Opinion
Case No. C03-5210RJB.
February 9, 2004
ORDER
This matter comes before the court on Defendant's Motion for Summary Judgment. Dkt. 10. The court has considered the pleadings filed in support of and in opposition to the motion and the file herein, and has determined that this matter may be decided without oral argument.
PROCEDURAL AND FACTUAL BACKGROUND
Defendant Shin-Etsu Handotai America, Inc. (SEHA) manufactures high grade silicon and epitaxial wafers widely used in the computer microchip industries. Plaintiff Michael Schueller was hired by SEHA in 1984 and worked in the Production Maintenance Department, his last position being Production Technician 4. Mr. Schueller's last Supervisor was Mr. Dale Chitwood, and his last Manager was Mr. Kevin Ball.
Mr. Schueller testified in his deposition that, in June 2001, he told Mr. Chitwood that "I no longer appreciated the nickname Pops, that I wanted to ask him to help quash the nickname calling, because I was getting to be very sensitive over the issue. And his reply at that time was he would handle it." Dkt. 11, Exh. 1, at 72. Mr. Schueller stated that he raised the same issue with Mr. Chitwood in July 2001 because there had been no change in his co-workers' behavior. Mr. Schueller stated that he told Mr. Chitwood in August 2001 that he threatened to go to HR if the harassment continued. Mr. Schueller stated that Mr. Chitwood met with the co-workers; that the co-workers came up to him after the meeting and told him they didn't realize that he didn't like being called Pops; that these co-workers never called him Pops to his face again; and that he later overheard employees more than one time in the break room refer to him as Pops. Id. at 24-28. Mr. Chitwood recalled the incident related to "Pops" comments by Mr. Schueller's co-workers, but stated that Mr. Schueller complained to him after the round of layoffs had been announced in January 2002, and after the rankings had been done. Dkt. 11, Exh. 4, at 2-3. He stated that Mr. Schueller told him that he was worried about his age, that a co-worker, Mike Peters, called him "Pops," and that Mr. Schueller worried that this might give Management the idea that he was old. Dkt. 11, Exh. 4, at 2-3. Mr. Chitwood stated that he spoke with Mr. Peters and told him not to call Mr. Schueller any names like that anymore. Id. at 3.
After this incident, Mr. Schueller stated that "[t]here was an attitude change from Dale and the people in the department. That's not speculation. That's the way — well, I guess you could call that speculation because that's the way it seemed to me." Dkt. 11, Exh. 1, at 68.
As a result of a downturn in the technology and microprocessor sectors of the economy, and difficult business conditions, SEHA determined that it would need to lay off employees. Over time, Mr. Schueller's Department lost 60 percent of its workforce. Employees were selected for layoff in Mr. Schueller's Department by their numerical ranking within the Department, starting at the bottom with the lowest rated employee and then working up. The ratings, which were prepared by each Department Supervisor and then reviewed by the Department Manager, rated each Department employee in seven performance categories: Judgment, Teamwork, Initiative, Adaptability, Integrity, Leadership and Technical Knowledge.
Mr. Schueller's Supervisor, Mr. Chitwood, rated his employees in December 2001 and September 2002. Each employee was scored either a 1, 2, or 3 in each of the seven categories, yielding total scores or rankings ranging from 7 to 21. The first ranking was done on December 3, 2001, and the second was done on September 6, 2002. Dkt. 11, Exh. 2(D) and (E). Mr. Schueller's score was 16 on each of these rankings; this was slightly above average for his department. Id.
Mr. Schueller contends that his age was a motivating factor in the decision to discharge him. Mr. Schueller testified at his deposition that a co-worker, Roger Donald, told him about an incident in which Mr. Donald was sitting at a table with co-workers, at least some of whom were involved in the "Pops" complaint incident; and that the co-workers "said that Pops was getting to be a pain in the ass and that we need to get rid of him." Dkt. 11, Exh. 1, at 85. Mr. Schueller further testified that Paul Huisman, a co-worker, told him the following:
From what I got from Paul — this is not verbatim — but the impression I got from Paul was that Ron and the group that I mentioned sitting at the table minus Roger told him that they had the power to select who stayed and who went, that Dale would do what they asked him to do.Id. at 86.
Mr. Schueller was written up and demoted in 1996 for playing computer games on work time (Dkt. 11, Exh. 4C); and he was warned about his disrespectful attitude toward an executive manager in mid-2000 (Dkt. 11, Exh. 4, at 2). Mr. Schueller testified that he had had eleven supervisors prior to Mr. Chitwood, and that his performance reviews always stated that he exceeded expectations. Dkt. 12, Exh. 5, at 5. Mr. Schueller's last Performance Appraisal on March 13, 2002, was done by Mr. Chitwood, who noted that he had successfully met goals but had not exceeded goals. Dkt. 11, Exh. 4D, at 2.
Mr. Schueller testified that he had talked to Steve Stenburg (apparently Mr. Ball's boss) about what his rating was based on, and Mr. Stenburg told him that it was based on "[t]eamwork and inability to learn new equipment." Dkt. 11, Exh. 1, at 62.
Mr. Chitwood stated in his declaration as follows:
I understand that Mr. Schueller has claimed that there was some kind of conspiracy between certain non-Supervisory co-workers and Management to try to get him out of the Company. I did not conspire with any non-Supervisory co-workers in my ratings or rankings of Mr. Schueller or of anyone else in my Department, and I am unaware of anything that has been said or done which would indicate that any such conspiracy actually existed. Mr. Schueller's coworkers were not involved in my decisions about how to rate or rank employees in my group, for layoff purposes.
Dkt. 4, at 3. Mr. Ball stated in his declaration that his "layoff decision regarding Mr. Schueller was not the product of any conspiracy between me and non-Supervisory co-workers of Mr. Schueller's. I am unaware of any things that have ever been said or done which would indicate such a conspiracy existed against him." Dkt. 11, Exh. 3, at 3.
Three of Mr. Schueller's co-workers who had lower scores than he did were laid off in the February 2002 round of layoffs. Mr. Schueller was laid off in September 2002; at the time of his layoff, he had the lowest numerical ranking in his Department. He was 56 at the time of his lay-off notice. He filed a charge of discrimination with the EEOC, alleging age discrimination and retaliation for having reported derogatory age-related comments made by co-workers. The EEOC issued a decision dismissing the charge and notifying Mr. Schueller of his right to file suit. Dkt. 12, Exh. 7.
On September 15, 2003, Mr. Schueller filed this claim, alleging (1) discrimination on the basis of age; (2) retaliation; (3) breach of contract; (4) breach of public policy; and (5) conspiracy. Dkt. 1.
MOTION FOR SUMMARY JUDGMENT
SEHA filed a motion for summary judgment, contending that (1) Mr. Schueller's age discrimination claim fails because there is no evidence that his layoff selection was a pretext for unlawful age discrimination; (2) the retaliation claim fails because Mr. Schueller has no evidence of any causal connection between the "Pops" complaint incident and his lay-off; (3) SEHA did not breach an employment contract in laying off Mr. Schueller because he was an at will employee; (4) the breach of public policy claims because there is no factual basis for such a claim; and (5) the conspiracy claim fails because there is no evidence of a conspiracy, no evidence of any underlying unlawful purpose or actions, and no legal authority holding that a corporate entity can conspire with its own employees. Dkt. 10.
In his response opposing SEHA's motion for summary judgment, Mr. Schueller claims that (1) he was subjected to direct discrimination when Mr. Chitwood gave him a low rating after Mr. Schueller's co-workers targeted him following the "Pops" incident; and after Mr. Schueller had threatened in August 2001 to go to HR if Mr. Chitwood didn't stop the "Pops" references by his coworkers; (2) his layoff was the result of a discriminatory impact because, excluding customer service jobs and operators, 80 percent of the layoff workers were over 40; (3) Mr. Schueller was wrongfully terminated in violation of public policy based upon the Washington Law Against Discrimination, RCW 49.60 and federal statutes; (4) SEHA breached its contract with Mr. Schueller because he was given verbal assertions that layoffs would be on a last-hired/first-layoff basis, and he was told two months before his layoff that he would not be laid off because he was valuable and had been at SEHA for so long; (5) if plaintiffs subsequently name the "Does" who conspired against him, a cause of action for conspiracy should be permitted to proceed. Dkt. 12.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the non moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present specific, significant probative evidence, not simply "some metaphysical doubt."). See also Fed.R.Civ.P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 .S. 242, 253 (1986); T.W. Elec. Service Inc. v. Pacific Electrical Contractors Association, 809 F.2d 626, 630 (9th Cir. 1987).
The determination of the existence of a material fact is often a close question. The court must consider the substantive evidentiary burden that the nonmoving party must meet at trial — e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254, T.W. Elect. Service Inc., 809 F.2d at 630. The court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the moving party. The nonmoving party may not merely state that it will discredit the moving party's evidence at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. Elect. Service Inc., 809 F.2d at 630 (relying on Anderson, supra). Conclusory, non specific statements in affidavits are not sufficient, and "missing facts" will not be "presumed." Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990).
DISCUSSION
1. Age Discrimination Claims under Age Discrimination in Employment Act (ADEA) and Washington Law Against Discrimination (WLAD)
The Age Discrimination in Employment Act, as amended, 29 U.S.C. § 633a (ADEA) protects older federal workers, defined as employees or applicants for employment who are at least 40 years of age, against discrimination in the workplace based on age. 29 U.S.C. § 633a. Standards of proof in ADEA cases parallel those in cases under Title VII of the Civil Rights Act. Ritter v. Hughes Aircraft Co., 58 F.3d 454, 456 (9th Cir. 1995). In Washington, the state courts apply the same burden-shifting scheme to cases under the WLAD, RCW 49.60, as the federal courts do in Title VII cases. Hill v. BCTE Income Fund-I, 144 Wn.2d 172, 185-86 (2001) (adopting Title VII analysis from Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000)).
A plaintiff alleging age discrimination pursuant to the ADEA may proceed under a theory of disparate impact or disparate treatment. Rose v. Wells Fargo Co., 902 F.2d 1417, 1421 (9th Cir. 1990). Disparate treatment requires a showing that the employer treats some people less favorably than others because of their age, while disparate impact challenges a facially neutral employment practice that has a discriminatory impact. Id. The plaintiff must first establish, by a preponderance of the evidence, a prima facie case of age discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993). A prima facie case of discrimination consisting of the following elements: (1) plaintiff belongs to a protected class; (2) plaintiff was performing the job according to the employer's legitimate expectations; (3) plaintiff suffered an adverse employment action; and (4) other employees with qualifications similar to those of plaintiff were treated more favorably. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Vasquez v. County of Los Angeles, 307 F.3d 884 n. 5 (9th Cir. 2002). The burden of production then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its employment decision. Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). The plaintiff must then offer evidence to demonstrate that the proffered reason was a pretext and that discrimination was the true reason for the decision. St. Mary's Honor Center, 509 U.S. at 515.
Disparate Treatment
Mr. Schueller claims that SEHA violated the ADEA and WLAD because (1) he was discharged from SEHA when he was over 40 years old; (2) he had superior job performance and there was no other major factor that would warrant termination; (3) he was replaced by a substantially younger person with equal or inferior qualifications; and (4) age was a motivating factor in the decision to discharge him. Dkt. 1, at 5. This claim is based on a disparate treatment theory under the ADEA.SEHA contends that Mr. Schueller has made out a prima facie case under the ADEA and WLAD, but argues that it has shown a legitimate, nondiscriminatory reason for its decision to lay-off Mr. Schueller, and that Mr. Schueller has no evidence to rebut that legitimate, nondiscriminatory reason. SEHA contends that Mr. Schueller's rating was based upon his past performance, his attitude, and his inability to learn new equipment; and that age was not a consideration in the rating decision.
The record shows that SEHA initiated a layoff system to respond to the economic downturn in business; that Mr. Schueller received a warning about his disrespectful attitude toward an executive manager in mid-2000, and was told that his low rating was based on "teamwork and inability to learn new equipment"; and that Mr. Schueller's co-workers were not involved in the rating process or layoff decision. SEHA has met its burden to show a legitimate, non-discriminatory purpose for the rating system.
In the burden shifting analysis, Mr. Schueller must show that SEHA's reason for the rating and layoff was a pretext for a discriminatory motive, which in this case was his age. He contends that (1) the rating system was put in place after the discrimination started and after he had complained about it; (2) in the past, layoffs were based on last-hired/first-laid off basis; (3) his co-workers targeted him for layoff because of the "Pops" incident; (4) it was known in the plant that Mr. Chitwood favored some of the co-workers who harassed Mr. Schueller and did pretty much what they wanted him to do; (5) Mr. Chitwood determined layoffs in Mr. Schueller's department; (6) Mr. Stenburg told Mr. Schueller that he didn't have to worry because he was too valuable an employee and had been there a long time; (7) the selection process for layoff was subjective, foggy and ambiguous, and employees were not told what the criteria were to be; (8) Mr. Schueller's low rating, which was ostensibly for lack of teamwork and bad attitude, was given to him after the harassment started and was reported to Mr. Chitwood in the summer 2001; (9) Mr. Phillips received a perfect rating in spite of his reported harassment of Mr. Schueller and in spite of information Mr. Schueller had that Mr. Phillips was stealing from the company through a private company he had set up; (10) before Mr. Chitwood became his supervisor, Mr. Schueller had never had an evaluation that showed anything but excellent performance, and the reasons given to justify the low score were based on incidents that were in the past and were of minimal importance; (11) Mr. Schueller was a good worker, eager to learn and to educate himself; (12) Mr. Schueller was replaced by a younger man through a company named Spectra; and (13) another worker about Mr. Schueller's age was laid off, ostensibly because he had no college education. Dkt. 12, at 5-10.
To the extent that Mr. Schueller claims that Mr. Chitwood was biased against him on the basis of age because it took three complaints from Mr. Schueller before Mr. Chitwood dealt with his coworkers regarding their "Pops" comments, no logical inference of age bias can be drawn from these facts. Further, in his deposition, Mr. Schueller admitted that no one other than Ron Phillips, James Heckler, and Michael Peters — some of his co-workers — was biased against employees because of their age. Dkt. 12, Exh. 1, at 18. However, these co-workers did not make the rating decisions. Mr. Chitwood rated the individuals in his department, including Mr. Schueller. Mr. Ball reviewed the ranking and determined who would be laid off at the time lay-offs were ordered. At the time Mr. Schueller was laid off, everyone who had lower scores than he had already been laid off. Because Mr. Schueller has not shown that either Mr. Chitwood or Mr. Ball was biased against him on the basis of age, in order to prevail on his claim, he must show that the numerical ratings Mr. Chitwood gave to Mr. Schueller were the result of pressure by or collaboration with age-biased co-workers .
Mr. Schueller bases his claim that Mr. Chitwood was pressured by or collaborated with favored co-workers to give him low ratings, and that these co-workers were biased against him on the basis of age. He supports this claim by testimony in his own deposition to the effect that co-worker Mr. Donald told him that he (Mr. Donald) was sitting at a table with the co-workers who told him that they needed to get rid of "Pops"; and that another co-worker, Mr. Huisman, gave him the impression that the co-workers, with the exception of one, told Mr. Huisman that they had the power to select who stayed and who went and that Mr. Chitwood would do what they asked him to do. These statements are hearsay and not made on personal knowledge, do not set forth such facts as would be admissible in evidence, and do not show affirmatively that the affiant is competent to testify to the matters stated therein, as is required by Fed.R.Civ.P. 56(e). Further, even if these statements were admissible, they are only relevant to show the motivation of Mr. Schueller's co-workers, not the individuals who gave the ratings and made the layoff decision. These individuals — Mr. Chitwood and Mr. Ball — specifically denied any involvement by Mr. Schueller's co-workers in their rating decisions, and Mr. Schueller has produced no evidence to the contrary. Mr. Schueller has not met his burden to show that the ratings or the layoff decisions were based an improper age discrimination motive.
The court notes that the evidence set forth by Mr. Schueller is insufficient to show that he was replaced by a younger person, as is required to state a prima facie case. Mr. Schueller has set forth no facts other than his deposition testimony, which relied upon inadmissible hearsay, to establish that he was replaced by a younger person.
Mr. Schueller has not set forth sufficient admissible evidence to meet his burden of showing that the adverse employment decision was a pretext for a discriminatory motive. SEHA has shown that there are no disputed issues of material fact, and SEHA is entitled to summary judgment on Mr. Schueller's age discrimination claims under the ADEA and WLAD.
Retaliation
Mr. Schueller contends that he received a low ranking that resulted in his layoff in retaliation for his "Pops" complaints, and for threatening Mr. Chitwood that he would go to HR if Mr. Chitwood did not do anything about the "Pops" comments.
Both the ADEA and the WLAD prohibit employers from retaliating against employees who complaint about alleged age discrimination. 29 U.S.C. § 623(d); RCW 49.60.210. To establish retaliation under the ADEA, a plaintiff must prove that: (1) he was engaged in a protected activity; (2) he suffered an adverse employment decision; and (3) there was a causal link between his protected activity and the adverse employment decision. Hashimoto v. Dalton, 118 F.3d 671, 679 (9th Cir. 1997). Protected activities include: (1) opposing an unlawful employment practice; and (2) participating in a statutorily authorized proceeding. Silver v. KCA, Inc., 586 F.2d 138, 141 (9th Cir. 1978). Washington courts look to federal law when analyzing WLAD retaliation claims. See Little v. Windermere Relocation, Inc., 301 F.3d 958, 969 (9th Cir. 2002); Graves v. Dep't of Game, 76 Wash. App. 705, 887 P.2d 424, 428 (1994).
Construing the facts in Mr. Schueller's favor, he was arguably engaged in a protected activity, complaining about age-related comments by his co-workers; and he suffered an adverse employment decision when he was laid off. At issue is whether Mr. Schueller has shown sufficient evidence that there was a causal link between his protected activity and the adverse employment decision.
Mr. Chitwood testified that the "Pops" complaint had nothing to do with Mr. Schueller's employee rating. There is no evidence that Mr. Ball had any knowledge of the "Pops" incident.
Mr. Schueller contends that the low ratings he was given by Mr. Chitwood were in retaliation for his August 2001 threats to go to HR about his co-workers' "Pops" comments, after Mr. Schueller had previously complained in June and July 2001, without success. Mr. Schueller claims that, after he threatened to go to HR, he was targeted for layoff; Mr. Chitwood gave him low ratings because Mr. Schueller had threatened to go to HR; and after he threatened to go to HR, there was a change in attitude toward him in the department, that is, other employees wouldn't talk to him much and he was ignored and kept out of the loop even though he was a senior technician.
Temporal proximity of an adverse action to a protected activity may contribute to a reasonable inference of an employer's retaliatory motive. Strother v. Southern California Permanente Medical Group, 79 F.3d 859, 870-71 (9th Cir. 1996). However, mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action is not sufficient to support a pretext claim unless the temporal proximity is very close. See Clark County School District v. Breeden, 532 U.S. 268, 273 (2001). In this case, Mr. Schueller's "Pops" complaint to Mr. Chitwood, at which time he allegedly threatened to go to HR if Mr. Chitwood did not take care of the problem, was made in August 2001. The first rating was done on December 3, 2001. Mr. Schueller's rating was a little above the middle of those for his department. There was a layoff in February 2002, but Mr. Schueller was not laid off until the second round of layoffs in September 2002. Mr. Schueller was laid off about nine months after the rating and ranking was done, and more than a year after his alleged threats to go to HR. This is not the close temporal proximity that by itself would be sufficient to meet the plaintiff's burden of showing an employer's retaliatory motive. Moreover, Mr. Schueller has set forth no other admissible evidence that would point to retaliatory motive. Mr. Schueller admitted that his perception that there was an attitude change on the part of Mr. Chitwood and his co-workers was speculation. Mr. Schueller's claim that he was kept out of the loop as to the decision-making process about who would be laid off and who would be retained is not relevant to retaliatory motive but instead is consistent with Mr. Chitwood's statement that the employees were not involved in the ratings or rankings. Dkt. 13, Exh. 1, at 58.
SEHA has shown that there are no outstanding issues of material fact as to Mr. Schueller's claim that the decision to lay him off, based upon Mr. Chitwood's rankings, was in retaliation for his complaints of age-related comments and threats to take the problem to HR. SEHA's motion for summary judgment should be granted as to Mr. Schueller's claims for retaliation under the ADEA and WLAD, and these claims should be dismissed.
Disparate Impact
Although it is not clear from the complaint, Mr. Schueller may be alleging that SEHA's layoff practices had a disparate impact on older workers, including himself.
Under the disparate impact theory, employees must prove that a facially neutral employment practice had a discriminatory impact on older workers. See Rose v. Wells Fargo Co., 902 F.2d 1417, 1420-21 (9th Cir. 1990). They need not prove motive or intent, but the company can defend by establishing that the challenged practice was based on legitimate business reasons, such as job-relatedness or business necessity. See id. at 1424. At that point, the employee would have to show that other selection practices could serve the same business interest identified by the company without having a discriminatory effect. See id. In Washington disparate impact analysis does not extend to subjective, discretionary employment practices. Shutt v. Sandoz Crop Protection Corp., 944 F.2d 1431, 1434 (9th Cir. 1991) (citing Shannon v. Pay n' Save Corp., 104 Wn.2d 722 (1985)); Oliver v. Pacific Northwest Bell Co., 106 Wn.2d 675 (1986).
SEHA has set forth evidence to support its claim that there is no inference of age discrimination related to the layoffs. First, the average age of workforce remained nearly identical through each of the layoffs in April 2001 (average age before and after layoff was 40), February 2002 (average age before and after layoff was 41), and September 2002 (average age before and after layoff was 41). Dkt. 11, Exh. 2A, B and C. Moreover, even as to Mr. Schueller's group, the oldest employee scored a perfect 21 and is still working there. Dkt. 11, Exh. 2C and D; and Dkt. 11, Exh. 1, at 41. Further, the youngest person in Mr. Schueller's group was laid off at the same time as Mr. Schueller. Dkt. 11, 2D.
Mr. Schueller claims that, if the customer service jobs and operators are left out of the analysis, the relevant pool of workers shows an above 80 percent layoff of workers over 40 years old. Mr. Schueller has not shown that it is necessary to employ a small group to determine age related impact of the rankings and layoffs. See Shutt v. Sandoz Crop Protection Corp., 944 F.2d at 1434, cert. denied, 503 U.S. 937 (1992) (citing Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072 (9th Cir. 1986)). The layoffs were based on a procedure that was implemented company-wide. When the relevant statistical pool is considered, Mr. Schueller has not shown that there was a disparate impact on older workers from the layoff policy and procedure. SEHA has shown that there are no outstanding material issues of fact, the motion for summary judgment should be granted as to Mr. Schueller's disparate impact claim, and this claim should be dismissed.
2. Breach of Contract
Mr. Schueller contends that SEHA breached a contract in laying him off.
A breach of contract is actionable only if the contract imposes a duty, the duty is breached, and the breach proximately causes damage to the claimant. Larson v. Union Investment Loan Co., 168 Wn. 5, 10 P.2d 557 (1932); Alpine Industries, Inc. v. Gohl, 30 Wash. App. 750, 637 P.2d 998 (1981), review denied, 97 Wn.2d 1013 (1982).
In the complaint, Mr. Schueller alleged that he entered into a written agreement to work for SEHA; that the Policy Manual given to him stated that, in situations where employees are equally qualified to perform a job, the longest service regular full-time employees would be laid off last; that he had more senior standing, was fully qualified to perform the work; that younger, lesser qualified workers were retained to do the job; and that SEHA breached the written agreement by terminating him, with his age a substantial factor in the termination. Dkt. 1, at 6. Plaintiff has come forward with no written contract of employment, and has not provided the Policy Manual upon which he relies. To the extent that plaintiff contends that Mr. Stenburg told Mr. Schueller that he would not have to worry because he had been at SEHA a long time and was a valuable employee, Mr. Schueller has not shown that Mr. Stenburg was authorized to enter into a verbal employment contract with Mr. Schueller, or that his reassurances to Mr. Schueller were sufficient to bind SEHA to an employment contract. SEHA has shown that there are no outstanding issues of material fact as to Mr. Schueller's breach of contract claim; the motion for summary judgment should be granted as to this claim; and the claim should be dismissed.
3. Wrongful Termination in Violation of Public Policy
Mr. Schueller claims that SEHA wrongfully terminated him arbitrarily, unjustly, and in bad faith, based upon retaliation for his Pops complaint and because age discrimination was a substantial factor in his termination. Dkt. 1, at 6-7.
Generally, absent a contract requiring cause for termination, employment relationships in Washington are at-will by either employer or employee. Selix v. Boeing Co., 82 Wn. App. 736, 740, 919 P.2d 620 (1996). Under the at-will doctrine, an employer can, with limited exceptions, discharge an employee for any reason or for no reason. Bakotich v. Swanson, 91 Wn. App. 311, 314-15 (1998). One of the narrow exceptions to the at-will rule is for a violation of public policy. Wilmot v. Kaiser Aluminum and Chem. Corp., 118 Wn.2d 46, 53, 821 P.2d 18 (1991) (citing Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 232, 685 P.2d 1081 (1984)); Bulman v. Safeway, Inc., 144 Wn.2d 335, 340 (2001).
To state a claim for wrongful discharge in violation of public policy a plaintiff must prove (1) the existence of a public policy; (2) that if the conduct engaged in were discouraged, the public policy at issue would be jeopardized; (3) that the conduct engaged in was the cause of the discharge; and (4) defendant must be unable to offer an overriding justification for the discharge. Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 935 (1996).
As discussed above, Mr. Schueller has not shown that SEHA breached a contract in laying him off, nor has he shown that age discrimination and/or retaliation were substantial factors in his termination. SEHA has shown that there are no outstanding issues of material fact as to this issue, summary judgment should be granted as to Mr. Schueller's claim that he was terminated in violation of public policy, and this claim should be dismissed.
4. Conspiracy
Mr. Schueller alleged that defendants, including Does 1-10, conspired to have plaintiff removed from his position in order to enhance their own job opportunities with SEHA and to protect themselves from layoffs or other adverse employment actions; that management and employees conspired to remove him and therefore wrongfully terminated him under false and pretextual reasons.
Conspiracy requires proof of an agreement to accomplish an illegal objective and the requisite intent to commit the underlying offense. United States v. Mesa-Farias, 53 F.3d 258, 260 (9th Cir. 1995).
SEHA contends that Mr. Schueller's civil conspiracy claim fails because (1) SEHA is a legal entity and cannot be held liable for having conspired with its own employees; (2) there is no evidence that plaintiff's co-workers conspired with management to terminate his employment; and (3) there was nothing unlawful about SEHA's purpose in selecting him for layoff or the means of doing so.
In response, Mr. Schueller appears to concede that SEHA cannot be held liable for having conspired with its own employees. Mr. Schueller argues, however, that he has named several "Does" as defendants and that these individuals may be named in the future. Pursuant to the court's scheduling order, all parties to this case were to be joined by September 25, 2003. Dkt. 9. Mr. Schueller did not name individual parties in a timely manner; his opportunity to pursue a conspiracy claim against individuals has long passed. Further, Mr. Schueller did not met the requirements of Fed.R.Civ.P. 56(f) sufficient to warrant a continuation or denial of the motion for summary judgment as to the conspiracy claim. With regard to SEHA, even assuming he could state a conspiracy claim against a corporation, Mr. Schueller has set forth no admissible evidence to show that his co-workers conspired with management to terminate his employment. SEHA has shown that there are no disputed material issues of fact as to Mr. Schueller's conspiracy claim and that it is entitled to summary judgment as to this claim; the conspiracy claim should be dismissed.
Therefore, it is hereby
ORDERED that Defendant's Motion for Summary Judgment (Dkt. 10) is GRANTED. The case is DISMISSED.