### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE OSCAR J. BROWNFIELD,

Appellant, v. CITY OF YAKIMA, a Municipal Corporation, Respondent

. ) ) ) ) ) ) ) ) ) ) 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UNPUBLISHED OPINION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 IIINo.30994-1-III Brownfieldv. City of Yakima

determinative ofsome ofthe state claims, underthe collateral estoppel doctrine. Other claims must be dismissed on their merits. FACTS JeffBrownfield began employment with the Yakima Police Department in November 1999. He gained decorations for his service. In December 2000, Brownfield sustained injuries in an offduty 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 Drewrecommended that the police department monitor Brownfield's work performance when he returned to work. OfficerJeffBrownfield 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 ofthe department. In this division, Brownfield. created, and served as administrator ofthe YakimaPolice Athletic League (YPAL), an independent, nonprofit corporation managed by Yakimapolice officers as a crime prevention program. YPAL receives government funding to provide alternative recreational, educational, and athletic activities for Yakima's youth. The organization

2

### No. 30994-1-111 Browrifield

### v. City of Yakima operates a recreational center. Through 

### 2004, Officer Brownfield received high performance evaluations. JeffBrownfield continued to receive limitedtreatment for his head injury, primarily in the form ofanti-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, "hewas 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 "violencetendency," 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 athome. JeffBrownfield's purported whistleblowing centered around complaints about OfficerJoe 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. OnJune 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 ofDejoumette's conduct. 

### 3No.30994-I-III 

### Brownfieldv. City a/Yakima

Brownfield also complained thatMerryman gave Dejoumette compensatory time for his work with yPAL, while Brownfield and anotherofficerreceived 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 ofinterest." CP at 83. YakimaPolice Department Captain Greg Copeland later investigated Brownfield's allegations and found themto be based upon Brownfield'sperceptions, not on fact. OnAugust 

### 15, Officer Brownfield sent a memoto Sergeant TimBardwell, in the Yakima Police Department Fraud Division. Brownfield sought Bardwell'shelp in removing OfficerDejoumette from fraud cases so that Dejoumette could devote full time to his duties as a community services officer. Brownfield complainedthat Dejoumette used fraud cases as an excuseto avoid his community service duties, which imposed extra work on Brownfield. In early 2005, JeffBrownfield again complained about OfficerDejoumetteto SergeantMikeAmos 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 injeopardy by not timely renewing YPAL's charterwith the national Police Athletic League (PAL). To ensure that yPAL functioned effectively, Brownfield assumed some ofOfficerDejoumette's treasurer duties. 4No.30994-1-III 

### Brownfieldv. 

### City a/Yakima

Brownfield also relayed to supervisors several citizen complaints regarding Officer Dejournette's lazy and unreliable work with YPAL. OnMay 4, leffBrownfield sent an e-mail message to Yakima Police ChiefSam Granato. In this e-mail, Brownfield complained about Lieutenant Merryman retaliating against him for complaining about Officer Dejoumette. Brownfieldbelieved that Merryman exaggeratedthe significance ofa scheduling error by YPAL 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. JeffBrownfield, because ofillness, did not work on May 

### 9, which left Joe Dejoumette in charge ofthe YPAL center. OfficerDejoumette closed the center early, despite scheduled activities and without consulting Brownfield. On May 10, Brownfield spoke to police Sergeants Bob Hester and MikeAmos regarding OfficerDejoumette's early closing ofthe center. Brownfield also complained to the sergeants that Lieutenant Merryman was conducting a surreptitious investigation ofhim 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, JeffBrownfield sent an e-mail message to police members ofthe YPAL boardregarding Officer Joe Dejournette's premature closing ofthe YPAL center andhis refusal to conduct other community service activities. The board members were 

### 5

### No. 30994-1-111 Brownfield

### v. City of Yakima

Joe Dejournette, Lieutenant Mike Merryman, Sergeant Mike Amos, Officers BenHittle and Rey Garza, and ChiefSam Granato. At 5: 

### 10 p.m., on May 

### 10, Lieutenant Merryman sent OfficerBrownfield an e-mail message, directing Brownfieldto appear at a meeting at 

### 9:00 the next morning. Brownfield missedthe meeting because he did not checkhis e-mail until May 

### 13. Jeff Brownfield arrived at work at 

### 10 a.m., on May II. Thereafter his immediate supervisor, SergeantMike Amos, directed him to the Police Chiefs conference room in order "to fix this s ...t right now." CP at 

### 107. Brownfield expected ChiefSam Granato to bepresent 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 OfficerBrownfield's e-mails, OfficerDejournette's YPAL center closure, and the scheduling incident. According to Brownfield, Amos and Merryman made excuses for Dejournette. Brownfield explained that Officer Dejournette's poorperformance had a long history. Brownfield grew concerned about the nature and progress ofthe meeting and believed thatMerryman might be continuing

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

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

room. Merryman ordered JeffBrownfield to sit back down, but Brownfield refused. 6No. 30994·1·111 Brownfieldv. City of Yakima 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, JeffBrownfield 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 ofhere, get the f

...k out ofhere." CP at 122. Brownfield believed Amos had tricked Brownfield into a meetingwith the "mouth ofthe beast"-Mike Merryman. CP at 122. On May 11, Lieutenant Mike Merryman suspended JeffBrownfield for insubordination. The Yakima Police Department also began an internal investigation into Brownfield's conduct. The completed investigation found Brownfieldto be guilty of insubordination and verbal abuse ofa superior officer. On July 28, Brownfield received the punishment ofthe loss of24 hours ofaccrued paid leave. JeffBrownfield complains that the YakimaPolice Department ignored his whistIeblower complaints. Nevertheless, in May Captain Greg Copeland, at the direction ofChiefSam Granato, investigated Brownfield's allegations ofpoor performance ofJoe Dejournette, ofDejournette's manipulating overtime pay, ofDejournette's failure to keep YPAL books, and ofMike Merryman's affording Dejounette favorable treatment. 

### 7No.30994-l-III Brownfieldv. City of Yakima Copeland reviewed Officer Dejournette's overtime and comp time records. He also took statements from Brownfield, Merryman, Mike Amos, and two YPAL employees, Officer Rey Garza and civilian Crystal Dodge. OnMay 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 offavoritism, but agreed that Officer Dejournette suffered from "poortime 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 JeffBrownfieldto its patrol division. In September 2005, a series ofincidents led the police department to question Brownfield's fitness for duty. The first incident occurred during roll call and entailed a verbal altercation between JeffBrownfield and Officer Illeana Salinas over the latter'sjobperformance and her frequent use ofthe obscenity "f

... k." In tum, Officer Salinas accused Brownfield ofphysical intimidation. The altercation sparked an internal investigation into the

8No. 30994-1-111 

### Brownfieldv. 

### City o/Yakima

conduct ofboth officers, which investigation upset Brownfield. The Department chose not to discipline either officer. A second incident occurred during the internal investigation ofthe verbal altercation between Officers Brownfield and Salinas. Captain Greg Copeland encouraged leffBrownfieldto seekprofessional 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 

### itmatched the description ofa vehicle used by a felony suspect. The suspect

was not in the car, but the driver ofthe 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 ofleffBrownfieldreported to the YakimaPolice 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 ofthe 

### 9No.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 ofa severe head injury due to an auto accident, I suffer from emotional impulsivity." CP at 139. The Yakima Police Department referred JeffBrownfield 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 ofthe 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 elaboratedthat medication might stabilize Brownfield's emotional volatility, butwould not fix "the type of[judgment] difficulties [he] displays." CP at 185. She opinedthat "there is no reasonable accommodation that can be made." CP at 186. As part ofher assessment, Kathleen Decker referred JeffBrownfield to forensic neurologist, G. A. DeAndrea. Dr. DeAndrea's examination ofBrownfield confirmed a neurological impairment consistent with his psychological symptoms. JeffBrownfield suffered additional injuries in a second car accident. Dr. Roy Gondo treated Brownfield's physical injuries from this collision and cleared him toreturn 

### 10No.30994-1-III 

### Brownfieldv. 

### City o/Yakima

to work on February 3, 2006. Gondo, however, is not a mental healthprofessional, and he did not evaluate or treat Brownfield's psychological condition. When the city of Yakima asked Dr. Gondo his opinion ofBrownfield'spsychological condition, he opined that Brownfield was psychologically fit for duty. 

# I leffBrownfieldunderwent 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 withtreatment. Dr. Mar opinedthat Brownfield could return to full duties within about three months ofintensive counseling orpsychotherapy from a mental 

# I health counselor. The city ofYakima 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 consideringthat Mar saw Brownfield exhibit the

same symptoms oflack ofemotional control and impairedjudgment nearly a year after Decker's initial examination and report. Decker opined that Brownfield is fit for civilian 11No.30994-1-III 

### Brownfieldv. City ofYakima occupations, but not the "life and death decisions" required oflaw enforcement officers. CP at 189. She added, "[T]he Department might offerhim 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'streatment notes and issue an updated opinion. Mar opined that Brownfieldremained unfit for duty, butbelieved that Brownfield would, at an indeterminate time, be fit for duty ifhe continued counseling with Newell and increased the frequency ofvisits from three times every two weeks to twice a week. The city ofYakima directed JeffBrownfieldto 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 revokedpermission to share his medical records with others, and he intended to sue Dr. Kathleen Decker for Health Insurance Portability and Accountability Act (HIPAA) violations. Brownfield demanded that the Ekemo examination be recorded. He copiedpolice administrators with the e-mail message. JeffBrownfield 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. 12No.30994-I-II1 Brownfieldv. City of Yakima

Because Brownfield sentDr. Deckernotice that he intended to sue her for malpractice and 

### HIPAA violations, city ofYakima 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. Brownfieldrefused to attend the second day despite orders to do so. When Brownfield's attorney notified Dr. Ekemo that Brownfieldwould not attend, Yakima City ManagerDickZais 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 ofthis letter is to re-iterate that order. 

### You are hereby ordered to appearon March 6,2007, for the continuation ofDr. 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 ofinsubordination is termination ofemployment. Moreover, ifyou fail to complete the examinationprocess 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 ofhis examination by William Ekemo, city ofYakima reinitiated termination ofemploymentproceedings. On March 19, Brownfieldparticipated in a pretermination hearing with City ManagerDick Zais. Following this meeting, Zais fired Brownfield for insubordination. City of Yakima's termination letter identified established policies and procedures that Brownfield violatedby refusing to complete the duty evaluation. Brownfield violated the

13No. 30994-1-111 Brownfieldv. City of Yakima city ofYakima Police Department Policies and Procedures, the union's Collective Bargaining Agreement, and the Police Service Commission Rules and Regulations. OnJanuary 8, 2008, JeffBrownfield filed suit against the city ofYakima in United States District Court, for the Eastern District ofWashington. See Brownfieldv. City of Yakima, 612 F.3d 1140, 1144 (9th Cir. 2010). Brownfield alleged five causes ofaction: 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 ofTitles 1and V ofthe Americans with Disabilities Act (ADA); and violations ofthe Family Medical Leave Act (FMLA) and HIPAA; and negligent hiring, retention, supervision, and training ofPolice Chief Granato in violation of42 U.S.C. § 1983. See CP at 438. On June 4,2009, United States District Court Judge Robert H. Whaley granted summaryjudgment in favor ofthe city ofYakima. In his summaryjudgmentruling, Judge Whaley first addressed JeffBrownfield's ADA claim. He ruled that the city ofYakima met the ADA's "business necessity" exception that allowed it to subject Brownfieldto a fitness for duty examination "andthat [city ofYakima] had a valid non-discriminatory reason (insubordination) for firing [Brownfield]." CP at 438. Thejudge applied the "business necessity" exception because "[t]he undisputed facts establish[ed] that [Brownfield] demonstrated a pattern ofhighly 14No.30994-I-III 

### Brownfieldv. 

### City o/Yakima

emotional responses to a number ofsituations he encountered during the course of employment between May 2005 and September 28,2005." CP at 439-40. "On this record, no reasonablejury 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 submitto an unlawful fitness for duty examination (FFDE). Thejudge dismissed this claim because, as a matter oflaw, the order to finish the exam with Dr. Ekemo was lawful.Judge Robert Whaley addressed the merits ofJeffBrownfield's United States Constitution FirstAmendment cause ofaction. To maintain this claim, Brownfield needed to demonstrate, among other factors, that the city ofYakima 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 ofaction because Brownfield's complaints ofunfair workload, favoritism, and his partner's sloppiness "arethe stuffofa personal dispute, not ofvital interestto 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 ofaction still failed

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

### 15

# j

i No. 30994-l-III Brownfieldv. City of Yakima 

# I J legitimate reasons for termination: unfitness for duty and insubordination." CP at 444. Judge Whaley ruled: 

# I [N]o reasonablejury could find that an adverse employment action resulted from 

# I anything otherthan Plaintiffs unfitness for duty and his insubordination. CP at 442. Judge Whaley dismissed JeffBrownfield'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 proofthat 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 himto 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, thejudge declined to exercise supplementaljurisdiction over these two state law claims. JeffBrownfield appealed the United States District Court's summaryjudgment order to the Ninth Circuit. See generallyBrownfieldv. City of Yakima, 612 F.3d 1140 (9th Cir. 2010). The Ninth Circuit's published decision affirmed every aspect ofthe summaryjudgment order. Id. While his appeal ofthe federal claims was pending, JeffBrownfield filed this suit in Yakima County Superior Court. His complaint alleges four causes ofaction: (1) 16No. 30994-1-111 

### Brownfield

### v. City of Yakima

violation ofRCW 42.41.040 (whistleblowerretaliation), (2) wrongful discharge in violation ofpublic policy, (3) negligent hiring, supervision, and retention ofChief Samuel Granato, and (4) violation ofthe WLAD, RCW 49.60.180. Thetrial court granted the city ofYakima's summaryjudgment motion. The lower courtruled thatthe city ofYakima was exempt from a whistleblower suit under RCW42.41.050, since the city ofYakima had its own whistleblower policy. The trial court dismissed the wrongful discharge claim, because Brownfield could not meetthe jeopardy element, and collateral estoppel barredrelitigation ofthe causation element of the tort. The court dismissedthe WLAD action, because no rational trier offact could find thatthe stated reason ofinsubordination was pretextual. Finally, the trial court dismissed the negligent hiring, supervision, and retention claims, because Brownfield failed to establish a causal relationship between ChiefGranato's hiring and retention and the harm that Brownfield suffered. ANALYSIS Issue I: Didthe trial court errwhen granting summaryjudgment dismissing Jeff Brownfield's statutory whistleblower claim, whenthe city ofYakima published its own whistleblowerpolicy? No. The Washington legislature adopted the Local Government Whistleblower ProtectionAct (Act) in 1992, chapter 42.41 RCW. The Actprovides protections and remedies for one defined as a "whistleblower." RCW42.41.010-.040. We question 17No.30994-1-III Brownfield

### v. City of Yakima

whether the complaints forwarded by JeffBrownfield 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 ofYakima is exempt from chapter 42.41 RCW. RCW 42.41.050 reads: Any local government that has adopted or adopts aprogram for reporting alleged improper governmental actions and adjudicating retaliation resulting from such reporting shall be exempt from this chapter ifthe program meets the intent ofthis chapter. The city ofYakima maintained a whistleblowerpolicy in its employee handbook. JeffBrownfield argues, in support ofthe summaryjudgment 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 ofthe city's purported failure topresentthe relevant policy in support ofits motion. The record, however, shows that the city ofYakima filed both the 2009 handbook and the 2000 handbook, the previous version, in support ofits motion. Brownfield has not argued that the city ofYakima's whistleblower program created by its policy failed to meetthe intent ofchapter 42.41 RCW. JeffBrownfield now argues on appeal that the city ofYakima violated its own whistleblower policy. Nevertheless, Brownfield did notplead, in his complaint, that the



### 18No.30994-1-III Brownfield

### v. City of Yakima city ofYakima violated the city'spolicy. Brownfield cannot present a theory for relief that he failed toplead 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 summaryjudgment for the city on the issue ofwhistleblower liability. Issue II: Did the trial court err when granting summaryjudgment dismissing Jeff Brownfield's wrongful discharge in violation ofpublic policy claim, when the federal court previously ruled that the city ofYakima terminated Brownfield's employment because ofinsubordination and unfitness for duty, not for whistleblowing? No. The Washington State Supreme Court recognized the tort ofwrongful discharge in violation ofpublic policy in Thompson v. St. RegisPaper Company, 102 Wn.2d 219,685 P.2d 1081 (1984). The Supreme Court later defined the tort's elements: Theplaintiffs mustprove the existence ofa clearpublic policy (the clarity element). The plaintiffs must prove that discouraging the conduct in which they engaged wouldjeopardizethe public policy (thejeopardy element). The plaintiffs mustprove that the public-policy-linked conduct caused the dismissal (the causation element). The defendant must notbe able to offer an overridingjustification for the dismissal (the absence of justification element). Gardner v. LoomisArmoredInc., 128 Wn.2d 931, 941, 913 P.2d 377 (1996) (citations omitted).

19No.30994-1-III Brownfieldv. City of Yakima

We question whetherJeffBrownfield's version ofthe facts supports any ofthe four elements ofthe tort ofwrongful discharge in violation ofpublic policy. We focus only on the third element-causation. Several rulings ofUnited States District Court Judge Robert Whaley bind Jeff Brownfield and preclude ajudge orjury in this suit from finding that JeffBrownfield's purported whistleblowing caused his termination from employment. Judge Whaley determined that Brownfield was notterminated for exercising his free speech rights. In other words, the city ofYakima 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 reasonablejury could find that an adverse employment action [the firing ofBrownfield] resultedfrom anything other than Plaintiffs unfitness for duty and his insubordination." CP at 442. (Emphasis added). JeffBrownfield cannot avoid these facts because ofthe doctrine ofcollateral estoppel. The doctrine ofcollateral estoppel encompasses issue preclusion. Shoemaker v. City of Bremerton; 109 Wn.2d 504, 507, 745 P.2d 858 (1987). Collateral estoppel bars relitigation ofany 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 andIssue Preclusion in Civil Litigation in Washington, 60 WASH. L. 

### REv. 805, 812-13 (1985). One ofthe purposes of 20No.30994-I-III Brownfieldv. City of Yakima

issue preclusion is to encourage respect forjudicial decisions by ensuring finality. The question is always whetherthe 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 ofthe doctrine will work an injustice. Hanson, 121 Wn.2d at 562. Judge Whaley's ruling was in the form ofa summaryjudgment order. For collateral estoppel to apply, it is not necessary that the issue was previously determined through a trial. "[A] grant ofsummaryjudgment constitutes a finaljudgment on the merits and has the samepreclusive effect as a full trial ofthe issue." Nat 'I Union Fire Ins. Co. of Pittsburgh v. Nw Youth Servs., 97 Wn. App. 226, 233, 983 P.2d 1144 (1999). InNational Union, the court ofappeals ruled on a summaryjudgmentruling, in a suit brought by a patient against her therapist and his employer, that the therapist was acting outside the scope ofhis 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 ofnoncoverage.

21No.30994-1-III Brownfieldv. City of Yakima



# I United States District Court Judge Robert Whaley only addressed Jeff Brownfield's federal claims. Nevertheless, collateral estoppel applies eventhough 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 federaljudgmentprecluded relitigation ofissue ofcausation in state court products liability action against manufacturer oforal 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 plaintiffwas discharged for nondiscriminatory reasons); see also IndianaDep 't of Envtl. 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); Levyv. Cohen, 19 Cal. 3d 165, 137 Cal. Rptr. 162, 166,561 P.2d 252 (1977). The application ofcollateral estoppel does not work an injustice on Officer 

# I Brownfield. Factors recognized underthis fourth prong ofcollateral estoppel include: 

# j whetherthe firstjudgmentwas 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. Thejudgment in the federal case was appealable. In 22No. 30994-1-111 Brownfield

### v. City of Yakima 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, JeffBrownfield complains that the city ofYakima 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 oflaw that the direction to return to Ekemo was a valid demand. Forthe 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 summaryjudgmenton Jeff Brownfield's claim he was terminated from employment because ofa disability, when Brownfield fails to provide any evidence or argument that the city ofYakima's firing him for insubordination was a pretext? No. In hiscomplaint, JeffBrownfield alleges two forms ofdisability discrimination: termination from employment and a failure to accommodate. The two forms are discrete

23No.30994-1-III Brownfieldv. City of Yakima

claims. Johnson v. Chevron U.S.A., Inc., 159 Wn. App. 18,27-8,244P.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 plaintiffto prove, "but for" the illicit motive ofa disability, he would not have been fired. Serwatka v. RockwellAutomation, Inc., 591 F.3d 957,962 (7th Cir. 2010). The WLAD imposes a less strict standard ofcausation upon the plaintiff-a "substantial factor" test. Fell v. Spokane TransitAuth., 128 Wn.2d 618,637,911 P.2d 1319 (1996); Wash. State Commc 'nAccess Project v. Regal Cinemas, Inc., 173 Wn. App. 174, 187, reviewed denied, 293 P.3d 413 (2013). Thus, JeffBrownfield 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 ofBrownfield's disability discrimination claim.l

I Judge Whaley ruled that no reasonablejury could find that an adverse employment action resulted from anything other thanplaintiff's unfitness for duty andhis insubordination. In other words, Judge Whaley found

insubordination and unfitness for duty to be the only cause ofthe 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 ofcausation from an ADA claim. We have found no decision that applies collateral estoppel, however, when the legal standard 24No.30994-1-III Brownfieldv. City of Yakima

The WLAD makes it "anunfair practice for any employer

... [t]o discharge or bar any person from employment because of

... the presence ofany sensory, mental, or physical disability." RCW 49.60.180. "[T]he prohibition against discrimination because ofsuch disability shall not apply ifthe particular disability prevents the proper performance ofthe particularworker involved." RCW 49.60.180(1). "An employee claiming discrimination must first prove a prima facie case of discrimination and, ifhe or she does so, then the burden shifts to the employer to pr:esent evidence suggesting a nondiscriminatory reason for [the termination]." Swinfordv. 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 ofa prima facie case ofdisparate treatment disability discrimination are that the employee was: [1] disabled, [2] subjectto an adverse employment action, [3] doing satisfactory work, and [4] discharged under circumstances that raise a reasonable inference ofunlawful discrimination." Callaghan v. Walla Walla Hous. Auth., 126 Wn. App. 812, 819-20, 110P.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.



### 25No.30994-1-III 

### Brownfield

### v. City a/Yakima

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

case ofdiscrimination. The court instead, atthe city ofYakima's invitation, focused on whether any rational trier offact could find that the city's stated nondiscriminatory

reason for termination-insubordination-waspretextual. We also focus on this question. "Aplaintiffcannot create a pretext issue without some evidence that the articulated reason for the employment decision is unworthy ofbelief." 

### Kuyper v. 

### Dep't a/Wildlife, 79 Wn. App. 732, 738, 904 P.2d 793 (1995). "To do this, a plaintiffmust 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, JeffBrownfield does not suggestthat 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 DickZais to complete an important and valid examination to determine his psychological fitness for duty. Brownfieldprovides no evidence ofZais treating anyone dissimilarly from him. City ManagerZais was removed from the complaints earlier raised by Brownfield. 26No.30994-1-III 

### Brownfieldv. City o/Yakima Summaryjudgmentprinciples are familiar but must be repeated. Summary judgment should be granted ifthe evidence establishes there is no genuine issue of material fact and that the moving party is entitled tojudgmentas a matter oflaw. CR 56(c); 

### Ruffv. County o/King, 125 Wn.2d 697, 703, 887 P.2d 886 (1995). To succeed on
a summaryjudgment motion, the moving party must first show the absence ofan 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. 

### Lybbertv. 

### Grant County, 141 Wn.2d 29,34,1 P.3d 1124 (2000). On appeal ofsummaryjudgment, the standard of review is de novo and the appellate courtperforms the same inquiry as the trial court. 

### Id. at 34. To repeat, JeffBrownfieldpresents no evidence supporting a conclusion that his firing was pretextual. Issue IV: Should we review whetherJeffBrownfield's claim for failure to accommodate a disability survives a summaryjudgment motion, when he presents no legal argument to support the claim inhis brief? No. In his appeal brief, JeffBrownfield devoted only two sentences to his claim for failure to accommodate his disability. He wrote: Ifthe City perceived Ofc. Brownfield as unable to function inthe 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 ofa 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. ofAppellant at 24-25. 

## I 

# i In support ofthis contention, Brownfield quoted, in a footnote, a section I from the Washington Office ofFinancial Management Bulletin, 

### State Policy Guidelines on ReasonableAccommodation

## 0/ Persons with DisabilitiesRelatedto 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 ofthe record." We do not consider conclusory arguments that are unsupported by citation to authority. 

### Joy 

### v. Dep'to/Labor & 

### Indus., 170 Wn. App. 614, 629,285 P.3d 187, 194-95 (2012). Passing treatment ofan issue or lack ofreasoned argument is insufficient to meritjudicial 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

28No.30994·1·III 

### Brownfieldv. 

### City o/Yakima

oferror. A thorough analysis and citation to authority is particularly apt in this case. The law ofreasonable 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 impairmentmust be known or shown through an interactive process to exist in fact.") The employer has a duty to determine the nature and extent ofthe disability, but only afterthe 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 ofinformation between parties is required whetherthe employer chooses to transfer the employee to a new position or to accommodate the employee in the currentposition. 

### 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 orproposing 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, notbecause ofany disability but because he wanted to avoid "the mouth of the beast"-LieutenantMike Merryman. CP at 97. Ifwe were to address Brownfield's

29No.30994-1-III 

### Brownfieldv. City o/Yakima appeal ofdismissal ofthe reasonable accommodation claim, we would desire analysis as to whether an employercan be faulted for granting a transferrequested by the employee. Issue V: Didthe trial court err by granting summaryjudgment on the negligent hiring and supervision claim, when the city ofYakima did not claim the actions ofCity ManagerDick Zais or Police ChiefSam Granato were outside the scope oftheir respective authority? No. In his complaint, JeffBrownfield alleges that Yakima negligently hired, supervised and retained Police ChiefGranato. On appeal, Brownfield twice denies that his negligence allegation targeted ChiefGranato, 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 cannotpresent a theory for reliefthat he failed to set forth in his complaint 

### as required by CR 

### 8. Deweyat 26; Shields at 758. Accordingly, this issue does not meritreview. Regardless ofwhether Brownfield aims his negligence theory at the hiring and employing ofGranato orZais, the theory fails as a matter oflaw. The purpose behind a negligent hiring and supervision action is to prevent an employer from avoiding liability for the misconduct ofan employee committed outside the scope ofemployment, when the employer should not have hired ormaintained the employee because ofhis orher tendencies. 

### S.He. v. Sheng-Yen Lu, 113 Wn. App. 511, 517, 54 P.3d 174 (2002). Thus, to bring the cause ofaction, the employee who caused the harm must have acted outside 30No. 30994-1-111 Brownfieldv. City of Yakima

his scope ofemployment. LaPlant v. Snohomish County, 162 Wn. App. 476, 480-81, 271 P.3d 254 (2011). The city ofYakima adopted, as its own, all ofthe actions taken by ChiefGranato and City Manager Zais, aboutwhich JeffBrownfield complains. When the employer does not disclaim liability for the employee, the claim collapses into a directtort claim against the employer, which requires dismissal ofthe negligent supervision claim. Niece v. Elmview GroupHome, 131 Wn.2d 39, 48-51,929 P.2d 420 (1997). CONCLUSION We affirm thetrial court's summaryjudgment dismissal ofall claims ofJeff Brownfield. A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

Korsmo, C.J.

31