IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

OSCAR J. BROWNFIELD,

Appellant,

v.

CITY OF YAKIMA, a Municipal 

Corporation,

Respondent.

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No. 30994-1-III

UNPUBLISHED OPINION

FEARING, J. — The city of Yakima terminated Officer Oscar “Jeff” Brownfield 

from employment on April 10, 2007. In response, Brownfield complained he was 

wrongfully discharged and filed suit in federal court raising both state and federal claims. 

The federal court granted summary judgment on the federal claims and declined to 

exercise supplemental jurisdiction over the state law claims, dismissing those without 

prejudice. Brownfield refiled his state law claims in state court. The superior court 

granted summary judgment. We affirm. Although the claims asserted in state court are 

different from those asserted in federal court, issues resolved in federal court are 

FILED

DEC. 03, 2013

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No.30994-1-III 

Brownfield v. City ofYakima 

determinative of some of the state claims, under the collateral estoppel doctrine. Other 

claims must be dismissed on their merits. 

FACTS 

Jeff Brownfield began employment with the Yakima Police Department in 

November 1999. He gained decorations for his service. In December 2000, Brownfield 

sustained injuries in an off duty rollover accident. Richard Drew, PhD, who provided 

neuropsychological treatment for the injuries, diagnosed a closed head injury, and post 

concussion syndrome. Based upon a January 2001 evaluation, Dr. Drew also opined that 

Brownfield suffered from anxiety, frustration, impatience, and impUlsivity due to the 

closed head injury. In July 2001, Dr. Drew further concluded that Brownfield 

experienced "reduced self-awareness," and Drew recommended that the police 

department monitor Brownfield's work performance when he returned to work. 

Officer Jeff Brownfield returned to light duty, at the Yakima Police Department, 

on March 1, 2001, and unrestricted duty on July 6, 200l. In 2003, he was transferred to 

the Community Services Division of the department. In this division, Brownfield. 

created, and served as administrator of the Yakima Police Athletic League (YPAL), an 

independent, nonprofit corporation managed by Yakima police officers as a crime 

prevention program. YP AL receives government funding to provide alternative 

recreational, educational, and athletic activities for Yakima's youth. The organization 

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No. 30994-1-111 

Browrifield v. City ofYakima 

operates a recreational center. Through 2004, Officer Brownfield received high 

performance evaluations. 

Jeff Brownfield continued to receive limited treatment for his head injury, 

primarily in the form of anti-depressants. In January 2004, Brownfield reported to Dr. 

Drew significant difficulty interacting with others at work and at home, and difficulty 

accomplishing tasks. Brownfield reported, "he was so frustrated he experienced some 

anger reactions he had never felt before." Clerk's Papers (CP) at 80. Brownfield added, 

"I'm a space cadet, I forget appointments, I'm tired, can't focus." CP at 50. He spoke of 

a "violence tendency," including having pulled his wife's hair on one occasion. ld. at 50. 

Dr. Drew attributed the symptoms and conduct to Brownfield's 2000 head injury. In a 

deposition, Brownfield denied reporting any work difficulties to Dr. Drew, but admitted 

to reporting difficulties at home. 

Jeff Brownfield's purported whistleblowing centered around complaints about 

Officer Joe Dejoumette and Lieutenant Mike Merryman. Brownfield served with 

Dejoumette in the Community Services Division and at yPAL. Merryman was a 

supervisor ofboth Brownfield and Dejoumette. 

On June 17, Officer Brownfield sent his direct supervisor, Sergeant Mike Amos, a 

memorandum entitled, "Unethical work practices." CP at 82-83. Brownfield objected to 

Dejoumette's failure to fulfill his Drug Abuse Resistance Education (DARE) duties and 

to another supervisor's, Lieutenant Mike Merryman's, excusing of Dejoumette's conduct. 

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Brownfield v. City a/Yakima 

Brownfield also complained that Merryman gave Dejoumette compensatory time for his 

work with yPAL, while Brownfield and another officer received no compensation for the 

same work. In the memorandum, Brownfield wrote that "Dejoumette and Lt. Merryman 

are long time friends and on the surface this is a true conflict of interest." CP at 83. 

Yakima Police Department Captain Greg Copeland later investigated Brownfield's 

allegations and found them to be based upon Brownfield's perceptions, not on fact. 

On August 15, Officer Brownfield sent a memo to Sergeant Tim Bardwell, in the 

Yakima Police Department Fraud Division. Brownfield sought Bardwell's help in 

removing Officer Dejoumette from fraud cases so that Dejoumette could devote full time 

to his duties as a community services officer. Brownfield complained that Dejoumette 

used fraud cases as an excuse to avoid his community service duties, which imposed 

extra work on Brownfield. 

In early 2005, Jeff Brownfield again complained about Officer Dejoumette to 

Sergeant Mike Amos and Lieutenant Mike Merryman. Brownfield claimed that 

Dejoumette failed in his duties as yPAL treasurer. According to Brownfield, 

Dejoumette did not timely reimburse the yPAL bank account, which resulted in an 

overdraft being charged for an insufficient check. Brownfield alleged that Officer 

Dejoumette put YPAL's grant eligibility in jeopardy by not timely renewing YPAL's 

charter with the national Police Athletic League (PAL). To ensure that yPAL functioned 

effectively, Brownfield assumed some of Officer Dejoumette's treasurer duties. 

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No.30994-1-III 

Brownfield v. City a/Yakima 

Brownfield also relayed to supervisors several citizen complaints regarding Officer 

Dejournette's lazy and unreliable work with YPAL. 

On May 4, leffBrownfield sent an e-mail message to Yakima Police Chief Sam 

Granato. In this e-mail, Brownfield complained about Lieutenant Merryman retaliating 

against him for complaining about Officer Dejoumette. Brownfield believed that 

Merryman exaggerated the significance of a scheduling error by YP AL at a city Cinco de 

Mayo activity. Two days later, Mike Merryman verbally reprimanded Officers 

Brownfield and Dejoumette for the error. Merryman confirmed the reprimand with a 

memo to Sergeant Amos. 

Jeff Brownfield, because ofillness, did not work on May 9, which left Joe 

Dejoumette in charge ofthe YPAL center. Officer Dejoumette closed the center early, 

despite scheduled activities and without consulting Brownfield. On May 10, Brownfield 

spoke to police Sergeants Bob Hester and Mike Amos regarding Officer Dejoumette's 

early closing ofthe center. Brownfield also complained to the sergeants that Lieutenant 

Merryman was conducting a surreptitious investigation of him and wrongfully talking 

about his (Brownfield's) health to other officers. Brownfield asked Sergeant Hester to 

transfer him to patrol duties so that he could avoid supervision by Merryman. 

Also on May 10, Jeff Brownfield sent an e-mail message to police members ofthe 

YPAL board regarding Officer Joe Dejournette's premature closing ofthe YPAL center 

and his refusal to conduct other community service activities. The board members were 

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No. 30994-1-111 

Brownfield v. City ofYakima 

Joe Dejournette, Lieutenant Mike Merryman, Sergeant Mike Amos, Officers Ben Hittle 

and Rey Garza, and Chief Sam Granato. 

At 5: 10 p.m., on May 10, Lieutenant Merryman sent Officer Brownfield an e-mail 

message, directing Brownfield to appear at a meeting at 9:00 the next morning. 

Brownfield missed the meeting because he did not check his e-mail until May 13. Jeff 

Brownfield arrived at work at 10 a.m., on May II. Thereafter his immediate supervisor, 

Sergeant Mike Amos, directed him to the Police Chiefs conference room in order "to fix 

this s ... t right now." CP at 107. Brownfield expected Chief Sam Granato to be present 

at the conference room. In his brief, Brownfield writes that Sergeant Amos promised to 

arrange a meeting with the Chief, but the record does not support this statement. 

Lieutenant Mike Merryman was present instead. 

During the May II morning conference, Lieutenant Merryman and Sergeant 

Amos wished to discuss Officer Brownfield's e-mails, Officer Dejournette's YPAL 

center closure, and the scheduling incident. According to Brownfield, Amos and 

Merryman made excuses for Dejournette. Brownfield explained that Officer 

Dejournette's poor performance had a long history. Brownfield grew concerned about 

the nature and progress of the meeting and believed that Merryman might be continuing 

an investigation against him as a result of his whistleblowing. Brownfield asked for a 

recess ofthe meeting to obtain union representation and prepared to leave the conference 

room. Merryman ordered Jeff Brownfield to sit back down, but Brownfield refused. 

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No. 30994·1·111 

Brownfield v. City ofYakima 

Merryman told Brownfield that he was not conducting an internal investigation and again 

ordered Brownfield to sit. Brownfield exited the room instead. 

After leaving the chiefs conference room on May 11, Jeff Brownfield spoke to 

Officer Rich Fowler, his union representative. Fowler, in tum, spoke to Lieutenant 

Merryman who said he was willing to finish his conversation with Brownfield with 

Fowler present. While Fowler attempted to convince Brownfield to return to the 

meeting, Sergeant Amos approached and instructed Brownfield to return to the meeting. 

Brownfield responded to Amos, "you f ... ked me .... "[G]et out of here, get the f ... k 

out of here." CP at 122. Brownfield believed Amos had tricked Brownfield into a 

meeting with the "mouth of the beast"-Mike Merryman. CP at 122. 

On May 11, Lieutenant Mike Merryman suspended Jeff Brownfield for 

insubordination. The Yakima Police Department also began an internal investigation into 

Brownfield's conduct. The completed investigation found Brownfield to be guilty of 

insubordination and verbal abuse of a superior officer. On July 28, Brownfield received 

the punishment ofthe loss of24 hours of accrued paid leave. 

Jeff Brownfield complains that the Yakima Police Department ignored his 

whistIeblower complaints. Nevertheless, in May Captain Greg Copeland, at the direction 

of Chief Sam Granato, investigated Brownfield's allegations of poor performance of Joe 

Dejournette, of Dejournette's manipulating overtime pay, of Dejournette's failure to keep 

YPAL books, and of Mike Merryman's affording Dejounette favorable treatment. 

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No.30994-l-III 


Brownfield v. City ofYakima 


Copeland reviewed Officer Dejournette's overtime and comp time records. He also took 

statements from Brownfield, Merryman, Mike Amos, and two YP AL employees, Officer 

Rey Garza and civilian Crystal Dodge. 

On May 15, Captain Copeland prepared a six-page report, including an appendage 

documenting overtime paid to Joe Dejournette and JeffBrownfield. The report detailed 

his findings in response to Brownfield's allegations. Copeland found no illegal conduct. 

He found no evidence of favoritism, but agreed that Officer Dejournette suffered from 

"poor time management skills," which resulted in deficient performance in both the 

police department's Fraud Division and the Community Services Division. CP at 156. 

1 Copeland also concluded that Dejournette failed in his YPAL bookkeeping duties, in part I due to the department's failure to provide training. Copeland recommended an audit of I the yPAL bank account records. 

I In June, the Yakima Police Department transferred JeffBrownfield to its patrol 

division. In September 2005, a series of incidents led the police department to question 

Brownfield's fitness for duty. 

The first incident occurred during roll call and entailed a verbal altercation 

between Jeff Brownfield and Officer Illeana Salinas over the latter's job performance and 

her frequent use ofthe obscenity "f... k." In tum, Officer Salinas accused Brownfield 

of physical intimidation. The altercation sparked an internal investigation into the 

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No. 30994-1-111 

Brownfield v. City o/Yakima 

conduct of both officers, which investigation upset Brownfield. The Department chose 

not to discipline either officer. 

A second incident occurred during the internal investigation of the verbal 

altercation between Officers Brownfield and Salinas. Captain Greg Copeland 

encouraged leffBrownfield to seek professional counseling for stress. Brownfield 

refused to discuss his mental health with Copeland. Union representative Rich Fowler 

later also suggested to Brownfield that he seek counseling. Brownfield exploded at 

Fowler. 

The final incident transpired in late August. Officer leffBrownfield stopped a car 

because it matched the description of a vehicle used by a felony suspect. The suspect 

was not in the car, but the driver of the car and onlookers heckled and threatened 

Brownfield. Brownfield was shaken and called dispatch for assistance. Sergeant Chad 

Stephens arrived to help. Brownfield and an adult male exchanged more physical threats. 

At the end ofthe confrontation, Brownfield's arms and legs noticeably shook and 

onlookers ridiculed Brownfield. One onlooker angrily suggested to Stephens that he 

place Brownfield on medications. 

On September 28, a co-worker of leffBrownfield reported to the Yakima Police 

Department administration that Brownfield occasionally expressed feelings of 

"hopeless[ness]." CP at 160. Brownfield was then engaged in divorce proceedings. 

Both he and his wife had called law enforcement mUltiple times complaining of the 

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No.30994-1-III 

Brownfieldv. City o/Yakima 

other's behavior. On September 19, Brownfield filed a petition for a restraining order 

against his wife. In the petition, Brownfield stated, "[b ]ecause of a severe head injury 

due to an auto accident, I suffer from emotional impulsivity." CP at 139. 

The Yakima Police Department referred Jeff Brownfield to psychiatrist Kathleen 

P. Decker, for a fitness for duty examination. Decker evaluated Brownfield on October 

19, and issued a report two months later. She found Brownfield unfit for duty primarily 

due to an Axis I diagnosis of "[m]ood [d]isorder due to a [g]eneral [m]edical [c]ondition 

with mixed features." CP at 184. Axis I is the top level of the DSM multiaxial 

comprehensive assessment and denotes acute symptoms needing treatment. Dr. Decker 

believed that Brownfield's impairment was permanent because "these [PSYCHIATRIC] 

symptoms are now likely ... fixed" this many years after the 2000 car accident. CP at 

185. Decker elaborated that medication might stabilize Brownfield's emotional 

volatility, but would not fix "the type of [judgment] difficulties [he] displays." CP at 

185. She opined that "there is no reasonable accommodation that can be made." CP at 

186. 

As part ofher assessment, Kathleen Decker referred Jeff Brownfield to forensic 

neurologist, G. A. DeAndrea. Dr. DeAndrea's examination ofBrownfield confirmed a 

neurological impairment consistent with his psychological symptoms. 

Jeff Brownfield suffered additional injuries in a second car accident. Dr. Roy 

Gondo treated Brownfield's physical injuries from this collision and cleared him to return 

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No.30994-1-III 

Brownfield v. City o/Yakima 

to work on February 3, 2006. Gondo, however, is not a mental health professional, and 

he did not evaluate or treat Brownfield's psychological condition. When the city of 

Yakima asked Dr. Gondo his opinion of Brownfield's psychological condition, he opined 

that Brownfield was psychologically fit for duty. 

I leffBrownfield underwent another fitness for duty evaluation with Norman Mar, a 

psychologist chosen by his union. In August, Mar confirmed all symptoms found by 

psychiatrist Kathleen Decker. Dr. Mar, however, believed the symptoms were "more 

likely the result ofpersonality characteristics and emotional issues than ofOfficer 

Brownfield's head trauma from 2000." CP at 203. Mar agreed that Brownfield was 

currently unfit for duty, but disagreed with Dr. Decker's finding that leffBrownfield 

would not improve with treatment. Dr. Mar opined that Brownfield could return to full 

duties within about three months of intensive counseling or psychotherapy from a mental 

I health counselor. 

The city of Yakima provided Dr. Kathleen Decker with Dr. Norman Mar's report, 

and requested an updated opinion from Decker, on leffBrownfield's fitness for duty. In 

response, Dr. Decker stated, "[t]he answer to this question remains that Officer 

Brownfield is Unfit for Duty as an armed patrol officer." CP at 188. She reaffirmed her 

initial opinion of "likely" permanence considering that Mar saw Brownfield exhibit the 

same symptoms of lack of emotional control and impaired judgment nearly a year after 

Decker's initial examination and report. Decker opined that Brownfield is fit for civilian 

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No.30994-1-III 

Brownfieldv. City ofYakima 

occupations, but not the "life and death decisions" required of law enforcement officers. 

CP at 189. She added, "[T]he Department might offer him an unarmed position where he 

might continue to contribute to law enforcement, ifsuch is available." CP at 190. 

Following the report from Kathleen Decker and Norman Mar, JeffBrownfield 

underwent counseling, from September 2006 to January 2007, with Robert Newell, PhD. 

Dr. Newell declined assessing Brownfield's fitness for duty. Brownfield asked Dr. Mar 

to review Dr. Newell's treatment notes and issue an updated opinion. Mar opined that 

Brownfield remained unfit for duty, but believed that Brownfield would, at an 

indeterminate time, be fit for duty ifhe continued counseling with Newell and increased 

the frequency of visits from three times every two weeks to twice a week. 

The city ofYakima directed JeffBrownfield to undergo another fitness for duty 

evaluation with Dr. William Ekemo on February 15,2007. In response, Brownfield 

wrote an e-mail to City Manager Dick Zais, informing him that he revoked permission to 

share his medical records with others, and he intended to sue Dr. Kathleen Decker for 

Health Insurance Portability and Accountability Act (HIP AA) violations. Brownfield 

demanded that the Ekemo examination be recorded. He copied police administrators 

with the e-mail message. 

Jeff Brownfield underwent a third fitness for duty evaluation on February 15 by 

Dr. Ekemo. The city ofYakima and Dr. Ekemo originally intended Ekemo's 

examination to be a neuropsychological supplement to Dr. Decker's examination. 

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No.30994-I-II1 

Brownfield v. City ofYakima 

Because Brownfield sent Dr. Decker notice that he intended to sue her for malpractice 

and HIPAA violations, city of Yakima asked Dr. Ekemo to perform a complete 

evaluation. Dr. Ekemo could not complete the entire examination on February 15, and so 

scheduled a return appointment for March 6. Brownfield refused to attend the second 

day despite orders to do so. When Brownfield's attorney notified Dr. Ekemo that 

Brownfield would not attend, Yakima City Manager Dick Zais wrote a letter to Jeff 

Brownfield, which concluded: 

Mr. Brownfield, you have been previously ordered to submit to Dr. 

Ekemo's evaluation and cooperate with the evaluation process. The 

purpose of this letter is to re-iterate that order. You are hereby ordered to 

appear on March 6,2007, for the continuation of Dr. Ekemo's fitness 

for duty evaluation and cooperate fully with the evaluation process. If 

you fail to follow this order, you will be considered insubordinate and 

the likely penalty of insubordination is termination of employment. 

Moreover, ifyou fail to complete the examination process with Dr. Ekemo, 

the City will make a determination regarding your fitness for duty based on 

the medical information to date. 

CP at 151. 

When JeffBrownfield failed to show for the second day of his examination by 

William Ekemo, city of Yakima reinitiated termination of employment proceedings. On 

March 19, Brownfield participated in a pretermination hearing with City Manager Dick 

Zais. Following this meeting, Zais fired Brownfield for insubordination. City of 

Yakima's termination letter identified established policies and procedures that 

Brownfield violated by refusing to complete the duty evaluation. Brownfield violated the 

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Brownfield v. City ofYakima 

city of Yakima Police Department Policies and Procedures, the union's Collective 

Bargaining Agreement, and the Police Service Commission Rules and Regulations. 

On January 8, 2008, Jeff Brownfield filed suit against the city of Yakima in United 

States District Court, for the Eastern District of Washington. See Brownfield v. City of 

Yakima, 612 F.3d 1140, 1144 (9th Cir. 2010). Brownfield alleged five causes of action: 

retaliation for reporting a fellow officer's unlawful conduct, which 


retaliation violated Brownfield's first amendment rights and the 


Washington Law Against Discrimination (WLAD) RCW 49.60; 


retaliation for whistleblowing activities in violation ofthe WLAD; 

violations of Titles 1 and V of the Americans with Disabilities Act (ADA); 

and 

violations of the Family Medical Leave Act (FMLA) and HIP AA; and 

negligent hiring, retention, supervision, and training of Police Chief 

Granato in violation of 42 U.S.C. § 1983. 

See CP at 438. On June 4,2009, United States District Court Judge Robert H. Whaley 

granted summary judgment in favor of the city of Yakima. 

In his summary judgment ruling, Judge Whaley first addressed Jeff Brownfield's 

ADA claim. He ruled that the city of Yakima met the ADA's "business necessity" 

exception that allowed it to subject Brownfield to a fitness for duty examination "and that 

[city of Yakima] had a valid non-discriminatory reason (insubordination) for firing 

[Brownfield]." CP at 438. The judge applied the "business necessity" exception because 

"[t]he undisputed facts establish[ed] that [Brownfield] demonstrated a pattern of highly 

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No.30994-I-III 

Brownfield v. City o/Yakima 

emotional responses to a number of situations he encountered during the course of 

employment between May 2005 and September 28,2005." CP at 439-40. "On this 

record, no reasonable jury could find that [Yakima] did not have a substantial and 

legitimate objective basis to question whether [Mr. Brownfield] was emotionally stable 

enough to interact safely with the public and fellow officers ...." CP at 440. 

Judge Robert Whaley also dismissed JeffBrownfield's claim alleging retaliation 

for engaging in ADA protected activity by asserting his alleged right under the ADA to 

not submit to an unlawful fitness for duty examination (FFDE). The judge dismissed this 

claim because, as a matter of law, the order to finish the exam with Dr. Ekemo was 

lawful. 

Judge Robert Whaley addressed the merits ofJeff Brownfield's United States 

Constitution First Amendment cause of action. To maintain this claim, Brownfield 

needed to demonstrate, among other factors, that the city of Yakima fired him for 

commenting on a matter ofpublic interest (quoting Eng v. Cooley, 552 F.3d 1062 1070 

(9th Cir. 2009). Judge Whaley dismissed this cause of action because Brownfield's 

complaints of unfair workload, favoritism, and his partner's sloppiness "are the stuff of a 

personal dispute, not of vital interest to citizens." CP at 442. 

Assuming that JeffBrownfield could establish that he commented on a matter of 

public concern, Judge Whaley ruled that the first amendment cause of action still failed 

on the merits because he could not establish causation. "[City of Yakima] had two 

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Brownfield v. City ofYakima 

I 

J legitimate reasons for termination: unfitness for duty and insubordination." CP at 444. 

Judge Whaley ruled: 

I [N]o reasonable jury could find that an adverse employment action resulted from 

I 

anything other than Plaintiffs unfitness for duty and his insubordination. 

CP at 442. 

Judge Whaley dismissed Jeff Brownfield's HIPAA claim because Brownfield 

abandoned it. The United States District Court Judge Whaley ruled that the FMLA claim 

failed because it was premised on proof that Dr. Gondo's work release also took into 

consideration Brownfield's psychological condition. Because Dr. Gondo only evaluated 

Brownfield's physical condition, Yakima had no duty to return him to work when he 

needed clearance by a mental health professional. 

Finally, Judge Whaley dismissed the WLAD and negligence claims without 

prejudice. Because no federal claims remained, the judge declined to exercise 

supplemental jurisdiction over these two state law claims. 

Jeff Brownfield appealed the United States District Court's summary judgment 

order to the Ninth Circuit. See generally Brownfield v. City ofYakima, 612 F.3d 1140 

(9th Cir. 2010). The Ninth Circuit's published decision affirmed every aspect of the 

summary judgment order. Id. 

While his appeal ofthe federal claims was pending, Jeff Brownfield filed this suit 

in Yakima County Superior Court. His complaint alleges four causes of action: (1) 

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No. 30994-1-111 

Brownfield v. City ofYakima 

violation ofRCW 42.41.040 (whistleblower retaliation), (2) wrongful discharge in 

violation ofpublic policy, (3) negligent hiring, supervision, and retention of Chief 

Samuel Granato, and (4) violation of the WLAD, RCW 49.60.180. 

The trial court granted the city of Yakima's summary judgment motion. The 

lower court ruled that the city of Yakima was exempt from a whistleblower suit under 

RCW 42.41.050, since the city of Yakima had its own whistleblower policy. The trial 

court dismissed the wrongful discharge claim, because Brownfield could not meet the 

jeopardy element, and collateral estoppel barred relitigation ofthe causation element of 

the tort. The court dismissed the WLAD action, because no rational trier of fact could 

find that the stated reason of insubordination was pretextual. Finally, the trial court 

dismissed the negligent hiring, supervision, and retention claims, because Brownfield 

failed to establish a causal relationship between Chief Granato's hiring and retention and 

the harm that Brownfield suffered. 

ANALYSIS 

Issue I: Did the trial court err when granting summary judgment dismissing Jeff 

Brownfield's statutory whistleblower claim, when the city of Yakima published its own 

whistleblower policy? No. 

The Washington legislature adopted the Local Government Whistleblower 

Protection Act (Act) in 1992, chapter 42.41 RCW. The Act provides protections and 

remedies for one defined as a "whistleblower." RCW 42.41.010-.040. We question 

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No.30994-1-III 

Brownfield v. City ofYakima 

whether the complaints forwarded by Jeff Brownfield qualifY him for "whistleblower" 

status. See RCW 42.41.010(1)'s definition of "improper governmental actions." We 

need not address this question or the question whether a whistleblower may sue in 

superior court, rather than follow the procedures outlined in RCW 42.41.040. We agree 

with the trial court that the city of Yakima is exempt from chapter 42.41 RCW. 

RCW 42.41.050 reads: 


Any local government that has adopted or adopts a program for reporting 


alleged improper governmental actions and adjudicating retaliation 


resulting from such reporting shall be exempt from this chapter if the 


program meets the intent of this chapter. 


The city of Yakima maintained a whistleblower policy in its employee handbook. 


Jeff Brownfield argues, in support ofthe summary judgment motion, that the city of 

Yakima provided to the court its 2009 employee handbook, adopted two years after 

Brownfield's firing. Presumably Brownfield wants this court to withhold the statutory 

exemption because of the city's purported failure to present the relevant policy in support 

of its motion. The record, however, shows that the city of Yakima filed both the 2009 

handbook and the 2000 handbook, the previous version, in support of its motion. 

Brownfield has not argued that the city of Yakima's whistleblower program created by its 

policy failed to meet the intent of chapter 42.41 RCW. 

Jeff Brownfield now argues on appeal that the city of Yakima violated its own 

whistleblower policy. Nevertheless, Brownfield did not plead, in his complaint, that the 

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Brownfield v. City ofYakima 

city of Yakima violated the city's policy. Brownfield cannot present a theory for relief 

that he failed to plead in his complaint as required by CR 8. Dewey v. Tacoma School 

Dist. No. 10, 95 Wn. App. 18, 26, 974 P .2d 847 (1999); Shields v. Morgan Financial, 

Inc., 130 Wn. App. 750, 758, 125 P.3d 164 (2005). Accordingly, the trial court did not 

err by granting summary judgment for the city on the issue ofwhistleblower liability. 

Issue II: Did the trial court err when granting summary judgment dismissing Jeff 

Brownfield's wrongful discharge in violation of public policy claim, when the federal 

court previously ruled that the city of Yakima terminated Brownfield's employment 

because of insubordination and unfitness for duty, not for whistleblowing? No. 

The Washington State Supreme Court recognized the tort ofwrongful discharge in 

violation of public policy in Thompson v. St. Regis Paper Company, 102 Wn.2d 219,685 

P.2d 1081 (1984). The Supreme Court later defined the tort's elements: 

The plaintiffs must prove the existence of a clear public policy (the clarity 


element). 


The plaintiffs must prove that discouraging the conduct in which they 


engaged would jeopardize the public policy (the jeopardy element). 


The plaintiffs must prove that the public-policy-linked conduct caused the 


dismissal (the causation element). 


The defendant must not be able to offer an overriding justification for the 


dismissal (the absence ofjustification element). 


Gardner v. Loomis Armored Inc., 128 Wn.2d 931, 941, 913 P.2d 377 (1996) (citations 

omitted). 

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No.30994-1-III 

Brownfield v. City ofYakima 

We question whether Jeff Brownfield's version of the facts supports any of the 

four elements of the tort ofwrongful discharge in violation of public policy. We focus 

only on the third element-causation. 

Several rulings ofUnited States District Court Judge Robert Whaley bind Jeff 

Brownfield and preclude a judge or jury in this suit from finding that Jeff Brownfield's 

purported whistleblowing caused his termination from employment. Judge Whaley 

determined that Brownfield was not terminated for exercising his free speech rights. In 

other words, the city of Yakima did not fire Brownfield for speaking about Officer Joe 

Dejoumette's shortcomings, Lieutenant Mike Merryman's favoritism toward Brownfield, 

or any improper accounting for funds at yPAL. Judge Whaley also ruled that: "[N]o 

reasonable jury could find that an adverse employment action [the firing of Brownfield] 

resulted from anything other than Plaintiffs unfitness for duty and his insubordination." 

CP at 442. (Emphasis added). Jeff Brownfield cannot avoid these facts because ofthe 

doctrine of collateral estoppel. 

The doctrine of collateral estoppel encompasses issue preclusion. Shoemaker v. 

City ofBremerton; 109 Wn.2d 504, 507, 745 P.2d 858 (1987). Collateral estoppel bars 

relitigation of any issue that was actually litigated in a prior lawsuit. Hanson y. City of 

Snohomish, 121 Wn.2d 552, 561, 852 P.2d 295 (1993); Pederson v. Potter, 103 Wn. App. 

62,69, 11 P.3d 833 (2000); Philip A. Trautman, Claim and Issue Preclusion in Civil 

Litigation in Washington, 60 WASH. L. REv. 805, 812-13 (1985). One of the purposes of 

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No.30994-I-III 

Brownfield v. City ofYakima 

issue preclusion is to encourage respect for judicial decisions by ensuring finality. The 

question is always whether the party to be estopped had a full and fair opportunity to 

litigate the issue. Nielson v. Spanaway Gen. Med. Clinic, Inc., 135 Wn.2d 255,262, 956 

P.2d 312 (1998). That question turns on four primary considerations: (1) whether the 

identical issue was decided in a prior action; (2) whether the first action resulted in a final 

judgment on the merits; (3) whether the party against whom preclusion is asserted was a 

party to that action; and (4) whether application of the doctrine will work an injustice. 

Hanson, 121 Wn.2d at 562. 

Judge Whaley's ruling was in the form of a summary judgment order. For 

collateral estoppel to apply, it is not necessary that the issue was previously determined 

through a trial. "[A] grant of summary judgment constitutes a final judgment on the 

merits and has the same preclusive effect as a full trial of the issue." Nat 'I Union Fire 

Ins. Co. ofPittsburgh v. Nw Youth Servs., 97 Wn. App. 226, 233, 983 P.2d 1144 (1999). 

In National Union, the court of appeals ruled on a summary judgment ruling, in a suit 

brought by a patient against her therapist and his employer, that the therapist was acting 

outside the scope of his employment when he engaged in an improper sexual relationship 

with the patient. The court held that the patient was collaterally estopped from 

relitigating that issue in a later action by the employer's liability insurer for a declaration 

of noncoverage. 

21 

No.30994-1-III 


Brownfield v. City ofYakima 


I 

United States District Court Judge Robert Whaley only addressed Jeff 

Brownfield's federal claims. Nevertheless, collateral estoppel applies even though the 

ultimate issues are different in the two suits. Island County v. Mackie, 36 Wn. App. 385, 

391-92,675 P.2d 607 (1984). State courts also apply collateral estoppel to rulings 

rendered in federal courts. Gannon v. Am. Home Prod., Inc., 211 N.J. 454, 48 A.3d 1094, 

1100 (2012) (prior federal judgment precluded relitigation of issue of causation in state 

court products liability action against manufacturer of oral polio vaccine, alleging that 

vaccine caused cancer in plaintiff); Lumpkin v. Jordan, 49 Cal. App. 4th 1223, 1231-32, 

57 Cal. Rptr. 2d 303 (1996) (despite substantive differences between federal and state 

antidiscrimination laws, collateral estoppel applies to federal court's determination that 

plaintiff was discharged for nondiscriminatory reasons); see also Indiana Dep 't ofEnvtl. 

Mgmt. v. Conard, 614 N.E.2d 916,923 (1993); Jerome J. Steiker Co., Inc. v. Eccelston 

I 
 Properties Ltd., 156 Misc. 2d 308,313,593 N.Y.S.2d 394 (1992); Copper State Thrift & 


Loan v. Bruno, 735 P.2d 387,390 (1987); Levy v. Cohen, 19 Cal. 3d 165, 137 Cal. Rptr. 

162, 166,561 P.2d 252 (1977). 

The application of collateral estoppel does not work an injustice on Officer 

I Brownfield. Factors recognized under this fourth prong of collateral estoppel include: 

j whether the first judgment was appealable, whether there have been factual changes since 

~ the first proceeding, and whether the first determination was manifestly erroneous. 

Trautman, supra, at 805, 841-42. The judgment in the federal case was appealable. In 

22 
No. 30994-1-111 

Brownfield v. City ofYakima 

fact, it was affirmed on appeal. See Brownfield, 612 F.3d 1140. The record contains no 

indication that any factual changes have occurred since the first proceeding. The first 

decision was not manifestly erroneous. 

In support ofhis wrongful discharge claim and other claims, Jeff Brownfield 

complains that the city of Yakima ordered him to a "fourth" FFDE before Dr. William 

Ekemo. We question whether the additional visit to Dr. Ekemo can be considered a 

"fourth" evaluation. More importantly, we are bound to conclude that the demand to 

return to Dr. Ekemo was a legitimate demand. In the United States District Court suit, 

Judge Whaley ruled as a matter of law that the direction to return to Ekemo was a valid 

demand. For the same reasons that collateral estoppel applies to Judge Whaley's ruling 

that insubordination was the reason for the termination from employment, Brownfield is 

barred from contending the direction to return to Dr. Ekemo to complete the evaluation 

was wrongful. 

Issue III: Did the trial court err when granting summary judgment on Jeff 

Brownfield's claim he was terminated from employment because of a disability, when 

Brownfield fails to provide any evidence or argument that the city of Yakima's firing him 

for insubordination was a pretext? No. 

In his complaint, Jeff Brownfield alleges two forms of disability discrimination: 

termination from employment and a failure to accommodate. The two forms are discrete 

23 

No.30994-1-III 

Brownfield v. City ofYakima 

claims. Johnson v. Chevron U.S.A., Inc., 159 Wn. App. 18,27-8,244 P.3d 438 (2010). 

We will address the claims separately. 

The trial court correctly refused to apply collateral estoppel from Judge Whaley's 

rulings regarding Brownfield's ADA claim to his WLAD claim. The ADA requires a 

plaintiff to prove, "but for" the illicit motive of a disability, he would not have been fired. 

Serwatka v. Rockwell Automation, Inc., 591 F.3d 957,962 (7th Cir. 2010). The WLAD 

imposes a less strict standard of causation upon the plaintiff-a "substantial factor" test. 

Fell v. Spokane Transit Auth., 128 Wn.2d 618,637,911 P.2d 1319 (1996); Wash. State 

Commc 'n Access Project v. Regal Cinemas, Inc., 173 Wn. App. 174, 187, reviewed 

denied, 293 P.3d 413 (2013). Thus, Jeff Brownfield could win under Washington law, 

but lose under federal law. Issues are not identical and collateral estoppel will not apply 

when the standards governing them are significantly different. Hanson, 121 Wn.2d 552 

at 574; Standlee v. Smith, 83 Wn.2d 405,518 P.2d 721 (1974); Cullen v. Margiotta, 811 

F.2d 698, 732 (2d Cir. 1987). Thus, we address the merits of Brownfield's disability 

discrimination claim.l 

I Judge Whaley ruled that no reasonable jury could find that an adverse 

employment action resulted from anything other than plaintiff's unfitness 

for duty and his insubordination. In other words, Judge Whaley found 

insubordination and unfitness for duty to be the only cause of the discharge. 

Disability was not even a "substantial factor" in the firing. Thus, one could 

conclude that collateral estoppel should bar the WLAD suit, despite the 

different standard of causation from an ADA claim. We have found no 

decision that applies collateral estoppel, however, when the legal standard 

24 
No.30994-1-III 

Brownfield v. City ofYakima 

The WLAD makes it "an unfair practice for any employer ... [t]o discharge or bar 

any person from employment because of ... the presence of any sensory, mental, or 

physical disability." RCW 49.60.180. "[T]he prohibition against discrimination because 

of such disability shall not apply if the particular disability prevents the proper 

performance of the particular worker involved." RCW 49 .60.180( 1). 

"An employee claiming discrimination must first prove a prima facie case of 

discrimination and, if he or she does so, then the burden shifts to the employer to pr:esent 

evidence suggesting a nondiscriminatory reason for [the termination]." Swinford v. Russ 

Dunmire Oldsmobile, Inc., 82 Wn. App. 401, 413-14, 918 P.2d 186 (1996) (citations 

omitted). "Ifthe employer sustains its burden, the employee must then demonstrate that 

the reasons given by the employer are pretext for discrimination." Id. at 414. "The 

elements of a prima facie case of disparate treatment disability discrimination are that the 

employee was: [1] disabled, [2] subject to an adverse employment action, [3] doing 

satisfactory work, and [4] discharged under circumstances that raise a reasonable 

inference of unlawful discrimination." Callaghan v. Walla Walla Hous. Auth., 126 Wn. 

App. 812, 819-20, 110 P.3d 782 (2005). 

differs from the first case and second case, regardless ofwhether a finding 

by the first court meets the legal standard applied in the second case. 

25 
No.30994-1-III 

Brownfield v. City a/Yakima 

The trial court did not consider whether JeffBrownfield established a prima facie 

case of discrimination. The court instead, at the city of Yakima's invitation, focused on 

whether any rational trier of fact could find that the city's stated nondiscriminatory 

reason for termination-insubordination-was pretextual. We also focus on this 

question. 

"A plaintiff cannot create a pretext issue without some evidence that the 

articulated reason for the employment decision is unworthy of belief." Kuyper v. Dep't 

a/Wildlife, 79 Wn. App. 732, 738, 904 P.2d 793 (1995). "To do this, a plaintiff must 

show, for example, that the reason has no basis in fact, it was not really a motivating 

factor for the decision, it lacks a temporal connection to the decision or was not a 

motivating factor in employment decisions for other employees in the same 

circumstances." Id. at 738-39. 

On appeal, Jeff Brownfield does not suggest that any ofthese pretextual factors 

are present, let alone contend that the firing for insubordination was pretextual. Even at 

the trial court, Brownfield did not argue that the firing for insubordination was pretextual. 

The firing ofJeffBrownfield came immediately after he refused an order from City 

Manager Dick Zais to complete an important and valid examination to determine his 

psychological fitness for duty. Brownfield provides no evidence ofZais treating anyone 

dissimilarly from him. City Manager Zais was removed from the complaints earlier 

raised by Brownfield. 

26 

No.30994-1-III 

Brownfieldv. City o/Yakima 

Summary judgment principles are familiar but must be repeated. Summary 

judgment should be granted if the evidence establishes there is no genuine issue of 

material fact and that the moving party is entitled to judgment as a matter of law. CR 

56(c); Ruffv. County o/King, 125 Wn.2d 697, 703, 887 P.2d 886 (1995). To succeed on 

a summary judgment motion, the moving party must first show the absence of an issue of 

material fact. Ingersoll v. DeBartolo, Inc., 123 Wn.2d 649,654,869 P.2d 1014 (1994). 

The burden then shifts to the nonmoving party to set forth specific facts showing a 

genuine issue for trial. Id. at 654. The court must construe all facts and reasonable 

inferences in the light most favorable to the nonmoving party. Lybbert v. Grant County, 

141 Wn.2d 29,34,1 P.3d 1124 (2000). On appeal of summary judgment, the standard of 

review is de novo and the appellate court performs the same inquiry as the trial court. Id. 

at 34. To repeat, Jeff Brownfield presents no evidence supporting a conclusion that his 

firing was pretextual. 

Issue IV: Should we review whether Jeff Brownfield's claim for failure to 

accommodate a disability survives a summary judgment motion, when he presents no 

legal argument to support the claim in his brief? No. 

In his appeal brief, Jeff Brownfield devoted only two sentences to his claim for 

failure to accommodate his disability. He wrote: 

If the City perceived Ofc. Brownfield as unable to function in the most 

stressful police work, the City owed an affirmative duty to Ofc. Brownfield 

to accommodate him. The City failed to satisfy this duty not only when it 

27 

I 


i 


I No.30994-1-III 

Brownfieldv. City o/Yakima I 

I first took him out of a non-stressful position at which he excelled 

[Community Services Division], but also when it transferred him to the I 	 Patrol Unit, knowing it was a more stressful position both physically and 

emotionally. I, 

i Br. of Appellant at 24-25. I 

i In support ofthis contention, Brownfield quoted, in a footnote, a section 

I 

from the Washington Office of Financial Management Bulletin, State Policy 

Guidelines on Reasonable Accommodation 0/Persons with Disabilities Related to 

State Employment. This bulletin has no application to this appeal, since Jeff 

Brownfield was not a state employee. Brownfield's scant analysis ofhis 

reasonable accommodation claim is not accompanied by any law that applies to 

his circumstances or supports his contention. He cites no case law addressing a 

failure to accommodate claim. 

RAP 1O.3(a)(6) directs each party to supply, in his brief, "argument in support of 

the issues presented for review, together with citations to legal authority and references to 

relevant parts of the record." We do not consider conclusory arguments that are 

unsupported by citation to authority. Joy v. Dep't o/Labor & Indus., 170 Wn. App. 614, 

629,285 P.3d 187, 194-95 (2012). Passing treatment of an issue or lack of reasoned 

argument is insufficient to merit judicial consideration. West v. Thurston County, 168 

Wn. App. 162, 187,275 P.3d 1200 (2012) (quoting Holland v. City o/Tacoma, 90 Wn. 

App. 533, 538,954 P.2d 290 (1998)). Therefore, we decline to address this assignment 

28 

No.30994·1·III 

Brownfield v. City o/Yakima 

of error. 

A thorough analysis and citation to authority is particularly apt in this case. The 

law of reasonable accommodation involves an interactive process between the employer 

and employee. 

Generally, the best way for the employer and employee to determine a 

reasonable accommodation is through a flexible, interactive process. RCW 

49.60.040(7)(d); MacSuga v. Spokane County, 97 Wn. App. 435, 443, 983 

P.2d 1167 (1999). A reasonable accommodation envisions an exchange 

between employer and employee, where each party seeks and shares 

information to achieve the best match between the employee's capabilities 

and available positions. See Goodman v. Boeing Co., 127 Wn.2d 401,408· 

09,899 P.2d 1265 (1995); RCW 49.60.040(7)(d). "[A]n impairment must 

be known or shown through an interactive process to exist in fact.") The 

employer has a duty to determine the nature and extent of the disability, but 

only after the employee has initiated the process by notice. Goodman, 127 

Wn.2d at 409. In addition, the employee retains a duty to cooperate with 

the employer's efforts by explaining the disability and the employee's 

qualifications. Id. at 408. A good faith exchange of information between 

parties is required whether the employer chooses to transfer the employee 

to a new position or to accommodate the employee in the current position. 

Frisino v. Seattle Sch. Dist. No.1, 160 Wn. App. 765, 779-80, 249 P.3d 1044 (2011). 

The record provides us no indication ofleffBrownfield identifying any disability for the 

city ofYakima or proposing any accommodation for the disability. 

Brownfield complains about being transferred from the Community Services 

Division to the Patrol Division, but the record shows that he was the one who asked for 

the transfer, not because of any disability but because he wanted to avoid "the mouth of 

the beast"-Lieutenant Mike Merryman. CP at 97. Ifwe were to address Brownfield's 

29 

No.30994-1-III 

Brownfield v. City o/Yakima 

appeal of dismissal ofthe reasonable accommodation claim, we would desire analysis as 

to whether an employer can be faulted for granting a transfer requested by the employee. 

Issue V: Did the trial court err by granting summary judgment on the negligent 

hiring and supervision claim, when the city of Yakima did not claim the actions of City 

Manager Dick Zais or Police Chief Sam Granato were outside the scope oftheir 

respective authority? No. 

In his complaint, JeffBrownfield alleges that Yakima negligently hired, 

supervised and retained Police Chief Granato. On appeal, Brownfield twice denies that 

his negligence allegation targeted Chief Granato, and instead declares that he actually 

alleged city ofYakima negligently hired, supervised and retained its City Manager, Dick 

Zais. Br. ofAppellant at 26; Reply Br. ofAppellant at 22. Brownfield cannot present a 

theory for relief that he failed to set forth in his complaint as required by CR 8. Dewey at 

26; Shields at 758. Accordingly, this issue does not merit review. 

Regardless ofwhether Brownfield aims his negligence theory at the hiring and 

employing ofGranato or Zais, the theory fails as a matter of law. The purpose behind a 

negligent hiring and supervision action is to prevent an employer from avoiding liability 

for the misconduct of an employee committed outside the scope of employment, when 

the employer should not have hired or maintained the employee because of his or her 

tendencies. S.He. v. Sheng-Yen Lu, 113 Wn. App. 511, 517, 54 P.3d 174 (2002). Thus, 

to bring the cause of action, the employee who caused the harm must have acted outside 

30 

No. 30994-1-111 

Brownfield v. City ofYakima 

his scope of employment. LaPlant v. Snohomish County, 162 Wn. App. 476, 480-81, 271 

P.3d 254 (2011). The city of Yakima adopted, as its own, all ofthe actions taken by 

Chief Granato and City Manager Zais, about which Jeff Brownfield complains. When 

the employer does not disclaim liability for the employee, the claim collapses into a 

direct tort claim against the employer, which requires dismissal ofthe negligent 

supervision claim. Niece v. Elmview Group Home, 131 Wn.2d 39, 48-51,929 P.2d 420 

(1997). 

CONCLUSION 


We affirm the trial court's summary judgment dismissal of all claims ofJeff 


Brownfield. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

WE CONCUR: 


Korsmo, C.J. 

31