Case 3:09-cv-05048-RJB

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Honorable Robert J. Bryan

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA ANN BEAHM, Plaintiff, v. CITY OF BREMERTON, et al., Defendants. I. INTRODUCTION Case No. C09-5048 RJB DEFENDANTS’ TRIAL BRIEF

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Plaintiff Ann Beahm worked for the City of Bremerton (hereinafter “the City”)
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Department of Public Works and Utilities (hereinafter “PW&U”) from January 1, 1999 until August 16, 2007 as an office assistant in the Engineering Division. PW&U management became aware of co-workers’ concerns that plaintiff was not at work for a significant time during working hours. Phil Williams, the director of PW&U, initiated an internal investigation, which revealed that over a six-month period plaintiff had reported working 184 hours that she had not worked. The Bremerton Police Department conducted its own independent investigation and found that plaintiff had reported working at least

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112 hours that she had not worked. Mr. Williams terminated plaintiff. The Kitsap County
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Defendants’ Trial Brief - 1 Case No. C09-5048 RJB

ROGER A. LUBOVICH BREMERTON CITY ATTORNEY 345 6th Street, Suite 600, Bremerton, Washington 98337 Phone: 360-473-2345 Fax: 360-473-5161

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Prosecuting Attorney’s Office filed theft charges against plaintiff, which were later dismissed. Plaintiff has four claims against the City and seven of its employees (collectively “City defendants”). Her age discrimination claim under federal law 1 and her state common law wrongful discharge claim are for all practical purposes the same claim. In order to

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prevail, she must prove that she was terminated because of her age. The evidence does not support such a conclusion. Plaintiff also brings a defamation claim. However, the alleged statements at issue are either opinions or subject to a qualified privilege. She also asserts a claim of interference with a business contract. Defendants did not interfere with a contract, and they did not act with an improper purpose. A jury will likely return a verdict in favor of defendants on all claims. II. STATEMENT OF FACTS

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Plaintiff Ann Beahm began working for the City of Bremerton in January 1977 as an office assistant in the City’s Accounting division. In 1983 she was transferred to the City’s police department as an office assistant senior. In 1999 she was transferred, at her request, to the Engineering Division, which is a division of PW&U, as an office assistant senior. In 2006 and 2007, the Engineering Division had a policy that each employee represented by a union must work an eight-hour shift during “core hours” of 8:00 a.m. to 4:00 p.m. This means that union employees were required to work their shift between the

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hours of 8:00 a.m. and 4:00 p.m. Employees could start their shifts before 8:00 a.m. and end their shifts after 4:00 p.m. as long as the shift included the hours of 8:00 a.m. through

See the Age Discrimination in Employment Act of 1991 (“ADEA”), 29 U.S.C. §§ 621-634.
ROGER A. LUBOVICH BREMERTON CITY ATTORNEY 345 6th Street, Suite 600, Bremerton, Washington 98337 Phone: 360-473-2345 Fax: 360-473-5161

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4:00 p.m. They had the option of taking a half-hour lunch or an hour lunch. If an office employee needed to work overtime, at home, on weekends, or a shift that was not within the core hours, that employee was required to get approval from a supervisor. During 2006 and 2007 if an employee worked more than eight hours during a day,

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the employee was required to 1) get permission from a supervisor before doing so and 2)
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record the extra hours worked as either overtime or earned comp. time. An employee is paid time and one-half for overtime. Earned comp. time is time that can be used for leave at a later date. In 2006 and 2007 plaintiff’s hours were 7:00 a.m. to 4:00 p.m. Her primary duties as office assistant senior in the Engineering division were scheduling and formatting agenda bills and preparing payroll records to be delivered to the Human Resources division for processing. Except for very rare occasions, plaintiff’s duties in 2006 and 2007 required

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her to be in the Engineering office building during her work hours. For several months in 2006 and 2007, many of plaintiff’s co-workers in the Engineering division noticed that plaintiff was often not in the office during core hours. Even considering that plaintiff was afforded the usual sick leave and vacation leave that all employees get, her co-workers found in very odd that she would be out of the office so frequently. They felt that it was very unlikely that plaintiff would have enough sick leave or vacation accrued to be able to be off work so much. In fact, plaintiff’s absence was so frequent that many of plaintiff’s co-workers had often commented “Where’s Ann?”, which

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expressed their frustration at not being able to locate plaintiff. Sheree Jankowski was an Engineering Technician for the City in 2006 and 2007. She noticed that plaintiff was gone frequently and had heard others complain of plaintiff’s

Defendants’ Trial Brief - 3 Case No. C09-5048 RJB

ROGER A. LUBOVICH BREMERTON CITY ATTORNEY 345 6th Street, Suite 600, Bremerton, Washington 98337 Phone: 360-473-2345 Fax: 360-473-5161

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frequent absences from work. In November 2006 Ms. Jankowski decided that she would informally track when plaintiff arrived at work and when she left to determine if plaintiff was actually out of the office as much as she and others had thought. Her informal tracking of plaintiff was not intended to be given to management or to be used against plaintiff. At

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first, Ms. Jankowski, did not inform anyone that she was keeping track of plaintiff’s arrival
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and departures from the office. Later, on occasion, if Ms. Jankowski had not seen when plaintiff had arrived she would ask co-workers Angela Woods (an office assistant) or Robert Elsen (an Engineering Technician) if they knew when plaintiff had arrived. Ms. Jankowski recorded plaintiff’s arrival to and departure from the office on a paper copy of a calendar. Ms. Jankowski would write on the calendar when plaintiff would arrive at work and when she would leave from work. If Ms. Jankowski did not know when plaintiff arrived or when she left, Ms. Jankowksi would ask Ms. Woods or Mr. Elsen if

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they knew. If they did not know, she would put a question mark on that day of the calendar. If Ms. Jankowski was not in the office a particular day, she would leave that day blank on the calendar. Ms. Jankowski continued to record plaintiff’s arrival and departure from the office until plaintiff was put on administrative leave on May 18, 2007. In March 2007, Ms. Babbitt informed Paul Lucas, administrative analyst for PW&U, that she and others in Engineering were concerned that plaintiff was frequently not at work during core hours. It appeared that she was taking more leave than she would have had available for vacation, comp. time, or sick leave. In April 2007, Mr. Lucas was given a

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copy of Ms. Jankowski’s calendars from November 2006 through March 2007. Mr. Lucas raised the Engineering employees’ concern about plaintiff with the PW&U director, Phil Williams. Mr. Williams instructed Mr. Lucas to get payroll documents and conduct an

Defendants’ Trial Brief - 4 Case No. C09-5048 RJB

ROGER A. LUBOVICH BREMERTON CITY ATTORNEY 345 6th Street, Suite 600, Bremerton, Washington 98337 Phone: 360-473-2345 Fax: 360-473-5161

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informal review of the information to determine whether the Engineering employees’ concern about plaintiff appeared to have any merit. In addition to Ms. Jankowski’s calendar, Mr. Lucas collected documents from the time period of November 1, 2006 through May 15, 2007, including payroll worksheets,

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leave request forms, and an adjusted schedule request related to plaintiff. He also collected
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alarm information for the Engineering building where plaintiff worked. A payroll worksheet is a document that identifies how each employee has accounted for each eighthour work day. 2 Leave request forms are payroll forms that employees complete, and supervisors sign, that record leave that employee intends to take or has taken. An adjusted schedule request is a payroll record that records time an employee was not at work during their shift due to severe weather. The documents related to alarm information indicates when the alarm for the Engineering building was armed and disarmed. 3 Based on this information, Mr. Lucas was able to compare the hours plaintiff was observed at work (from Ms. Jankowski’s calendar) with the hours plaintiff reported that she worked (from the payroll worksheet plaintiff prepared). He found that plaintiff had reported 184.75 hours that in fact she had not worked. 4 In arriving at this conclusion, Mr. Lucas made some assumptions: 1) that when Ms. Jankowski left a calendar day blank or

On the payroll worksheet, each row relates to one employee. The columns represent dates. The number in upper right-hand corner of each coordinate cell represents the hours the employee worked that day. Under that number may be another number with a corresponding letter, or letters. That number represents vacation time (V), overtime (OT), earned comp. time (EC), taken comp. time (TC), holiday (H), sick leave (S). 3 This information is significant because if plaintiff worked outside of her regularly scheduled shift on a particular day, it could be confirmed by the alarm information. For example, if the alarm was armed at 6:00 p.m. on a particular day and not disarmed until the following day, then plaintiff would not been working at the office after 6:00 p.m. 4 This total did not include 32 hours that plaintiff reported as overtime or earned comp. time. Defendants’ Trial Brief - 5 Case No. C09-5048 RJB
ROGER A. LUBOVICH BREMERTON CITY ATTORNEY 345 6th Street, Suite 600, Bremerton, Washington 98337 Phone: 360-473-2345 Fax: 360-473-5161

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wrote “off” on the day, plaintiff worked an eight-hour shift 5 ; 2) that when Ms. Jankowski wrote a “?” on a day, that plaintiff left work at the time she was scheduled to end her shift (i.e. 4:00 p.m.); 3) that when plaintiff reported that she worked overtime and the alarm records did not contradict her, Mr. Lucas assumed that she in fact worked overtime as

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reported; 4) that all of plaintiff’s work was done in the office (i.e. that she did not take
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work home). Mr. Lucas took his findings to Mr. Williams. Mr. Williams met with the City Attorney’s Office and the Human Resources Office to discuss the matter. He decided to conduct a formal internal investigation. Mr. Williams believed that if plaintiff had remained at work during the internal investigation, plaintiff and other Engineering employees would have been very uncomfortable and it would have been detrimental to the work environment. On May 18, 2007 Mr. Williams informed plaintiff that she was being

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investigated by PW&U for falsely reporting the number of hours she worked and that she was being placed on paid administrative leave. Mr. Williams also asked plaintiff if she had any information that would refute Mr. Lucas’ initial determination. She did not. Mr. Williams then conducted tape recorded interviews of Ms. Jankowski, Ms. Woods, Mr. Elsen, Ms. Babbitt, and Mr. Mecham. Ms. Jankowski, Ms. Woods, Mr. Elsen and Ms. Babbitt all stated that they had noticed in 2006 and 2007 that plaintiff had been out of the office during core hours more than they would have expected, even accounting for sick leave and vacation leave. They told Mr. Williams that Ms. Jankowski had kept the

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calendar and that on occasion Ms. Woods, Mr. Elsen and Ms. Babbitt provided Ms.

Ms. Jankowski left a date blank when she was not able to observe when plaintiff arrived or departed; she wrote “off” on a day when Ms. Jankowski was not at work, so she would not have observed plaintiff arrive or depart.
ROGER A. LUBOVICH BREMERTON CITY ATTORNEY 345 6th Street, Suite 600, Bremerton, Washington 98337 Phone: 360-473-2345 Fax: 360-473-5161

Defendants’ Trial Brief - 6 Case No. C09-5048 RJB

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Jankowski with information regarding plaintiff’s arrival or departure times. Mr. Mecham told Mr. Williams that since November 2006, Mr. Mecham had authorized plaintiff to take home work on one occasion over a weekend in order to complete the payroll. Mr. Mecham did not authorize any other time when Ms. Beahm would have been authorized to take

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work home. Mr. Mecham told Mr. Williams that he would have expected plaintiff to get
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authorization from him before she took work home. Mr. Williams met with the Assistant City Attorney Ken Bagwell and Human Resources Manager Carol Conley and provided them with the results of his investigation. Mr. Williams was told that plaintiff’s conduct may have been criminal, so the Bremerton Police Department should conduct an investigation. This surprised Mr. Williams. He had no intention or expectation that the internal investigation would turn into a criminal investigation.

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Bremerton Police Detective Rodney Harker was assigned to the case. Detective Harker reviewed all of the information gathered by PW&U, including a Memorandum from Paul Lucas; Mr. Lucas’ document detailing the hours plaintiff worked compared to the hours plaintiff claimed to have worked; Ms. Jankowski’s calendar; payroll worksheets related to plaintiff from November 2006 through May 2007; leave request forms for plaintiff for April 24, 2007 and May 3, 2007; adjusted schedule request form for January 11, 2007; Overtime/Compensatory Leave Certificate for May 2007; the Engineering building alarm information; an email from plaintiff to Mr. Williams and Mr. Mecham; and

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two cassette tapes that contained Mr. Williams’ interviews of Ms. Jankowski, Ms. Woods, Mr. Elsen, Ms. Babbitt and Mr. Mecham.

Defendants’ Trial Brief - 7 Case No. C09-5048 RJB

ROGER A. LUBOVICH BREMERTON CITY ATTORNEY 345 6th Street, Suite 600, Bremerton, Washington 98337 Phone: 360-473-2345 Fax: 360-473-5161

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Detective Harker conducted an independent investigation and created his own documents comparing the hours plaintiff was observed to have worked with the hours she reported that she had worked. The first comparison was very conservative, giving plaintiff the benefit of the doubt on two issues: 1) Detective Harker assumed that when plaintiff

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arrived late or left early that she worked through lunch and 2) that when there was a “?” for
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when plaintiff left the office, he assumed she stayed until 4:30 p.m. 6 Based on these assumptions, which were in plaintiff’s favor, Detective Harker found that plaintiff had reported working 153 hours more than she had actually worked. Detective Harker then prepared another document of the same comparison, but he used additional assumptions that were even more conservative, i.e. benefited plaintiff even more. This comparison disregarded any date that had a “?” for an arrival or departure time. For these dates, Detective Harker assumed that plaintiff worked an entire eight-hour shift,

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even if that assumed that plaintiff worked until late in the evening, several hours after her shift had ended. 7 Using this extremely conservative comparison, giving plaintiff every benefit of the doubt, Detective Harker found that plaintiff had reported working 112.75 hours more than she had actually worked. Detective Harker telephoned plaintiff to ask her if she would consent to an interview. Plaintiff told Detective Harker that she wanted to talk to her lawyer first.
Plaintiff testified at her deposition that in 2006 and 2007 her shift was from 7:00 or 7:30 a.m to 4:00 p.m. If she started at 7:00 a.m. then she took a one hour lunch, but if she started at 7:30 a.m., she took a one-half hour lunch. She was clear that her shift ended at 4:00 p.m. Beahm Deposition at 93:10 – 95:22. 7 November 8, 2006 provides an example of the difference between Mr. Lucas’ finding, Detective Harker’s first finding and Detective Harker’s second finding. According to Ms. Jankowski’s calendar, plaintiff was observed arriving at 2:00 p.m., and there was a “?” for her departure time. Mr. Lucas, using plaintiff’s departure time as the end of her shift (4:00 p.m.), concluded that she worked two hours that day. Detective Harker’s first finding, using plaintiff’s departure time as the end of her shift (assuming her shift ended at 4:30 p.m.), concluded she worked 2.5 hours. Detective Harker’s second finding, assuming that wherever there was a “?”, plaintiff stayed in the office to complete an eight hour shift, concluded that plaintiff worked an eight hours. (Of course, that would mean that plaintiff worked from 2:00 p.m. until 10:00 p.m. without taking a break for a meal.) Defendants’ Trial Brief - 8 Case No. C09-5048 RJB
ROGER A. LUBOVICH BREMERTON CITY ATTORNEY 345 6th Street, Suite 600, Bremerton, Washington 98337 Phone: 360-473-2345 Fax: 360-473-5161

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Detective Harker told plaintiff that she had his telephone number that she could provide to her attorney to schedule an interview. Plaintiff did not ever consent to an interview. Detective Harker sent his investigative reports and a Certificate of Probable Cause to the Kitsap County Prosecuting Attorney’s Office on June 27, 2006.

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On July 19, 2007, Phil Williams sent a letter to plaintiff notifying her that he
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proposed to terminate her and the reasons for that proposal. He stated that a predisciplinary hearing was scheduled for July 25, 2007 and that she was permitted to respond to the charges by letter or in person at the hearing. Plaintiff’s lawyer requested a continuance of the pre-disciplinary hearing, and it was rescheduled to August 10, 2007. Plaintiff did not appear for the August 10, 2007 pre-disciplinary hearing, and she did not provide any written response to the July 19, 2007 Notice of Charge. On August 17, 2007, Mr. Williams sent a letter notifying plaintiff that she had been terminated. The letter

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informed plaintiff that she had a right to appeal this decision and provided information regarding the manner in which to file an appeal. Plaintiff did not appeal the decision. Plaintiff was charged with the crime of theft by the Kitsap County Prosecuting Attorney’s Office. The charge was later dismissed on the Prosecutor’s motion. III. LIABILITY A. Defamation. In order to prevail on her defamation claim plaintiff must prove the following

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elements of defamation: 1) falsity, 2) unprivileged communication, 3) fault, and 4) damages. LaMon v. Butler, 112 Wn.2d 193, 197, 770 P.2d 1027 (1989).

Defendants’ Trial Brief - 9 Case No. C09-5048 RJB

ROGER A. LUBOVICH BREMERTON CITY ATTORNEY 345 6th Street, Suite 600, Bremerton, Washington 98337 Phone: 360-473-2345 Fax: 360-473-5161

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It is unclear which statements plaintiff believes are defamatory. Most of the statements plaintiff identifies as defamatory are related to defendants’ reporting to management their observations of plaintiff’s arrival and departure times. In Detective Harker’s case, he was reporting to the Prosecuting Attorney’s Office. These statements are

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true, defeating the first element. Moreover, the statements are either 1) opinions, not false
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statements of fact, or 2) under the circumstances, the statements were not intended to be statements of fact. Such statements are not defamatory statements. Robel v. Roundup Corp., 148 Wn.2d 35, 56-58, 59 P.3d 611 (2003). With respect to the second element, defendants are entitled to a qualified privilege as to these statements. A qualified privilege exists “when it concerns a matter in which the publisher has an interest and is made to another who it is reasonably believed has a corresponding interest”. Messerly v. Asamera Minerals, Inc., 55 Wn.App. 811, 817-18,

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780 P.2d 1327 (1989), overruled on other grounds, Swanson v. Liquid Air Corp., 118 Wn. 2d. 512 826 P.2d 664 (1992). Courts have applied this privilege to communications between co-workers, reporting another employee’s misconduct. See Messerly. Likewise in our case, the alleged defamatory statements were made between City employees with a common interest – to ensure that the Engineering division employees are accurately reporting their time. Therefore any alleged statement that plaintiff had falsely reported time or stole time or simply failed to work the hours she reported are not actionable.

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Defendants expect to bring a motion to dismiss this claim against all defendants pursuant to Fed. R. Civ. P. 50 at the close of plaintiff’s case. B. Interference with a Contractual Relationship.

Defendants’ Trial Brief - 10 Case No. C09-5048 RJB

ROGER A. LUBOVICH BREMERTON CITY ATTORNEY 345 6th Street, Suite 600, Bremerton, Washington 98337 Phone: 360-473-2345 Fax: 360-473-5161

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The elements of this tort requires that plaintiff prove the following elements: 1) a valid contractual relationship, (2) knowledge of that relationship by the defendants, (3) intentional interference by the defendants inducing or causing a breach or termination of the relationship, (4) interference by the defendants based on an improper purpose or improper means, and (5) damages. Citoli v. City of Seattle, 115 Wn.App. 459, 487, 61 P.3d 1165 (2002), citing Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 28, 829 P.2d 765 (1992). After this Court’s order on summary judgment, the only remaining claim is plaintiff’s claim against the individual defendants for their role in plaintiff’s termination. First, it is unclear whether plaintiff had a valid contractual relationship with the City. Second, the individual defendants did not cause plaintiff’s termination; plaintiff’s failure to accurately report her time caused her termination. Third, the evidence will show that the individual defendants did not act with improper purpose or improper means; they merely reported their observations to superiors. Defendants intend to bring a Fed. R. Civ. P. 50 motion to dismiss this claim against all defendants. C. Age Discrimination. Plaintiff claims that the City terminated her in violation of the Age Discrimination in Employment Act (“ADEA”) and state law 8 . Gross v. FBL Financial Services, Inc., --U.S. ----, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009) controls plaintiff’s ADEA claim. In

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Gross, the United States Supreme Court held that the burden-shifting formula in Title VII
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claims does not apply to ADEA claims. Gross at 2351. “A plaintiff must prove by a preponderance of the evidence…that age was the ‘but-for’ cause of the challenged employer decision.” Id. The Court made it clear that even if plaintiff can show that age was a factor, that

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Washington State courts follow the criteria developed by federal courts under similar federal statutes, namely the ADEA. Id., citing Grimwood v. University of Puget Sound, Inc., 110 Wn.2d 355, 361, 753 P.2d 517 (1988). Therefore, the elements necessary to prove an ADEA claim are the same as the elements to prove a state law wrongful discharge claim.
ROGER A. LUBOVICH BREMERTON CITY ATTORNEY 345 6th Street, Suite 600, Bremerton, Washington 98337 Phone: 360-473-2345 Fax: 360-473-5161

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does not shift the burden of persuasion to the employer; the plaintiff must prove “but-for” causation. Id. at 2352. In our case, plaintiff cannot prove that her age was the “but-for” cause of her termination from the City. In fact, the evidence clearly shows that the cause of her termination

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was the City’s finding that she reported that she had worked at least 112 hours that she had
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not in fact worked. The only evidence that plaintiff identifies as age discrimination against her occurred when her supervisor, Mike Mecham, told her that she should retire and open a flower shop. Plaintiff is an avid gardener. Mr. Mecham was merely making small talk. This was an innocuous comment about what she might want to do when she retires, as co-workers often do. There is no other evidence that the City discriminated against her because of her age. Defendants intend to bring a motion to dismiss plaintiff’s ADEA and wrongful

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discharge claim at the close of plaintiff’s case. If the claim survives, defendants expect the jury to return a verdict in favor of defendants. IV. DAMAGES Plaintiff claims that she is entitled to back pay and front pay for her ADEA claim. However, she is required to mitigate her damages by using reasonable efforts to find a new job. Plaintiff has not done so. At her deposition in December 2009, she could only identify two jobs she had applied for since she was terminated, one at Starbucks, the other at Amazon.com. Therefore, her back pay and front pay claims should be reduced

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significantly. Plaintiff also claims that she suffered emotional distress from defendants’ actions. Plaintiff has a long history of depression, anxiety and other psychological disorders that

Defendants’ Trial Brief - 12 Case No. C09-5048 RJB

ROGER A. LUBOVICH BREMERTON CITY ATTORNEY 345 6th Street, Suite 600, Bremerton, Washington 98337 Phone: 360-473-2345 Fax: 360-473-5161

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predated her termination. Defendants contend that any award for emotional distress would be modest. V. CONCLUSION Plaintiff cannot prove any of the claims she brings against defendants. For her age

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discrimination claim, she has to prove that she was terminated “because of her age”. She
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has no evidence that any City employee took any action against plaintiff based on her age. Moreover, the evidence is clear that plaintiff did not work the hours she claimed she worked. With respect to plaintiff’s defamation claims, defendants are entitled to a qualified privilege. As for her claim of interference with a contract, defendants did not interfere with any contractual relationship plaintiff claims to have had with the City, and defendants did not act with an improper purpose. For these reasons, defendants believe that if the claims survive a Fed. R. Civ. P. 50 motion after the plaintiff rests, the jury will likely return a

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verdict in favor of defendants on all claims. DATED this 5th day of May, 2010. ROGER A. LUBOVICH Bremerton City Attorney By: s/ Mark E. Koontz Mark E. Koontz, WSBA #26212 Attorney for City Defendants

Defendants’ Trial Brief - 13 Case No. C09-5048 RJB

ROGER A. LUBOVICH BREMERTON CITY ATTORNEY 345 6th Street, Suite 600, Bremerton, Washington 98337 Phone: 360-473-2345 Fax: 360-473-5161

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CERTIFICATE OF SERVICE

I hereby certify that on May 5, 2010, I electronically filed the Defendants’ Trial Brief with the Clerk of the Court using the CM/ECF system which will send notification of such filing to Clayton E. Longacre, counsel for plaintiff. Dated this 5th day of May, 2010. ROGER A. LUBOVICH Bremerton City Attorney By: s/ Mark E. Koontz Mark E. Koontz, Assistant City Attorney WSBA# 26212 345 6th Street, Suite 600 Bremerton, WA 98337 (360) 473-2345 Facsimile: (360) 473-5161 Email: mark.koontz@ci.bremerton.wa.us

Defendants’ Trial Brief - 14 Case No. C09-5048 RJB

ROGER A. LUBOVICH BREMERTON CITY ATTORNEY 345 6th Street, Suite 600, Bremerton, Washington 98337 Phone: 360-473-2345 Fax: 360-473-5161

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