Opinion
CASE NO. C19-5338 BHS
04-15-2021
DAVID W. BATHKE, Plaintiff, v. CITY OF OCEAN SHORES, Defendant.
DECISION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW
DECISION
Plaintiff David Bathke ("Bathke") had planned to finish his 40-year career in the fire service industry by taking the position of fire chief in the small Washington coastal town of Ocean Shores ("the City"). For the reasons of job security, before he accepted the offer of this position that was extended to him by Mayor Crystal Dingler ("Dingler"), he requested assurance that he would be provided employment security protections. Dingler gave him this assurance by referring him to written documents that would apply to his employment with the City. These included: (1) the collective bargaining agreement the City had with its exempt employees, the Exempt Employees Agreement ("EEA"); (2) the City Personnel Manual ("PM"); (3) the City's collective bargaining agreement with its firefighters ("CBA"); and (4) the Standard Operating Guideline 2000:00 ("SOG").
While the City and Bathke disagree as to the effect of these documents on the interpretation of the "for cause" standard for employment termination, there is accord that these documents together constitute an employment contract and that "for cause" is the standard Dingler should have relied upon in making any decision to terminate Bathke's employment. No matter which interpretation the Court adopts, the standard of "for cause" entails the requirement that, when an employer makes a termination decision, that decision much be actuated in good faith which means that the employer must provide the employee procedural fairness. See Lambert v. Morehouse, 68 Wn. App. 500, 505 (1993) (citing Gaglidari v. Denny's Rests., 117 Wn.2d 426, 437 (1991)). In her attempt to meet this requirement, Dingler failed. The City breached its contract with Bathke, and he is entitled to damages.
During the recruiting process, Bathke was told by Dingler the fire department needed a strong leader to address issues within that organization. It was understood that implementing changes would present some challenges. And Bathke implemented several changes, many of which some firefighters disagreed with. Even so, for the nearly year and a half that Bathke held the position of fire chief, no complaints were lodged by any firefighter or Dingler about his performance.
Bathke began his employment in the position of fire chief for the City on June 12, 2017 after approximately one month of consulting work with the City. He maintained a probationary employee status for his first six months. Bathke's probation ended, and Dingler sent him a letter confirming his permanent status as fire chief on November 12, 2017, in which Dingler said, "I am impressed with your leadership skills and style and look forward to a long career for you here in Ocean Shores."
It was not until December 13, 2018 when Dingler met with members of the firefighters' union that any firefighter communicated a complaint about Bathke's performance as fire chief to Dingler, Bathke's supervisor. The firefighters' union had taken a no confidence vote as to Bathke's leadership on December 10, 2018, and all who were in attendance voted in favor of no confidence. On December 13, 2018, the union members presented Dingler and Human Resource Specialist Dani Smith ("Smith") a list of complaints that had first surfaced at a firefighters' union meeting three days earlier; the complaints were summarized in meeting notes taken by Smith. On the day following her meeting with the firefighters, December 14, 2018, Dingler apparently accepted these complaints at face value—without seeking any response or information from Bathke or conducting an independent inquiry—and placed him on administrative leave with pay. On February 8, 2019, Bathke's status was changed to unpaid administrative leave.
It is significant that the fire department leadership, consisting of the chief, captains, and lieutenants, met monthly to discuss current issues and problems within the department. Minutes were taken of these meetings, and none of the complaints that were later detailed by certain firefighters at the no confidence vote were documented at the monthly meetings; the reason for which is that they were not likely raised, as Bathke contends. Though there are provisions in City policies for the making and processing of complaints or grievances, not one of the complaints communicated to Dingler by the firefighters were ever made or pursued in accordance with these policies. Additionally, though a provision in the PM, ¶ 5.410(c), provided that every employee was to be evaluated at least once a year, Dingler, as Bathke's supervisor, never performed such an evaluation. Bathke had no reason to suspect that his job performance was in any way viewed by members of the department or Dingler as deficient.
At Dingler's request, Firefighter and Local 2109 President Corey Kuhl sent Dingler an email on January 7, 2019 laying out the list of complaints the union had identified in connection with Bathke's performance as fire chief. The list overlaps with some of the complaints stated in Dingler's pre-termination letter but also contains allegations not in that letter or in Notice of Disciplinary Decision.
The City then engaged Robin Nielsen ("Nielsen"), an outside investigator. She visited the City on January 9, 2019 to determine whether Bathke had committed any discriminatory acts or created a hostile work environment. She interviewed only six firefighters. She did not interview Bathke. On January 11, 2019 Nielsen orally communicated her initial findings to the City—that she found no evidence of any unlawful discrimination, harassment, or a hostile work environment. She did indicate there may be some performance issues with Bathke, and she inquired as to whether the City wanted her to further her investigation into those issues. On January 15, 2019, the City informed Nielsen that no further investigation by her was desired and that no formal report to the City on her findings was necessary.
On the very next day, January 16, 2019, Dingler, without conducting any interview of Bathke or undertaking any investigation to explore the firefighters' allegations, sent a letter to Bathke informing him that he had "lost the trust and respect of the members of your department" and that she could "see no path forward" for him to continue as chief of the fire department." In the letter, Dingler offered Bathke four months of severance pay in exchange for his resignation. Remarkably, there were scant details in that letter setting out specific complaints. Dingler did indicate that she would like to "sit down and talk" with Bathke after January 28, 2019. As invited by Dingler, Bathke employed legal counsel, Scott Wellman, who sent a letter to the City on Bathke's behalf on January 23, 2019. The letter rejected the City's offer and suggested a solution through a mediation process. This proposal was in turn rejected, there was no further consideration of having a meeting between Dingler and Bathke, and instead the City provided notice of a Loudermill pre-disciplinary hearing along with a Summary of Charges on February 13, 2019.
The pre-disciplinary hearing was conducted on March 12, 2019. Other than a brief opening statement by attorney Wellman on Bathke's behalf, the 3.5-hour long hearing consisted mostly of Bathke addressing in narrative fashion each of the complaints stated in the summary of charges letter to Bathke. During the period between the placement of Bathke on administrative leave and the pre-termination hearing, there were at least three documents that set out complaints regarding Bathke's performance in his position of fire chief: (1) the notes taken by Smith of the December 13, 2018 meeting involving Dingler, Kuhl, Captain Matt Krick, and Smith; (2) the January 7, 2019 email from Kuhl to Dingler; and (3) the February 13, 2019 Notice of Pre-Disciplinary Hearing.
In arriving at its decision in this case, the Court is confining its analysis to those complaints that were presented in the Notice of Pre-Disciplinary Hearing, some of which were sustained and became the basis of Dingler's decision to terminate Bathke's employment as presented in the Notice of Disciplinary Decision. It is important and relevant to set out the charges included in the Notice of Pre-Disciplinary Hearing showing not just those charges that were sustained but those that were not sustained or were abandoned.
In the interest of organization and simplicity the following is a chart setting out a description of each complaint Dingler cited in her Notice of Pre-termination Hearing, Bathke's response at the hearing, and Dingler's conclusions and decision.
| City's Summary ofCharges | Bathke's Response | City's Conclusions |
|---|---|---|
| 1. Failure to Establish Trust and Confidence Among Staff. | ||
| Engages in bullying,intimidation, andfavoritism; displays anger;and is narcissistic. | Denies pattern of abuse.There were no complaintsor grievances ever filedregarding abuse. Contendsthat these are falseaccusations—that he wasthe one who implementedan emphasis on anti-harassment. Cited need tobring order. Provideddetails of need for strongleadership that incurredresistance and cited praisegiven to employees. | Found behavior could"reasonably be construedas bullying or abusive."There was "significantdegradation of trust andrespect in the department." |
| 2. Poor Judgment and Decision-Making with Respect to Purchases andExpenditures. | ||
|---|---|---|
| E71 Top Mount Generator:Purchased at more costthan the unit it replaced,and the unit was incapableof remote start. Did notconsult firefighters. | E71 Top MountGenerators: Complaint wasbased upon erroneousreport that he spent $4000to $5000 when, in fact, thegenerator cost under$1000—less than the one itreplaced. Could not fit thegenerator that would be itsfactory replacement thathad remote start. | E71 Top MountGenerators: Accepted theexplanation about the falsereporting on higherexpense but stilldisapproved failure to getone with remote start. |
| Portable InverterGenerators:Purchased Paladingenerators from companygoing out of business withno recourse—bought "asis." | Portable InverterGenerators:False allegation. Companynot going out of business,but rather taken over byHoneywell. And was agood deal: 4 generators for$1500. | Portable InverterGenerators: One generatoralready broken and norecourse. |
| Bunker Gear: New BunkerGear poorly fitting and ofmarginal quality. Got a"kick-back" from vendor. | Bunker Gear: Falseallegation regarding "kick-back." Each firefighterfitted with high qualitymeeting national standards.No one ever complained. | Bunker Gear: "Kick-back"explanation accepted. Stillhad complaints that thegear was uncomfortableand poor fitting. |
| Plastic Intubation Devices;Aladtec Software; FireSuppression Foam; Ladder;Zoll MaintenanceAgreement for AED's:These were lumpedtogether because they had acommon theme; theemployees' input was notconsidered. The Zollmaintenance agreementwas allowed to lapse. | Plastic Intubation Devices;Aladtec Software; FireSuppression Foam; Ladder;Zoll MaintenanceAgreement for AED's:Explanations for eachgiven. The allegationsabout suppression foamand ladder are false. Hedidn't purchase either.Allegation was made abouthis purchasing suppressionfoam. The Zollmaintenance agreementallegation is false. It wasnot allowed to lapse. | Plastic Intubation Devices;Aladtec Software; FireSuppression Foam; Ladder;Zoll MaintenanceAgreement for AED's:No contrary findings toBathke's responses on hisassertion of falseallegations. Did find thatthe ladder and airwaydevices were "problematicproducts for one reason oranother." |
| 3. Failure to Comply with Policies and Legal Requirements in Personnel Matters | ||
|---|---|---|
| Disciplinary ProceedingsInvolving FF Schmitz:Failure to followdisciplinary policies. | Disciplinary ProceedingsInvolving FF Schmitz:After initial fact-findingmeeting with unionrepresentation, the next daylegal counsel was broughtin. Bathke followed adviceand guidance of HumanResources Specialist andAttorney. This was secondincident requiringdiscipline. No complainthad been made by theMayor of handling until theNotice of Pre-terminationHearing. | Disciplinary ProceedingsInvolving FF Schmitz:Accepted defense exceptthe process beforeinvolving H.R. andAttorney. Implied breachof attorney-clientcommunications inpresenting response. (Itwas never explained byDingler in the letter oftermination or at trial howthis was a violation.) |
| Requiring FF Frank tocome in early to work out;changes to shift:Violated union contract byinitially placing FF Frankon a 40-hour work week.FF Frank was not paidovertime. | Requiring FF Frank tocome in early to work out;changes to shift:Followed past practice withnew employee fororientation purposes. Frankwas paid overtime. Thiswas a false allegation. | Requiring FF Frank tocome in early to work out;changes to shift:Explanation accepted; butshould have discussed withunion in advance.Apparently accepted theovertime defense. |
| Failure to Comply withPre-Employment MedicalExamination:Improper requirement fortesting for sexuallytransmitted disease whenbringing on a volunteerEMT. (Remaining generalallegation unclear). | Failure to Comply withPre-Employment MedicalExamination:A firefighter expressedconcerns about theappropriateness of takingon a woman about whomthere were concerns on herbackground. Soughtguidance from HRSpecialist Smith. Did notorder a test, and no test wasperformed, though a drugtest is authorized by apolicy in the EmployeeManual after reportableinjury involving City | Failure to Comply withPre-Employment MedicalExamination:Apparently, responseaccepted. But new concernraised regarding requiring adrug test upon a firefighterthat had fallen "from thehulk." The post-accidentdrug testing allegationregarding the "hulk" wasnot specifically included inDingler's pre-terminationletter. Dingler did notexplain why post-accidenttesting would be improper |
| property and is not"random testing." | or in violation of Citypolicy. | |
| Hiring a friend fromWisconsin over the Fourthof July:Hired a friend for extracoverage on holiday "ratherthan allowing one of yourseasoned Fire Captains tobe in charge of the station."Friend paid more thanothers and did not knowprocedures. | Hiring a friend fromWisconsin over the Fourthof July:False allegation. FF TravisBearden was in charge ofscheduling for Fourth ofJuly. He made theassignments. | Hiring a friend fromWisconsin over the Fourthof July:Explanation was acceptedexcept that still concernedabout lack of knowledge ofthe community. |
|---|---|---|
| Use of City staff forpersonal errands and jobs:Hired a City employee topaint house interior andpaid by giving a rifle aspayment rather than actualmonetary payment; usedActive 911 to solicitemployee help in move;used an on-duty employeeto deliver piece of exerciseequipment to home. | Use of City staff forpersonal errands and jobs:Had an employee, whodoes house painting on theside, to do some interiorpainting. The painterwanted extra money to buya rifle. Bathke offered arifle as part of the payment,and it was accepted. Falsestatement about using 911to solicit moving help.Doesn't have access to 911system. He used theAladetec system which isuse for personalcommunications as wellscheduling. The exerciseequipment was won at afirefighter's auction. FFKuhl told Bathke if Bathkewon it he would deliver it. | Use of City staff forpersonal errands and jobs:No mention in terminationof the painting episode.Accepted explanation ofdelivery of exerciseequipment. Still reporteduse of 911 to solicitmoving, but even ifAladtec, should not be usedby employees to helpmove. (No policy or rulecited as constituting aviolation). |
| Grievances:Union grieved Bathke'spersonnel decisions morethan prior leadership.Examples, discipline of FFSchmitz and FF Franksworking a 40-hour week. | Grievances:Not addressed beyond theresponse in Charge 3. | Grievances:Not addressed beyond thedecision in Charge 3. |
| Breaking the Chain ofCommand:Captains complain thatBathke directly superviseslieutenants. | Breaking the Chain ofCommand:Not discussed. | Breaking the Chain ofCommand:Not discussed. |
|---|---|---|
| 4. Failure to Respond Promptly or Properly to Calls | ||
| Failure to respond tofatality fire until after thescene had cleared. Didn'tdebrief firefighters.Several agencies present toassist fire department butBathke only present afterevent over. Bathke failed todebrief responders. | Failure to respond tofatality fire until after thescene had cleared. Didn'tdebrief firefighters.Was present asdemonstrated by photoBathke took of firefighterat the scene using a hose toextinguish fire. CaptainKrick, as incidentcommander, wasresponsible for debriefing. | Failure to respond tofatality fire until after thescene had cleared. Didn'tdebrief firefighters.Only present at mop upstage. Should havedebriefed firefighters, notjust by Captain Krick. |
| Response to TsunamiWarning.Staff had difficultyreaching Bathkeconcerning the tsunamiwarning and he was notaware of steps to be taken. | Response to TsunamiWarning.Bathke was present. | Response to TsunamiWarning.Explanation accepted,except Dingler said "as Irecall, you were not versedin our tsunami protocols." |
| 5. Disrespectful Comments | ||
| Made statement abouthaving council member.Bathke had been heardboasting that he had acouncil member in hispocket. | Made statement abouthaving council member.Bathke said he had the voteof a council member in hispocket regarding a rateincrease. | Made statement abouthaving council member.Clarification accepted butstill regarded as "lack ofdecorum." |
| Bathke respondednegatively in connectionwith an issue involving Lt.Kuhl.Manner was abrasive,counterproductive and"reflected poorly on ouragency." | Bathke respondednegatively in connectionwith an issue involving Lt.Kuhl.Lengthy explanation given. | Bathke respondednegatively in connectionwith an issue involving Lt.Kuhl.Not included as basis fordecision to terminate. |
| 6. Dishonesty | ||
|---|---|---|
| False statement attributedto Mayor.Mayor did not orderBathke to purchase a newcommand vehicle asBathke asserted. | False statement attributedto Mayor.False. Bathke told othersthat Mayor said to keep thecommand vehicle in thebudget. | False statement attributedto Mayor.Not included as basis fortermination. |
| False statement made toDani Smith regarding FireInspector.Dingler did not know aboutthe demotion. | False statement made toDani Smith regarding FireInspector.Told Dingler about it in ameeting and she wascopied on email concerningthe subject. | False statement made toDani Smith regarding FireInspector.Dingler still unhappy abouthandling of the matter andthat Bathke said that themayor supported theaction. |
The forgoing table reflects that many of the complaints that made up the February 23 letter to Bathke were either not sustained, were abandoned, or were substantially accepted by the Mayor based on Bathke's response to them. Despite this, on March 22, 2019, the City gave Bathke an official notice that he was terminated from his employment.
In reviewing Dingler's actions, the Court is not permitted to substitute its view of whether Dingler's decision to terminate Bathke's employment was the correct one. Instead, the Court is charged with determining whether "at the time plaintiff was dismissed defendant reasonably, in good faith, and based on substantial evidence believed plaintiff had [committed the violations]." Gaglidari, 117 Wn.2d at 438.
Although Dingler may have attempted to be objective in her findings and ultimate conclusions, her deliberative process was infected by an unfair process leading up to the pre-termination hearing. When she wrote the letter proposing his resignation, she appeared to have made up her mind that Bathke's employment was going to end. It was contrary to best practices for her to be both the investigator and the decision maker. Dingler made no attempt to delve into the individual complaints but accepted them at face value as reported to her by the firefighters; she could have sought out other witnesses and City documents that were relevant to issues. She did not do anything more before the pre-termination hearing than rely on what turned out to be, in many cases, the firefighters' inaccurate, misleading, or incomplete reports and allegations. Even more astonishing is that her investigation did not include an interview with Bathke or an opportunity for him to provide evidence until the pre-disciplinary hearing itself. This course of action also was a violation of standards for pre-disciplinary investigations in the employment arena according to the expert testimony of Deborah Diamond. Dingler's actions and omissions, if viewed separately, might not constitute sufficient evidence of an unfair process. But, taken as a whole, the cumulative effect of these rendered the decision to terminate as the product of an unfair process and, thus, as a legal matter made in bad faith.
Although the claim in this lawsuit is one for a breach of contract, there was not a formal employment agreement. Instead the contract that was breached consists of four City documents, which are relevant to the Court's inquiry. Those documents are: (1) the PM; (2) the EEA; (3) CBA; and (4) SOG. What all have in common is that an employee may only be discharged "for cause." The EEA provided that the standard for "just cause" is to be "cause with the grounds therefore the same as those for union represented employees." Bathke argues that, in the union context in the State of Washington, the Daugherty factors, which were originally presented in 1964 by arbitrator Carroll Daugherty and were endorsed in Civil Service Commission of City of Kelso v. City of Kelso, 137 Wn.2d 166 (1999), apply. This argument is persuasive. Dingler confirmed this understanding in her deposition:
Q: (Plaintiff's Counsel) Meaning that not only would you have to satisfy what constitutes cause in the personnel manual, but you would have to satisfy what constitutes cause in the -for—firing a union-represented employee; am I right?
A: (DINGLER) This—yes, I believe that's true.
Q: And he was to be treated as far as being fired the same as a union-represented employee; am I right?
Defendant's Counsel: I will object to the form.
A: Okay, I believe that's true according to this document [referring the EEA], yes.
While the PM at Section 9.810(a) provides, "Although the City normally follows these conditions and procedures, the City retains the right to deviate from them as it deems necessary at is sole discretion," the City has not invoked or argued the applicability of this section to the Bathke termination. Rather, it has acknowledged that the standard for review of his termination is "for cause."
Dingler's answer further informs the question of what was intended by the party who drafted these documents and was charged with implementing the agreement. While the language of the EEA states "Employees' employment shall not be terminated by the City except for 'cause", with the grounds therefor to be the same as those applicable to the City's union represented employees . . . ", it is fair to read this arguably ambiguous language, as Dingler did in her testimony, to regard the term "grounds" as implicating the protections of the City's collective bargaining agreements. Arguably, this would include the application of the Daugherty factors when analyzing those grounds.
However, the outcome of the case does not depend upon whether the "for cause" standard includes the Daugherty rubric because this standard even without such a rubric "entails much more than a valid reason; it involves such elements as procedural fairness, the presence of mitigating circumstances, and the appropriateness of the penalty." City of Kelso, 137 Wn.2d at 173. Here there was a lack of procedural fairness. Had the City performed a reasonable investigation before Dingler sent the Notice of Pre-Disciplinary Hearing (or even before the Pre-Termination Hearing), beyond taking the firefighters' complaints as wholly credible, there is reason to believe the outcome would have, or should have, been different.
The Court does not find that Dingler's decisions in this case were motivated by malice or bias. These need not be established for the Court to conclude that the termination process was not conducted in good faith. After hearing testimony in six days of trial, listening to the audio recording of the pre-termination hearing, and reviewing the admitted documents, the Court concludes that Bathke was not procedurally treated fairly. It is not important that Dingler may have intended to provide a fair process, the record as a whole demonstrates that it was not.
Bathke was blind-sided, without any prior notice or warning of the no confidence vote that was suddenly followed with Bathke being placed on administrative leave. An attempt was made to conduct an investigation through an outside investigator, but when Nielsen found no evidence of discrimination or harassment, she was relieved of any further obligation to investigate, though she identified that there might be some performance issues.
Dingler testified that she informed Bathke that there was the possibility of a no confidence vote within a day of learning about the vote from Smith. She could not testify as to the specific date of the meeting but believed "it was a couple weeks before" the December 13, 2018 meeting with Captain Krick and Lt. Kuhl. Smith testified that she told Dingler about the potential no confidence vote on November 14, 2018. Bathke, however, testified that he was out of state on November 15, 2018, which would logically be the day Dingler informed Bathke about the no confidence vote based on her and Smith's testimonies. Bathke testified that, in fact, he was never told by Dingler or anyone of the possible no confidence vote prior to that vote.
Dinger testified that Bathke seemed surprised when she informed him of the no confidence vote after it occurred. Because the date of the alleged meeting was clearly wrong and because Bathke seemed surprised, suggesting he was learning about the vote for the first time, the Court finds that, while there may have been a meeting of some nature at some time between Bathke and Dingler, there is insufficient evidence to find that Bathke had information about the impending no confidence vote. Further, even if such a meeting occurred with notice of the possible vote, this would not qualify as a warning under the City's progressive discipline policy. Neither Dingler or Smith characterized the passing of the information as a disciplinary warning and no written documentation was made of the alleged "warning" as required by the SOG 2000 and "recorded in his/her personnel manual" pursuant to the Collective Bargaining Agreement between Teamsters Local and City of Ocean Shores.
At Dingler's request, the union president sent the January 7, 2019 memo outlining the union's complaints. More troubling is that the memo included an attachment that in trial was referred to as the Maple Valley letter. This document had been kept, not as a public document as part of the recruitment process, but by the union president to hold and bring out at the union meeting that resulted in a no confidence vote. It can only be conjecture that this document served its purpose to bolster the credibility of the firefighters' complaints and persuade Dingler that the only option available to her was to replace their supervisor.
The Maple Valley letter originated from the Maple Valley, Arizona firefighters' union and described Bathke as being deceitful, dishonest, and a snake. Lt. Kuhl physically gave the letter to Dingler and later emailed it to her.
Progressive Discipline
Bathke argues that Dingler was "mandated" but failed to provide the progressive discipline processes set out in the PM, the CBA, and SOG 2000. The flaw in this argument is that each progressive step of discipline, as outlined in these documents, is not necessary for the City to impose the ultimate discipline of termination. The City retains the right to terminate employment for just cause if the gravity of the offense is sufficiently severe.
Damages
Bathke is entitled to an award of damages as a result of the City's breach of contract. Reinstatement is not requested and, in any case, would not be a viable remedy in the situation that is present here involving a top management position. The calculation of damages was presented through the testimony of CPA David S. Hanson ("Hanson"). The City did not rebut through expert testimony Hanson's method of calculating damages but challenges the assumption in the calculation that Bathke is, and will remain, unemployable for the ten-year period that Bathke expected to be employed at the City until his planned retirement. The Court accepts Hanson's methodology.
Bathke testified that he has vigorously sought employment, almost exclusively in the fire service, without success. He supported this contention with a log he produced reflecting applications made to employers for a total of 254 positions from February 7, 2019 through November 8, 2020.
The City, however, challenged the assertion that he has thoroughly exhausted his possible opportunities through all the available openings posted in the trade publications Daily Dispatch and firejobs.com. The City pointed to several openings posted in the Daily Dispatch in the fall of 2020 for which Bathke did not apply.
The Court finds that Bathke took reasonable steps to secure employment in the fire service and made some effort to seek work in related fields. However, the Court cannot conclude from the evidence submitted at trial that Bathke is wholly unemployable and has been forced to an early retirement without prospects for obtaining any gainful employment. His education, training, skills and experience in management provides marketable skills in many fields of employment. If he were to seek employment with employers in need of middle management, he is likely at some time to be successful. Even so, he lost a very well-paying position with benefits, as described in Hanson's testimony. Because it may take some additional time and effort for Bathke to secure solid and stable employment at a position that is likely going to be less remunerative, the Court finds that the total net present value of his lost future income is 50% of the amount calculated by Hanson. Similarly, whether any such future employment would entail Washington State retirement benefits is uncertain but quite possible; especially since Bathke would have the incentive of seeking employment that would continue his participation in a Washington State administered pension fund. Therefore, the Hanson figure is also reduced by 50%.
In post-trial briefing, Bathke volunteered (after the close of evidence presentation) reducing the loss of future income by $19,718 representing income Bathke earned at a temporary position with the California Medical Assistant Teams in connection with setting up a temporary field hospital for COVID-19 patients. This evidence, accepted by the City and the Court, supports the Court's conclusion that he remains employable. --------
The loss calculated by Hanson of future earnings, pension and benefits totals $1,414,839, reduced by half, and less the $19,718 Bathke earned in a recent temporary position and $19,474 he received in unemployment benefits equals $668,227.50. In addition, Bathke has established that by losing this position he also likely lost the opportunity to have his educational loan forgiven. This amount was calculated to be $66,149 after being discounted to present value. The total damages awarded to Bathke is $734,376.50 representing the sum of the lost future income, benefits and loan forgiveness.
As the prevailing party, Bathke seeks an award of his reasonable attorney's fees, citing RCW 49.48.030 as interpreted in International Association of Fire Fighters, Local 46 v. City of Everett, 146 Wn.2nd 29 (2002). The City correctly argues that the EEA, which forms part of the employment contract with Bathke, contains the provision that, "The City and Employees shall each be responsible for their own attorney's fees in any Court action or arbitration proceeding involving this Agreement." This is an enforceable provision. Bathke's request for an award of attorney's fees is denied.
In addition to the foregoing, having heard and reviewed the testimony of the witnesses, the evidence of records, and the contentions and arguments of counsel, the Court, in accordance with Rule 52(a) of the Federal Rules of Civil Procedure, makes supplemental findings of fact and conclusions of law as follows:
FINDINGS OF FACT
1. On March 4, 2017, Plaintiff David Bathke applied for a job as Fire Chief for the City of Ocean Shores.
2. As part of the hiring process Mayor Dingler asked that lieutenant Corey Kuhl conduct a background investigation regarding Bathke.
3. Prior to being hired, Bathke had several conversations with the Mayor. The Mayor explained that the City's fire department faced multiple challenges as it has been without a fire chief for a number of months. These challenges included excessive overtime, operating over budget, the City needed to save the positions of seven of its full-time fire fighters, the crew needed to be held accountable, they needed to bring in new digitized record management systems, they needed new safety training, they needed to obtain new equipment, and they needed to negotiate a new union contract.
4. When Bathke interviewed with the City of Ocean Shores, Mayor Dingler had two internal applicants apply for the fire chief position but she did not hire from within. Mayor Dingler testified that she wanted to hire a strong leader to handle these challenges.
5. Bathke was concerned about job security when he was seeking employment at Ocean Shores. He was 56 years old and would be moving from Arizona to Washington and the changes he would be making may not be popular. He told members of the interview panel which included Mayor Dingler that "this is it" for him and agreed to commit to 10 years as fire chief.
6. He knew that the Mayor supervised department heads and he was concerned about a change in leadership after the next election if a new mayor were elected. He discussed these concerns with Mayor Dingler. Rather than providing Bathke with his own specific contract, she emailed Plaintiff the Exempt Employees Agreement that the City uses for all exempt employees, which she stated was "favorable to them."
7. On April 13, 2017, Mayor Dingler emailed a copy of the Exempt Employee Agreement and Exempt Employee Salaries to Bathke. She directed Bathke to the City's website to look at the four union contracts to look at their disciplinary procedures. Based upon his discussion with Mayor Dingler, Bathke understood that as an exempt employee, he had the same corrective, progressive, discipline rights as all of the other collective bargaining units, fire, police, public works, and clerical.
8. The City uses a corrective, progressive discipline process. This policy is contained in each of the following:
a. 2014 City Personnel Manual;
b. 2018 City Personnel Manual; and
c. Standard Guide 2000.1 of the City's fire department.
9. During trial, both Mayor Dingler and HR Specialist Dani Smith testified that the City utilizes a progressive, corrective discipline policy.
10. The position of Fire Chief for the City of Ocean Shores is included among positions in the City that are subject to an agreement known as the EEA dated April 27, 2009. This agreement predated Bathke's employment with the City. This agreement was provided to plaintiff as the agreement that would govern his employment with the City. Bathke understood it was drafted by the City. Attached as part of the Exempt Agreement is The Memorandum of Understanding between the City of Ocean Shores and the Exempt Employees of the City of Ocean Shores. This MOU was signed by Mayor Crystal Dingler for the City of Ocean Shores on July 25, 2014. Contained in this MOU are the following terms: "WHEREAS, the members of the Exempt Employees bargaining unit have agreed to contribute at a higher rate toward their health and welfare benefits. Now, therefore, the parties agree to modify the terms of the 2009 Exempt Employees collective bargaining agreement as follows . . . ." (emphasis added).
11. The Exempt Employee Agreement contained the following language:
Initial and Extended Term [s] of Agreement. This Agreement shall continue until modified or terminated as set forth below. During the said period, and during any extensions thereafter, Employees' employment shall not be terminated by the City except for "cause", with the grounds therefor to be the same as those applicable to the City's union-represented employees, including provisions relating to any reduction-in-force.
12. The City of Ocean Shores has four groups of union-represented employees: Fire department employees represented by Local 2109 of the International Association of Firefighters ("IAFF"); and Police, Clerical, and Public Works employees. The bargaining agreements for all four bargaining units require "cause" for discipline. Each agreement requires that all allegations of wrongdoing be timely, thoroughly, and fairly investigated. The agreements also require that any discipline be subject to a progressive, corrective process where the employee is counseled and given the opportunity to correct any perceived defective conduct or behavior.
13. The personnel manual at the time Bathke was hired was dated 2014. In August 2018, the City adopted a revised Personnel Manual.
14. Bathke's personnel file did not contain any complaints, write-ups, or evidence of workplace issues.
15. Bathke never had a performance review during the time that he served as the City's fire chief.
16. During the time that Bathke was the fire chief, he held monthly Officers meetings and quarterly Safety Meetings. These meetings contained an open Round Table Segment that allowed the firefighters to voice any concerns or complaint. Minutes were kept of all of these meetings. The minutes do not reflect any complaints or concerns about Bathke's management decisions, his management style, or any equipment purchase decisions.
17. There is no evidence of any complaint made against Bathke's management decisions, his management style, or equipment purchase decisions despite the fact that the City maintains strict non-retaliation policies, Ocean Shores Personnel Manual: 1.050 Work Place Harassment, and 8.765 Complaint Procedures, and OSFD O.D. 2000.02, Open Reporting of Workplace Risk, Wrongdoing, or Harassment, which promotes the free expression of employee complaints or concerns.
18. On December 13, 2018, Lt. Kuhl and Capt. Krick met with Mayor Dingler and Dani Smith and advised them that the union had taken a vote of no confidence in Chief Bathke at the previous union meeting on December 10, 2018. Lt. Kuhl presented the Maple Valley letter as part of the complaints the union members had against Bathke. They stated that if she did not do what they asked they would take it to the "press and news."
19. On December 14, 2018, Mayor Dingler placed Bathke on paid administrative leave and had him escorted off of the City's property.
20. After Bathke was placed on administrative leave, the damaging Maple Valley letter was placed in his personnel file and was provided to the public.
21. After Mayor Dingler placed Bathke on administrative leave, Mayor Dingler and Dani Smith met with 12 fire department employees (11 firefighters and administrative assistant Courtney Beebe), who described their feelings when they met with Mayor Dingler. Including volunteer firefighters (i.e., non-union firefighters), the City's department consisted of about 30 firefighters.
22. Prior to the being placed on administrative leave, Bathke had no notice or knowledge that there were major issues between him and the union.
23. The Mayor headed the investigation of the allegations made against Bathke. However, in conducting the investigation, neither she or anyone on behalf of the City (1) spoke to Bathke; (2) spoke to any witnesses on his behalf; and (2) nor viewed any documentary evidence on Bathke's behalf. Mayor Dingler's investigation was limited to speaking to some of the union firefighters.
24. In early January 2019, the City hired a workplace investigator, Robin Nielson, to investigate the reasons behind the no confidence vote.
25. The agreement with Nielson specifically stated that she was to investigate the reasons behind the no-confidence vote.
26. Nielson never spoke to Bathke or anyone on his behalf.
27. The Mayor concluded her investigation by January 16, 2018. The City declined to have Nielson prepare a report. The Mayor never spoke to Nielson about her findings or conclusions. By the time Mayor Dingler concluded her investigation, she was aware of the Officers Meetings minutes that were available in writing, but she did not review them to see if any of the allegations by the union members were true or false.
28. On the same day, the City informed Nielson to cease her investigation, and Mayor Dingler emailed a letter to Bathke informing him that she did "not see a path forward for him" and presented him with a separation agreement and a draft resignation letter. The letter also stated that Bathke may consult with an attorney.
29. In response to this letter, Bathke hired an attorney who presented the City with a letter suggesting that the parties attempt to mediate the situation so that Bathke could return to work. The City did not respond this request.
30. The City did not attempt to put together a Personal Improvement Plan or fashion any type of progressive, corrective discipline for Bathke.
31. After Bathke was put on leave on December 14, 2018 no one from the City contacted him to inform of any wrongdoing he had engaged in for a period of two months when on February 13, 2019 the City presented him with a "Summary of Charges."
32. The Summary of Charges contained allegations from some of the union firefighters.
33. Other than speaking to the complaining union firefighters, the Mayor did not verify the truth of the allegations made in her summary of charges. The summary of charges contained numerous inaccuracies, but the Mayor did not uncover these inaccuracies as she failed to independently verify the allegations.
34. From the time that Bathke was put on leave on December 14, 2018, not one person or representative from the City ever contacted him to interview him regarding the reasons why he had been put on leave. Bathke had no knowledge of any perceived issues until two months later when the City presented a Summary of Charges.
35. On March 12, 2019, Mayor Dingler served as the hearing officer for Bathke's pre-disciplinary hearing. This was not an evidentiary hearing and no witnesses were permitted according to the City's policy.
36. The pre-disciplinary hearing, which occurred four months after Bathke was put on leave, was the first time that the City heard from Bathke.
37. Employment dispute expert, Deborah Diamond, testified that the pre-disciplinary hearing must never be the first time that the employer hears from the accused. This is, in fact, listed in recognized employment dispute guidelines as one of the ten greatest mistakes. Diamond also testified that the decision maker must be different that the person who investigated this matter. However, the Mayor acted as both the investigator and the decisionmaker.
38. On March 22, 2019, the Mayor issued her decision terminating Bathke's employment with the City.
39. Since being fired, Bathke has applied for more than 250 jobs. These include not only both executive and non-executive positions in the fire fighting and emergency management system industries but also in industries unrelated to these industries. They also include jobs throughout the country.
40. Despite applying for such jobs, Bathke has not been able to find another full-time permanent job.
41. By being fired, Chief Bathke not only lost his annual salary and health insurance, but also benefits including retirement benefits and benefits relating to forgiveness of student loans.
42. The amount of damages incurred by Chief Bathke total $780,523. This consists of the following:
| Past Lost Salary from Termination DateThrough December 31, 2019 | $90,880 |
| Future Lost Salary from January 1, 2020Through Expected Retirement(discounted to present value) | $812,162 |
| Loss Pension Benefits(discounted to present value) | $498,486 |
| Past Lost Dental Insurance Benefits fromTermination Through December 31, 2019 | $1,080 |
| Past Lost Life Insurance Benefits fromTermination Through December 31, 2019 | $333 |
| Lost Dental Insurance Benefits(discounted to present value) | $9,113 |
| Lost Life Insurance Benefits(discounted to present value) | $2,785 |
|---|---|
| Total Future Lost Salary, Pension, andInsurance Benefits | $1,414,839 |
| Less 50% Discounted Rate of Future LostSalary, Pension, and Insurance Benefits | $707,419.50 |
| Forgiveness of Loan(discounted to present value) | $66,149 |
| Total Damages: | $773,568.50 |
| Less Unemployment Benefits Received | $19,474 |
| Net After Unemployment Benefits | $754,094.50 |
| Less Wages: Cal-Mat Covid-19Temporary Assignment from December14, 2020 to March 22, 2021 | $19,718 |
| Bathke's Damages: | $734,376.50 |
|---|
CONCLUSIONS OF LAW
1. This is a breach of contract case.
2. The Court initially had jurisdiction pursuant to 28 U.S.C. § 1331 (federal question) but now has jurisdiction pursuant 28 U.S.C. § 1367 (supplemental jurisdiction). The Court has personal jurisdiction over the parties.
3. Bathke's employment was governed by the Exempt Employee Agreement, plus the Union Contract, which states that Bathke could not be terminated "except for "cause" with the grounds therefor to be the same as those applicable to the City's union-represented employees, including provisions relating to any reduction-in-force."
4. Extrinsic evidence shows that, with respect to union represented employees, the City has a progressive, corrective discipline process.
5. The standard in Baldwin v. Sister of Providence in Washington, 112 Wn.2d 127 (1989), applies and was not met. This is because the Baldwin standard of discharge must satisfy the following elements:
a. Fair and honest reason regulated by good faith on the part of the City;
b. Reasons which are not arbitrary, capricious, or illegal;
c. Reasons which are based on facts supported by substantial evidence; and
d. Which is reasonably believed by the employer to be true. Id. at 139.
6. The City has breached this standard by failing to act reasonably and use good faith in properly investigating the allegations or providing a fair process to Chief Bathke.
7. The City breached its agreement with Bathke.
8. As a result of the breach, Bathke suffered damages in the amount of $734,376.50.
9. Since the dispute arose regarded the EEA, each party "shall be responsible for their own attorney's fees in any Court action[.]" No award of attorney's fees is made.
Dated this 15th day of April, 2021.
/s/_________
BENJAMIN H. SETTLE
United States District Judge