidence in the light most favorable to the 4 nonmoving party and draw all reasonable inference in the nonmoving party’s favor.” 5 Rookaird v. BNSF Ry. Co., 908 F.3d 451, 459 (9th Cir. 2018). “Credibility 6 determinations, the weighing of the evidence, and the drawing of legitimate 7 inferences from the facts are jury functions, not those of a judge . . . .” Anderson v. 8 Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 9 A movant who does not bear the burden of persuasion at trial can succeed on 10 summary judgment either by producing evidence that negates an essential element of 11 the nonmoving party’s claim or defense, or by showing that the nonmoving party 12 lacks sufficient evidence to prove an essential element. Nissan Fire & Marine Ins. 13 v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). A movant who bears the burden 14 of persuasion at trial must show that no reasonable trier of fact could find other than 15 for the movant. Engley Diversified, Inc. v. City of Port Orchard, 178 F. Supp. 3d 16 1063, 1070 (W.D. Wash. 2016) (citing Calderone v. United States, 799 F.2d 254, 17 259 (6th Cir. 1986); S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th 18 Cir. 2003)). 19 20 1 B. Defendants’ Motion for Summary Judgment 2 Defendants seek summary judgment on each of Plaintiffs’ claims. ECF 3 No. 39. 4 1. Wrongful Termination in Violation of Public Policy (Claims 1-2) 5 Plaintiffs claim that Henry was wrongfully terminated in violation of two 6 public policies: Article I, §§ 4-5 of the Washington Constitution (Claim 1), and the 7 First Amendment of the U.S. Constitution (Claim 2). ECF No. 25 at 53-54 ¶¶ 3.5- 8 3.7, 60 ¶¶ 4.3-4.4, 65 ¶¶ 4.32-4.33. Defendants seek summary judgment on both 9 claims, arguing that no clear public policy was violated by Henry’s termination for 10 “sending public comments.”1 ECF No. 39 at 17-20. 11 As explained above, for a plaintiff to succeed on a claim of wrongful 12 discharge in violation of public policy, she must show a violation of public policy 13 that has been “judicially or legislatively recognized.” Rose, 358 P.3d at 1142. 14 15 1 Defendants also argue that Washington law provides no private cause of action 16 analogous to 42 U.S.C. § 1983 for citizens to sue for violations of state 17 constitutional rights. ECF No. 39 at 4-5. Washington does not recognize a 18 common-law tort for violation of the state Constitution. Blinka, 36 P.3d at 1102. 19 Claim 1 is premised upon the tort of wrongful discharge in violation of public 20 policy, as explained above. 1 Plaintiffs have failed to identify a “clearly mandated public policy.” Danny, 193 2 P.3d at 131. 3 Plaintiffs first argue that the First Amendment establishes a public policy that 4 is violated “when [the State] discharges an employee on a basis that infringes upon 5 that employee’s constitutionally protected interest in freedom of speech.” ECF No. 6 25 at 65 ¶ 4.32; ECF No. 55 at 14. Plaintiffs fail to cite any case in which 7 Washington courts recognized the First Amendment as a source of state public 8 policy; instead, they cite Sprague v. Spokane Fire Department, 409 P.3d 160 (Wash. 9 2018). ECF No. 55 at 14. Sprague involved a First Amendment retaliation claim 10 under Section 1983, not a state-law claim for wrongful termination in violation of 11 public policy based on the First Amendment. Sprague, 409 P.3d at 169. 12 Plaintiffs also argue that the Washington Constitution “establishes a strong 13 public policy that the state is not to retaliate against citizens because it does not like 14 the content of their speech.”2 ECF No. 25 at 53 ¶ 3.5. The relevant provisions of the 15 Washington Constitution are (1) “[t]he right of petition and of the people peaceably 16 17 2 Plaintiffs also contend in the Amended Complaint that Henry’s termination 18 “contravened a clear mandate of public policy that society places the highest priority 19 on the protection of human life.” ECF No. 25 at 58 ¶ 3.40. Plaintiffs have not 20 pursued this theory in the instant briefing. ECF No. 55 at 15-16. 1 to assemble for the common good shall never be abridged[,]” Wash. Const. Art. I, § 2 4, and “[e]very person may freely speak, write and publish on all subjects, being 3 responsible for the abuse of that right[,]” Wash. Const. Art. I, § 5. Plaintiffs fail to 4 cite any case law in which the Washington courts have recognized Article I, §§ 4-5 5 of the Washington Constitution (or any other state constitutional provision) as a 6 sufficiently clear public policy for purposes of the tort of wrongful discharge. ECF 7 No. 55 at 15. Indeed, one of Plaintiffs’ cited cases, Richmond v. Thompson, 922 8 P.2d 1343, 1349-50 (Wash. 1996) noted that both provisions contain qualifying 9 clauses and therefore cannot be read to confer absolute rights of petition and speech. 10 This underscores that the text of these provisions, without more, does not provide a 11 sufficiently clear statement of public policy. See Danny, 193 P.3d at 131. 12 Absent judicial or legislative recognition that these provisions establish public 13 policy for the purposes of the tort of wrongful termination, employers would be 14 forced to defend against amorphous claims whenever a plaintiff could link that 15 termination to their speech or petition activities. See Rose, 358 P.3d at 1142. 16 Plaintiffs have failed to demonstrate that these constitutional provisions amount to a 17 sufficiently clear public policy that is actionable under Washington’s common-law 18 tort of wrongful discharge in violation of public policy. 19 Claims 1 and 2 require what Blinka and numerous other decisions, as cited 20 above, rejected. There is no state-law cause of action for damages based upon 1 violations of the Washington Constitution without the aid of augmentative 2 legislation. Framing such a claim as arising under Washington’s common-law 3 wrongful discharge in violation of public policy is only an attempt to circumvent this 4 conclusion. 5 The Court grants summary judgment for Defendants on Plaintiffs’ claims for 6 wrongful termination in violation of public policy. 7 2. First Amendment Retaliation Under Section 1983 (Claim 3) 8 a. Department of Health 9 Defendants argue for summary judgment on Henry’s Section 1983 claim 10 against the Department, contending that as a state agency, it is not a “person” subject 11 to suit under Section 1983. ECF No. 39 at 3-4. Plaintiffs did not respond to this 12 argument in the briefing. At the hearing, Plaintiffs contended they had not brought a 13 Section 1983 claim against the Department. This contention is at odds with the 14 language of Section 1983 claim, as set forth in the Amended Complaint. See, e.g., 15 ECF No. 25 at 72 ¶ 5.40 (“A permanent injunction should enjoin the individual 16 Defendants and Defendant Department of Health . . . .”) (emphasis added). 17 Plaintiffs concede the issue, pursuant to LCivR 56(e). Moreover, it is 18 undisputed that the Department is a state agency and therefore not subject to suit 19 under Section 1983. See Sato v. Orange Cnty. Dep’t of Educ., 861 F.3d 923, 928 20 (9th Cir. 2017); French v. Wash. State Dep’t of Health, 735 F. App’x 367 (9th Cir. 1 2018) (affirming dismissal of Section 1983 claim against the Department as “a state 2 agency immune from suit under [Section] 1983”). The Court grants summary 3 judgment as to Henry’s Section 1983 claim against the Department. 4 b. Individual Defendants 5 Defendants argue for summary judgment as to Henry’s Section 1983 claims 6 against Defendants Shah, Todorovich, and Calica (collectively the “Individual 7 Defendants”) on qualified immunity grounds—namely, that they did not violate any 8 clearly established First Amendment right. ECF No. 39 at 5-6. 9 “The doctrine of qualified immunity protects government officials ‘from 10 liability for civil damages insofar as their conduct does not violate clearly 11 established statutory or constitutional rights of which a reasonable person would 12 have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. 13 Fitzgerald, 457 U.S. 800, 818 (1982)). “[A]n officer may be denied qualified 14 immunity at summary judgment in a Section 1983 case ‘only if (1) the facts alleged, 15 taken in the light most favorable to the party asserting injury, show that the officer’s 16 conduct violated a constitutional right, and (2) the right at issue was clearly 17 established at the time of the incident such that a reasonable officer would have 18 understood his conduct to be unlawful in that situation.’” Isayeva v. Sacramento 19 Sheriff’s Dep’t, 872 F.3d 938, 945 (9th Cir. 2017) (quoting Hughes v. Kisela, 862 20 F.3d 775, 783 (9th Cir. 2016)) (alteration omitted); see also Ellins v. City of Sierra 1 Madre, 710 F.3d 1049, 1064 (9th Cir. 2013) (“For purposes of qualified immunity, 2 [courts] resolve all factual disputes in favor of the party asserting the injury.”). 3 i. Violation of a Constitutional Right 4 Henry contends that her October 30, 2020, email was speech protected by the 5 First Amendment, and therefore the Individual Defendants violated her First 6 Amendment rights by terminating her in retaliation for that speech. ECF No. 25 at 7 68-69 ¶¶ 5.20-5.23; ECF No. 55 at 13. 8 “It is well settled that the state may not abuse its position as employer to stifle 9 ‘the First Amendment rights [its employees] would otherwise enjoy as citizens to 10 comment on matters of public interest.’” Eng v. Cooley, 552 F.3d 1062, 1070 (9th 11 Cir. 2009) (quoting Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 12 563, 568 (1968)) (alteration in original). Courts must assess the First Amendment 13 claims of public employees by balancing the employee’s interest “as a citizen, in 14 commenting upon matters of public concern,” and the state’s interest “as an 15 employer, in promoting the efficiency of the public services it performs through its 16 employees.” Id. (quoting Pickering, 391 U.S. at 568) (quotation marks omitted). To 17 do so, courts apply “a sequential five-step series of questions,” referred to as the Eng 18 factors. Greisen v. Hanken, 925 F.3d 1097, 1108 (9th Cir. 2019) (quoting Eng, 552 19 F.3d at 1070). 20 1 (1) Speech on a Matter of Public Concern 2 Under the first Eng factor, the plaintiff must show that the speech at issue 3 addressed a matter of public concern. Eng, 552 F.3d at 1070. Defendants concede 4 that Henry’s email related to a matter of public concern. ECF No. 39 at 8. 5 (2) Speech as a Private Citizen 6 Under the second Eng factor, the plaintiff must show she spoke in the capacity 7 of a private citizen, not a public employee. Eng, 552 F.3d at 1071. A statement is 8 made in the speaker’s capacity as a private citizen “if the speaker ‘had no official 9 duty’ to make the questioned statements, or if the speech was not the product of 10 ‘performing the tasks the employee was paid to perform.’” Id. (citing Posey v. Lake 11 Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1127 n.2 (9th Cir. 2008)). It is 12 relevant but not dispositive, if the employee’s speech occurred at work, concerned 13 “the subject matter of [his or her] employment,” or fell within the scope of the 14 employee’s formal job description. Dahlia v. Rodriguez, 735 F.3d 1060, 1069 (9th 15 Cir. 2013) (en banc) (quoting Garcetti v. Ceballos, 547 U.S. 410, 420-21, 424-25 16 (2006)) (quotation marks omitted). “[W]hether the plaintiff spoke as a public 17 employee or a private citizen . . . is a mixed question of fact and law.” Posey, 546 18 F.3d at 1129. Where there are “genuine disputes of material fact regarding the scope 19 and content of [the plaintiff’s] job responsibilities,” that issue “can and should be 20 found by a trier of fact . . . .” Id. 1 Although Henry’s formal job description is not dispositive, there are disputes 2 of fact about what her job required, and whether sending the email fell within that 3 description. ECF No. 39 at 9-10; see Dahlia, 735 F.3d at 1069. Defendants contend 4 that Henry’s official duties “directly involved interacting with local public health 5 district[s]” like SRHD. ECF No. 39 at 9-10 (citing language from ECF No. 42-2 at 6 2); see also ECF No. 42-2 at 41-52. Plaintiffs dispute that this accurately reflects 7 Henry’s official duties, citing her testimony that she did not recognize the job 8 description referenced by Defendants. ECF No. 56 at 2-3 ¶¶ 5-6 (citing ECF No. 57- 9 4 at 4). Plaintiffs also note that Todorovich has characterized Henry’s actions on 10 October 30, 2020, as “off duty.” ECF No. 47 at 60 ¶ 1.245 (citing ECF No. 49-9 at 11 44-45); see also ECF No. 42-2 at 1. 12 Defendants further contend that, because SRHD Board members perceived 13 Henry to have spoken in the capacity of a public employee, Henry cannot establish 14 that she spoke as a private citizen. ECF No. 39 at 10. The perception of the SRHD 15 Board members is in dispute. One member testified that she perceived the email as 16 from “[a] member of the Spokane community.” ECF No. 49-38 at 31. One member 17 testified that the email did not “reflect . . . any government communication.” ECF 18 No. 49-36 at 15. In any event, Defendants cite no authority indicating that the way 19 the speech was interpreted by the recipient controls this analysis. 20 1 Factual disputes remain which preclude a finding that Henry’s speech was that 2 of a public employee as a matter of law. 3 (3) Substantial or Motivating Factor 4 Under the third Eng factor, the plaintiff must show her protected speech was a 5 substantial or motivating factor in an adverse employment action she suffered. Eng, 6 552 F.3d at 1071. Defendants concede that the October 30, 2020, email was a 7 motivating factor for Henry’s termination. ECF No. 39 at 8. 8 (4) Adequate Justification 9 Under the fourth Eng factor, the defendant bears the burden of showing its 10 actions were adequately justified by “legitimate countervailing interests” that 11 outweighed the employee’s interests in free speech. Riley’s Am. Heritage Farms v. 12 Elsasser, 32 F.4th 707, 724-25 (9th Cir. 2022) (citation and quotation marks 13 omitted); Eng, 552 F.3d at 1071. On an issue where it bears the burden of 14 persuasion at trial, a defendant must show that “no reasonable trier of fact could find 15 other than for the moving party.” Engley Diversified, 178 F. Supp. 3d at 1070. 16 “‘Promoting workplace efficiency and avoiding workplace disruption’ is a 17 valid government interest that can justify speech restrictions.” Dodge v. Evergreen 18 Sch. Dist. #114, 56 F.4th 767, 781 (9th Cir. 2022) (citing Hufford v. McEnany, 249 19 F.3d 1142, 1148 (9th Cir. 2001)) (alteration omitted). But the employer must show 20 either an “actual, material, and substantial disruption” to the workplace or 1 “reasonable predictions” of such a disruption. Id. at 782 (quoting Robinson v. York, 2 566 F.3d 817, 824 (9th Cir. 2009)) (quotation marks omitted). Employers “must 3 make a stronger showing of disruption when the speech deals directly with issues of 4 public concern.” Id. (quoting Robinson, 566 F.3d at 826) (quotation marks and 5 alterations omitted). “Speech that outrages or upsets co-workers without evidence of 6 ‘any actual injury’ to [workplace] operations does not constitute a disruption.” Id. 7 (citing Settlegoode v. Portland Pub. Schs., 371 F.3d 503, 514 (9th Cir. 2004)). 8 Defendants first argue that Henry’s email caused an actual disruption of the 9 February 8, 2021 meeting. ECF No. 39 at 12-13. However, there are disputes of 10 fact that bear on whether this amounted to an actual, material, and substantial 11 disruption under the Eng test. For example, the parties dispute the tone and duration 12 of the discussion of Henry’s email at the meeting. ECF No. 40 at 6 ¶ 26, 7 ¶ 28 13 (citing ECF No. 41-1 at 10; ECF No. 41-2 at 7-13); ECF No. 56 at 6 ¶¶ 26, 28 14 (citing ECF No. 57-1 at 5-8; ECF No. 49-36 at 28; ECF No. 49-38 at 21). The 15 parties also dispute the context of the Department’s relationship with SRHD at the 16 time of the meeting, and whether that relationship or other circumstances may have 17 contributed to the events at the meeting. ECF No. 40 at 5 ¶ 20 (citing ECF No. 41-2 18 at 9); ECF No. 56 at 5 ¶ 20, 7 ¶ 30 (citing ECF No. 41-2 at 8-9; ECF No. 41-1 at 11). 19 Defendants also claim there was an actual disruption to their working 20 relationship with SRHD and an anticipated disruption if there was a perceived 1 conflict of interest between Henry and SRHD. ECF No. 39 at 12-13. Plaintiffs 2 argue that these purported disruptions are pretextual reasons for Henry’s 3 termination, as demonstrated by Defendants’ “shifting justifications,” such as 4 Todorovich’s initial support for Henry after the February 2021 meeting, and 5 “disregard[]” of advice that they were violating Henry’s rights. ECF No. 55 at 3; 6 ECF No. 56 at 10 ¶ 49 (citing ECF No. 57-3 at 14-15); ECF No. 47 at 69 ¶ 1.286 7 (citing ECF No. 49-42 at 2). Plaintiffs also note that Todorovich was unable to 8 provide specific details about the “multiple” confrontations she claimed had resulted 9 from Henry’s email. ECF No. 56 at 11 ¶ 52 (citing ECF No. 57-3 at 20-25). 10 Accordingly, Defendants have failed to demonstrate that no reasonable juror 11 could find other than for them as to whether Henry’s termination was adequately 12 justified. 13 (5) But-For Causation 14 Under the fifth Eng factor, the defendant “bears the burden of demonstrating 15 that it would have reached the same adverse employment decision even in the 16 absence of the employee’s protected conduct.” Eng, 552 F.3d at 1072 (citation, 17 quotation marks, and alterations omitted). Defendants do not dispute that Henry’s 18 email was the but-for cause of her termination and therefore concede this factor. See 19 ECF No. 39 at 8. 20 1 In sum, Plaintiffs have presented sufficient evidence to create a triable issue 2 regarding whether the Individual Defendants violated Henry’s constitutional rights. 3 See Dodge, 56 F.4th at 783. 4 ii. Clearly Established Law 5 Next, Defendants argue that the Individual Defendants are entitled to qualified 6 immunity because it was not clearly established under the law at the time that Henry 7 was speaking as a private citizen. ECF No. 39 at 14. 8 “To determine that a right was clearly established, the court ‘must identify 9 precedent as of [the date of the alleged violation] that put [the defendant] on clear 10 notice’ that his or her actions were unconstitutional.” Greisen, 925 F.3d at 1108-09 11 (quoting S.B. v. Cnty. of San Diego, 864 F.3d 1010, 1015 (9th Cir. 2017)) 12 (alterations in original). A case does not need to be “‘directly on point, but existing 13 precedent must have placed the statutory or constitutional question beyond debate.’” 14 Id. at 1109 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). 15 When assessing qualified immunity on the second Eng factor, courts must 16 view the facts relating to the plaintiff’s employment responsibilities in the light most 17 favorable to the plaintiff. Eng, 552 F.3d at 1071; Ellins, 710 F.3d at 1064. “[A] 18 reasonable official would have known that a public employee’s speech on a matter 19 of public concern is protected” under the second Eng factor “if the speech is not 20 made pursuant to her official job duties, even if the [speech] itself addresses matters 1 of employment.” Greisen, 925 F.3d at 1112-13 (citing Karl v. City of Mountlake 2 Terrace, 678 F.3d 1062, 1074 (9th Cir. 2012)) (quotation marks and alteration 3 omitted). 4 Viewing the facts in the light most favorable to Henry, Freitag v. Ayers, 468 5 F.3d 528 (9th Cir. 2006), is sufficiently analogous to inform a reasonable official 6 that Henry spoke as a private citizen in her October 30, 2023 email. The plaintiff in 7 Freitag was a state correctional officer who submitted complaints to a state senator 8 and the state Inspector General about workplace sexual harassment, contending that 9 her supervisors were ignoring her concerns. Freitag, 468 F.3d at 535. Thereafter, 10 she was subjected to multiple internal investigations and ultimately terminated. Id. 11 at 535-36. She brought a claim under Section 1983 for First Amendment retaliation. 12 Id. at 536. 13 The Ninth Circuit concluded that the plaintiff “acted as a citizen” when she 14 voiced her complaints: “[h]er right to complain both to an elected public official and 15 to an independent state agency is guaranteed to any citizen in a democratic society 16 regardless of his [or her] status as a public employee.” Id. at 545 (citing Pickering, 17 391 U.S. at 568). “The critical inquiry” was whether the plaintiff had “engaged in 18 the relevant speech pursuant to her official duties.” Id. (quoting Garcetti v. 19 Ceballos, 547 U.S. 410, 421 (2006)) (quotation marks and alteration omitted). “It 20 was certainly not part of her official tasks to complain to the Senator or the 1 [Investigator General] about the state’s failure to perform its duties properly, and 2 specifically its failure to take corrective action” against workplace sexual 3 harassment, but rather, her “responsibility as a citizen to expose such official 4 malfeasance to broader scrutiny.” Id. (emphasis in original). 5 Henry resided within SRHD’s jurisdiction and was a constituent of an elected 6 official who sat on the SRHD Board. ECF No. 49-39 at 5. Although the parties 7 dispute the scope of Henry’s job responsibilities, see ECF No. 56 at 2-3 ¶¶ 5-6, 8 Defendants do not argue that it was part of her official duties with the Department to 9 complain to SRHD Board members about the performance of the Board’s 10 Administrative Officer or decision to fire its Local Health Officer. See Freitag, 468 11 F.3d at 545. As such, Henry’s right as a private citizen to complain about the 12 performance of her local officials was clearly established law under Freitag. 13 Defendants argue that the controlling precedent at the time held that “an 14 individual could be perceived as a public employee due to their association with 15 their job and the context of their speech.” ECF No. 39 at 14, 16 (citing Kennedy v. 16 Bremerton Sch. Dist., 991 F.3d 1004 (9th Cir. 2021) (“Kennedy II”), overruled by 17 142 S. Ct. 2407 (2022) (“Kennedy III”)). The speech at issue in Kennedy II, decided 18 two months before Henry was terminated, and Henry’s email are not analogous. For 19 example, the Ninth Circuit cited the following facts in concluding there was “simply 20 1 no dispute that [the coach’s] position encompassed his post-game speeches to 2 students.” Kennedy II, 991 F.3d at 1016. 3 Kennedy’s employer specifically instructed him (1) that he should speak to players post-game and (2) what the 4 speeches should be about: “You may continue to provide motivational, inspirational talks to students before, during 5 and after games and other team activity, focusing on appropriate themes such as unity, teamwork, responsibility, 6 safety, endeavor and the like that have long characterized your very positive and beneficial talks with students.” 7 Id. The school superintendent later praised the coach for a “secular post-game 8 speech” and encouraged the coach to continue such practices. Id. Therefore, “[t]he 9 only conclusion based on this record is that [the coach’s] post-game speech on the 10 field was speech as a government employee.” Id. Comparatively, here, there is no 11 indication that Henry’s employer instructed her to send emails to local health 12 jurisdictions like SRHD from an unofficial account on public health topics, or 13 praised her for doing so. 14 The Ninth Circuit’s earlier analysis in Kennedy v Bremerton School District, 15 869 F.3d 813 (9th Cir. 2017) (“Kennedy I”) is also instructive.3 There, the court 16 similarly concluded that the coach spoke as a public employee where his speech 17 18 3 The Kennedy II court reaffirmed “that [its] conclusion in Kennedy I,” that the coach 19 had spoken as a public employee, “[wa]s correct.” Kennedy II, 991 F.3d at 1016 20 (quoting Kennedy I, 869 F.3d at 831). 1 occurred “at a school event, on school property, wearing [school]-logoed attire, 2 while on duty as a supervisor, and in the most prominent position on the field, where 3 he knew it was inevitable that students, parents, fans, and occasionally the media, 4 would observe his behavior.” Id. at 827. The time, place, and circumstances of the 5 coach’s speech created an obvious connection to his role as a public employee. See 6 id. No such context was present here, where Henry’s email came from an unofficial 7 account and did not mention her position with the Department; and where at least 8 two Board members testified that they understood the email to be a communication 9 from a constituent. ECF No. 42-2 at 35; ECF No. 49-38 at 31; ECF No. 49-36 at 15. 10 As such, a reasonable official would not have interpreted Kennedy II to conclude 11 that Henry’s email was the speech of a public employee. See Greisen, 925 F.3d at 12 1108-09. 13 Ultimately, the Court must view the facts in the light most favorable to Henry, 14 with respect to her employment responsibilities. See Eng, 552 F.3d at 1071; Ellins, 15 710 F.3d at 1064. Plaintiffs have identified precedent as of the date of her 16 termination that put the Individual Defendants on notice that Henry’s email was 17 speech made as a private citizen in the form of a complaint to an elected public 18 official. Defendants have not asserted there was a lack of clearly established law on 19 any other aspect of Henry’s Section 1983 claim. The Court therefore denies 20 summary judgment for the Individual Defendants as to Henry’s Section 1983 claim. 1 3. Loss of Consortium (Claim 4) 2 Defendants argue that there is no cognizable legal theory, under state or 3 federal law, for Henry’s family members’ loss of consortium claim if there is no 4 underlying bodily injury. ECF No. 39 at 20 (citing Green v. A.P.C., 960 P.2d 912 5 (Wash. 1998); Ueland v. Reynolds Metals Co., 691 P.2d 190 (Wash. 1984)). 6 Defendants raised this argument in their Fed. R. Civ. P. 12(b)(6) Motion to 7 Dismiss. ECF No. 11 at 3-6. The Court granted the Defendants’ Motion to Dismiss 8 on the ground that because Plaintiffs failed to plead sufficient facts to state a loss of 9 consortium claim, and granted leave to amend the claims with adequate factual 10 allegations. ECF No. 24 at 13. Plaintiffs did so amend, and included further 11 allegations related to loss of consortium. ECF No. 25 at 72-73. The Court rejected 12 Defendants’ argument that a loss-of-consortium claim could not be based on the tort 13 of wrongful termination due to the lack of bodily injury: “[p]ursuant to Burchfiel, 14 under Washington law, tortious injury is an essential element of a loss of consortium 15 claim, however, physical injury is not.” ECF No. 24 at 8 (citing Burchfiel v. Boeing 16 Corp., 205 P.3d 145, 158 (Wash. Ct. App. 2009)). Defendants provide no reason to 17 reconsider that determination. 18 As explained above, the Court grants summary judgment for the Department 19 on Henry’s wrongful termination in violation of public policy and Section 1983 20 claims. Therefore, Henry’s family members cannot show that the Department 1 inflicted a tortious injury upon Henry from which her spouse and children could 2 have suffered a loss of consortium. See Burchfiel, 205 P.3d at 158 (“Damages for 3 loss of consortium are proper when a spouse suffers loss of love, society, care, 4 services, and assistance due to a tort committed against the impaired spouse.”) 5 (emphasis added) (citation omitted). The Court therefore grants summary judgment 6 for the Department on the loss of consortium claim as well. 7 As for the Individual Defendants, the Court has granted summary judgment in 8 their favor on Henry’s wrongful termination claims. Henry’s Section 1983 claim 9 against the Individual Defendants remains. Defendants also argue that Plaintiffs’ 10 loss of consortium claim is not recognized by federal law, arguing that Plaintiffs’ 11 “theory of the case” would allow any family member of a Section 1983 claim to 12 bring a loss of consortium claim. ECF No. 39 at 20-21. However, neither 13 Defendants nor Plaintiffs provide any legal authority, or specific arguments, as to 14 whether a loss of consortium claim may be predicated on a family member’s Section 15 1983 injury.4 16 17 4 The Court notes that this question of law was not decided in the previous order on 18 Defendants’ Motion to Dismiss. At that time, the Court construed the original 19 Complaint to contain a loss of consortium claim solely related to Henry’s wrongful 20 termination claims. ECF No. 24 at 8-9. When Plaintiffs repleaded loss of 1 Thus, the Individual Defendants have not demonstrated, as a matter of law, 2 that Plaintiffs cannot maintain a loss of consortium claim in relation to Henry’s 3 Section 1983 claim against the Individual Defendants. The Court denies summary 4 judgment for the individual Defendants on Plaintiffs’ loss of consortium claim with 5 leave to refile if supported by argument and legal authority. 6 C. Plaintiffs’ Motion for Summary Judgment 7 Plaintiffs move for summary judgment on three of the Eng factors underlying 8 their Section 1983 claim, ECF No. 46, and on overall liability for their claim for 9 wrongful termination in violation of the Washington Constitution, ECF No. 51. 10 Only Plaintiffs’ Section 1983 claim and loss of consortium claim against the 11 Individual Defendants survive; therefore, Plaintiffs’ summary judgment arguments 12 relating to the wrongful termination claims are denied as moot. 13 1. Conceded Eng Factors 14 Plaintiffs seek summary judgment on the first and third Eng factors of the 15 Section 1983 claim—i.e., that Henry’s October 30, 2020, email was speech on a 16 matter of public concern and a substantial or motivating factor for her termination. 17 consortium in the Amended Complaint, they clarified that it was based on the 18 wrongful termination claims and Section 1983 claim alike. ECF No. 25 at 72 ¶¶ 6.2- 19 6.3. 20 1 ECF No. 46 at 2. Defendants have conceded these issues. ECF No. 39 at 8; ECF 2 No. 61 at 3; see also LCivR 56(3). The Court grants summary judgment for 3 Plaintiffs on the first and third Eng factors of their Section 1983 claim. 4 2. Speech as a Private Citizen 5 Plaintiffs seek summary judgment on the second Eng factor—i.e., that 6 Henry’s email was the speech of a private citizen, not a public employee. ECF No. 7 46 at 2. As discussed above, there are disputes of material fact that prevent the 8 Court from determining, as a matter of law, whether Henry spoke as a private 9 citizen. The Court denies summary judgment for Plaintiffs on the second Eng 10 factor. 11 CONCLUSION 12 The Court denies Plaintiffs’ Motion to Certify. 13 The Court grants summary judgment for Defendant Washington State 14 Department of Health on Henry’s Section 1983 claim and the loss-of-consortium 15 claim, and for all Defendants on Henry’s two claims for wrongful termination in 16 violation of public policy. The Court denies summary judgment for Defendants 17 Shah, Todorovich, and Calica on Henry’s Section 1983 claim and on Plaintiffs’ loss 18 of consortium claim. 19 The Court grants summary judgment for Plaintiffs on the first and third Eng 20 factors underlying Henry’s Section 1983 claim, and denies summary judgment on 1 the second Eng factor of the Section 1983 claim and the state-law wrongful 2 termination claims. 3 Accordingly, IT IS HEREBY ORDERED: 4 1. Defendants’ Motion for Summary Judgment, ECF No. 39, is 5 GRANTED in part and DENIED in part in the manner explained above. 6 2. Plaintiffs’ Partial Summary Judgment Motion on Preliminary Elements 7 Under U.S. Constitution, ECF No. 46, is GRANTED in part and DENIED in part 8 in the manner explained above. 9 3. Plaintiffs’ Summary Judgment Motion on Wrongful Termination in 10 Violation of the Washington Constitution, ECF No. 51, is DENIED as moot. 11 4. Plaintiffs’ Motion to Certify Questions to Washington Supreme Court, 12 ECF No. 48, is DENIED. 13 IT IS SO ORDERED. The District Court Executive is directed to (1) enter 14 this Order, (2) provide copies to the parties, (3) enter judgment for all Defendants 15 regarding Plaintiffs’ state-law wrongful termination claims, and for Defendant 16 Washington State Department of Health regarding Plaintiffs’ 42 U.S.C. § 1983 17 claim and loss of consortium claim, and (4) TERMINATE Defendant 18 Washington Department of Health from this matter. 19 20 1 DATED March 29, 2024. 2 s/Mary K. Dimke MARY K. DIMKE 3 UNITED STATES DISTRICT JUDGE 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20