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Saturday, December 15, 2018

Definition of State Employee Whistleblower

by Gregory Williams, Esq. | Under Washington State law, what is the definition of state employee whistleblower status? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding). 

I. WASHINGTON LAW AGAINST DISCRIMINATION

Under the Washington Law Against Discrimination (WLAD), it is an unfair practice, with very few exceptions, for an employer to refuse to hire any person, to discharge or bar any person from employment, or to discriminate against any person in compensation or in other terms and conditions of employment because of age (40+); sex (including pregnancy); marital statussexual orientation (including gender identity); race; color; creednational originhonorably discharged veteran or military status; HIV/AIDS and hepatitis C status; the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability; and state employee or health care whistleblower status. It is also an unfair practice for an employer to retaliate against an employee because the employee complained about job discrimination or assisted with a job discrimination investigation or lawsuit.

II. DEFINITION OF STATE EMPLOYEE WHISTLEBLOWER

In Washington State, there are generally two categories for state employee whistleblower status: (1) reporting and/or perceived reporting; and (2) reprisals and/or retaliatory action.

(1) Regarding Reporting & Perceived Reporting

According to Washington State law, the term “whistleblower” means as follows:

(i) An employee who in good faith reports alleged improper governmental action to the auditor or other public official, as defined in subsection (7) of this section; or

(ii) An employee who is perceived by the employer as reporting, whether they did or not, alleged improper governmental action to the auditor or other public official, as defined in subsection (7) of this section.


(2) Regarding Reprisals & Retaliatory Action

For purposes of the provisions of chapter 42.40 RCW and chapter 49.60 RCW relating to reprisals and retaliatory action, the term “whistleblower” also means as follows:

(i) An employee who in good faith provides information to the auditor or other public official, as defined in subsection (7) of this section, and an employee who is believed to have reported asserted improper governmental action to the auditor or other public official, as defined in subsection (7) of this section, or to have provided information to the auditor or other public official, as defined in subsection (7) of this section, but who, in fact, has not reported such action or provided such information; or

(ii) An employee who in good faith identifies rules warranting review or provides information to the rules review committee, and an employee who is believed to have identified rules warranting review or provided information to the rules review committee but who, in fact, has not done so.


III. ADDITIONAL DEFINITIONS

It’s important to note that some of the above-mentioned terms are defined by Washington State law as follows:

“Auditor” means the office of the state auditor. RCW 42.40.020(1).

“Employee” means any individual employed or holding office in any department or agency of state government. RCW 42.40.020(2).

“Good faith” means the individual providing the information or report of improper governmental activity has a reasonable basis in fact for reporting or providing the information. An individual who knowingly provides or reports, or who reasonably ought to know he or she is providing or reporting, malicious, false, or frivolous information, or information that is provided with reckless disregard for the truth, or who knowingly omits relevant information is not acting in good faith. RCW 42.40.020(3).

“Improper governmental action” means any action by an employee undertaken in the performance of the employee’s official duties:

(i) Which is a gross waste of public funds or resources as defined in this section;

(ii) Which is in violation of federal or state law or rule, if the violation is not merely technical or of a minimum nature;

(iii) Which is of substantial and specific danger to the public health or safety;

(iv) Which is gross mismanagement;

(v) Which prevents the dissemination of scientific opinion or alters technical findings without scientifically valid justification, unless state law or a common law privilege prohibits disclosure. This provision is not meant to preclude the discretion of agency management to adopt a particular scientific opinion or technical finding from among differing opinions or technical findings to the exclusion of other scientific opinions or technical findings. Nothing in this subsection prevents or impairs a state agency's or public official's ability to manage its public resources or its employees in the performance of their official job duties. This subsection does not apply to de minimis, technical disagreements that are not relevant for otherwise improper governmental activity. Nothing in this provision requires the auditor to contract or consult with external experts regarding the scientific validity, invalidity, or justification of a finding or opinion; or

(vi) Which violates the administrative procedure act or analogous provisions of law that prohibit ex parte communication regarding cases or matters pending in which an agency is party between the agency's employee and a presiding officer, hearing officer, or an administrative law judge. The availability of other avenues for addressing ex parte communication by agency employees does not bar an investigation by the auditor. RCW 42.40.020(6)(a)(i)-(vi).

“Improper governmental action” does not include personnel actions, for which other remedies exist, including but not limited to employee grievances, complaints, appointments, promotions, transfers, assignments, reassignments, reinstatements, restorations, reemployments, performance evaluations, reductions in pay, dismissals, suspensions, demotions, violations of the state civil service law, alleged labor agreement violations, reprimands, claims of discriminatory treatment, or any action which may be taken under chapter 41.06 RCW, or other disciplinary action except as provided in RCW 42.40.030. RCW 42.40.020(6)(b).

“Public official” means the attorney general’s designee or designees; the director, or equivalent thereof in the agency where the employee works; an appropriate number of individuals designated to receive whistleblower reports by the head of each agency; or the executive ethics board. RCW 42.40.020(7).

IV. FURTHER DEFINITIONS

And some of the above-referenced definitions also contain legal terms that have been further defined as follows:

“Gross mismanagement” means the exercise of management responsibilities in a manner grossly deviating from the standard of care or competence that a reasonable person would observe in the same situation. RCW 42.40.020(4).

“Gross waste of funds” means to spend or use funds or to allow funds to be used without valuable result in a manner grossly deviating from the standard of care or competence that a reasonable person would observe in the same situation. RCW 42.40.020(5).

“Substantial and specific danger” means a risk of serious injury, illness, peril, or loss, to which the exposure of the public is a gross deviation from the standard of care or competence which a reasonable person would observe in the same situation. RCW 42.40.020(8).

“Use of official authority or influence” includes threatening, taking, directing others to take, recommending, processing, or approving any personnel action such as an appointment, promotion, transfer, assignment including but not limited to duties and office location, reassignment, reinstatement, restoration, reemployment, performance evaluation, determining any material changes in pay, provision of training or benefits, tolerance of a hostile work environment, or any adverse action under chapter 41.06 RCW, or other disciplinary action. RCW 42.40.020(9).


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

Sunday, December 2, 2018

Res Judicata, Claim Splitting, and Independent Statutory Rights

by Gregory Williams, Esq. | Under Washington State law, does claim splitting apply to Washington Law Against Discrimination (WLAD) claims and Title VII of the Civil Rights Act of 1964 (Title VII) claims when they are pursued contemporaneously in separate causes of action? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding). 

RES JUDICATA & INDEPENDENT CAUSES OF ACTION

The theory of claim splitting is “variously referred to as res judicata or splitting causes of action.” Landry v. Luscher, 95 Wn.App. 779, 783, 976 P.2d 1274 (1999); Sound Build Homes, Inc. v. Windermere Real Estate/ South, Inc., 118 Wn.App. 617, 628, 72 P.3d 788 (Wash.App. Div. 2 2003); Schoeman v. New York Life Ins. Co., 106 Wn.2d 855, 859, 726 P.2d 1 (1986). The Washington State Supreme Court addressed the issue of res judicata and independent causes of action in Seattle-First Nat. Bank v. Kawachi when it held as follows:

[W]hile it is often said that a judgment is res judicata of every matter which could and should have been litigated in the action, this statement must not be understood to mean that a plaintiff must join every cause of action which is joinable when he brings a suit against a given defendant. CR 18(a) permits joinder of claims. It does not require such joinder.  And the rule is universal that a judgment upon one cause of action does not bar suit upon another cause which is independent of the cause which was adjudicated.

Seattle-First Nat. Bank v. Kawachi, 91 Wash. 2d 223, 588 P.2d 725 (1978) (citing 50 C.J.S. Judgments §668 (1947) (emphasis added); 46 Am.Jur.2d Judgments §404 (1969). Thus, it appears that if WLAD and Title VII claims are independent causes of action, then res judicata may be inapplicable when these claims are pursued contemporaneously in separate causes of action.

WLAD CLAIMS ARE INDEPENDENT

WLAD Claims are independent statutory rights. The Washington State Supreme Court has held that WLAD confers on individual employees an independent statutory right. See, Reese v. Sears, Roebuck & Co., 107 Wn.2d 563, 577, 731 P.2d 497 (Wash. 1987) (holding that the comprehensive statutory scheme contained in RCW 49.60 evidences the Legislature’s intent to allow individual employees to pursue their statutory rights independently), overruled on other grounds by Phillips v. City of Seattle, 111 Wash.2d 903 766 P.2d 1099 (Wash. 1989)) (emphasis added); see also, Morales v. Westinghouse Hanford Co., 73 Wn.App. 367, 372, 869 P.2d 120 (Div. 3 1994) (holding that the Washington Legislature has emphasized the independent nature of the remedy provided by the Washington Law Against Discrimination) (emphasis added).  

The court in Reese v. Sears, Roebuck & Co. went on to hold that the “statutory scheme designed by the Legislature in RCW 49.60 confers on individual employees a substantive right to be free from unlawful employment discrimination and provides a personal cause of action to vindicate that right.” Id. (referencing RCW 49.60.030, .180, .230) (emphasis added).

TITLE VII CLAIMS ARE INDEPENDENT

Title VII claims are also independent statutory rights. The Washington State Supreme Court has held that in filing a lawsuit under Title VII, an employee asserts independent statutory rights accorded by the U.S. Congress that are distinctly separate in nature from other rights and which are not vitiated merely because they are violated with another right as a result of the same factual occurrence. Civil Service Com’n of City of Kelso v. City of Kelso, 137 Wn.2d 166, 175, 969 P.2d 474 (1999) (emphasis added).  

Moreover, the United States Supreme Court has echoed this sentiment. In Civil Service Com’n of City of Kelso v. City of Kelso, the court held that a statutory claim brought under Title VII is an independent cause of action when it does not turn on the meaning of any provision in the other claim, even though the two claims involve the same factual considerations. Id. at 175-76 (citing Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 409-10, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988)) (emphasis added). In Morales v. Westinghouse Hanford Co., the court held that Title VII statutory rights are legally independent rights. See Morales v. Westinghouse Hanford Co., 73 Wn.App. at 372 (citing International Union of Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 236, 97 S.Ct. 441, 446, 50 L.Ed.2d 427 (1976)) (emphasis added). And in Alexander v. Gardner-Denver Co., the court held that the legislative history of Title VII statutory rights manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII (Civil Rights Act of 1964) and other applicable state and federal statutes. Alexander v. Gardner-Denver Co., 94 S.Ct. 1011, 1019, 415 U.S. 36 (1974).

CONCLUSION

I believe that, depending on the circumstances, claim splitting may not apply to WLAD claims and Title VII claims when they are pursued contemporaneously in separate causes of action.


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.