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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



ROBERT PIEL and JACQUELINE                        NO. 72707-9-1
PIEL, husband and wife,

                     Respondents,
                                                  DIVISION ONE



THE CITY OF FEDERAL WAY, a
municipality organized pursuant to the
laws of the State of Washington,                  UNPUBLISHED OPINION


                     Appellant.                   FILED: May 16,2016



       Lau, J. — The Federal Way Police Department terminated Robert Piel after he

made comments about murdering other Department members. He appeals a jury

verdict that rejected his wrongful discharge claim based on alleged public policy

violations. Piel challenges numerous trial court rulings on exclusion and admission of

evidence. He also challenges the partial summary judgment order that limited the

public policy sources for his wrongful discharge claim. Because the trial court's

evidence rulings fall well within its broad discretion and it properly granted partial

summary judgment, we affirm the judgment entered on the jury's verdict.
No. 72707-9-1/2



                                         FACTS1

      Piel worked for the Federal Way Police Department for nearly 11 years, as an

officer and then as a lieutenant. In May 2006, Chief Anne Kirkpatrick terminated Piel for

misconduct when Piel directed a subordinate officer to release a firefighter detained on

suspicion of drunk driving. Piel successfully grieved his termination through arbitration.

He contended the Department lacked just cause to terminate him and that his

termination was motivated by anti-union bias.

       From 2002 to 2005, Piel spearheaded an effort to unionize the lieutenants in the

Department. Piel claimed the Department retaliated against him in various ways. Piel

noticed "a marked increase in his duties and responsibilities without commensurate

support [and] unusual and obstreperous internal affairs investigations." Piel. 177 Wn.2d

at 607-08. Piel argued this retaliation ended with his termination. The arbitrator

concluded that although just cause existed to discipline Piel, the Department did not

meet its burden of proof on discharge. The arbitrator ordered the Department to

reinstate Piel in a demoted capacity and reimburse him for all lost pay and benefits.

       In August 2007—nearly 13 months after his termination—Piel returned to work.

On his first day back, Piel made several questionable comments. For example, Piel

asked one newlywed officer, who he had not met, if her husband was ugly and if they

planned to have kids. She testified that the comments made her uncomfortable and
that she did not want to answer Piel because she did not know him: "I was so hot,

sweaty, embarrassed, uncomfortable, enraged, and disgusted that Ithrew my chair


       1 For a summary of background facts, see Piel v. City of Federal Way. 177 Wn.2d
604, 306 P.3d 879 (2013).
                                           -2-
No. 72707-9-1/3



back and stated, 'Are we done?' I then walked out of the briefing room feeling

completely helpless and furious." Exhibit (Ex.) 4, tab 11; see also Report of

Proceedings (RP) (Oct. 21, 2014) at 69-70.2 One officer stated that Piel's behavior

approached conduct unbecoming of an officer.

       Witnesses heard Piel make some threatening statements after a unit briefing.

Jail Coordinator Jason Wilson and two other officers testified that Piel said he had

thought about "murdering" people in the department. Wilson reported Piel's comments

to his superior the next day. The Department assigned Commander Steve Arbuthnot to

conduct a formal disciplinary investigation of the incident.

       Two other officers heard Piel make the threatening statements. Officer Brian

Bassage provided a written statement that corroborated Wilson's testimony. During an

interview with Arbuthnot, Officer Bassage expressed some concern about the

statement, but viewed it as not a serious threat. Officer Jason Ellis also heard the

comments but assumed Piel was joking. Officer Ellis reiterated this belief in his

interview with Arbuthnot.

       About one month after the "murder" comment, Arbuthnot interviewed Piel. Piel

repeatedly denied making the comment. Ex. 4, tab 23. Piel offered to take a polygraph

test, and Arbuthnot responded, "Okay." Ex. 4, tab 23. Officer Keith Pon, a Police

Officer's Guild representative present at the interview, did not object. Arbuthnot

received an e-mail from Piel containing the polygraph test results. The collective



        2One officer who witnessed this incident provided this statement: "Piel went on to
talk with [female officers] Schroll and Scheyer. It was mentioned that Scheyer recently
got married. Piel asked Scheyer if her husband was a cop or if he was ugly ... I could
sense they were upset." Ex. 4, tab 9.
                                           -3-
No. 72707-9-1/4



bargaining agreement between the City and the Police Officer's Guild expressly

prohibits polygraph evidence in disciplinary proceedings unless both parties stipulate to

its admission: "Nor shall polygraph evidence of any kind be admissible in disciplinary

proceedings, except by stipulation of the parties to this [agreement." Ex. 99 at 20.

Police Officer's Guild President John Clary declined to stipulate. Because Arbuthnot

reviewed the polygraph evidence, the City reassigned the investigation to an

independent investigator to avoid any improper influence. Arbuthnot explained the

reassignment in the summary report he provided to the City:

              Officer Piel's comments referring to the work place violence
       concerns have been assigned by the City to an independent investigator
       due to Officer Piel sending me [polygraph test results]. The Police
       Officer's Guild Collective Bargaining Agreement prohibits the introduction
       of [this] information in a disciplinary investigation unless stipulated to by
       the Guild and the City. No such stipulation existed at the time the
       [polygraph test results were] forwarded to me and the Guild refused to
       stipulate throughout this investigation.

Ex. 4 at 2.

       The City retained attorney Amy Stephson to continue the investigation. The City

provided Stephson with Arbuthnot's report and the statements and interviews he had

collected. Stephson interviewed Piel and the three who heard the threatening

comments—Bassage, Wilson, and Ellis. Piel continued to deny he made threats.

Stephson's final report concluded that Piel "did make a comment to the effect that he
had thought of murdering others with his gun at some point or points during the 15-

month period he was absent from the police department." Ex. 9 at 2. Stephson also

concluded that Piel's comment violated section 10.6 of the employee guidelines.

Section 10.6 prohibits employees from "threatening injury or damage against a person


                                            -4-
No. 72707-9-1/5



or property." Ex. 9 at 3. It further states that "[b]ecause of the potential for

misunderstanding, joking about any of the above misconduct is also prohibited." Ex. 9

at 3.

        Stephson also found Piel's testimony not credible for two reasons. First, three

witnesses contradicted Piel's repeated denials about the "murder" comment. Ex. 9 at 3.

Second, Piel also denied making negative comments that other witnesses heard and

testified about, such as the comments directed at the female officers and his comments

about former Chief Kirkpatrick. "When asked about these other comments, Piel either

denied them outright, denied making them at the briefing, or couldn't remember them.

This suggests that he either has little recollection of what he said during that

conversation, or decided to deny making any comments that were arguably negative. In

either event, his credibility is not enhanced." Ex. 9 at 3.

        Professional Standards Commander Melanie McAllester is responsible for

reviewing internal investigations and recommending discipline to the Chief.

Commander McAllester concluded that Stephson's report sustained allegations of

workplace violence (threats) and untruthfulness against Piel. She recommended that

Piel be terminated for each violation. On January 31, 2008, Chief Brian Wilson issued a

letter of discharge to Piel.

        In 2008, the Piels sued the City of Federal Way. They alleged wrongful

discharge in violation of public policy. Piel argued the Department terminated him for
engaging in union-organizing activities protected by RCW 41.56.040. In October 2009,
a superior court judge granted the City's motion to dismiss and motion for summary

 judgment. The trial court ruled that Piel could not satisfy the "jeopardy" elementof his

                                            -5-
No. 72707-9-1/6



wrongful discharge claim because the remedies available through the Washington

Public Employee Relations Commission (PERC) adequately protected the public policy

grounded in RCW 41.56. The Supreme Court reversed and remanded on direct review.

It held that Piel could pursue his wrongful discharge claim despite the administrative

remedies available through PERC.

       Piel alleged on remand that several activities he engaged in during his

employment constituted protected activities for purposes of a wrongful discharge claim.

These activities included (1) formation of the Lieutenant's union in accordance with

RCW 41.46, (2) several administrative actions such as filing a complaint pursuant to the

Employee Guidelines for Employees of the City of Federal Way, (3) filing a claim for

damages with the City under RCW 4.96.020.

       The City successfully moved for summary judgment on two issues. First, the trial

court concluded that Piel was collaterally estopped from arguing that his 2006

termination was motivated by anti-union animus. At the arbitration hearing following his

2006 termination, Piel argued that the termination constituted retaliation for engaging in

union-organizing activities. The arbitrator rejected this argument and concluded just

cause existed. Because the issue was previously litigated and determined during

arbitration, the trial court ruled that collateral estoppel barred Piel's claim that his 2006

termination was retaliation for engaging in union activities.

       Second, the trial court ruled that actions authorized by the employee guidelines

and submitting a notice of claim for damages under RCW 4.96.020, were not protected

activities for purposes of a wrongful discharge claim. The trial court granted the City's

motion for summary judgment as to those claims. The Piel's only remaining claim was

                                            -6-
No. 72707-9-1/7



that his 2008 termination amounted to wrongful discharge in violation of public policy

protected under RCW 41.56. After an 8-day trial, the jury rejected Piel's wrongful

discharge in violation of public policy claim. Piel appeals various evidence rulings and

the partial summary judgment order.

                                       ANALYSIS

       Standard of Review

       We will reverse a trial court's evidentiary rulings only upon a showing of abuse of

discretion. Subia v. Riveland. 104Wn. App. 105, 113-14, 15 P.3d 658 (2001). "Atrial

court abuses its discretion if its decision is manifestly unreasonable or based on

untenable grounds or untenable reasons." In re Marriage of Littlefield, 133 Wn.2d 39,

46-47, 940 P.2d 1362 (1997). Further, even if a trial court's evidentiary rulings were

erroneous, the appellant must also show that the error was prejudicial. "Error will not be

considered prejudicial unless it affects, or presumptively affects, the outcome of the

trial." Brown v. Spokane Cntv. Fire Prot. Dist. No. 1. 100 Wn.2d 188, 196, 668 P.2d 571

(1983).

       Exclusion of Polygraph Evidence

       Piel claims the trial court erred when it excluded evidence that he "had taken and

passed a polygraph." Br. of Appellant at 20. The trial court properly ruled that the

polygraph evidence was more prejudicial than probative.3 The collective bargaining
agreement also prohibits polygraph evidence absent a stipulation by the parties. Piel



       3Piel failed to endorse any expert witness to lay any foundation for the admission
of the polygraph evidence. His claim that the evidence was not offered for its truth is
undermined by his arguments at trial and on appeal.
                                          -7-
No. 72707-9-1/8



has failed to show that the trial court abused its discretion when it excluded the

polygraph evidence.

       Generally, courts exclude polygraph evidence due to its unreliability and the

powerful effect it can have on juries. "[Ejvidence that a polygraph test has been taken

or passed is inadmissible absent stipulation by both parties because the polygraph has

not attained general scientific acceptability." State v. Justesen. 121 Wn. App. 83, 86, 86

P.3d 1259 (2004).4 Because "[polygraph evidence is liable to be prejudicial," it "should

be admitted only when clearly relevant and unmistakably nonprejudicial." Justesen, 121

Wn. App. at 93.

       Piel contends the polygraph evidence was admissible because it was introduced

not for its substantive truth but to show the Department's bias against him.5 Under

limited circumstances, polygraph evidence may be admitted for purposes other than its

substantive truth:

              If the polygraph evidence is being introduced because it is relevant
       that a polygraph was administered regardless of the results,... then the
       polygraph evidence may be admissible as an operative fact. If, on the
       other hand, the polygraph evidence is offered to establish that one party's

       4"The Washington courts have never directly and squarely addressed the
question of whether the [polygraph evidence] rules applicable to criminal cases apply
with equal force and effect in civil cases, or whether the courts should be more
receptive to polygraph evidence in civil cases. The few reported cases on point suggest
that the same ground rules applicable in criminal cases apply in civil cases as well." 5B
Karl B. Tegland, Washington Practice: Evidence Law and Practice § 702.40, at 158
(5th ed. 2007).
       5Piel also argues the polygraph evidence was relevant to show his "state of
mind" when Stephson interviewed him. Specifically, Piel claims that polygraph shows
that he in good faith did not believe he made the "murder" comments and therefore did
not intentionally deceive Stephson. But Piel's state of mind was not a relevant issue
here. The DOC's state of mind was relevant in Subia because the main issue in that
case was whether the disciplinary action was motivated by racial discrimination. Subia.
104Wn. App. 114.
                                           -8-
No. 72707-9-1/9



       version of the events is the truth, the polygraph evidence is being
       introduced for its substantive value and is inadmissible absent a
       stipulation.

State v. Reav. 61 Wn. App. 141, 149-50, 810 P.2d 512 (1991) (guoting Brown v. Darcv.

783 F.2d 1389, 1397 (9th Cir. 1986)).

       Piel cites Subia. The Department of Corrections (DOC) relied on the polygraph

results as a reason for placing Subia on administrative leave without pay due to alleged

sexual misconduct. The evidence was not offered to show whether Subia engaged in

misconduct. As the court of appeals observed, the polygraph evidence "was highly

relevant" as to whether the DOC's reason for the discipline was false. Subia. 104 Wn.

App. at 114. This bears directly on the employer's motive for its disciplinary action, a

central issue in Subia's race discrimination trial. Piel argues the polygraph evidence is

admissible because whether or not he made the "murder" comments is not as important

as the fact that the test was taken and the Department's reaction to it.

       Unlike in Subia. the polygraph evidence here offered no direct evidence on a

central claim or defense. The polygraph evidence in Subia was a primary factor in the

DOC's nondiscriminatory decision to place Subia on administrative leave. Subia. 104

Wn. App. at 115. The marginal relevance of Piel's polygraph evidence is clear. Piel

claimed that he was terminated for illegitimate reasons. The investigation into Piel's

misconduct was already well underway when Piel sent Arbuthnot the polygraph results.

Arbuthnot had already collected statements from several other officers attesting to Piel's

conduct. Piel argued he was terminated due to his involvement in forming the union in

the early 2000s and his successful arbitration in 2007. The polygraph evidence was not

central to his claims. He presented his theory of the case without it. Piel's theory at trial

                                           -9-
No. 72707-9-1/10



focused on the Department's alleged retaliatory discharge based on his effort to form a

lieutenant's union in the early 2000s. As proof of this, he presented evidence on

onerous and unusual changes to his employment, including a transfer out of a specific

unit, assignment of additional duties without commensurate support, poor performance

reviews, and several standards investigations led by Greg Wilson, the brother of former

Deputy Chief Brian Wilson. Piel's attorney claimed that the evidence would

"demonstrate] a pattern of animus" culminating in Piel's termination. RP (Oct. 13,

2014) at 209. But the polygraph evidence was not directly relevant to this "pattern." For

example, Piel argues the polygraph evidence is relevant because it supports the

inference that Chief Wilson removed Arbuthnot from the investigation because

Arbuthnot was leaning towards clearing some of the charges against Piel. But the

record shows that Piel was able to make the same argument without the polygraph

evidence:

               So, Commander Arbuthnot—and this is very important—tells Bud
       [Piel], and it's on the record, that he's 'decided that—that four of the five
       charges are unsubstantiated.' He's gonna dismiss 'em. He interviews
       Bud Piel and the very next day Chief Wilson pulls him off the investigation.
       Hires an outside investigator.

RP(Oct. 13, 2014) at 222-23.

        The City also properly declined to consider the polygraph evidence due to the

collective bargaining agreement's stipulation requirement. As discussed above, the

Federal Way Police Officers' Collective Bargaining Agreement expressly prohibits

consideration of polygraph evidence in disciplinary matters absent stipulation by the City

and the union. Arbuthnot's final report correctly notes that "no such stipulation existed



                                          •10-
No. 72707-9-1/11



at the time the [polygraph evidence was] forwarded to me and the Guild refused to

stipulate throughout this investigation." Ex. 4 at 2.6

          Piel fails to present any evidence of a binding stipulation. He claims instead that

members of the Guild never objected and that the Guild representative's silence during

Piel's interview with Arbuthnot amounts to a stipulation. He also points to an e-mail

comment from Guild President John Clary about some information missing from the file

for the Piel investigation, including the polygraph evidence. Arbuthnot claims John

Clary declined to consent to Piel's polygraph evidence. Neither the union

representative's silence nor Clary's e-mail constitute an affirmative stipulation. It is also

questionable whether Arbuthnot and the Guild representative were authorized to bind

the City and the union to such a stipulation. We are not persuaded by Piel's stipulation

claims. Piel does not dispute that the department was precluded from using the

polygraph evidence in Piel's disciplinary proceeding under the Collective Bargaining

Agreement's stipulation requirement.7

          The trial court's decision to exclude the polygraph evidence does not amount to

an abuse of discretion. See Industrial Indem. Co. of the Northwest, Inc. v. Kallevig. 114

Wn.2d 907, 926, 792 P.2d 520 (1990) ("A trial court has broad discretion in performing


        6 The Guild has consistently refused to allow polygraph evidence since the
collective bargaining agreement was amended in 2001.
        7 Piel argues that the City could have introduced all the evidence justifying their
reasons for not considering the polygraph evidence had it been admitted. Piel contends
that the trial court could have admitted the polygraph evidence and then the City could
have presented evidence explaining its decision not to consider the polygraph
evidence—the collective bargaining agreement, the conversation with Guild President
Clary, etc. The jury could decide whether the Department's decision to ignore the
polygraph evidence was motivated by improper bias. Piel misses the point. The
threshold question on the polygraph's admissibility rests with the trial court, not the fact
finder.

                                             -11-
No. 72707-9-1/12



the balancing test contemplated in ER 403 and will be reversed only upon a showing of

abuse of discretion."). This is especially true for polygraph evidence, which "is liable to

be prejudicial and therefore should be admitted only when clearly relevant and

unmistakably nonprejudicial." Justesen. 121 Wn. App. at 93 (emphasis added). Given

the polygraph evidence's limited probative value and its potential for prejudice, the trial

court did not abuse its discretion when it excluded the evidence.

       Even if we assume the trial court erred when it excluded the polygraph evidence,

Piel fails to show prejudice. Thomas v. French. 99 Wn.2d 95, 659 P.2d 1097 (1983)

("Error without prejudice is not grounds for reversal, and error will not be considered

prejudicial unless it affects, or presumptively affects, outcome of trial."). Piel was fired

for two independent reasons: he threatened workplace violence and then lied about it.8

Even if we assume the polygraph evidence was relevant to show Piel was not dishonest

when he denied making the threat, that evidence does not affect the Department's

legitimate motive to terminate Piel based on workplace violence by a police officer. The




       8 Commander McAllester's recommendation provides:
              Workplace violence: Officer Piel did not simply threaten to harm
       another; his statement was to end another's life. He is a police officer and
       must understand the seriousness of such a statement, especially given
       the circumstances. His position provides him the means of carrying out
       his threat. / recommend that Officer Piel be terminated for this
       sustained violation.
              Untruthfulness: An independent investigator determined that the
       City could reasonable conclude that Officer Piel was dishonest during the
       investigation when he uncategorically denied making the statement. His
       dishonesty prevents him from continuing in a profession that demands
       honesty, credibility, and integrity from those entrusted to protect the
       community and enforce the laws. / recommend that Officer Piel be
       terminated for this sustained violation.
Ex. 12 at 4.

                                           -12-
No. 72707-9-1/13



trial court properly excluded the polygraph evidence and Piel shows no prejudice from

its exclusion.


       Whether the City used the Polygraph Ruling "As a Sword"

       Piel argues that the City improperly used the trial court's ruling excluding the

polygraph evidence. He claims the trial court permitted the City to "invent" facts related

to the polygraph test and "open the door"9 to the polygraph evidence without similarly

allowing Piel to rebut the City's claims or discuss that evidence. After it ruled in limine

to exclude the polygraph evidence, the court made it clear that Piel was permitted to

examine Arbuthnot and the other witnesses about the polygraph evidence provided by

Piel and why the investigation was transferred to Stephson, so long as no one

mentioned the polygraph: "y]ou're entitled to ask [Arbuthnot] and cross him on the issue

[of his removal] without.. . disclosing what the information was." RP (Oct. 20, 2014) at

189. "We're gonna go with what's been redacted ... I'd caution both parties not to use

the polygraph, given my ruling earlier... I have made it very clear that... no evidence

regarding the polygraph or taking the polygraph or the results of the polygraph will be

admissible." RP (Oct. 15, 2014) at 199. When the parties failed to reach an agreement

on what substitute term to use for "polygraph," consistent with the court's ruling, the City

used the term "information" when referring to the polygraph evidence during trial. It also



       9This assignment of error does not implicate "the open door" doctrine. The
doctrine involves the introduction of inadmissible evidence, not admissible evidence. If
the City and its witnesses had actually used the term "polygraph," arguably the door is
opened. But even then, the trial court has a measure of discretion to decide when the
door is opened. See 5 Karl B. Tegland, Washington Practice: Evidence Law and
Practice § 103.14 (5th ed. 2007) ("Waiver of objections—'Opening the door). We also
note that Piel never objected at any time to the City's use of the substitute term
"information."

                                           -13-
No. 72707-9-1/14



ensured all references to "polygraph" were redacted from the trial documents and

exhibits. Piel does not complain that witnesses violated the trial court's in limine ruling.

For example, during its opening statement, the City explained that Chief Wilson

replaced Arbuthnot after he discovered "information" that tainted the investigation:

               When, uh, Commander Arbuthnot opened that e-mail he realized
       that it was something that under the contract—the collective bargaining
       agreement—with Officer Piel's union, he's not allowed to look at that
       information and consider it in the investigation unless the union stipulates
       or agrees to that. Commander Arbuthnot had a conversation with John
       Clary, who's the president of the union, who said, "No way. You cannot
       use that."

RP (Oct. 13, 2014) at 233-34 (emphasis added). And Chief Wilson testified that "there

was information that was provided by Mr. Piel that, uh, compromised the integrity of the

investigation." RP (Oct. 16, 2014) at 63 (emphasis added). Arbuthnot gave similar

testimony using the term "information." RP (Oct. 20, 2014) at 187-90.

       The trial court applied its polygraph ruling equally to both parties. It allowed each

party the same latitude to examine witnesses and present exhibits as long as the

evidence complied with the court's in limine ruling. The court's ruling did not prevent

Piel from eliciting relevant evidence on the issues relevant to his claims.

       We find no error based on the trial court's polygraph ruling.

       Jason Wilson's Deviant Behavior

       Piel argues the trial court erred when it prohibited him from eliciting testimony

regarding Jail Coordinator Jason Wilson's deviant behavior. We conclude the trial court

did not abuse its discretion when it excluded this evidence.

       Piel sought to discredit Wilson because he was the only witness to report the

"murder" comments to superiors at the Department. Wilson applied three times for a

                                           -14-
No. 72707-9-1/15



police officer position and was never hired. Piel claimed he recommended to his

superiors that Wilson "not become a police officer" because Wilson had admitted to

committing lewd acts. RP (Oct. 8, 2014) at 107. The City objected to the lewd behavior

evidence but not the evidence about Piel's role in the Department's decision not to hire

Wilson.


      The deviant behavior evidence was not relevant to Wilson's bias. The trial court

properly allowed, as relevant bias evidence, Piel's role in the Department's decision not

to hire Wilson. The trial court properly exercised its broad discretion to exclude the

deviant behavior evidence as more prejudicial than probative.10 Nor does Piel show the

exclusion of this evidence affected the verdict.

       Evidence of Previous Disciplinary Action

       Piel claims the trial court erred when it excluded evidence of previous disciplinary

action offered "to show the alleged reasons for the termination are pretext." Br. of

Appellant at 39. He argues, "[a]ny prior... workplace violence or threats during the

entire history of the FWPD, or any prior allegations of dishonesty, and how the City

handled them" were relevant to their claims. Br. of Appellant at 39-40. Piel also asserts

that pretext evidence "can be shown with evidence that similarly situation [sic]

individuals were treated differently." Br. of Appellant at 39. The trial court did not abuse

its discretion when it excluded evidence of those actions as irrelevant on grounds the

proffered actions are factually dissimilar, too remote in time, and involve different

decision makers.


        10 Even Piel's attorney recognized the danger of unfair prejudice when he argued
to the trial court: "Your honor, sometimes the shocking nature ... of conduct burns it
into people's mind." RP (Oct. 8, 2014) at 107.
                                          -15-
No. 72707-9-1/16



       Piel sought to elicit testimony regarding three other disciplinary actions that

occurred in the late 1990s and early 2000s.

       Otto/Stoneburner Incident

      This incident involved Piel's 2006 termination and subsequent arbitration. In

February 2006, Travis Stoneburner alleged that Officer Jeffery Otto choked him during a

traffic stop and improperly confiscated his personal property. Piel, a lieutenant at the

time, told Stoneburner to complete a complaint form and he would file it. In March

2006, Officer Otto detained an individual suspected of driving under the influence. Piel

told Otto to release the suspect because he was a firefighter. Chief Kirkpatrick

assigned Commander Steve Kelly to investigate the incident. During the investigation,

Piel filed Stoneburner's incomplete complaint form. Piel described Officer Otto's

allegedly unstable mental state to Commander Kelly. The Department initiated a

second investigation against Piel during the firefighter investigation to determine Piel's

motive and credibility in the Otto investigation. Piel was later terminated due to the

firefighter incident but reinstated in a demoted capacity. Brian Wilson, who was a

commander in the Department at the time, was not involved in either the investigation

against Piel or the decision to terminate him.

       Greg Wilson Incident

       This incident involved Chief Brian Wilson's brother, Greg Wilson. Greg Wilson

denied creating a racially-charged Screensaver for a monitor in a patrol car. The

Department later learned he lied. Greg Wilson was not terminated. Ron Wood was the

Chief when this incident occurred in 1998 or 1999. The Department's manual of

standards changed in 2002. Piel tried to introduce this evidence over the City's

                                          -16-
No. 72707-9-1/17



objection. The trial court sustained the objection: "it's too remote in time, involves

different, urn, set of facts, [and] different chiefs." RP (Oct. 16, 2014) at 74.

       Brian Wilson Incident


       This incident involved Deputy Chief Brian Wilson. In 2001, Wilson told a

commander over the phone, "I don't want to meet with you. If I did, I might end up with

my hands around your neck." Clerk's Papers (CP) at 711. Two years later, Chief

Kirkpatrick investigated the incident. The Department determined that Wilson did not

intend to assault the commander. The trial court precluded Piel from asking Wilson

about this incident in part due to the different investigators involved in the earlier

incident.


       Piel contends the trial court erred when it prohibited cross-examination on these

incidents because they demonstrate that the Department treated Piel differently than

other individuals facing disciplinary action in the past.11 Piel correctly asserts that an

employer's different or inconsistent treatment of other employees may be relevant and

       11 Piel also complains he was prohibited from asking Chief Wilson whether the
Department required a finding of "intent to deceive" for a dishonesty violation. Br. of
Appellant at 40-41. The record shows that Piel repeatedly attempted to insert an
additional "intent to deceive" requirement into the case. RP (Oct. 15, 2014) at 234-40.
But Chief Wilson explained that a finding of dishonesty presumes intent to deceive:
               [Plaintiff's Counsel]: Did you tell Amy Stephson that she had to find
       intent to deceive?
                [Commander McAllester]: She didn't have to find intent to deceive.
                [Plaintiff's Counsel]: Okay. Because you didn't ask her to find it;
       right?
               [Commander McAllester]: No, we asked—dishonesty is—includes
        the intent to deceive. So she found dishonesty.
RP (Oct. 20, 2014) at 159. Despite this response, Piel continued to press the issue.
The City objected, alleging the line of questioning was argumentative and that the
question had been asked and answered. The trial court sustained the objection. The
record shows that Piel was not prohibited from asking Chief Wilson about the alleged
"intent to deceive" requirement; he simply was unhappy with Chief Wilson's answer.
                                            -17-
No. 72707-9-1/18



admissible in a wrongful termination case under appropriate circumstances. See, e.g..

Fulton v. Dep't of Soc. & Health Servs.. 169 Wn. App. 137, 161-62, 279 P.3d 500

(2012). However, "[t]he trial court has broad discretion to determine when the

circumstances are appropriate." Lords v. Northern Automotive Corp.. 75 Wn. App. 589,

610, 881 P.2d 256 (1994). When the circumstances of a previous disciplinary action

differ from the employment action at issue, a trial court does not abuse its discretion

when it excludes evidence of the previous action as irrelevant or prejudicial. See

Roberts v. Atlantic Richfield Co.. 88 Wn.2d 887, 893, 568 P.2d 764 (1977). In Roberts.

an age discrimination case, the court upheld the trial court's decision to exclude

witnesses who had allegedly been terminated due to their age because "[t]he offer of

proof contained no evidence that these employees held comparable positions with Arco,

that they worked under similar circumstances, or that they had been discharged in a like

manner. The trial court rejected this offer of proof as irrelevant and too remote to be of

significant value." Roberts. 88 Wn.2d at 893. In Lords, the court held that the trial court

did not abuse its discretion when it excluded testimony from another terminated

employee because that employee had been evaluated by a different superior than the

one who had terminated the plaintiff:

              Northern contends the trial court did not abuse its discretion in
       refusing to allow Mr. Hibbs to testify because the circumstances of his
       layoff were irrelevant. He did not hold the same position as fthe plaintiff!
       and his performance was evaluated by Lords, not Streeter fthe supervisor
       who terminated the plaintiff].

              When evidence is likely to confuse or mislead a jury, it may result in
       unfair prejudice. The trial court did not abuse its discretion when it
       determined the excluded evidence would be confusing or misleading.

Lords. 75 Wn. App. at 610 (emphasis added).

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      The trial court did not abuse its discretion when it prohibited Piel from introducing

dissimilar evidence of previous disciplinary actions. Piel's prior discipline evidence

involved different investigators and decisions makers. And the two Wilson incidents

occurred under an older version of the standards policy.

       Piel argues no authority requires the same decision makers to admit prior events.

We are not persuaded by this argument. In Lords, that a different employee was

evaluated by a different superior than the plaintiff was a factor to determine whether that

employee's testimony was relevant. Generally, when a prior employment decision is

admitted to show the plaintiff was treated differently than other employees, that prior

decision was made by the same decision maker as the one responsible for the action

giving rise to the lawsuit. See, e.g.. Sellsted v. Washington Mutual Savings Bank. 69

Wn. App. 852, 861, 851 P.2d 716 (1993). The trial court properly exercised its broad

discretion to determine whether a prior employment action is sufficiently different to

justify exclusion of that evidence. Lords. 75 Wn. App. at 610.

       Testimony on Piel's Other Comments

       Piel argues that the trial court erred when it admitted evidence of comments he

made that offended two female officers. Piel argues this evidence was irrelevant

because Chief Wilson based Piel's termination on the "murder" comments, not his other

offensive comments.

       This claim is waived. RAP 2.5; State v. Atkinson. 19 Wn. App. 107, 575 P.2d

240 (1978) (waiver through failure to object or by voluntarily broaching the matter at

trial). Piel failed to timely object to this evidence. During motions in limine, Piel moved

to exclude testimony of the two female officers—Officers Baker and Scholl—regarding

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No. 72707-9-1/20



Piel's offensive comments. The trial court deferred its ruling and told Piel to "bring it up"

later during the trial. RP (Oct. 8, 2014) at 65. The first mention of these offensive

comments occurred when the City cross-examined Officer Bassage. Piel failed to

object. Piel's attorney later also asked Officer Ellis about the same offensive comments

he now claims should have been excluded. RP (Oct. 14, 2014) at 208-09 (Piel's

attorney: "I just like to ask you about the ... these comments from Scholl and—and

[Baker]. What—what did you hear and what was your take on that?"). Piel finally

objected when the City called Officer Baker as a witness. But by then the jury had

already heard the objectionable evidence. And Piel never requested a curative

instruction.


       The trial court also acted well within its discretion when it permitted the City to

introduce these offensive comments. Although Piel's termination was primarily due to

the "murder" comments, the other offensive comments were relevant to the

Department's investigation and its conclusion that Piel had been dishonest. For

example, Arbuthnot testified that he considered the offensive comments as part of his

investigation. Commander McAlester considered Piel's offensive comments in her

recommendation for disciplinary action. Stephson wrote in her report that the conflicting

testimony about Piel's offensive statements was directly relevant to her conclusion that

Piel was not credible. The trial court properly admitted this evidence as more relevant

than prejudicial. Piel also fails to show how the evidence affected the verdict.

       The Trial Court's Summary Judgment Orders

       There are two summary judgment issues relevant to this appeal. The first is

whether Piel may rely on either the Federal Way Employee Guidelines or the filing of a

                                           -20-
No. 72707-9-1/21



notice of damages claim pursuant to RCW 4.96.020 as a source of public policy for

purposes of his wrongful termination claim. The second is whether he is collaterally

estopped from pursuing claims related to his 2006 discharge.

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

the trial court. Michak v. Transnation Title Ins. Co.. 148 Wn.2d 788, 794-95, 64 P.3d 22

(2003). 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. CR 56(c); Michak. 148

Wn.2d at 794-95.


      Source of Policy for Purposes of Wrongful Discharge

       Piel claims the trial court erred when it concluded that neither (1) his complaints

to human resources under the Federal Way Employee Guidelines nor (2) his filing of a

notice of damages claim pursuant to RCW 4.96.020 was protected conduct giving rise

to a wrongful discharge claim. Wrongful discharge in violation of public policy requires

four elements:


       (1) The plaintiffs must prove the existence of a clear public policy (the
           clarity element);

       (2) The plaintiffs must prove that discouraging the conduct in which they
           engaged would jeopardize the public policy (the jeopardy element);

       (3) The plaintiffs must prove that the public-policy-linked conduct caused
           the dismissal (the causation element);

       (4) The defendant must not be able to offer an overriding justification for
           the dismissal (the absence of justification element).




                                           -21-
No. 72707-9-1/22



Roe v. TeleTech Customer Care Momt. LLC. 171 Wn.2d 736, 756, 257 P.3d 586

(2011). The only issue here is whether the employee guidelines or RCW 4.96.020

provide a clear public policy sufficient to satisfy the clarity element.

       Wrongful discharge in violation of public policy is a narrow exception to the at-will

employment doctrine that balances the employee's interest in job security and the

employer's interest in making personnel decisions without fear of liability. Roe. 171

Wn.2d at 755. To maintain this balance, courts will not permit an action for wrongful

discharge absent "[a] clear mandate of public policy sufficient to meet the clarity

element [that is] truly public; it does not exist merely because the plaintiff can point to

legislation or judicial precedent that addresses the relevant issue." Roe. 171 Wn.2d at

757. Courts must "'find', not 'create' public policy and the existence of such policy must

be 'clear.'" Selixv. Boeing Co.. 82 Wn. App. 736, 741, 919 P.2d 620 (1996) (quoting

Roe v. Quality Transp. Servs.. 67 Wn. App. 604, 610, 838 P.2d 128 (1992)).

        In Thompson v. St. Regis Paper Co.. the court explained that an employer's

conduct must violate a clear legislative or judicial expression of public policy:

               "In determining whether a clear mandate of public policy is violated,
       courts should inquire whether the employer's conduct contravenes the
       letter or purpose of a constitutional, statutory, or regulatory provision or
       scheme. Prior judicial decisions may also establish the relevant public
       policy. However, courts should proceed cautiously if called upon to
       declare public policy absent some prior legislative or judicial expression on
       the subject."

102 Wn.2d 219, 232, 685 P.2d 1081 (1984) (emphasis omitted) (quoting Parnar v.

Americana Hotels. Inc.. 65 Haw. 370, 380, 652 P.2d 625 (1982)). Generally, courts

recognize a clear violation of public policy in four situations:



                                            -22-
No. 72707-9-1/23



               (1) where employees are fired for refusing to commit an illegal act;
       (2) where employees are fired for performing a public duty or obligation,
       such as serving jury duty; (3) where employees are fired for exercising a
       legal right or privilege, such as filing workers' compensation claims; and
       (4) where employees are fired in retaliation for reporting employer
       misconduct, i.e., whistleblowing.

Gardner v. Loomis Armored. Inc.. 128 Wn.2d 931, 936, 913 P.2d 377 (1996). The issue

here is whether either the Federal Way Employee Guidelines or RCW 4.96.020 clearly

create a "legal right or privilege" sufficient to sustain a claim for wrongful discharge in

violation of public policy. Gardner. 128 Wn.2d at 936.

       Piel has failed to show that the Federal Way Employee Guidelines constitute a

"clear mandate of public policy" for purposes of a wrongful discharge claim. Roe. 171

Wn.2d at 757. In 2005, Piel filed several complaints with the City's human resources

department under the Federal Way Employee Guidelines. He alleged the City failed "to

follow its own Employee Guidelines concerning the preparation of 'Employee

Performance Appraisals.'" CP at 14-15. He disputed his performance appraisals and

filed a second complaint when he learned the disputed appraisal would be placed in his

permanent personnel file. Piel argues that filing these complaints is a protected activity

for purposes of a wrongful discharge claim.

       But the employee guidelines do not create a public "legal right or privilege."

Gardner. 128 Wn.2d at 936. They are not a "constitutional, statutory, or regulatory

provision or scheme," and Piel fails to cite any authority supporting the proposition that

the employee guidelines create a public legal right or privilege sufficient for a wrongful




                                           -23-
No. 72707-9-1/24



discharge claim.12 Thompson. 102 Wn.2d at 232. Piel cites Bravo v. Dolsen

Companies. 125 Wn.2d 745, 888 P.2d 147 (1995). Bravo involved a statute that

granted "substantive rights upon employees to be free from interference, restraint, or

coercion." Bravo. 125 Wn.2d at 758 (discussing RCW 49.32.020). Unlike Bravo, the

guidelines at issue here do not stem from a statutory scheme, nor do they confer

analogous substantive rights.

       RCW 4.96.020 also creates no legal right or privilege sufficient for Piel's wrongful

discharge claim. RCW 4.96.020 details procedural requirements before an individual

may sue a government entity. The statute requires that "[a]ll claims for damages

against a local governmental entity ... shall be presented to the agent within the

applicable period of limitations within which an action must be commenced." RCW

4.96.020(2). Piel argues that because filing a notice of a claim for damages is required

by the statute prior to commencing a tort claim against the City, it is protected conduct

for purposes of a wrongful termination claim.

       But the statute is primarily procedural; it does not grant any "substantive rights

upon employees." Bravo. 125 Wn.2d at 758. Further, courts have recognized that the

purpose of the statute is to protect government entities, not the public: "The purpose of

this [notice of tort] claim is to allow government entities time to investigate, evaluate,

and settle claims before they are sued." Fast v. Kennewick Public Hosp. Dist.. 188 Wn.

App. 43, 54, 354 P.3d 858 (2015) (quoting Renner v. City of Marvsville. 168 Wn.2d 540,

545, 230 P.3d 569 (2010)). Although filing a lawsuit against one's employer is arguably


       12 Indeed, Piel only spends two sentences in his opening brief arguing the
Guidelines constitute a clear mandate of public policy.
                                           -24-
No. 72707-9-1/25



protected activity, the public policy protecting this action does not stem from RCW

4.96.020. As discussed above, to sustain a claim for wrongful discharge in violation of

public policy, the source of public policy must be a clear mandate, and "courts should

proceed cautiously if called upon to declare public policy absent some prior legislative

or judicial expression on the subject." Thompson. 102 Wn.2d at 232: see also Selix. 82

Wn. App. at 741 (courts must "'find,' not 'create' public policy and the existence of such

policy must be 'clear'"). Piel has failed to show that RCW 4.96.020 provides a clear

mandate of public policy sufficient to sustain his wrongful discharge claim.

         Collateral Estoppel

         Piel also argues the trial court erred when it ruled that he was collaterally

estopped from asserting that his 2006 discharge was motivated by anti-union animus.

         Collateral estoppel prevents relitigation of an issue after the estopped party has

already had a full and fair opportunity to present its case. Pederson v. Potter. 103 Wn.

App. 62, 69, 11 P.3d 833 (2000). "It is well settled that in an appropriate case the

decision in an arbitration proceeding may be the basis for collateral estoppel or issue

preclusion in a subsequent judicial trial." Robinson v. Hamed. 62 Wn. App. 92, 96-97,

813P.2d 171 (1991); see also PieJ, 177 Wn.2d at 615 ("an employee who loses in an

administrative arbitration proceeding ... may be collaterally estopped from asserting a

wrongful discharge claim."). There are four requirements for collateral estoppel to

apply:

                 (1) the issue decided in the prior adjudication must be identical with
         the one presented in the second; (2) the prior adjudication must have
         ended in a final judgment on the merits; (3) the party against whom the
         plea is asserted was a party or in privity with a party to the prior
         adjudication; and (4) application of the doctrine must not work an injustice.

                                             -25-
No. 72707-9-1/26




Pederson. 103 Wn. App. at 69. The trial court correctly ruled that Piel is collaterally

estopped from arguing his 2006 termination was motivated by anti-union animus.

       Piel mainly argues that the trial court erred because the issue in his 2007

arbitration was not identical to the claim he alleged in his complaint to the trial court—

that his 2006 termination was motivated by anti-union animus. He claims "there was a

reasonable hypothesis that the issues were not identical for collateral estoppel

purposes." Br. of Appellant at 50. But the record shows the arbitration did address

whether the Department terminated Piel due to anti-union animus. The arbitration

focused on whether the "just cause" existed to terminate Piel. This analysis required

the arbitrator to consider whether the Department applied its rules "evenhandedly and

without discrimination to all employees." Ex. 31 at 16. Indeed, Piel argued that the

Department lacked just cause because it was motivated by anti-union animus. In his

brief to the arbitrator, Piel even identified the elements for a wrongful discharge claim:

               An employer's decision to impose discipline cannot be based on
       the improper motive of bias against a labor organization ... This issue
       commonly arises where the target of discipline is a union officer or activist,
       where there is a pattern of more lenient discipline for similar offenses in
       the past, and where the relationship between the labor organization and
       the employer is a difficult one .. .
               A claim for wrongful termination in violation of public policy exists
       where a Plaintiff proves 1) The existence of a clear public policy; 2) that
       discouraging the conduct would jeopardize the public policy; 3) that public
       policy-linked conduct caused the termination; and 4) that the employer's
       justification for termination was pre-textual...
               [The evidence] documents a pervasive history of harassment and
       retaliatory conduct directed at Lt. Piel.




                                           -26-
No. 72707-9-1/27



CP at 263. During opening argument, Piel's attorney—the same attorney who

represented him at trial and in this appeal—expressly argued that the Department

lacked just cause to terminate Piel because the termination was retaliatory:

              It's our position in this matter that Bud Piel was not terminated for
      just cause and that the actions against Lieutenant Piel were retaliatory.
      There was retaliation directed against him because of union involvement,
      which you'll hear through this arbitration, and also retaliation because
      there was a filing by Lieutenant Piel of a claim for damages .. . against the
      City arising from actions directed at him resulting from his union
      involvement.


CP at 270. The arbitrator considered the Department's alleged anti-union animus when

he determined whether just cause existed to terminate Piel. A finding that Piel's

termination was motivated by anti-union animus precluded a finding of just cause.

       Piel does not dispute the trial court's conclusions on the remaining collateral

estoppel elements. They are satisfied under the circumstances here. The trial court

properly granted partial summary judgment on these two issues.

                                     CONCLUSION

       For the foregoing reasons, we affirm the judgment on the jury's verdict.




WE CONCUR:




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                                          -27-
