                                                                            FILED 

                                                                          OCT. 14,2014 

                                                                  In the Office of the Clerk of Court 

                                                                W A State Court of Appeals, Division III 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


JOETTA RUPERT, an individual,                 )         No. 31950-4-111
                                              )
                     Appellant,               )
                                              )
              v.                              )
                                              )         UNPUBLISHED OPINION
KENNEWICK IRRIGATION DISTRICT, a              )
public entity,                                )
                                              )
                     Respondent.              )

       BROWN, J. - Joetta Rupert appeals the summary judgment dismissal of her

claims against Kennewick Irrigation District (KID) for retaliatory discharge in violation of

the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW, and wrongful

termination in violation of public policy. She contends the trial court erred because it

failed to find remaining genuine issues of material fact regarding retaliation, and failed to

rule as a matter of law she had established the jeopardy and causation elements

necessary for her wrongful termination claim. We disagree with Ms. Rupert, and affirm.
No. 31950-4-111
Rupert v. Kennewick Irrigation Dist.

                                         FACTS

       KID hired Ms. Rupert in June 2003 as an administrative assistant in its real

estate department and a few years later promoted her to department manager. She

was an at-will employee reporting directly to the KID Board.

       KID utilized an endowment fund for the proceeds from the sale of KID real

property. KID had adopted a policy for the use of the endowment fund, which the board

repealed in 2006. Then, the fund was called a reserve fund worth about $15 million.

Ms. Rupert became uncomfortable with how the reserve fund was used. She believed

the board was not meeting its fiduciary duties and became concerned about

inconsistent investment report information prepared by KID's treasurer. Ms. Rupert

brought her concerns to the board. She reported to Board President John Jaksch that

certain investments were being cashed out instead of being reinvested and transferred

to the operations account without board approval. During the relevant annual

inspections, no discrepancies were found by the state auditor. Nevertheless, based on

Ms. Rupert's concerns, the board hired an outside auditor to perform an independent

audit for 2006-2009. Ms. Rupert conferred with the outside auditor. The audit results,

confirming some of Ms. Rupert's concerns, were shared with the Board in May 2010.

The outside auditor, however, did not find any missing funds.

      In November 2009, KID hired a new district manager, Charles Freeman.

Communication immediately broke down between Mr. Freeman and Ms. Rupert. She

felt this breakdown was because she was a woman.




                                           2

No. 31950-4-111
Rupert v. Kennewick Irrigation Dist.

       In March 2010, the board reassigned Ms. Rupert's supervisory responsibilities on

the Red Mountain properties to Scott Revell, planning department manager. Ms. Rupert

felt this was in response to her raising concerns about the legality of leasing properties

on Red Mountain for longer than a one year period.

       On March 6, 2010, Ms. Rupert presented the board her easement

recommendations for certain KID-owned property. Board member, Patrick McGuire,

disagreed and, according to Ms. Rupert, became angry and hostile towards her and

successfully suggested to other board members that they vote against her proposal.

The same day, board members and managers attended a retreat where Ms. Rupert

claims both President Jaksch and board member, Gene Huffman, made comments

about not wanting to sit next to her.

       On June 17,2010, Ms. Rupert informed Mr. Huffman she needed to speak to Mr.

Freeman about work problems she was having with Mr. Revell. Mr. Huffman allegedly

told Ms. Rupert not to contact Mr. Freeman because he had been "burned before" and

"was not comfortable being alone with [a] woman." Clerk's Papers (CP) at 238.

       In July 2010, Ms. Rupert notified the board that she would be attending a

personal injury trial for a prior automobile accident she was involved in and would be out

of the office. Ms. Rupert used sick leave for the week she was off. On July 15, 2010,

Ms. Rupert met with Mr. Huffman for over two and a half hours to complain about what

she perceived as the unprofessional practice of not having direct contact with Mr.

Freeman. Ms. Rupert alleges when she offered her hand to say goodbye, Mr. Huffman

immediately grabbed it and brought her close to him, hugging her tightly and rubbed his


                                            3

No. 31950-4-111
Rupert v. Kennewick Irrigation Dis!.

chest against hers without her consent. At this same meeting, Mr. Huffman broached

the topic of how Ms. Rupert was going to claim her time off from work for the personal

injury trial. Ms. Rupert told Huffman she was going to use her accrued sick leave

benefits and inquired as to whether this was an issue, offering to use personal or

vacation time instead. According to Ms. Rupert, Mr. Huffman told her using sick leave

was "acceptable and fine." CP at 194. Manager Freeman, however, notified her by

e-mail that her request to use her sick leave was denied. According to Ms. Rupert she
                                                      JlJ
responded, '''No problem, go ahead and change it.           CP at 285.

       On July 20,2010, the board notified Ms. Rupert it was placing her on paid

administrative leave "pending an investigation of the charge that you attempted to use

sick leave for time off to attend a personal injury trial." CP at 313.

       On July 27,2010, KID terminated Ms. Rupert's employment. President Jaksch

later declared during 2009 and 2010, he "became increasingly concerned of [Ms.

Rupert's] performance and of the costs associated with the Real Estate Assets

Department that she managed." CP at 124. The board decided these concerns in

addition to the recent inappropriate use of sick leave warranted termination.

       Ms. Rupert sued KID for discrimination, hostile work environment, retaliation in

violation of WLAD, wrongful termination in violation of public policy under the Local

Government Whistleblower Protection Act (LGWPA), chapter 42.41 RCW, and failure to

pay wages. Ms. Rupert was aware of KID's whistleblower policy, but she did not avail

herself to it. The parties settled the wage claim before the trial court summarily




                                              4

No. 31950-4-111
Rupert v. Kennewick Irrigation Dis!.

dismissed her remaining claims. Ms. Rupert appeals solely the dismissal of her WLAD

retaliation and wrongful discharge in violation of public policy claims.

                                        ANALYSIS

       The issue is whether the trial court erred in summarily dismissing Ms. Rupert's

claims for WLAD retaliation and wrongful termination in violation of public policy. She

contends she met her prima facie burden on both causes of action.

      We review summary judgment orders de novo, performing the same inquiry as

the superior court. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d

108 (2004). The superior court properly grants summary judgment when no genuine

issue of material fact remains and the moving party is entitled to judgment as a matter

of law. Morin v. Harrell, 161 Wn.2d 226, 230, 164 P.3d 495 (2007) (citing CR 56(c».

       In a summary judgment motion, the moving party's burden is to demonstrate

summary judgment is proper. Atherton Condo. Apartment-Owners Assoc. Bd. of Dirs.

v. Blume Dev. Co., 115 Wn.2d 506,516,799 P.2d 250 (1990). We consider all the

facts submitted and the reasonable inferences from them in the light most favorable to

the nonmoving party. Id. We resolve any doubts about the existence of a genuine

issue of material fact against the party moving for summary judgment. Id. "Summary

judgment is appropriate only if, from all the evidence, reasonable persons could reach

but one conclusion." Lilly v. Lynch, 88 Wn. App. 306, 312, 945 P.2d 727 (1997).

      First, regarding retaliation in Washington, an employer generally may terminate

at-will employees with or without cause. Bulman v. Safeway, Inc., 144 Wn.2d 335,340,

27 P.3d 1172 (2001). The WLAD, however, prohibits retaliation against a party


                                             5

No. 31950-4-111
Rupert v. Kennewick Irrigation Dist.

asserting a claim based on a perceived violation of his civil rights or participating in an

investigation into alleged workplace discrimination. RCW 49.60.210(1).

       To establish a prima facie retaliation case, a plaintiff must show (1) he or she

engaged in statutorily protected activity, (2) his or her employer took adverse

employment action against him or her, and (3) a causal link between the activity and the

adverse action. Short v. Battle Ground Sch. Dist., 169 Wn. App. 188,205,279 P.3d

902 (2012). All three must be established to survive summary judgment. Id. Because

Ms. Rupert's employment was terminated, we focus on whether Ms. Rupert engaged in

statutorily protected activity and if so, whether that activity was causally linked to her

termination.

       An employee engages in WLAD-protected activity when he or she opposes

employment practices forbidden by antidiscrimination law or other practices he or she

reasonably believed to be discriminatory. Short, 169 Wn. App. at 205. It is not

necessary the complained about activity be actually unlawful because '''[a]n employee

who opposes employment practices reasonably believed to be discriminatory is

protected by the 'opposition clause' whether or not the practice is actually

discriminatory.'" Graves v. Dep'tofGame, 76 Wn. App. 705, 712, 887 P.2d 424 (1994)

(internal quotation marks omitted) (quoting Gifford v. Atchison, Topeka & Sante Fe Ry.,

685 F.2d 1149, 1157 (9th Cir.1982». Absent some reference to the plaintiffs protected

status, a general complaint about an employer's unfair conduct does not rise to the level

of protected activity under WLAD. Alonso v. Qwest Commc'ns Co., 178 Wn. App. 734,

753-54,315 P.3d 610 (2013) (citing Graves, 76 Wn. App. at 712)}. "'To determine


                                              6

No. 31950-4-111
Rupert v. Kennewick Iffigation Dist.

whether an employee was eng~ged in protected opposition activity, the court must

balance the setting in which the activity arose and the interests and motives of the

employer and employee.'" Estevez v. Faculty Club of Univ. of Wash., 129 Wn. App.

774,798,120 P.3d 579 (2005) (quoting Kahn v. Salerno, 90 Wn. App. 110, 130,951

P.2d 321 (1998».

      Ms. Rupert's complaints were not specific or formally made. Moreover, she

initially did not claim the actions were discriminatory. Instead, she complained solely

about workplace issues, not harassment or discrimination. She expressed professional

concern to Mr. Huffman about being unable to meet with Mr. Freeman because it

interfered with her work, even though Mr. Huffman told her Mr. Freeman "had been

burned before" by female employees and was not comfortable being alone with them.

CP at 238. Ms. Rupert deposed she did not recall the entirety of the conversation but

recalled her displeasure that business was being hampered because of two managers

not being able to communicate. Ms. Rupert admitted she did not report this

conversation to anyone in management. Ms. Rupert claims Mr. Huffman tried to give

her a hug as she left a meeting and she thought that was sexual harassment. But,

again, this was unreported.

      Ms. Rupert fails to show she engaged in statutorily protected activity or persuade

us genuine material fact issues remain. She did not complain to any supervisor or to

the human resource department of activity that was forbidden by WLAD. Her

complaints were centered on financial issues related to the reserve fund and

unprofessional treatment, not gender based discrimination issues. Ms. Rupert did not


                                            7

No. 31950-4-111
Rupert v. Kennewick Irrigation Dist.

make complaints under Alonso or Estevez fairly considered as opposition to

employment. practices forbidden by anti-discrimination law or other practices she

reasonably believed to be discriminatory. Short, 169 Wn. App. at 205.

          Considering her failure to establish the first factor in a retaliation claim, Ms.

Rupert's claim necessarily fails. Nevertheless we note Ms. Rupert fails to show prima

facie causation. Ms. Rupert must demonstrate retaliation for her oppositional conduct

was a "substantial factor" motivating KI D's adverse employment action. Burchfiel v.

Boeing Corp., 149 Wn. App. 468, 482, 205 P.3d 145 (2009). Close proximity in time

between the adverse employment action and the protected activity, along with evidence

of satisfactory work performance, can suggest an improper motive. Campbell v. State,

129 Wn. App. 10, 23, 118 P.3d 888 (2005). The record shows KID had become

dissatisfied for some time with Ms. Rupert's performance, her department was over

budget, and she took sick leave contrary to KID's sick leave policy. Ms. Rupert does

not show retaliation was a substantial factor motivating KID's adverse employment

action.

          In sum, we conclude the court properly granted summary judgment in favor of

KID on her WLAD retaliation claim.

          Second, wrongful discharge in violation of public policy is an intentional tort, a

narrow exception to the termination-at-will employment relationship. Worley v.

Providence Physician Servs. Co., 175 Wn. App. 566, 573, 307 P.3d 759 (2013). This

narrow claim is recognized in four areas: "'(1) where the discharge was a result of

refusing to commit an illegal act, (2) where the discharge resulted due to the employee


                                                 8

No. 31950-4-111 

Rupert v. Kennewick Irrigation Dist. 


performing a public duty or obligation, (3) where the [discharge] resulted because the 


employee exercised a legal right or privilege, and (4) where the discharge was premised 


on employee "whistleblowing" activity.'" Piel v. City of Federal Way, 177 Wn.2d 604, 


609-10,306 P.3d 879 (2013) (quoting Dicomes v. State, 113 Wn.2d 612, 618, 782 P.2d 


1002 (1989) (citations omitted)). Ms. Rupert relies on the fourth area, whistleblowing. 


       To establish a claim for wrongful discharge in violation of public policy, the

plaintiff must prove an eXisting clear public policy (clarity element), discouraging the

conduct in which the employee engaged would jeopardize the public policy Oeopardy

element), and the policy-linked conduct caused the dismissal (causation element).

Korslund   v. DynCorp Tri-Cities Services, Inc., 156 Wn.2d 168, 178, 125 P.3d 119
(2005). At issue here is the jeopardy and causation elements.

       In order to establish the jeopardy element, the plaintiff must show other means of

promoting the public policy are inadequate. Cudney       v. ALSCO, Inc., 172 Wn.2d 524,
530,259 P.3d 244 (2011). Protecting the public is the policy that must be promoted, not

protecting the employee's individual interests. Id. at 538. In other words, the test of

whether a tort claim for wrongful termination in violation of public policy is viable is if

other means are inadequate to promote the public policy.

       Here, the LGWPA provides an administrative process for adjudicating

whistleblower complaints. Local governments are required to establish policies and

procedures for reporting improper governmental action and for protecting employees

who provide information in good faith from retaliation. RCW 42.41.030-.040. The law

provides for a hearing before an independent administrative law judge, who may grant


                                               9

No. 31950-4-111
Rupert v. Kennewick Irrigation Dist.

relief including reinstatement, back pay, injunctive relief, and attorney fees and costs.

RCW 42.41.040(5)-(7). The administrative law judge may also impose a civil penalty of

up to $3,000 personally upon the retaliator and recommend that the person found to

have retaliated be suspended with or without payor dismissed. RCW 42.41.040(8).

Our Supreme Court has provided guidance in determining whether these whistleblower

protections are adequate to safeguard the public policy of protecting whistleblowers.

      The plaintiffs in Korslund claimed they were wrongfully terminated for reporting

safety violations, mismanagement, and fraud at the Hanford Nuclear Reservation. The

court held that because the federal Energy Reorganization Act (ERA) provided an

administrative process for adjudicating whistleblower claims and provided for

reinstatement, back pay, and other compensatory damages, an adequate remedy

existed protecting the public interest. Korslund, 156 Wn.2d at 182-83.

      In Cudney, the plaintiff claimed he was discharged after reporting his supervisor

was drinking on the job and had driven a company vehicle while intoxicated. The court

held the Washington Industrial Safety and Health Act (WISHA) provided a sufficient

administrative remedy, and state laws, on driving while intoxicated, adequately

protected the public. Cudney, 172 Wn.2d at 527.

      But, in Piel, the court held the administrative remedies available through the

Public Employment Relations Commission (PERC) under chapter 41.56 RCW, were

inadequate, on their own, to fully vindicate public policy when a public employer

discharges a public employee for asserting collective bargaining rights.




                                            10 




                                                                                            I
No. 31950-4-111
Rupert v. Kennewick Irrigation Dist.

       Unlike Korslund and Cudney, Piel involved a prior case holding PERC remedies

failed to fully address the broader public interests involved because it protected

personal contractual rights solely. Piel, 177 Wn.2d at 616-17 (quoting Smith     v. Bates
Technical Coli., 139 Wn.2d 793, 809, 991 P.2d 1135 (2000)). And unlike Korslund and

Cudney, Piel involved a statute declaring PERC remedies supplement others and must

be liberally construed to accomplish their purpose. Piel, 177 Wn.2d at 617 (quoting

RCW 41.56.905). In those circumstances, the Piel court recognized a private common

law tort remedy as necessary to fully vindicate public policy. Id. The Piel decision

analyzed a single issue, U[a]re the remedies available to a public employee under

chapter 41.56 RCW adequate as a matter of law, such that the employee may not

assert a tort claim for wrongful discharge in violation of public policy?" 177 Wn.2d at

609. The Piel court found the "limited statutory remedies under chapter 41.56 RCW do

not foreclose more complete tort remedies for wrongful discharge." Id. at 616.

       Importantly, the Piel court specifically held its decision "does not require retreat

from [Korslund or Cudney]." 177 Wn.2d at 616. The Piel court noted the administrative

schemes at issue in Korslund and Cudney were not previously found to be inadequate

to protect public policy and, unlike PERC, did not include a provision stating the

"provisions of this chapter are intended to be additional to other remedies and shall be

liberally construed." Id. at 617 (quoting RCW 41.56.905). The Piel court recognized

Korslundfound the ERA to have "comprehensive remedies," including back pay,

compensatory damages, and attorney and expert witness fees. Id. at 613 (citing

Korslund, 156 Wn.2d at 182). Piel further recognized that Cudney found the remedies

                                             11 

No. 31950-4-111
Rupert v. Kennewick Irrigation Dist.

available under the WISHA to be "more comprehensive than the ERA and. .. more

than adequate." Id. (citing Cudney, 172 Wn.2d at 533). Accordingly, if a statutory

scheme has language and remedies analogous to those at issue in Korslund or

Cudney, the scheme is distinguished from Piel and has comprehensive remedies to

protect the public interest.

       Here, the LGWPA provides remedies of reinstatement, back pay, injunctive relief,

costs, reasonable attorneys' fees, and civil penalties and does not contain a provision

providing "provisions of this chapter are intended to be additional to other remedies and

shall be liberally construed" as was the case in Piel. 177 Wn.2d at 617 (quoting RCW

41.56.905). Ms. Rupert argues the LGWPA protections are inadequate because she

cannot get compensatory damages. But, "[t]he other means of promoting the public

policy need not be available to a particular individual so long as the other means are

adequate to safeguard the public policy." Hubbard v. Spokane County, 146 Wn.2d 699,

717, 50 P.3d 602 (2002). Moreover, "the tort of wrongful discharge is not designed to

protect an employee's purely private interest ... rather, the tort operates to vindicate

the public interest in prohibiting employers from acting in a manner contrary to

fundamental public policy." Smith v. Bates Technical Coli., 139 Wn.2d 793, 801, 991

P.2d 1135 (2000). The question here, as it was in Korslund, is "whether other means of

protecting the public policy are adequate so that recognition of a tort claim in these

circumstances is unnecessary to protect the public policy." Korslund, 156 Wn.2d at

183. In this case, we conclude they are.




                                            12 

No. 31950-4-111
Rupert v. Kennewick Irrigation Dist.

       This case is like Worley v. Providence Physician Servs. Co., 175 Wn. App. 566,

574-76,307 P.3d 759 (2013) that was based on a similar whistleblower provision. This

court held the employee's wrongful discharge in violation of public policy claim failed

because whistleblower protections available under the Washington health care act,

RCW 43.70.075, adequately promoted workplace safety, ensured compliance with the

accepted standard of care, and prevented fraudulent billing in the health care industry.

       In sum, because the LGWPA provides adequate remedies of reinstatement, back

pay, injunctive relief, costs, reasonable attorneys' fees, and civil penalties, and because

the statutory scheme in this case is different than the statutory scheme in Piel, Ms.

Rupert cannot establish the jeopardy element of a wrongful discharge in violation of

public policy claim. Without this element her claim fails. Nevertheless, we not for

reasons similar to her retaliation claim, she also cannot establish the causation element.

Given all, the trial court properly dismissed this claim in summary judgment.

      Affirmed.

      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.



                                                   Brown, J.
WE CONCUR: 





                                            13 

