                                                                           FILED
                           NOT FOR PUBLICATION                             AUG 05 2015

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


ROBERT J DIEDERICH, individually,                No. 13-35494

              Plaintiff - Appellant,             D.C. No. 2:10-cv-01558-RAJ

 v.
                                                 MEMORANDUM*
PROVIDENCE HEALTH & SERVICES,
a Washington corporation, DBA
Providence Health & Services-
Washington, DBA Providence St. Peter
Hospital; et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Richard A. Jones, District Judge, Presiding

                        Argued and Submitted May 4, 2015
                               Seattle, Washington

Before: KLEINFELD, GOULD, and CHRISTEN, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Dr. Robert Diederich appeals from the district court’s orders granting

summary judgment on his retaliation claim, limiting the potential damages on his

breach of contract claim, and dismissing his wrongful termination and tortious

interference claims against his former residency program at Providence Hospital.1

We have jurisdiction under 28 U.S.C. § 1291. We reverse in part the district

court’s summary judgment order on Diederich’s state retaliation claim, dismiss

Diederich’s contract-damages appeal as moot, and affirm the district court’s

dismissal of Diederich’s wrongful termination and tortious interference claims.

1.    Viewing the evidence in the light most favorable to Diederich, see Green v.

City & Cnty. of San Francisco, 751 F.3d 1039, 1045 (9th Cir. 2014), we conclude

that Diederich presented sufficient evidence to establish a prima facie claim that

Providence retaliated against him based on his lawsuit against his former employer

and residency program director. Sometime in December 2007, the director of

Providence’s family practice residency program told Diederich, “I learned all about

you,” and sometime shortly after that, he told Diederich, “I spoke with Sam

Cullison.” The evidence in the record shows that a series of adverse actions

against Diederich began in January 2008, culminating in his termination in

September 2008. Diederich’s termination letter stated three specific reasons for his

      1
             The parties are familiar with the facts, so we do not recount them here.

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termination. The appeals board upheld Diederich’s termination by a four to one

vote, but it did not rely on the grounds cited in the termination letter. Instead, it

cited concerns regarding Diederich’s professionalism and performance over the

nine months leading up to the termination. Considering the timing of the director’s

comments and the beginning of the disciplinary actions against Diederich, along

with the appeals board’s apparent departure from or possibly summary statement

of the stated basis for Diederich’s termination, a rational factfinder could infer, for

purposes of a prima facie case, that Diederich’s superiors at Providence learned of

his prior lawsuit and retaliated against him on that basis. A genuine issue of

material fact exists on this issue pertinent to this retaliation claim, but that does not

necessarily resolve the McDonnell-Douglas analysis. See Tyner v. State, 154 P.3d

920, 928 (Wash. Ct. App. 2007) (applying McDonnell-Douglas burden-shifting

framework to Washington Law Against Discrimination (WLAD) retaliation claim).

2.     The district court did not consider whether Providence stated a legitimate

nondiscriminatory reason for disciplining, and ultimately terminating, Diederich.

In fact, the district court denied Providence’s motion to supplement the record with

evidence showing it lacked knowledge that Diederich sued his former residency

program and its director, and that it was “not motivated by discriminatory animus.”

Because this issue was not decided by the district court and may require evaluation

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of additional evidence, we decline to consider it on appeal. See U.S. Auto Parts

Network, Inc. v. Parts Geek, LLC, 692 F.3d 1009, 1021 (9th Cir. 2012) (remanding

for the district court to examine in the first instance issues not previously reached

that may require factual development).

3.    Diederich also argues that Providence retaliated against him for leaving

work while sick and for requesting vacation time. But it is clear from the record

that Diederich was disciplined for leaving the hospital without adequately

notifying his attending physician and without following protocols for ensuring that

another doctor would be attending to his patients, not for choosing to go home

when he was sick. Diederich’s vacation request claim fails because his requesting

vacation time is not a “protected activity” under the WLAD. See Wash. Rev. Code

§ 49.60.210.

4.    Diederich forfeited his breach of contract claim by voluntarily dismissing it

with prejudice in the district court. See Concha v. London, 62 F.3d 1493, 1507–08

(9th Cir. 1995). Thus, we dismiss as moot his appeal of the district court’s

limitation of contract damages.

5.    The district court correctly concluded that Diederich could not base his

common law wrongful termination claim on violations of the WLAD. See Bennett

v. Hardy, 784 P.2d 1258, 1263 (Wash. 1990) (rejecting wrongful discharge tort

                                           4
claims that were encompassed by statutory claims). But we disagree with the

district court’s conclusion that Diederich failed to identify a relevant public policy

outside of the WLAD. See Cudney v. ALSCO, Inc., 259 P.3d 244, 246 (Wash.

2011) (stating that the first element of a wrongful termination claim is “the

existence of a clear public policy”). Washington Revised Code § 18.130.180(15),

which addresses “engaging in a profession involving contact with the public while

suffering from a contagious or infectious disease involving serious risk to public

health,” evidences such a policy. We nevertheless affirm the district court’s

dismissal of Diederich’s wrongful termination claim because Diederich failed to

establish a causal connection between his taking sick leave and any adverse

employment action. See Cudney, 259 P.3d at 246. He was disciplined for failing

to properly notify his supervisors and hand off his patients. Diederich asserts no

basis for a public policy protecting an employee’s choice to leave work without

ensuring critical work will be handled by someone else.

6.    We agree with the district court that Diederich failed to allege facts that

could establish the existence of a valid business expectancy. Sea-Pac Co. v.

United Food & Commercial Workers Local Union 44, 699 P.2d 217, 220 (Wash.

1985) (“The plaintiff must show that the future opportunities and profits are a

reasonable expectation and not based on merely wishful thinking.” (citing Caruso

                                           5
v. Local 690, Int’l Bhd. of Teamsters, 653 P.2d 638 (Wash. Ct. App. 1982))). First,

Providence made no promise that Diederich would be entitled to complete his

residency. Diederich was working under a one-year contract as a second-year

resident, with no promise that he would be permitted to complete the program if

his performance fell below par. Second, Diederich does not show that he had any

specific business expectancy post-residency.

      Each party shall bear its own costs on appeal.

      AFFIRMED in part, REVERSED in part, and DISMISSED in part.




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