IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

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THOMAS OSTHELLER,                                                                       .^—

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                                                  No. 68025-1-1                         rfx          r^.
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CITY OF BURLINGTON,                               UNPUBLISHED OPINION                           *•



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                     Respondent.                  FILED: May 20. 2013



       Spearman, J. — Skagit County fired Thomas Ostheller from his job as a

supervisor at the Burlington Senior Center after investigating his involvement in a

confrontation at his workplace. During the course of the County's investigation, a

City of Burlington employee who had responded to the incident incorrectly told

County officials that Ostheller had had contact with a police officer after the

incident and that the officer had told him to leave the Senior Center. This

contradicted Ostheller's statement to County officials that he had left before the

officer arrived. The County's termination letter identified Ostheller's violations of

the County's Personnel Policies and Procedures Manual and referenced his

failure to mention or admit to contact with law enforcement. Based in relevant

part on the City employee's statements, Ostheller brought claims against the City

for defamation and intentional interference with a business expectancy. He
No. 68025-1-1/2

appeals from the trial court's summary dismissal of his claims. We conclude both

claims were properly dismissed and affirm.

                                           FACTS

       In July 2005, Skagit County hired Thomas Ostheller to work as the senior

services food service supervisor/senior nutrition project coordinator at the

Burlington Senior Center. His duties included supervising central kitchen food

production. Although the Senior Center was the property of the City of

Burlington, the City paid the County to operate the Senior Center under an

"Interlocal Agreement."

       On November 5, 2008, City employee Simeon Brown and employees from

Guardian Security arrived at the Senior Center to conduct fire alarm testing.

Ostheller was working in the kitchen and Brown did not inform him of the testing.

Ostheller became upset when the alarms were activated because he had not

been given advance notice. Ostheller confronted Brown, pushed him in the chest,

shouted at him, and called him a "dumb shit" or "stupid shit."1 Clerk's Papers
(CP) at 170. Brown reacted angrily and said he had told everyone who needed to

be told about the testing.

       Brown immediately notified the City's Parks and Recreation Director,

Loren Cavanaugh, who came to the Senior Center. While Cavanaugh spoke with

Brown, Ostheller attempted to approach Brown to apologize. Cavanaugh told

Ostheller to leave the building and not to return unless cleared to do so. Ostheller




       1Ostheller admits to yelling and using profanity but does not recall touching Brown.
No. 68025-1-1/3


left the premises. Cavanaugh contacted the Burlington Police Department and

Sergeant Tom Moser responded. Ostheller was gone by the time Moser arrived.

      Moser spoke with Brown and Cavanaugh. Cavanaugh said this was the

second time in a year that Ostheller had assaulted an employee but that the

previous employee had not wanted to press charges. Cavanaugh said it was

clear Ostheller had an anger management problem and needed to be dealt with.

Brown told Moser that he did not want to press charges against Ostheller.

Cavanaugh, Ostheller, and Brown completed incident reports or written

statements the day of the incident.

      Cavanaugh informed Ostheller's supervisor, Jennifer Kingsley,2 that
Ostheller was no longer permitted at the Senior Center and would be trespassed

if he came on the premises. Kingsley placed Ostheller on paid administrative

leave pending an investigation by the County. Kingsley and the County's Human

Resources Director, Billie Kadrmas conducted the investigation. They collected

written witness statements and conducted interviews with witnesses. On

December 15, Ostheller met with Kadrmas and provided his account of the

events.


       On January 5, 2009, Kingsley notified Ostheller by letter that the County

intended to terminate his employment. Kingsley wrote that Ostheller's actions

violated Section 12.2 of the Skagit County Personnel Policies and Procedures

Manual ("the Manual"), that she no longer felt she could rely on him as an

employee, and that his behavior was unacceptable. She wrote, "It is therefore my


          Kingsley was the director of senior services for the County.
No. 68025-1-1/4


conclusion that your services are no longer of value to the Senior Services

Department or to the citizens of Skagit County." CP at 114. Kingsley informed

Ostheller that a meeting had been scheduled for January 13 to allow him the

opportunity to provide additional information and respond to the County's notice

of preliminary intent before the County made a final decision.

       After the notice of intent to terminate was mailed to Ostheller, the County

received additional information from Mayor Edward Brunz. Brunz told Kadrmas

and Holloran that he understood there had been previous problems with

Ostheller and another City employee, that the employees were afraid to work

around him, and that Brunz did not want him to return to the Senior Center.

       Ostheller met with Kingsley and Kadrmas on January 13. During that

meeting, Ostheller was asked whether he had had any direct contact with police

after the incident. He truthfully related that he had not.

       Kadrmas and Kingsley met with Cavanaugh on January 27. During their

meeting they had the following exchange:

       [Kadrmas]: Is there anything else that is not in the report that
       you recall?
       [Cavanaugh]: Officer Tom Moser showed up while I was there.
       [Kadrmas]: Was there a report filed with the police?
       [Cavanaugh]: Officer Moser indicated that [I] could get the
       report from him, but since [Brown] was not going to press
       charges, there would be no report.
       [Kadrmas]: Then, no charges, no report.
       [Cavanaugh]: That's correct. Officer Moser told Mr. Ostheller
       that he no longer wanted him in the Community Center.
       [Kadrmas]: So, did [Ostheller] know there was an officer
       there?
       [Cavanaugh]: Yes, he was in uniform. Tom Ostheller walked in
       while Officer Moser was there and approached [Brown] right
       away and tried to apologize to [Brown]. I intervened and told
       [Ostheller] that while [Brown] appreciated the apology, he
No. 68025-1-1/5


       needed to leave. Tom Ostheller started to become
       argumentative and then Officer Moser told him to leave the
       building.

CP at 275.

       On February 10, 2009, Kingsley notified Ostheller by letter that the County

had made a final decision to terminate his employment. The letter detailed his

violations ofthe Manual.3 Kingsley also wrote:
       The misconduct outlined above was confirmed [after further
       investigation following the January 13 meeting], and additional
       information was provided regarding the role of law enforcement
       in the incident of November 5, 2008; information that you had
       contact with Officer Moser of the Burlington Police Department
       when in your previous interview you did not mention nor admit
       to any contact with law enforcement.

CP 61-62.

       Ostheller filed a lawsuit against the City, asserting claims for defamation

and intentional interference with a business expectancy. CP 358-68. The claims

were based, in part, on Cavanaugh's statements about Ostheller's contact with

         Ostheller's violations were specified as:

       Section 12.2 - Category 1 misconduct
               a.   Violation of County policies, regulations and rules specified in
                    this policy manual or otherwise promulgated.
               d.   Poor public relations.
                    Treating others disrespectfully.
                    Being asked to leave Citv property due to the incident.
                    Embarrassing the County and the Department as a result of vour
                    conduct-

                    Section 12.2 - Category 2 misconduct
               b.   Offensive conduct or language toward a fellow employee,
                    supervisor or citizen.
                    Calling an employee of the Citv of Burlington a dumb shit
                    Citv of Burlington Police called on site due to report of assault
                    and aggression,
               i.   Conduct unbecoming a county employee on or off the job.
                    Expulsion from a building owned bv the Citv of Burlington.
CP at 60-62.
No. 68025-1-1/6

police.4 The City admitted in its answer that Cavanaugh's statements to Kadrmas
and Kingsley about Ostheller's contact with police were false.5 Both parties filed
motions for summary judgment. The trial court granted summary judgment in

favor of the City and dismissed Ostheller's claims. Ostheller appeals.

                                        DISCUSSION

       This court reviews summary judgments de novo. Michael v. Mosauera-

Lacv. 165 Wn.2d 595, 601, 200 P.3d 695 (2009). The moving party bears the

initial burden of showing the absence of an issue of material fact. Young v. Key

Pharmaceuticals. Inc.. 112 Wn.2d 216, 225, 770 P.2d 182 (1989). Ifthe moving

party meets this burden, the inquiry shifts to the nonmoving party to set forth

specific facts showing that there is a genuine issue for trial. Id. at 225-26.

Summary judgment is proper if, viewing the facts and reasonable inferences in

the light most favorable to the nonmoving party, no genuine issues of material

fact exist and the moving party is entitled to judgment as a matter of law.

Michael. 165 Wn.2d at 601-02; CR 56(c). A summary judgment motion should be

granted only if, from all the evidence, reasonable persons could reach but one


        4Ostheller's complaint also alleged defamation and tortious interference based on other
statements made by City employees during the course of the investigation. While the complaint
does not specifically identify the statements on which Ostheller's claims are based, they appear
to include statements by Brown (presumably his account of the incident) and Burlington mayor
Edward Brunz (who indicated that Ostheller had engaged in similar behavior toward other
employees in the past). Ostheller's briefing on appeal, however, focuses solely on the statements
of Cavanaugh. Accordingly, we treat his defamation claim based on statements by individuals
other than Cavanaugh as abandoned. See Cowiche Canyon Conservancy v. Boslev. 118 Wn.2d
801, 809, 828 P.2d 549 (1992) (assignment of error without supporting argument is waived);
Washington Federal Savings & Loan Ass'n v. Alsaaer. 165 Wn. App. 10, 21, 266 P.3d 905
(2011), review denied, 173 Wn.2d 1025, 272 P.3d 851 (2012) (argument unsupported by
argument and citation to legal authority need not be considered by court on appeal).

        5Cavanaugh stated in a declaration that his statements to Kingsley and Kadrmas were a
mistake based on his faulty memory and the passage of time.
No. 68025-1-1/7

conclusion. Vallandiqham v. Clover Park Sen. Dist. No. 400. 154 Wn.2d 16, 26,

109 P.3d 805 (2005).

                                    Defamation

       To establish a prima facie claim of defamation, a plaintiff must prove (1) a

false and defamatory statement, (2) an unprivileged publication, (3) fault, and (4)

damages. LaMon v. Citv of Westport. 44 Wn. App. 664, 667, 723 P.2d 470

(1986) (citing Bender v. Seattle. 99 Wn.2d 582, 599, 664 P.2d 492 (1983)).

       Ostheller argues summary judgment on his defamation claim was

improper because there were issues of fact as to whether Cavanaugh made the

statements deliberately and whether the statements caused him to be fired. The

City argues, among other things, that Ostheller cannot show that the statements

caused him to be fired. We agree with the City.

       In a defamation case, a plaintiff must show that the defendant's statement

proximately and factually caused the plaintiffs damages. Schmalenberg v.

Tacoma News. Inc.. 87 Wn. App. 579, 598-99, 943 P.2d 350 (1997). "'Cause in

fact concerns 'but for' causation, events the act produced in a direct unbroken

sequence which would not have resulted had the act not occurred.'" Kim v.

Budget Rent A Car Systems. Inc.. 143 Wn.2d 190, 203, 15 P.3d 1283 (2001)

(internal citation and quotation marks omitted). Cause in fact is generally a jury

question but may be determined as a matter of law where reasonable minds

could not differ. Jd.

       We conclude Ostheller cannot establish the existence of a genuine issue

of material fact regarding whether he would have retained his job following the
No. 68025-1-1/8


incident, but for Cavanaugh's statement about police contact. The County had

made a preliminary decision to terminate Ostheller's employment, as stated in

the pre-termination letter issued before the statements by Cavanaugh. In the

letter, Kingsley stated that she could no longer rely on Ostheller due to his work-

related conduct. Furthermore, the County had information that the incident with

Brown was not Ostheller's first confrontation with a City employee. The City

informed the County that based on Ostheller's behavior during the confrontation

with Brown and safety concerns for City employees, Ostheller would not be

allowed to return to the Senior Center. In addition, the grounds for termination

that are identified in the termination letter are identical to the grounds identified in

the pre-termination letter and are based on the incident6
        Ostheller argues that the termination letter's reference to the conflict

between his statement and Cavanaugh's is evidence that Cavanaugh's

statements polluted the review process and prevented a different outcome.7 But
even if Cavanaugh had not made the statements at issue, Ostheller points to no

information made available to the County subsequent to the pre-termination




        6While one of the grounds is identified as Ostheller's being asked to leave the Senior
Center, the letter does not impute any significance to which party it was who asked him to leave
(i.e., Cavanaugh or Moser).

        7 Ostheller asserts in his brief to this court that "it would appear if Ostheller 'admitted' or
otherwise 'mentioned' during his meeting with Kingsley and Kadrmas that he did have contact
with the police, a case may have been made for some other result than termination. If he lied he
may have kept his job; he was doomed by telling the truth." App. Briefat 21. But he cites to
nothing in the record to support this assertion,



                                                   8
No. 68025-1-1/9


letter, from him or any other source, that was likely to have caused it to alter its

preliminary decision to terminate his employment.8
                   Intentional Interference with Business Expectancy

        For an interference with business expectancy claim, a plaintiff must show

(1) a valid contractual relationship or business expectancy; (2) the defendant had

knowledge of that relationship or expectancy; (3) the defendant engaged in

intentional interference resulting in a breach or termination of the relationship or

expectancy; (4) the defendant interfered for an improper purpose or used

improper means; and (5) the plaintiff suffered resulting damages. Woody v.

Stapp, 146 Wn. App. 16, 23, 189 P.3d 807 (2008); Commodore v. Univ. Mech.

Contractors. Inc.. 120 Wn.2d 120, 137, 839 P.2d 314 (1992).

        Ostheller argues that his tortious interference claim was improperly

dismissed because (1) he had a reasonable business expectancy in a system of

progressive discipline, as contained in the County's personnel policies; (2) the

City (vis-a-vis Cavanaugh) was aware of this business expectancy; (3)

Cavanaugh intentionally made the statements to contaminate the disciplinary

process and cause the County to terminate Ostheller; and (4) as a result, he lost

his job. The City argues that he cannot establish a legitimate expectancy in a

system of progressive discipline, citing the Manual and Woody.

        We conclude the trial court properly dismissed Ostheller's tortious

interference claim. The Manual clearly states that it does not constitute a contract

        8 Indeed, in the record before us, other than Cavanaugh's statement, the only new
information received by the County after it sent the notice of intent to terminate was from Brunz
and was unfavorable to Ostheller. Ostheller does not argue that this information would have
resulted in a different, more favorable outcome.
No. 68025-1-1/10

or make any promises of specific treatment. The "Introductory Information"

section states:

       COUNTY POLICIES AND PROCEDURES INCLUDED IN THIS
       MANUAL DO NOT CONSTITUTE A CONTRACT WITH
       EMPLOYEES, nor do they promise continued employment. The
       County reserves legal right to recruit, select, direct, discipline and
       discharge employees and exercise full discretion over the
       organization's policies, procedures and performance of work.

CP at 83. The "Statement of Purpose" section also provides, "It is not the intent

of this manual to establish promises of specific treatment." CP at 84. Moreover,

the "Employee Conduct and Discipline" section states "[w]hile the County will

strive to take necessary corrective action in a fair and consistent manner, the

County must reserve full discretion to make any and all disciplinary decisions

which it determines are necessary ...." CP at 87. Given these statements in the

Manual, Ostheller fails to show that he had a valid business expectancy in a

system ofprogressive discipline.9
       To the extent Ostheller's claim is based on an expectation of continued

employment, Woody is instructive.10 There, an at-will employee sued his
coworkers for tortious interference for making statements to their employer in the

course of an investigation into his alleged inappropriate conduct. Woody. 146


        9Ostheller cites Thompson v. St. Regis Paper. 102 Wn.2d 219, 685 P.2d 1081 (1984) for
the proposition that the expectation of some form of fair treatment has been recognized in
Washington cases. Thompson, however, was a wrongful discharge case brought against an
employer, and Ostheller did not bring a wrongful discharge claim against the County. To the
extent he claims the County failed to follow its own disciplinary policies and procedures, such
argument is unavailing because the County is not a party to this case.

        10 Though Ostheller does not overtly claim he had a business expectancy in continued
employment, his claimed damages are the loss of his job and benefits; he does not claim he
would have suffered damages had he not been terminated. Therefore, it is apparent that his claim
for tortious interference assumes his having had a business expectation in continued
employment.


                                              10
No. 68025-1-1/11


Wn. App. at 18. Affirming the trial court's dismissal of the claim on summary

judgment, this court stated, "Generally, at-will employees do not have a business

expectancy in continued employment." jd. at 24. Therefore, "[c]onsidering [the

plaintiffs] at-will status, he fails to establish either causation for his discharge or

any damages flowing from his discharge." JcL Ostheller was an at-will employee,

not a party to an employment contract, and likewise cannot establish causation

or damages from his termination. Furthermore, as noted, the Manual states that

the County's policies and procedures as contained therein did not "promise

continued employment." CP at 83.

       Affirmed.




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WE CONCUR:




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