Oscar J. Brownfield v. City of Yakima

FILED
DEC. 03, 2013
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE

OSCAR J. BROWNFIELD, )
) No. 30994-1-III
Appellant, )
)
v. )
)
CITY OF YAKIMA, a Municipal ) UNPUBLISHED OPINION
Corporation, )
)
Respondent. )

FEARING, J. — The city of Yakima terminated Officer Oscar “Jeff” Brownfield

from employment on April 10, 2007. In response, Brownfield complained he was

wrongfully discharged and filed suit in federal court raising both state and federal claims.

The federal court granted summary judgment on the federal claims and declined to

exercise supplemental jurisdiction over the state law claims, dismissing those without

prejudice. Brownfield refiled his state law claims in state court. The superior court

granted summary judgment. We affirm. Although the claims asserted in state court are

different from those asserted in federal court, issues resolved in federal court are
No.30994-1-III
Brownfield v. City ofYakima

determinative of some of the state claims, under the collateral estoppel doctrine. Other

claims must be dismissed on their merits.

FACTS

Jeff Brownfield began employment with the Yakima Police Department in

November 1999. He gained decorations for his service. In December 2000, Brownfield

sustained injuries in an off duty rollover accident. Richard Drew, PhD, who provided

neuropsychological treatment for the injuries, diagnosed a closed head injury, and post

concussion syndrome. Based upon a January 2001 evaluation, Dr. Drew also opined that

Brownfield suffered from anxiety, frustration, impatience, and impUlsivity due to the

closed head injury. In July 2001, Dr. Drew further concluded that Brownfield

experienced "reduced self-awareness," and Drew recommended that the police

department monitor Brownfield's work performance when he returned to work.

Officer Jeff Brownfield returned to light duty, at the Yakima Police Department,

on March 1, 2001, and unrestricted duty on July 6, 200l. In 2003, he was transferred to

the Community Services Division of the department. In this division, Brownfield.

created, and served as administrator of the Yakima Police Athletic League (YPAL), an

independent, nonprofit corporation managed by Yakima police officers as a crime

prevention program. YPAL receives government funding to provide alternative

recreational, educational, and athletic activities for Yakima's youth. The organization

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Browrifield v. City ofYakima

operates a recreational center. Through 2004, Officer Brownfield received high

performance evaluations.

Jeff Brownfield continued to receive limited treatment for his head injury,

primarily in the form of anti-depressants. In January 2004, Brownfield reported to Dr.

Drew significant difficulty interacting with others at work and at home, and difficulty

accomplishing tasks. Brownfield reported, "he was so frustrated he experienced some

anger reactions he had never felt before." Clerk's Papers (CP) at 80. Brownfield added,

"I'm a space cadet, I forget appointments, I'm tired, can't focus." CP at 50. He spoke of

a "violence tendency," including having pulled his wife's hair on one occasion. ld. at 50.

Dr. Drew attributed the symptoms and conduct to Brownfield's 2000 head injury. In a

deposition, Brownfield denied reporting any work difficulties to Dr. Drew, but admitted

to reporting difficulties at home.

Jeff Brownfield's purported whistleblowing centered around complaints about

Officer Joe Dejoumette and Lieutenant Mike Merryman. Brownfield served with

Dejoumette in the Community Services Division and at yPAL. Merryman was a

supervisor of both Brownfield and Dejoumette.

On June 17, Officer Brownfield sent his direct supervisor, Sergeant Mike Amos, a

memorandum entitled, "Unethical work practices." CP at 82-83. Brownfield objected to

Dejoumette's failure to fulfill his Drug Abuse Resistance Education (DARE) duties and

to another supervisor's, Lieutenant Mike Merryman's, excusing of Dejoumette's conduct.

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Brownfield also complained that Merryman gave Dejoumette compensatory time for his

work with yP AL, while Brownfield and another officer received no compensation for the

same work. In the memorandum, Brownfield wrote that "Dejoumette and Lt. Merryman

are long time friends and on the surface this is a true conflict of interest." CP at 83.

Yakima Police Department Captain Greg Copeland later investigated Brownfield's

allegations and found them to be based upon Brownfield's perceptions, not on fact.

On August 15, Officer Brownfield sent a memo to Sergeant Tim Bardwell, in the

Yakima Police Department Fraud Division. Brownfield sought Bardwell's help in

removing Officer Dejoumette from fraud cases so that Dejoumette could devote full time

to his duties as a community services officer. Brownfield complained that Dejoumette

used fraud cases as an excuse to avoid his community service duties, which imposed

extra work on Brownfield.

In early 2005, Jeff Brownfield again complained about Officer Dejoumette to

Sergeant Mike Amos and Lieutenant Mike Merryman. Brownfield claimed that

Dejoumette failed in his duties as yP AL treasurer. According to Brownfield,

Dejoumette did not timely reimburse the yP AL bank account, which resulted in an

overdraft being charged for an insufficient check. Brownfield alleged that Officer

Dejoumette put YPAL's grant eligibility in jeopardy by not timely renewing YPAL's

charter with the national Police Athletic League (PAL). To ensure that yP AL functioned

effectively, Brownfield assumed some of Officer Dejoumette's treasurer duties.

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Brownfield also relayed to supervisors several citizen complaints regarding Officer

Dejournette's lazy and unreliable work with YPAL.

On May 4, leffBrownfield sent an e-mail message to Yakima Police Chief Sam

Granato. In this e-mail, Brownfield complained about Lieutenant Merryman retaliating

against him for complaining about Officer Dejoumette. Brownfield believed that

Merryman exaggerated the significance of a scheduling error by YP AL at a city Cinco de

Mayo activity. Two days later, Mike Merryman verbally reprimanded Officers

Brownfield and Dejoumette for the error. Merryman confirmed the reprimand with a

memo to Sergeant Amos.

Jeff Brownfield, because of illness, did not work on May 9, which left Joe

Dejoumette in charge of the YPAL center. Officer Dejoumette closed the center early,

despite scheduled activities and without consulting Brownfield. On May 10, Brownfield

spoke to police Sergeants Bob Hester and Mike Amos regarding Officer Dejoumette's

early closing of the center. Brownfield also complained to the sergeants that Lieutenant

Merryman was conducting a surreptitious investigation of him and wrongfully talking

about his (Brownfield's) health to other officers. Brownfield asked Sergeant Hester to

transfer him to patrol duties so that he could avoid supervision by Merryman.

Also on May 10, Jeff Brownfield sent an e-mail message to police members of the

YPAL board regarding Officer Joe Dejournette's premature closing of the YPAL center

and his refusal to conduct other community service activities. The board members were

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Brownfield v. City ofYakima

Joe Dejournette, Lieutenant Mike Merryman, Sergeant Mike Amos, Officers Ben Hittle

and Rey Garza, and Chief Sam Granato.

At 5: 10 p.m., on May 10, Lieutenant Merryman sent Officer Brownfield an e-mail

message, directing Brownfield to appear at a meeting at 9:00 the next morning.

Brownfield missed the meeting because he did not check his e-mail until May 13. Jeff

Brownfield arrived at work at 10 a.m., on May II. Thereafter his immediate supervisor,

Sergeant Mike Amos, directed him to the Police Chief s conference room in order "to fix

this s ... t right now." CP at 107. Brownfield expected Chief Sam Granato to be present

at the conference room. In his brief, Brownfield writes that Sergeant Amos promised to

arrange a meeting with the Chief, but the record does not support this statement.

Lieutenant Mike Merryman was present instead.

During the May II morning conference, Lieutenant Merryman and Sergeant

Amos wished to discuss Officer Brownfield's e-mails, Officer Dejournette's YPAL

center closure, and the scheduling incident. According to Brownfield, Amos and

Merryman made excuses for Dejournette. Brownfield explained that Officer

Dejournette's poor performance had a long history. Brownfield grew concerned about

the nature and progress of the meeting and believed that Merryman might be continuing

an investigation against him as a result of his whistleblowing. Brownfield asked for a

recess of the meeting to obtain union representation and prepared to leave the conference

room. Merryman ordered Jeff Brownfield to sit back down, but Brownfield refused.

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Brownfield v. City ofYakima

Merryman told Brownfield that he was not conducting an internal investigation and again

ordered Brownfield to sit. Brownfield exited the room instead.

After leaving the chiefs conference room on May 11, Jeff Brownfield spoke to

Officer Rich Fowler, his union representative. Fowler, in tum, spoke to Lieutenant

Merryman who said he was willing to finish his conversation with Brownfield with

Fowler present. While Fowler attempted to convince Brownfield to return to the

meeting, Sergeant Amos approached and instructed Brownfield to return to the meeting.

Brownfield responded to Amos, "you f ... ked me .... "[G]et out of here, get the f ... k

out of here." CP at 122. Brownfield believed Amos had tricked Brownfield into a

meeting with the "mouth of the beast"-Mike Merryman. CP at 122.

On May 11, Lieutenant Mike Merryman suspended Jeff Brownfield for

insubordination. The Yakima Police Department also began an internal investigation into

Brownfield's conduct. The completed investigation found Brownfield to be guilty of

insubordination and verbal abuse of a superior officer. On July 28, Brownfield received

the punishment of the loss of24 hours of accrued paid leave.

Jeff Brownfield complains that the Yakima Police Department ignored his

whistIeblower complaints. Nevertheless, in May Captain Greg Copeland, at the direction

of Chief Sam Granato, investigated Brownfield's allegations of poor performance of Joe

Dejournette, of Dejournette's manipulating overtime pay, of Dejournette's failure to keep

YPAL books, and of Mike Merryman's affording Dejounette favorable treatment.

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Brownfield v. City ofYakima

Copeland reviewed Officer Dejournette's overtime and comp time records. He also took

statements from Brownfield, Merryman, Mike Amos, and two YPAL employees, Officer

Rey Garza and civilian Crystal Dodge.

On May 15, Captain Copeland prepared a six-page report, including an appendage

documenting overtime paid to Joe Dejournette and Jeff Brownfield. The report detailed

his findings in response to Brownfield's allegations. Copeland found no illegal conduct.

He found no evidence of favoritism, but agreed that Officer Dejournette suffered from

"poor time management skills," which resulted in deficient performance in both the

police department's Fraud Division and the Community Services Division. CP at 156.

1 Copeland also concluded that Dejournette failed in his YPAL bookkeeping duties, in part

I due to the department's failure to provide training. Copeland recommended an audit of

I the yPAL bank account records.

I In June, the Yakima Police Department transferred Jeff Brownfield to its patrol

division. In September 2005, a series of incidents led the police department to question

Brownfield's fitness for duty.

The first incident occurred during roll call and entailed a verbal altercation

between Jeff Brownfield and Officer Illeana Salinas over the latter's job performance and

her frequent use of the obscenity "f ... k." In tum, Officer Salinas accused Brownfield

of physical intimidation. The altercation sparked an internal investigation into the

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Brownfield v. City o/Yakima

conduct of both officers, which investigation upset Brownfield. The Department chose

not to discipline either officer.

A second incident occurred during the internal investigation of the verbal

altercation between Officers Brownfield and Salinas. Captain Greg Copeland

encouraged leffBrownfield to seek professional counseling for stress. Brownfield

refused to discuss his mental health with Copeland. Union representative Rich Fowler

later also suggested to Brownfield that he seek counseling. Brownfield exploded at

Fowler.

The final incident transpired in late August. Officer leffBrownfield stopped a car

because it matched the description of a vehicle used by a felony suspect. The suspect

was not in the car, but the driver of the car and onlookers heckled and threatened

Brownfield. Brownfield was shaken and called dispatch for assistance. Sergeant Chad

Stephens arrived to help. Brownfield and an adult male exchanged more physical threats.

At the end of the confrontation, Brownfield's arms and legs noticeably shook and

onlookers ridiculed Brownfield. One onlooker angrily suggested to Stephens that he

place Brownfield on medications.

On September 28, a co-worker of leffBrownfield reported to the Yakima Police

Department administration that Brownfield occasionally expressed feelings of

"hopeless[ness]." CP at 160. Brownfield was then engaged in divorce proceedings.

Both he and his wife had called law enforcement mUltiple times complaining of the

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Brownfieldv. City o/Yakima

other's behavior. On September 19, Brownfield filed a petition for a restraining order

against his wife. In the petition, Brownfield stated, "[b]ecause of a severe head injury

due to an auto accident, I suffer from emotional impulsivity." CP at 139.

The Yakima Police Department referred Jeff Brownfield to psychiatrist Kathleen

P. Decker, for a fitness for duty examination. Decker evaluated Brownfield on October

19, and issued a report two months later. She found Brownfield unfit for duty primarily

due to an Axis I diagnosis of "[m]ood [d]isorder due to a [g]eneral [m]edical [c]ondition

with mixed features." CP at 184. Axis I is the top level of the DSM multiaxial

comprehensive assessment and denotes acute symptoms needing treatment. Dr. Decker

believed that Brownfield's impairment was permanent because "these [PSYCHIATRIC]

symptoms are now likely ... fixed" this many years after the 2000 car accident. CP at

185. Decker elaborated that medication might stabilize Brownfield's emotional

volatility, but would not fix "the type of [judgment] difficulties [he] displays." CP at

185. She opined that "there is no reasonable accommodation that can be made." CP at

186.

As part of her assessment, Kathleen Decker referred Jeff Brownfield to forensic

neurologist, G. A. DeAndrea. Dr. DeAndrea's examination of Brownfield confirmed a

neurological impairment consistent with his psychological symptoms.

Jeff Brownfield suffered additional injuries in a second car accident. Dr. Roy

Gondo treated Brownfield's physical injuries from this collision and cleared him to return

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Brownfield v. City o/Yakima

to work on February 3, 2006. Gondo, however, is not a mental health professional, and

he did not evaluate or treat Brownfield's psychological condition. When the city of

Yakima asked Dr. Gondo his opinion of Brownfield's psychological condition, he opined

that Brownfield was psychologically fit for duty.

I
leffBrownfield underwent another fitness for duty evaluation with Norman Mar, a

psychologist chosen by his union. In August, Mar confirmed all symptoms found by

psychiatrist Kathleen Decker. Dr. Mar, however, believed the symptoms were "more

likely the result of personality characteristics and emotional issues than of Officer

Brownfield's head trauma from 2000." CP at 203. Mar agreed that Brownfield was

currently unfit for duty, but disagreed with Dr. Decker's finding that leffBrownfield

would not improve with treatment. Dr. Mar opined that Brownfield could return to full

duties within about three months of intensive counseling or psychotherapy from a mental

I health counselor.

The city of Yakima provided Dr. Kathleen Decker with Dr. Norman Mar's report,

and requested an updated opinion from Decker, on leffBrownfield's fitness for duty. In

response, Dr. Decker stated, "[t]he answer to this question remains that Officer

Brownfield is Unfit for Duty as an armed patrol officer." CP at 188. She reaffirmed her

initial opinion of "likely" permanence considering that Mar saw Brownfield exhibit the

same symptoms of lack of emotional control and impaired judgment nearly a year after

Decker's initial examination and report. Decker opined that Brownfield is fit for civilian

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Brownfieldv. City of Yakima

occupations, but not the "life and death decisions" required of law enforcement officers.

CP at 189. She added, "[T]he Department might offer him an unarmed position where he

might continue to contribute to law enforcement, if such is available." CP at 190.

Following the report from Kathleen Decker and Norman Mar, Jeff Brownfield

underwent counseling, from September 2006 to January 2007, with Robert Newell, PhD.

Dr. Newell declined assessing Brownfield's fitness for duty. Brownfield asked Dr. Mar

to review Dr. Newell's treatment notes and issue an updated opinion. Mar opined that

Brownfield remained unfit for duty, but believed that Brownfield would, at an

indeterminate time, be fit for duty ifhe continued counseling with Newell and increased

the frequency of visits from three times every two weeks to twice a week.

The city of Yakima directed Jeff Brownfield to undergo another fitness for duty

evaluation with Dr. William Ekemo on February 15,2007. In response, Brownfield

wrote an e-mail to City Manager Dick Zais, informing him that he revoked permission to

share his medical records with others, and he intended to sue Dr. Kathleen Decker for

Health Insurance Portability and Accountability Act (HIP AA) violations. Brownfield

demanded that the Ekemo examination be recorded. He copied police administrators

with the e-mail message.

Jeff Brownfield underwent a third fitness for duty evaluation on February 15 by

Dr. Ekemo. The city of Yakima and Dr. Ekemo originally intended Ekemo's

examination to be a neuropsychological supplement to Dr. Decker's examination.

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Brownfield v. City ofYakima

Because Brownfield sent Dr. Decker notice that he intended to sue her for malpractice

and HIPAA violations, city of Yakima asked Dr. Ekemo to perform a complete

evaluation. Dr. Ekemo could not complete the entire examination on February 15, and so

scheduled a return appointment for March 6. Brownfield refused to attend the second

day despite orders to do so. When Brownfield's attorney notified Dr. Ekemo that

Brownfield would not attend, Yakima City Manager Dick Zais wrote a letter to Jeff

Brownfield, which concluded:

Mr. Brownfield, you have been previously ordered to submit to Dr.
Ekemo's evaluation and cooperate with the evaluation process. The
purpose of this letter is to re-iterate that order. You are hereby ordered to
appear on March 6,2007, for the continuation of Dr. Ekemo's fitness
for duty evaluation and cooperate fully with the evaluation process. If
you fail to follow this order, you will be considered insubordinate and
the likely penalty of insubordination is termination of employment.
Moreover, if you fail to complete the examination process with Dr. Ekemo,
the City will make a determination regarding your fitness for duty based on
the medical information to date.

CP at 151.

When Jeff Brownfield failed to show for the second day of his examination by

William Ekemo, city of Yakima reinitiated termination of employment proceedings. On

March 19, Brownfield participated in a pretermination hearing with City Manager Dick

Zais. Following this meeting, Zais fired Brownfield for insubordination. City of

Yakima's termination letter identified established policies and procedures that

Brownfield violated by refusing to complete the duty evaluation. Brownfield violated the

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Brownfield v. City ofYakima

city of Yakima Police Department Policies and Procedures, the union's Collective

Bargaining Agreement, and the Police Service Commission Rules and Regulations.

On January 8, 2008, Jeff Brownfield filed suit against the city of Yakima in United

States District Court, for the Eastern District of Washington. See Brownfield v. City of

Yakima, 612 F.3d 1140, 1144 (9th Cir. 2010). Brownfield alleged five causes of action:

retaliation for reporting a fellow officer's unlawful conduct, which

retaliation violated Brownfield's first amendment rights and the

Washington Law Against Discrimination (WLAD) RCW 49.60;

retaliation for whistleblowing activities in violation ofthe WLAD;

violations of Titles 1 and V of the Americans with Disabilities Act (ADA);
and

violations of the Family Medical Leave Act (FMLA) and HIP AA; and

negligent hiring, retention, supervision, and training of Police Chief
Granato in violation of 42 U.S.C. § 1983.

See CP at 438. On June 4,2009, United States District Court Judge Robert H. Whaley

granted summary judgment in favor of the city of Yakima.

In his summary judgment ruling, Judge Whaley first addressed Jeff Brownfield's

ADA claim. He ruled that the city of Yakima met the ADA's "business necessity"

exception that allowed it to subject Brownfield to a fitness for duty examination "and that

[city of Yakima] had a valid non-discriminatory reason (insubordination) for firing

[Brownfield]." CP at 438. The judge applied the "business necessity" exception because

"[t]he undisputed facts establish[ed] that [Brownfield] demonstrated a pattern of highly

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Brownfield v. City o/Yakima

emotional responses to a number of situations he encountered during the course of

employment between May 2005 and September 28,2005." CP at 439-40. "On this

record, no reasonable jury could find that [Yakima] did not have a substantial and

legitimate objective basis to question whether [Mr. Brownfield] was emotionally stable

enough to interact safely with the public and fellow officers ...." CP at 440.

Judge Robert Whaley also dismissed Jeff Brownfield's claim alleging retaliation

for engaging in ADA protected activity by asserting his alleged right under the ADA to

not submit to an unlawful fitness for duty examination (FFDE). The judge dismissed this

claim because, as a matter of law, the order to finish the exam with Dr. Ekemo was

lawful.

Judge Robert Whaley addressed the merits of Jeff Brownfield's United States

Constitution First Amendment cause of action. To maintain this claim, Brownfield

needed to demonstrate, among other factors, that the city of Yakima fired him for

commenting on a matter of public interest (quoting Eng v. Cooley, 552 F.3d 1062 1070

(9th Cir. 2009). Judge Whaley dismissed this cause of action because Brownfield's

complaints of unfair workload, favoritism, and his partner's sloppiness "are the stuff of a

personal dispute, not of vital interest to citizens." CP at 442.

Assuming that Jeff Brownfield could establish that he commented on a matter of

public concern, Judge Whaley ruled that the first amendment cause of action still failed

on the merits because he could not establish causation. "[City of Yakima] had two

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j Brownfield v. City ofYakima

J legitimate reasons for termination: unfitness for duty and insubordination." CP at 444.

I Judge Whaley ruled:

I [N]o reasonable jury could find that an adverse employment action resulted from

anything other than Plaintiffs unfitness for duty and his insubordination.

CP at 442.

Judge Whaley dismissed Jeff Brownfield's HIPAA claim because Brownfield

I abandoned it. The United States District Court Judge Whaley ruled that the FMLA claim

failed because it was premised on proof that Dr. Gondo's work release also took into

consideration Brownfield's psychological condition. Because Dr. Gondo only evaluated

Brownfield's physical condition, Yakima had no duty to return him to work when he

needed clearance by a mental health professional.

Finally, Judge Whaley dismissed the WLAD and negligence claims without

prejudice. Because no federal claims remained, the judge declined to exercise

supplemental jurisdiction over these two state law claims.

Jeff Brownfield appealed the United States District Court's summary judgment

order to the Ninth Circuit. See generally Brownfield v. City ofYakima, 612 F.3d 1140

(9th Cir. 2010). The Ninth Circuit's published decision affirmed every aspect of the

summary judgment order. Id.

While his appeal of the federal claims was pending, Jeff Brownfield filed this suit

in Yakima County Superior Court. His complaint alleges four causes of action: (1)

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Brownfield v. City ofYakima

violation ofRCW 42.41.040 (whistleblower retaliation), (2) wrongful discharge in

violation of public policy, (3) negligent hiring, supervision, and retention of Chief

Samuel Granato, and (4) violation of the WLAD, RCW 49.60.180.

The trial court granted the city of Yakima's summary judgment motion. The

lower court ruled that the city of Yakima was exempt from a whistleblower suit under

RCW 42.41.050, since the city of Yakima had its own whistleblower policy. The trial

court dismissed the wrongful discharge claim, because Brownfield could not meet the

jeopardy element, and collateral estoppel barred relitigation of the causation element of

the tort. The court dismissed the WLAD action, because no rational trier of fact could

find that the stated reason of insubordination was pretextual. Finally, the trial court

dismissed the negligent hiring, supervision, and retention claims, because Brownfield

failed to establish a causal relationship between Chief Granato's hiring and retention and

the harm that Brownfield suffered.

ANALYSIS

Issue I: Did the trial court err when granting summary judgment dismissing Jeff

Brownfield's statutory whistleblower claim, when the city of Yakima published its own

whistleblower policy? No.

The Washington legislature adopted the Local Government Whistleblower

Protection Act (Act) in 1992, chapter 42.41 RCW. The Act provides protections and

remedies for one defined as a "whistleblower." RCW 42.41.010-.040. We question

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Brownfield v. City ofYakima

whether the complaints forwarded by Jeff Brownfield qualifY him for "whistleblower"

status. See RCW 42.41.010(1)'s definition of "improper governmental actions." We

need not address this question or the question whether a whistleblower may sue in

superior court, rather than follow the procedures outlined in RCW 42.41.040. We agree

with the trial court that the city of Yakima is exempt from chapter 42.41 RCW.

RCW 42.41.050 reads:

Any local government that has adopted or adopts a program for reporting

alleged improper governmental actions and adjudicating retaliation

resulting from such reporting shall be exempt from this chapter if the

program meets the intent of this chapter.

The city of Yakima maintained a whistleblower policy in its employee handbook.

Jeff Brownfield argues, in support of the summary judgment motion, that the city of

Yakima provided to the court its 2009 employee handbook, adopted two years after

Brownfield's firing. Presumably Brownfield wants this court to withhold the statutory

exemption because of the city's purported failure to present the relevant policy in support

of its motion. The record, however, shows that the city of Yakima filed both the 2009

handbook and the 2000 handbook, the previous version, in support of its motion.

Brownfield has not argued that the city of Yakima's whistleblower program created by its

policy failed to meet the intent of chapter 42.41 RCW.

Jeff Brownfield now argues on appeal that the city of Yakima violated its own

whistleblower policy. Nevertheless, Brownfield did not plead, in his complaint, that the

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Brownfield v. City ofYakima

city of Yakima violated the city's policy. Brownfield cannot present a theory for relief

that he failed to plead in his complaint as required by CR 8. Dewey v. Tacoma School

Dist. No. 10, 95 Wn. App. 18, 26, 974 P .2d 847 (1999); Shields v. Morgan Financial,

Inc., 130 Wn. App. 750, 758, 125 P.3d 164 (2005). Accordingly, the trial court did not

err by granting summary judgment for the city on the issue of whistleblower liability.

Issue II: Did the trial court err when granting summary judgment dismissing Jeff

Brownfield's wrongful discharge in violation of public policy claim, when the federal

court previously ruled that the city of Yakima terminated Brownfield's employment

because of insubordination and unfitness for duty, not for whistleblowing? No.

The Washington State Supreme Court recognized the tort of wrongful discharge in

violation of public policy in Thompson v. St. Regis Paper Company, 102 Wn.2d 219,685

P.2d 1081 (1984). The Supreme Court later defined the tort's elements:

The plaintiffs must prove the existence of a clear public policy (the clarity

element).

The plaintiffs must prove that discouraging the conduct in which they

engaged would jeopardize the public policy (the jeopardy element).

The plaintiffs must prove that the public-policy-linked conduct caused the

dismissal (the causation element).

The defendant must not be able to offer an overriding justification for the

dismissal (the absence ofjustification element).

Gardner v. Loomis Armored Inc., 128 Wn.2d 931, 941, 913 P.2d 377 (1996) (citations

omitted).

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Brownfield v. City ofYakima

We question whether Jeff Brownfield's version of the facts supports any of the

four elements of the tort of wrongful discharge in violation of public policy. We focus

only on the third element-causation.

Several rulings of United States District Court Judge Robert Whaley bind Jeff

Brownfield and preclude a judge or jury in this suit from finding that Jeff Brownfield's

purported whistleblowing caused his termination from employment. Judge Whaley

determined that Brownfield was not terminated for exercising his free speech rights. In

other words, the city of Yakima did not fire Brownfield for speaking about Officer Joe

Dejoumette's shortcomings, Lieutenant Mike Merryman's favoritism toward Brownfield,

or any improper accounting for funds at yP AL. Judge Whaley also ruled that: "[N]o

reasonable jury could find that an adverse employment action [the firing of Brownfield]

resulted from anything other than Plaintiffs unfitness for duty and his insubordination."

CP at 442. (Emphasis added). Jeff Brownfield cannot avoid these facts because of the

doctrine of collateral estoppel.

The doctrine of collateral estoppel encompasses issue preclusion. Shoemaker v.

City ofBremerton; 109 Wn.2d 504, 507, 745 P.2d 858 (1987). Collateral estoppel bars

relitigation of any issue that was actually litigated in a prior lawsuit. Hanson y. City of

Snohomish, 121 Wn.2d 552, 561, 852 P.2d 295 (1993); Pederson v. Potter, 103 Wn. App.

62,69, 11 P.3d 833 (2000); Philip A. Trautman, Claim and Issue Preclusion in Civil

Litigation in Washington, 60 WASH. L. REv. 805, 812-13 (1985). One of the purposes of

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Brownfield v. City ofYakima

issue preclusion is to encourage respect for judicial decisions by ensuring finality. The

question is always whether the party to be estopped had a full and fair opportunity to

litigate the issue. Nielson v. Spanaway Gen. Med. Clinic, Inc., 135 Wn.2d 255,262, 956

P.2d 312 (1998). That question turns on four primary considerations: (1) whether the

identical issue was decided in a prior action; (2) whether the first action resulted in a final

judgment on the merits; (3) whether the party against whom preclusion is asserted was a

party to that action; and (4) whether application of the doctrine will work an injustice.

Hanson, 121 Wn.2d at 562.

Judge Whaley's ruling was in the form of a summary judgment order. For

collateral estoppel to apply, it is not necessary that the issue was previously determined

through a trial. "[A] grant of summary judgment constitutes a final judgment on the

merits and has the same preclusive effect as a full trial of the issue." Nat 'I Union Fire

Ins. Co. ofPittsburgh v. Nw Youth Servs., 97 Wn. App. 226, 233, 983 P.2d 1144 (1999).

In National Union, the court of appeals ruled on a summary judgment ruling, in a suit

brought by a patient against her therapist and his employer, that the therapist was acting

outside the scope of his employment when he engaged in an improper sexual relationship

with the patient. The court held that the patient was collaterally estopped from

relitigating that issue in a later action by the employer's liability insurer for a declaration

of noncoverage.

21

 No.30994-1-III

Brownfield v. City ofYakima

United States District Court Judge Robert Whaley only addressed Jeff

Brownfield's federal claims. Nevertheless, collateral estoppel applies even though the

ultimate issues are different in the two suits. Island County v. Mackie, 36 Wn. App. 385,

391-92,675 P.2d 607 (1984). State courts also apply collateral estoppel to rulings

rendered in federal courts. Gannon v. Am. Home Prod., Inc., 211 N.J. 454, 48 A.3d 1094,

1100 (2012) (prior federal judgment precluded relitigation of issue of causation in state

court products liability action against manufacturer of oral polio vaccine, alleging that

vaccine caused cancer in plaintiff); Lumpkin v. Jordan, 49 Cal. App. 4th 1223, 1231-32,

57 Cal. Rptr. 2d 303 (1996) (despite substantive differences between federal and state

antidiscrimination laws, collateral estoppel applies to federal court's determination that

plaintiff was discharged for nondiscriminatory reasons); see also Indiana Dep 't ofEnvtl.

I Mgmt. v. Conard, 614 N.E.2d 916,923 (1993); Jerome J. Steiker Co., Inc. v. Eccelston

I

Properties Ltd., 156 Misc. 2d 308,313,593 N.Y.S.2d 394 (1992); Copper State Thrift &

Loan v. Bruno, 735 P.2d 387,390 (1987); Levy v. Cohen, 19 Cal. 3d 165, 137 Cal. Rptr.

162, 166,561 P.2d 252 (1977).

The application of collateral estoppel does not work an injustice on Officer

I Brownfield. Factors recognized under this fourth prong of collateral estoppel include:

whether the first judgment was appealable, whether there have been factual changes since
j
~ the first proceeding, and whether the first determination was manifestly erroneous.

Trautman, supra, at 805, 841-42. The judgment in the federal case was appealable. In

22
No. 30994-1-111
Brownfield v. City ofYakima

fact, it was affirmed on appeal. See Brownfield, 612 F.3d 1140. The record contains no

indication that any factual changes have occurred since the first proceeding. The first

decision was not manifestly erroneous.

In support of his wrongful discharge claim and other claims, Jeff Brownfield

complains that the city of Yakima ordered him to a "fourth" FFDE before Dr. William

Ekemo. We question whether the additional visit to Dr. Ekemo can be considered a

"fourth" evaluation. More importantly, we are bound to conclude that the demand to

return to Dr. Ekemo was a legitimate demand. In the United States District Court suit,

Judge Whaley ruled as a matter of law that the direction to return to Ekemo was a valid

demand. For the same reasons that collateral estoppel applies to Judge Whaley's ruling

that insubordination was the reason for the termination from employment, Brownfield is

barred from contending the direction to return to Dr. Ekemo to complete the evaluation

was wrongful.

Issue III: Did the trial court err when granting summary judgment on Jeff

Brownfield's claim he was terminated from employment because of a disability, when

Brownfield fails to provide any evidence or argument that the city of Yakima's firing him

for insubordination was a pretext? No.

In his complaint, Jeff Brownfield alleges two forms of disability discrimination:

termination from employment and a failure to accommodate. The two forms are discrete

23

No.30994-1-III
Brownfield v. City ofYakima

claims. Johnson v. Chevron U.S.A., Inc., 159 Wn. App. 18,27-8,244 P.3d 438 (2010).

We will address the claims separately.

The trial court correctly refused to apply collateral estoppel from Judge Whaley's

rulings regarding Brownfield's ADA claim to his WLAD claim. The ADA requires a

plaintiff to prove, "but for" the illicit motive of a disability, he would not have been fired.

Serwatka v. Rockwell Automation, Inc., 591 F.3d 957,962 (7th Cir. 2010). The WLAD

imposes a less strict standard of causation upon the plaintiff-a "substantial factor" test.

Fell v. Spokane Transit Auth., 128 Wn.2d 618,637,911 P.2d 1319 (1996); Wash. State

Commc 'n Access Project v. Regal Cinemas, Inc., 173 Wn. App. 174, 187, reviewed

denied, 293 P.3d 413 (2013). Thus, Jeff Brownfield could win under Washington law,

but lose under federal law. Issues are not identical and collateral estoppel will not apply

when the standards governing them are significantly different. Hanson, 121 Wn.2d 552

at 574; Standlee v. Smith, 83 Wn.2d 405,518 P.2d 721 (1974); Cullen v. Margiotta, 811

F.2d 698, 732 (2d Cir. 1987). Thus, we address the merits of Brownfield's disability

discrimination claim.l

I Judge Whaley ruled that no reasonable jury could find that an adverse
employment action resulted from anything other than plaintiff's unfitness
for duty and his insubordination. In other words, Judge Whaley found
insubordination and unfitness for duty to be the only cause of the discharge.
Disability was not even a "substantial factor" in the firing. Thus, one could
conclude that collateral estoppel should bar the WLAD suit, despite the
different standard of causation from an ADA claim. We have found no
decision that applies collateral estoppel, however, when the legal standard

24
No.30994-1-III
Brownfield v. City ofYakima

The WLAD makes it "an unfair practice for any employer ... [t]o discharge or bar

any person from employment because of ... the presence of any sensory, mental, or

physical disability." RCW 49.60.180. "[T]he prohibition against discrimination because

of such disability shall not apply if the particular disability prevents the proper

performance of the particular worker involved." RCW 49 .60.180( 1).

"An employee claiming discrimination must first prove a prima facie case of

discrimination and, if he or she does so, then the burden shifts to the employer to pr:esent

evidence suggesting a nondiscriminatory reason for [the termination]." Swinford v. Russ

Dunmire Oldsmobile, Inc., 82 Wn. App. 401, 413-14, 918 P.2d 186 (1996) (citations

omitted). "If the employer sustains its burden, the employee must then demonstrate that

the reasons given by the employer are pretext for discrimination." Id. at 414. "The

elements of a prima facie case of disparate treatment disability discrimination are that the

employee was: [1] disabled, [2] subject to an adverse employment action, [3] doing

satisfactory work, and [4] discharged under circumstances that raise a reasonable

inference of unlawful discrimination." Callaghan v. Walla Walla Hous. Auth., 126 Wn.

App. 812, 819-20, 110 P.3d 782 (2005).

differs from the first case and second case, regardless of whether a finding
by the first court meets the legal standard applied in the second case.

25
No.30994-1-III
Brownfield v. City a/Yakima

The trial court did not consider whether Jeff Brownfield established a prima facie

case of discrimination. The court instead, at the city of Yakima's invitation, focused on

whether any rational trier of fact could find that the city's stated nondiscriminatory

reason for termination-insubordination-was pretextual. We also focus on this

question.

"A plaintiff cannot create a pretext issue without some evidence that the

articulated reason for the employment decision is unworthy of belief." Kuyper v. Dep't

a/Wildlife, 79 Wn. App. 732, 738, 904 P.2d 793 (1995). "To do this, a plaintiff must

show, for example, that the reason has no basis in fact, it was not really a motivating

factor for the decision, it lacks a temporal connection to the decision or was not a

motivating factor in employment decisions for other employees in the same

circumstances." Id. at 738-39.

On appeal, Jeff Brownfield does not suggest that any of these pretextual factors

are present, let alone contend that the firing for insubordination was pretextual. Even at

the trial court, Brownfield did not argue that the firing for insubordination was pretextual.

The firing of Jeff Brownfield came immediately after he refused an order from City

Manager Dick Zais to complete an important and valid examination to determine his

psychological fitness for duty. Brownfield provides no evidence ofZais treating anyone

dissimilarly from him. City Manager Zais was removed from the complaints earlier

raised by Brownfield.

26

No.30994-1-III
Brownfieldv. City o/Yakima

Summary judgment principles are familiar but must be repeated. Summary

judgment should be granted if the evidence establishes there is no genuine issue of

material fact and that the moving party is entitled to judgment as a matter of law. CR

56(c); Ruffv. County o/King, 125 Wn.2d 697, 703, 887 P.2d 886 (1995). To succeed on

a summary judgment motion, the moving party must first show the absence of an issue of

material fact. Ingersoll v. DeBartolo, Inc., 123 Wn.2d 649,654,869 P.2d 1014 (1994).

The burden then shifts to the nonmoving party to set forth specific facts showing a

genuine issue for trial. Id. at 654. The court must construe all facts and reasonable

inferences in the light most favorable to the nonmoving party. Lybbert v. Grant County,

141 Wn.2d 29,34,1 P.3d 1124 (2000). On appeal of summary judgment, the standard of

review is de novo and the appellate court performs the same inquiry as the trial court. Id.

at 34. To repeat, Jeff Brownfield presents no evidence supporting a conclusion that his

firing was pretextual.

Issue IV: Should we review whether Jeff Brownfield's claim for failure to

accommodate a disability survives a summary judgment motion, when he presents no

legal argument to support the claim in his brief? No.

In his appeal brief, Jeff Brownfield devoted only two sentences to his claim for

failure to accommodate his disability. He wrote:

If the City perceived Ofc. Brownfield as unable to function in the most
stressful police work, the City owed an affirmative duty to Ofc. Brownfield
to accommodate him. The City failed to satisfy this duty not only when it

27

I

i

I
I
No.30994-1-III
Brownfieldv. City o/Yakima

I first took him out of a non-stressful position at which he excelled
[Community Services Division], but also when it transferred him to the
I Patrol Unit, knowing it was a more stressful position both physically and
emotionally.
I
,
i
Br. of Appellant at 24-25.
I
i
I
In support of this contention, Brownfield quoted, in a footnote, a section

from the Washington Office of Financial Management Bulletin, State Policy

Guidelines on Reasonable Accommodation 0/ Persons with Disabilities Related to

State Employment. This bulletin has no application to this appeal, since Jeff

Brownfield was not a state employee. Brownfield's scant analysis of his

reasonable accommodation claim is not accompanied by any law that applies to

his circumstances or supports his contention. He cites no case law addressing a

failure to accommodate claim.

RAP 1O.3(a)(6) directs each party to supply, in his brief, "argument in support of

the issues presented for review, together with citations to legal authority and references to

relevant parts of the record." We do not consider conclusory arguments that are

unsupported by citation to authority. Joy v. Dep't o/Labor & Indus., 170 Wn. App. 614,

629,285 P.3d 187, 194-95 (2012). Passing treatment of an issue or lack of reasoned

argument is insufficient to merit judicial consideration. West v. Thurston County, 168

Wn. App. 162, 187,275 P.3d 1200 (2012) (quoting Holland v. City o/Tacoma, 90 Wn.

App. 533, 538,954 P.2d 290 (1998)). Therefore, we decline to address this assignment

28

No.30994·1·III
Brownfield v. City o/Yakima

of error.

A thorough analysis and citation to authority is particularly apt in this case. The

law of reasonable accommodation involves an interactive process between the employer

and employee.

Generally, the best way for the employer and employee to determine a
reasonable accommodation is through a flexible, interactive process. RCW
49.60.040(7)(d); MacSuga v. Spokane County, 97 Wn. App. 435, 443, 983
P.2d 1167 (1999). A reasonable accommodation envisions an exchange
between employer and employee, where each party seeks and shares
information to achieve the best match between the employee's capabilities
and available positions. See Goodman v. Boeing Co., 127 Wn.2d 401,408·
09,899 P.2d 1265 (1995); RCW 49.60.040(7)(d). "[A]n impairment must
be known or shown through an interactive process to exist in fact.") The
employer has a duty to determine the nature and extent of the disability, but
only after the employee has initiated the process by notice. Goodman, 127
Wn.2d at 409. In addition, the employee retains a duty to cooperate with
the employer's efforts by explaining the disability and the employee's
qualifications. Id. at 408. A good faith exchange of information between
parties is required whether the employer chooses to transfer the employee
to a new position or to accommodate the employee in the current position.

Frisino v. Seattle Sch. Dist. No.1, 160 Wn. App. 765, 779-80, 249 P.3d 1044 (2011).

The record provides us no indication of leffBrownfield identifying any disability for the

city of Yakima or proposing any accommodation for the disability.

Brownfield complains about being transferred from the Community Services

Division to the Patrol Division, but the record shows that he was the one who asked for

the transfer, not because of any disability but because he wanted to avoid "the mouth of

the beast"-Lieutenant Mike Merryman. CP at 97. Ifwe were to address Brownfield's

29

No.30994-1-III
Brownfield v. City o/Yakima

appeal of dismissal of the reasonable accommodation claim, we would desire analysis as

to whether an employer can be faulted for granting a transfer requested by the employee.

Issue V: Did the trial court err by granting summary judgment on the negligent

hiring and supervision claim, when the city of Yakima did not claim the actions of City

Manager Dick Zais or Police Chief Sam Granato were outside the scope of their

respective authority? No.

In his complaint, Jeff Brownfield alleges that Yakima negligently hired,

supervised and retained Police Chief Granato. On appeal, Brownfield twice denies that

his negligence allegation targeted Chief Granato, and instead declares that he actually

alleged city of Yakima negligently hired, supervised and retained its City Manager, Dick

Zais. Br. of Appellant at 26; Reply Br. of Appellant at 22. Brownfield cannot present a

theory for relief that he failed to set forth in his complaint as required by CR 8. Dewey at

26; Shields at 758. Accordingly, this issue does not merit review.

Regardless of whether Brownfield aims his negligence theory at the hiring and

employing of Granato or Zais, the theory fails as a matter of law. The purpose behind a

negligent hiring and supervision action is to prevent an employer from avoiding liability

for the misconduct of an employee committed outside the scope of employment, when

the employer should not have hired or maintained the employee because of his or her

tendencies. S.He. v. Sheng-Yen Lu, 113 Wn. App. 511, 517, 54 P.3d 174 (2002). Thus,

to bring the cause of action, the employee who caused the harm must have acted outside

30

No. 30994-1-111
Brownfield v. City ofYakima

his scope of employment. LaPlant v. Snohomish County, 162 Wn. App. 476, 480-81, 271

P.3d 254 (2011). The city of Yakima adopted, as its own, all of the actions taken by

Chief Granato and City Manager Zais, about which Jeff Brownfield complains. When

the employer does not disclaim liability for the employee, the claim collapses into a

direct tort claim against the employer, which requires dismissal of the negligent

supervision claim. Niece v. Elmview Group Home, 131 Wn.2d 39, 48-51,929 P.2d 420

(1997).

CONCLUSION

We affirm the trial court's summary judgment dismissal of all claims of Jeff

Brownfield.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

WE CONCUR:

Korsmo, C.J.

31