Bathke v. City of Ocean Shores

UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA DAVID W. BATHKE, CASE NO. C19-5338 BHS Plaintiff, DECISION, FINDINGS OF FACT, 9 v. AND CONCLUSIONS OF LAW CITY OF OCEAN SHORES, 11 Defendant.

13 DECISION 14 Plaintiff David Bathke (“Bathke”) had planned to finish his 40-year career in the fire service industry by taking the position of fire chief in the small Washington coastal town of Ocean Shores (“the City”). For the reasons of job security, before he accepted the offer of this position that was extended to him by Mayor Crystal Dingler (“Dingler”), he requested assurance that he would be provided employment security protections. Dingler gave him this assurance by referring him to written documents that would apply to his employment with the City. These included: (1) the collective bargaining agreement the City had with its exempt employees, the Exempt Employees Agreement (“EEA”); (2) the City Personnel Manual (“PM”); (3) the City’s collective bargaining agreement with its firefighters (“CBA”); and (4) the Standard Operating Guideline 2000:00 (“SOG”).

3 While the City and Bathke disagree as to the effect of these documents on the interpretation of the “for cause” standard for employment termination, there is accord that these documents together constitute an employment contract and that “for cause” is the standard Dingler should have relied upon in making any decision to terminate Bathke’s employment. No matter which interpretation the Court adopts, the standard of “for cause” entails the requirement that, when an employer makes a termination decision, that decision much be actuated in good faith which means that the employer must provide the employee procedural fairness. See Lambert v. Morehouse, 68 Wn. App. 500, 505 (1993) (citing Gaglidari v. Denny’s Rests., 117 Wn.2d 426, 437 (1991)). In her attempt to meet this requirement, Dingler failed. The City breached its contract with Bathke, and he is entitled to damages.

14 During the recruiting process, Bathke was told by Dingler the fire department needed a strong leader to address issues within that organization. It was understood that implementing changes would present some challenges. And Bathke implemented several changes, many of which some firefighters disagreed with. Even so, for the nearly year and a half that Bathke held the position of fire chief, no complaints were lodged by any firefighter or Dingler about his performance.

20 Bathke began his employment in the position of fire chief for the City on June 12, 2017 after approximately one month of consulting work with the City. He maintained a probationary employee status for his first six months. Bathke’s probation ended, and Dingler sent him a letter confirming his permanent status as fire chief on November 12, 2017, in which Dingler said, “I am impressed with your leadership skills and style and look forward to a long career for you here in Ocean Shores.”

4 It was not until December 13, 2018 when Dingler met with members of the firefighters’ union that any firefighter communicated a complaint about Bathke’s performance as fire chief to Dingler, Bathke’s supervisor. The firefighters’ union had taken a no confidence vote as to Bathke’s leadership on December 10, 2018, and all who were in attendance voted in favor of no confidence. On December 13, 2018, the union members presented Dingler and Human Resource Specialist Dani Smith (“Smith”) a list of complaints that had first surfaced at a firefighters’ union meeting three days earlier; the complaints were summarized in meeting notes taken by Smith. On the day following her meeting with the firefighters, December 14, 2018, Dingler apparently accepted these complaints at face value—without seeking any response or information from Bathke or conducting an independent inquiry—and placed him on administrative leave with pay.

15 On February 8, 2019, Bathke’s status was changed to unpaid administrative leave.

16 It is significant that the fire department leadership, consisting of the chief, captains, and lieutenants, met monthly to discuss current issues and problems within the department. Minutes were taken of these meetings, and none of the complaints that were later detailed by certain firefighters at the no confidence vote were documented at the monthly meetings; the reason for which is that they were not likely raised, as Bathke contends. Though there are provisions in City policies for the making and processing of complaints or grievances, not one of the complaints communicated to Dingler by the firefighters were ever made or pursued in accordance with these policies. Additionally, though a provision in the PM, ¶ 5.410(c), provided that every employee was to be evaluated at least once a year, Dingler, as Bathke’s supervisor, never performed such an evaluation. Bathke had no reason to suspect that his job performance was in any way viewed by members of the department or Dingler as deficient.

6 At Dingler’s request, Firefighter and Local 2109 President Corey Kuhl sent Dingler an email on January 7, 2019 laying out the list of complaints the union had identified in connection with Bathke’s performance as fire chief. The list overlaps with some of the complaints stated in Dingler’s pre-termination letter but also contains allegations not in that letter or in Notice of Disciplinary Decision.

11 The City then engaged Robin Nielsen (“Nielsen”), an outside investigator. She visited the City on January 9, 2019 to determine whether Bathke had committed any discriminatory acts or created a hostile work environment. She interviewed only six firefighters. She did not interview Bathke. On January 11, 2019 Nielsen orally communicated her initial findings to the City—that she found no evidence of any unlawful discrimination, harassment, or a hostile work environment. She did indicate there may be some performance issues with Bathke, and she inquired as to whether the City wanted her to further her investigation into those issues. On January 15, 2019, the City informed Nielsen that no further investigation by her was desired and that no formal report to the City on her findings was necessary.

21 On the very next day, January 16, 2019, Dingler, without conducting any interview of Bathke or undertaking any investigation to explore the firefighters’ allegations, sent a letter to Bathke informing him that he had “lost the trust and respect of the members of your department” and that she could “see no path forward” for him to continue as chief of the fire department.” In the letter, Dingler offered Bathke four months of severance pay in exchange for his resignation. Remarkably, there were scant details in that letter setting out specific complaints. Dingler did indicate that she would like to “sit down and talk” with Bathke after January 28, 2019. As invited by Dingler, Bathke employed legal counsel, Scott Wellman, who sent a letter to the City on Bathke’s behalf on January 23, 2019. The letter rejected the City’s offer and suggested a solution through a mediation process. This proposal was in turn rejected, there was no further consideration of having a meeting between Dingler and Bathke, and instead the City provided notice of a Loudermill pre-disciplinary hearing along with a Summary of Charges on February 13, 2019.

13 The pre-disciplinary hearing was conducted on March 12, 2019. Other than a brief opening statement by attorney Wellman on Bathke’s behalf, the 3.5-hour long hearing consisted mostly of Bathke addressing in narrative fashion each of the complaints stated in the summary of charges letter to Bathke. During the period between the placement of Bathke on administrative leave and the pre-termination hearing, there were at least three documents that set out complaints regarding Bathke’s performance in his position of fire chief: (1) the notes taken by Smith of the December 13, 2018 meeting involving Dingler, Kuhl, Captain Matt Krick, and Smith; (2) the January 7, 2019 email from Kuhl to Dingler; and (3) the February 13, 2019 Notice of Pre-Disciplinary Hearing.

1 In arriving at its decision in this case, the Court is confining its analysis to those complaints that were presented in the Notice of Pre-Disciplinary Hearing, some of which were sustained and became the basis of Dingler’s decision to terminate Bathke’s employment as presented in the Notice of Disciplinary Decision. It is important and relevant to set out the charges included in the Notice of Pre-Disciplinary Hearing showing not just those charges that were sustained but those that were not sustained or were abandoned.

8 In the interest of organization and simplicity the following is a chart setting out a description of each complaint Dingler cited in her Notice of Pre-termination Hearing, Bathke’s response at the hearing, and Dingler’s conclusions and decision.

11 City’s Summary of Bathke’s Response City’s Conclusions Charges 12 1. Failure to Establish Trust and Confidence Among Staff.

Engages in bullying, Denies pattern of abuse. Found behavior could intimidation, and There were no complaints “reasonably be construed favoritism; displays anger; or grievances ever filed as bullying or abusive.”

14 and is narcissistic. regarding abuse. Contends There was “significant that these are false degradation of trust and 15 accusations—that he was respect in the department.” the one who implemented 16 an emphasis on anti- harassment. Cited need to 17 bring order. Provided details of need for strong 18 leadership that incurred resistance and cited praise 19 given to employees.

1 2. Poor Judgment and Decision-Making with Respect to Purchases and Expenditures.

2 E71 Top Mount Generator: E71 Top Mount E71 Top Mount Purchased at more cost Generators: Complaint was Generators: Accepted the than the unit it replaced, based upon erroneous explanation about the false and the unit was incapable report that he spent $4000 reporting on higher of remote start. Did not to $5000 when, in fact, the expense but still consult firefighters. generator cost under disapproved failure to get 5 $1000—less than the one it one with remote start. replaced. Could not fit the 6 generator that would be its factory replacement that 7 had remote start.

Portable Inverter Portable Inverter Portable Inverter Generators: Generators: Generators: One generator Purchased Paladin False allegation. Company already broken and no generators from company not going out of business, recourse. going out of business with but rather taken over by no recourse—bought “as Honeywell. And was a is.” good deal: 4 generators for 11 $1500.

Bunker Gear: New Bunker Bunker Gear: False Bunker Gear: “Kick-back” Gear poorly fitting and of allegation regarding “kick- explanation accepted. Still marginal quality. Got a back.” Each firefighter had complaints that the “kick-back” from vendor. fitted with high quality gear was uncomfortable meeting national standards. and poor fitting.

14 No one ever complained.

Plastic Intubation Devices; Plastic Intubation Devices; Plastic Intubation Devices; Aladtec Software; Fire Aladtec Software; Fire Aladtec Software; Fire Suppression Foam; Ladder; Suppression Foam; Ladder; Suppression Foam; Ladder; Zoll Maintenance Zoll Maintenance Zoll Maintenance Agreement for AED’s: Agreement for AED’s: Agreement for AED’s: These were lumped Explanations for each No contrary findings to together because they had a given. The allegations Bathke’s responses on his common theme; the about suppression foam assertion of false employees’ input was not and ladder are false. He allegations. Did find that considered. The Zoll didn’t purchase either. the ladder and airway maintenance agreement Allegation was made about devices were “problematic was allowed to lapse. his purchasing suppression products for one reason or foam. The Zoll another.”

21 maintenance agreement allegation is false. It was 22 not allowed to lapse.

3. Failure to Comply with Policies and Legal Requirements in Personnel Matters Disciplinary Proceedings Disciplinary Proceedings Disciplinary Proceedings Involving FF Schmitz: Involving FF Schmitz: Involving FF Schmitz: Failure to follow After initial fact-finding Accepted defense except disciplinary policies. meeting with union the process before 4 representation, the next day involving H.R. and legal counsel was brought Attorney. Implied breach 5 in. Bathke followed advice of attorney-client and guidance of Human communications in 6 Resources Specialist and presenting response. (It Attorney. This was second was never explained by 7 incident requiring Dingler in the letter of discipline. No complaint termination or at trial how 8 had been made by the this was a violation.)

Mayor of handling until the 9 Notice of Pre-termination Hearing.

10 Requiring FF Frank to Requiring FF Frank to Requiring FF Frank to come in early to work out; come in early to work out; come in early to work out; changes to shift: changes to shift: changes to shift: Violated union contract by Followed past practice with Explanation accepted; but initially placing FF Frank new employee for should have discussed with on a 40-hour work week. orientation purposes. Frank union in advance.

13 FF Frank was not paid was paid overtime. This Apparently accepted the overtime. was a false allegation. overtime defense.

14 Failure to Comply with Failure to Comply with Failure to Comply with Pre-Employment Medical Pre-Employment Medical Pre-Employment Medical Examination: Examination: Examination: Improper requirement for A firefighter expressed Apparently, response testing for sexually concerns about the accepted. But new concern transmitted disease when appropriateness of taking raised regarding requiring a bringing on a volunteer on a woman about whom drug test upon a firefighter EMT. (Remaining general there were concerns on her that had fallen “from the allegation unclear). background. Sought hulk.” The post-accident guidance from HR drug testing allegation 19 Specialist Smith. Did not regarding the “hulk” was order a test, and no test was not specifically included in 20 performed, though a drug Dingler’s pre-termination test is authorized by a letter. Dingler did not 21 policy in the Employee explain why post-accident Manual after reportable testing would be improper 22 injury involving City 1 property and is not or in violation of City “random testing.” policy.

Hiring a friend from Hiring a friend from Hiring a friend from Wisconsin over the Fourth Wisconsin over the Fourth Wisconsin over the Fourth of July: of July: of July: Hired a friend for extra False allegation. FF Travis Explanation was accepted coverage on holiday “rather Bearden was in charge of except that still concerned than allowing one of your scheduling for Fourth of about lack of knowledge of seasoned Fire Captains to July. He made the the community.

6 be in charge of the station.” assignments.

Friend paid more than others and did not know procedures.

8 Use of City staff for Use of City staff for Use of City staff for personal errands and jobs: personal errands and jobs: personal errands and jobs: Hired a City employee to Had an employee, who No mention in termination paint house interior and does house painting on the of the painting episode.

10 paid by giving a rifle as side, to do some interior Accepted explanation of payment rather than actual painting. The painter delivery of exercise monetary payment; used wanted extra money to buy equipment. Still reported Active 911 to solicit a rifle. Bathke offered a use of 911 to solicit employee help in move; rifle as part of the payment, moving, but even if used an on-duty employee and it was accepted. False Aladtec, should not be used to deliver piece of exercise statement about using 911 by employees to help equipment to home. to solicit moving help. move. (No policy or rule 14 Doesn’t have access to 911 cited as constituting a system. He used the violation).

15 Aladetec system which is use for personal 16 communications as well scheduling. The exercise 17 equipment was won at a firefighter’s auction. FF 18 Kuhl told Bathke if Bathke won it he would deliver it.

19 Grievances: Grievances: Grievances: Union grieved Bathke’s Not addressed beyond the Not addressed beyond the personnel decisions more response in Charge 3. decision in Charge 3. than prior leadership.

21 Examples, discipline of FF Schmitz and FF Franks working a 40-hour week.

1 Breaking the Chain of Breaking the Chain of Breaking the Chain of Command: Command: Command: Captains complain that Not discussed. Not discussed.

Bathke directly supervises lieutenants.

4. Failure to Respond Promptly or Properly to Calls Failure to respond to Failure to respond to Failure to respond to fatality fire until after the fatality fire until after the fatality fire until after the scene had cleared. Didn’t scene had cleared. Didn’t scene had cleared. Didn’t debrief firefighters. debrief firefighters. debrief firefighters.

6 Several agencies present to Was present as Only present at mop up assist fire department but demonstrated by photo stage. Should have Bathke only present after Bathke took of firefighter debriefed firefighters, not event over. Bathke failed to at the scene using a hose to just by Captain Krick.

8 debrief responders. extinguish fire. Captain Krick, as incident 9 commander, was responsible for debriefing.

10 Response to Tsunami Response to Tsunami Response to Tsunami Warning. Warning. Warning.

11 Staff had difficulty Bathke was present. Explanation accepted, reaching Bathke except Dingler said “as I concerning the tsunami recall, you were not versed warning and he was not in our tsunami protocols.”

13 aware of steps to be taken.

5. Disrespectful Comments Made statement about Made statement about Made statement about having council member. having council member. having council member.

15 Bathke had been heard Bathke said he had the vote Clarification accepted but boasting that he had a of a council member in his still regarded as “lack of council member in his pocket regarding a rate decorum.” pocket. increase.

17 Bathke responded Bathke responded Bathke responded negatively in connection negatively in connection negatively in connection with an issue involving Lt. with an issue involving Lt. with an issue involving Lt.

Kuhl. Kuhl. Kuhl.

19 Manner was abrasive, Lengthy explanation given. Not included as basis for counterproductive and decision to terminate.

20 “reflected poorly on our agency.”

1 6. Dishonesty False statement attributed False statement attributed False statement attributed to Mayor. to Mayor. to Mayor.

Mayor did not order False. Bathke told others Not included as basis for Bathke to purchase a new that Mayor said to keep the termination. command vehicle as command vehicle in the Bathke asserted. budget.

False statement made to False statement made to False statement made to Dani Smith regarding Fire Dani Smith regarding Fire Dani Smith regarding Fire Inspector. Inspector. Inspector.

6 Dingler did not know about Told Dingler about it in a Dingler still unhappy about the demotion. meeting and she was handling of the matter and 7 copied on email concerning that Bathke said that the the subject. mayor supported the 8 action.

The forgoing table reflects that many of the complaints that made up the February letter to Bathke were either not sustained, were abandoned, or were substantially accepted by the Mayor based on Bathke’s response to them. Despite this, on March 22, 2019, the City gave Bathke an official notice that he was terminated from his employment.

In reviewing Dingler’s actions, the Court is not permitted to substitute its view of whether Dingler’s decision to terminate Bathke’s employment was the correct one.

Instead, the Court is charged with determining whether “at the time plaintiff was dismissed defendant reasonably, in good faith, and based on substantial evidence believed plaintiff had [committed the violations].” Gaglidari, 117 Wn.2d at 438.

Although Dingler may have attempted to be objective in her findings and ultimate conclusions, her deliberative process was infected by an unfair process leading up to the pre-termination hearing. When she wrote the letter proposing his resignation, she appeared to have made up her mind that Bathke’s employment was going to end. It was contrary to best practices for her to be both the investigator and the decision maker.

3 Dingler made no attempt to delve into the individual complaints but accepted them at face value as reported to her by the firefighters; she could have sought out other witnesses and City documents that were relevant to issues. She did not do anything more before the pre-termination hearing than rely on what turned out to be, in many cases, the firefighters’ inaccurate, misleading, or incomplete reports and allegations. Even more astonishing is that her investigation did not include an interview with Bathke or an opportunity for him to provide evidence until the pre-disciplinary hearing itself. This course of action also was a violation of standards for pre-disciplinary investigations in the employment arena according to the expert testimony of Deborah Diamond. Dingler’s actions and omissions, if viewed separately, might not constitute sufficient evidence of an unfair process. But, taken as a whole, the cumulative effect of these rendered the decision to terminate as the product of an unfair process and, thus, as a legal matter made in bad faith.

16 Although the claim in this lawsuit is one for a breach of contract, there was not a formal employment agreement. Instead the contract that was breached consists of four City documents, which are relevant to the Court’s inquiry. Those documents are: (1) the PM; (2) the EEA; (3) CBA; and (4) SOG. What all have in common is that an employee may only be discharged “for cause.” The EEA provided that the standard for “just cause” is to be “cause with the grounds therefore the same as those for union represented employees.” Bathke argues that, in the union context in the State of Washington, the Daugherty factors, which were originally presented in 1964 by arbitrator Carroll Daugherty and were endorsed in Civil Service Commission of City of Kelso v. City of Kelso, 137 Wn.2d 166 (1999), apply. This argument is persuasive. Dingler confirmed this understanding in her deposition: 5 Q: (Plaintiff’s Counsel) Meaning that not only would you have to satisfy what constitutes cause in the personnel manual, but you would have 6 to satisfy what constitutes cause in the –for—firing a union-represented employee; am I right?

A: (DINGLER) This—yes, I believe that’s true.

Q: And he was to be treated as far as being fired the same as a union- 9 represented employee; am I right?

10 Defendant’s Counsel: I will object to the form.

11 A: Okay, I believe that’s true according to this document [referring the EEA], yes.1 Dingler’s answer further informs the question of what was intended by the party who drafted these documents and was charged with implementing the agreement. While the language of the EEA states “Employees’ employment shall not be terminated by the City except for ‘cause”, with the grounds therefor to be the same as those applicable to the City’s union represented employees . . . ”, it is fair to read this arguably ambiguous language, as Dingler did in her testimony, to regard the term “grounds” as implicating the 20 1 While the PM at Section 9.810(a) provides, “Although the City normally follows these conditions and procedures, the City retains the right to deviate from them as it deems necessary at is sole discretion,” the City has not invoked or argued the applicability of this section to the Bathke termination. Rather, it has acknowledged that the standard for review of his termination is “for cause.”

1 protections of the City’s collective bargaining agreements. Arguably, this would include the application of the Daugherty factors when analyzing those grounds.

3 However, the outcome of the case does not depend upon whether the “for cause” standard includes the Daugherty rubric because this standard even without such a rubric “entails much more than a valid reason; it involves such elements as procedural fairness, the presence of mitigating circumstances, and the appropriateness of the penalty.” City of Kelso, 137 Wn.2d at 173. Here there was a lack of procedural fairness. Had the City performed a reasonable investigation before Dingler sent the Notice of Pre-Disciplinary Hearing (or even before the Pre-Termination Hearing), beyond taking the firefighters’ complaints as wholly credible, there is reason to believe the outcome would have, or should have, been different.

12 The Court does not find that Dingler’s decisions in this case were motivated by malice or bias. These need not be established for the Court to conclude that the termination process was not conducted in good faith. After hearing testimony in six days of trial, listening to the audio recording of the pre-termination hearing, and reviewing the admitted documents, the Court concludes that Bathke was not procedurally treated fairly.

17 It is not important that Dingler may have intended to provide a fair process, the record as a whole demonstrates that it was not.

19 Bathke was blind-sided, without any prior notice or warning of the no confidence vote that was suddenly followed with Bathke being placed on administrative leave.2 An Dingler testified that she informed Bathke that there was the possibility of a no confidence vote within a day of learning about the vote from Smith. She could not testify as to attempt was made to conduct an investigation through an outside investigator, but when Nielsen found no evidence of discrimination or harassment, she was relieved of any further obligation to investigate, though she identified that there might be some performance issues.

5 At Dingler’s request, the union president sent the January 7, 2019 memo outlining the union’s complaints. More troubling is that the memo included an attachment that in trial was referred to as the Maple Valley letter.3 This document had been kept, not as a public document as part of the recruitment process, but by the union president to hold and bring out at the union meeting that resulted in a no confidence vote. It can only be conjecture that this document served its purpose to bolster the credibility of the the specific date of the meeting but believed “it was a couple weeks before” the December 13, 2018 meeting with Captain Krick and Lt. Kuhl. Smith testified that she told Dingler about the potential no confidence vote on November 14, 2018. Bathke, however, testified that he was out of state on November 15, 2018, which would logically be the day Dingler informed Bathke about the no confidence vote based on her and Smith’s testimonies. Bathke testified that, in fact, he was never told by Dingler or anyone of the possible no confidence vote prior to that vote.

Dinger testified that Bathke seemed surprised when she informed him of the no confidence vote after it occurred. Because the date of the alleged meeting was clearly wrong and because Bathke seemed surprised, suggesting he was learning about the vote for the first time, the Court finds that, while there may have been a meeting of some nature at some time between Bathke and Dingler, there is insufficient evidence to find that Bathke had information about the impending no confidence vote. Further, even if such a meeting occurred with notice of the possible vote, this would not qualify as a warning under the City’s progressive discipline policy.

19 Neither Dingler or Smith characterized the passing of the information as a disciplinary warning and no written documentation was made of the alleged “warning” as required by the SOG 2000 and “recorded in his/her personnel manual” pursuant to the Collective Bargaining Agreement between Teamsters Local and City of Ocean Shores.

21 3 The Maple Valley letter originated from the Maple Valley, Arizona firefighters’ union and described Bathke as being deceitful, dishonest, and a snake. Lt. Kuhl physically gave the letter to Dingler and later emailed it to her.

1 firefighters’ complaints and persuade Dingler that the only option available to her was to replace their supervisor.

3 Progressive Discipline 4 Bathke argues that Dingler was “mandated” but failed to provide the progressive discipline processes set out in the PM, the CBA, and SOG 2000. The flaw in this argument is that each progressive step of discipline, as outlined in these documents, is not necessary for the City to impose the ultimate discipline of termination. The City retains the right to terminate employment for just cause if the gravity of the offense is sufficiently severe.

10 Damages 11 Bathke is entitled to an award of damages as a result of the City’s breach of contract. Reinstatement is not requested and, in any case, would not be a viable remedy in the situation that is present here involving a top management position. The calculation of damages was presented through the testimony of CPA David S. Hanson (“Hanson”). The City did not rebut through expert testimony Hanson’s method of calculating damages but challenges the assumption in the calculation that Bathke is, and will remain, unemployable for the ten-year period that Bathke expected to be employed at the City until his planned retirement. The Court accepts Hanson’s methodology.

19 Bathke testified that he has vigorously sought employment, almost exclusively in the fire service, without success. He supported this contention with a log he produced reflecting applications made to employers for a total of 254 positions from February 7, 2019 through November 8, 2020.

1 The City, however, challenged the assertion that he has thoroughly exhausted his possible opportunities through all the available openings posted in the trade publications Daily Dispatch and firejobs.com. The City pointed to several openings posted in the Daily Dispatch in the fall of 2020 for which Bathke did not apply.

5 The Court finds that Bathke took reasonable steps to secure employment in the fire service and made some effort to seek work in related fields. However, the Court cannot conclude from the evidence submitted at trial that Bathke is wholly unemployable and has been forced to an early retirement without prospects for obtaining any gainful employment. His education, training, skills and experience in management provides marketable skills in many fields of employment. If he were to seek employment with employers in need of middle management, he is likely at some time to be successful.4 Even so, he lost a very well-paying position with benefits, as described in Hanson’s testimony. Because it may take some additional time and effort for Bathke to secure solid and stable employment at a position that is likely going to be less remunerative, the Court finds that the total net present value of his lost future income is 50% of the amount calculated by Hanson. Similarly, whether any such future employment would entail Washington State retirement benefits is uncertain but quite possible; especially since Bathke would have the incentive of seeking employment that would continue his

20 4 In post-trial briefing, Bathke volunteered (after the close of evidence presentation) reducing the loss of future income by $19,718 representing income Bathke earned at a temporary position with the California Medical Assistant Teams in connection with setting up a temporary field hospital for COVID-19 patients. This evidence, accepted by the City and the Court, supports the Court’s conclusion that he remains employable.

1 participation in a Washington State administered pension fund. Therefore, the Hanson figure is also reduced by 50%.

3 The loss calculated by Hanson of future earnings, pension and benefits totals $1,414,839, reduced by half, and less the $19,718 Bathke earned in a recent temporary position and $19,474 he received in unemployment benefits equals $668,227.50. In addition, Bathke has established that by losing this position he also likely lost the opportunity to have his educational loan forgiven. This amount was calculated to be $66,149 after being discounted to present value. The total damages awarded to Bathke is $734,376.50 representing the sum of the lost future income, benefits and loan forgiveness.

11 As the prevailing party, Bathke seeks an award of his reasonable attorney’s fees, citing RCW 49.48.030 as interpreted in International Association of Fire Fighters, Local 46 v. City of Everett, 146 Wn.2nd 29 (2002). The City correctly argues that the EEA, which forms part of the employment contract with Bathke, contains the provision that, “The City and Employees shall each be responsible for their own attorney’s fees in any Court action or arbitration proceeding involving this Agreement.” This is an enforceable provision. Bathke’s request for an award of attorney’s fees is denied.

18 In addition to the foregoing, having heard and reviewed the testimony of the witnesses, the evidence of records, and the contentions and arguments of counsel, the Court, in accordance with Rule 52(a) of the Federal Rules of Civil Procedure, makes supplemental findings of fact and conclusions of law as follows: 1 FINDINGS OF FACT 2 1. On March 4, 2017, Plaintiff David Bathke applied for a job as Fire Chief for the City of Ocean Shores.

4 2. As part of the hiring process Mayor Dingler asked that lieutenant Corey Kuhl conduct a background investigation regarding Bathke.

6 3. Prior to being hired, Bathke had several conversations with the Mayor. The Mayor explained that the City’s fire department faced multiple challenges as it has been without a fire chief for a number of months. These challenges included excessive overtime, operating over budget, the City needed to save the positions of seven of its full- time fire fighters, the crew needed to be held accountable, they needed to bring in new digitized record management systems, they needed new safety training, they needed to obtain new equipment, and they needed to negotiate a new union contract.

13 4. When Bathke interviewed with the City of Ocean Shores, Mayor Dingler had two internal applicants apply for the fire chief position but she did not hire from within. Mayor Dingler testified that she wanted to hire a strong leader to handle these challenges.

17 5. Bathke was concerned about job security when he was seeking employment at Ocean Shores. He was 56 years old and would be moving from Arizona to Washington and the changes he would be making may not be popular. He told members of the interview panel which included Mayor Dingler that “this is it” for him and agreed to commit to 10 years as fire chief.

1 6. He knew that the Mayor supervised department heads and he was concerned about a change in leadership after the next election if a new mayor were elected. He discussed these concerns with Mayor Dingler. Rather than providing Bathke with his own specific contract, she emailed Plaintiff the Exempt Employees Agreement that the City uses for all exempt employees, which she stated was “favorable to them.”

6 7. On April 13, 2017, Mayor Dingler emailed a copy of the Exempt Employee Agreement and Exempt Employee Salaries to Bathke. She directed Bathke to the City’s website to look at the four union contracts to look at their disciplinary procedures. Based upon his discussion with Mayor Dingler, Bathke understood that as an exempt employee, he had the same corrective, progressive, discipline rights as all of the other collective bargaining units, fire, police, public works, and clerical.

12 8. The City uses a corrective, progressive discipline process. This policy is contained in each of the following: 14 a. 2014 City Personnel Manual; 15 b. 2018 City Personnel Manual; and 16 c. Standard Guide 2000.1 of the City’s fire department.

17 9. During trial, both Mayor Dingler and HR Specialist Dani Smith testified that the City utilizes a progressive, corrective discipline policy.

19 10. The position of Fire Chief for the City of Ocean Shores is included among positions in the City that are subject to an agreement known as the EEA dated April 27, 2009. This agreement predated Bathke’s employment with the City. This agreement was provided to plaintiff as the agreement that would govern his employment with the City.

1 Bathke understood it was drafted by the City. Attached as part of the Exempt Agreement is The Memorandum of Understanding between the City of Ocean Shores and the Exempt Employees of the City of Ocean Shores. This MOU was signed by Mayor Crystal Dingler for the City of Ocean Shores on July 25, 2014. Contained in this MOU are the following terms: “WHEREAS, the members of the Exempt Employees bargaining unit have agreed to contribute at a higher rate toward their health and welfare benefits.

7 Now, therefore, the parties agree to modify the terms of the 2009 Exempt Employees collective bargaining agreement as follows . . . .” (emphasis added).

9 11. The Exempt Employee Agreement contained the following language: 10 Initial and Extended Term [s] of Agreement. This Agreement shall continue until modified or terminated as set forth below. During the said period, and 11 during any extensions thereafter, Employees’ employment shall not be terminated by the City except for “cause”, with the grounds therefor to be 12 the same as those applicable to the City’s union-represented employees, including provisions relating to any reduction-in-force.

12. The City of Ocean Shores has four groups of union-represented employees: Fire department employees represented by Local 2109 of the International Association of Firefighters (“IAFF”); and Police, Clerical, and Public Works employees. The bargaining agreements for all four bargaining units require “cause” for discipline. Each agreement requires that all allegations of wrongdoing be timely, thoroughly, and fairly investigated.

The agreements also require that any discipline be subject to a progressive, corrective process where the employee is counseled and given the opportunity to correct any perceived defective conduct or behavior.

1 13. The personnel manual at the time Bathke was hired was dated 2014. In August 2018, the City adopted a revised Personnel Manual.

3 14. Bathke’s personnel file did not contain any complaints, write-ups, or evidence of workplace issues.

5 15. Bathke never had a performance review during the time that he served as the City’s fire chief.

7 16. During the time that Bathke was the fire chief, he held monthly Officers meetings and quarterly Safety Meetings. These meetings contained an open Round Table Segment that allowed the firefighters to voice any concerns or complaint. Minutes were kept of all of these meetings. The minutes do not reflect any complaints or concerns about Bathke’s management decisions, his management style, or any equipment purchase decisions.

13 17. There is no evidence of any complaint made against Bathke’s management decisions, his management style, or equipment purchase decisions despite the fact that the City maintains strict non-retaliation policies, Ocean Shores Personnel Manual: 1.050 Work Place Harassment, and 8.765 Complaint Procedures, and OSFD O.D. 2000.02, Open Reporting of Workplace Risk, Wrongdoing, or Harassment, which promotes the free expression of employee complaints or concerns.

19 18. On December 13, 2018, Lt. Kuhl and Capt. Krick met with Mayor Dingler and Dani Smith and advised them that the union had taken a vote of no confidence in Chief Bathke at the previous union meeting on December 10, 2018. Lt. Kuhl presented the Maple Valley letter as part of the complaints the union members had against Bathke.

1 They stated that if she did not do what they asked they would take it to the “press and news.”

3 19. On December 14, 2018, Mayor Dingler placed Bathke on paid administrative leave and had him escorted off of the City’s property.

5 20. After Bathke was placed on administrative leave, the damaging Maple Valley letter was placed in his personnel file and was provided to the public.

7 21. After Mayor Dingler placed Bathke on administrative leave, Mayor Dingler and Dani Smith met with 12 fire department employees (11 firefighters and administrative assistant Courtney Beebe), who described their feelings when they met with Mayor Dingler. Including volunteer firefighters (i.e., non-union firefighters), the City’s department consisted of about 30 firefighters.

12 22. Prior to the being placed on administrative leave, Bathke had no notice or knowledge that there were major issues between him and the union.

14 23. The Mayor headed the investigation of the allegations made against Bathke.

15 However, in conducting the investigation, neither she or anyone on behalf of the City (1) spoke to Bathke; (2) spoke to any witnesses on his behalf; and (2) nor viewed any documentary evidence on Bathke’s behalf. Mayor Dingler’s investigation was limited to speaking to some of the union firefighters.

19 24. In early January 2019, the City hired a workplace investigator, Robin Nielson, to investigate the reasons behind the no confidence vote.

21 25. The agreement with Nielson specifically stated that she was to investigate the reasons behind the no-confidence vote.

1 26. Nielson never spoke to Bathke or anyone on his behalf.

2 27. The Mayor concluded her investigation by January 16, 2018. The City declined to have Nielson prepare a report. The Mayor never spoke to Nielson about her findings or conclusions. By the time Mayor Dingler concluded her investigation, she was aware of the Officers Meetings minutes that were available in writing, but she did not review them to see if any of the allegations by the union members were true or false.

7 28. On the same day, the City informed Nielson to cease her investigation, and Mayor Dingler emailed a letter to Bathke informing him that she did “not see a path forward for him” and presented him with a separation agreement and a draft resignation letter. The letter also stated that Bathke may consult with an attorney.

11 29. In response to this letter, Bathke hired an attorney who presented the City with a letter suggesting that the parties attempt to mediate the situation so that Bathke could return to work. The City did not respond this request.

14 30. The City did not attempt to put together a Personal Improvement Plan or fashion any type of progressive, corrective discipline for Bathke.

16 31. After Bathke was put on leave on December 14, 2018 no one from the City contacted him to inform of any wrongdoing he had engaged in for a period of two months when on February 13, 2019 the City presented him with a “Summary of Charges.”

19 32. The Summary of Charges contained allegations from some of the union firefighters.

21 33. Other than speaking to the complaining union firefighters, the Mayor did not verify the truth of the allegations made in her summary of charges. The summary of charges contained numerous inaccuracies, but the Mayor did not uncover these inaccuracies as she failed to independently verify the allegations.

3 34. From the time that Bathke was put on leave on December 14, 2018, not one person or representative from the City ever contacted him to interview him regarding the reasons why he had been put on leave. Bathke had no knowledge of any perceived issues until two months later when the City presented a Summary of Charges.

7 35. On March 12, 2019, Mayor Dingler served as the hearing officer for Bathke’s pre-disciplinary hearing. This was not an evidentiary hearing and no witnesses were permitted according to the City’s policy.

10 36. The pre-disciplinary hearing, which occurred four months after Bathke was put on leave, was the first time that the City heard from Bathke.

12 37. Employment dispute expert, Deborah Diamond, testified that the pre- disciplinary hearing must never be the first time that the employer hears from the accused. This is, in fact, listed in recognized employment dispute guidelines as one of the ten greatest mistakes. Diamond also testified that the decision maker must be different that the person who investigated this matter. However, the Mayor acted as both the investigator and the decisionmaker.

18 38. On March 22, 2019, the Mayor issued her decision terminating Bathke’s employment with the City.

20 39. Since being fired, Bathke has applied for more than 250 jobs. These include not only both executive and non-executive positions in the fire fighting and emergency management system industries but also in industries unrelated to these industries. They also include jobs throughout the country.

3 40. Despite applying for such jobs, Bathke has not been able to find another full-time permanent job.

5 41. By being fired, Chief Bathke not only lost his annual salary and health insurance, but also benefits including retirement benefits and benefits relating to forgiveness of student loans.

8 42. The amount of damages incurred by Chief Bathke total $780,523. This consists of the following: 10 Past Lost Salary from Termination Date Through December 31, 2019 $90,880 11 Future Lost Salary from January 1, 2020 Through Expected Retirement 12 (discounted to present value) $812,162 Loss Pension Benefits 13 (discounted to present value) $498,486 Past Lost Dental Insurance Benefits from 14 Termination Through December 31, 2019 $1,080 Past Lost Life Insurance Benefits from 15 Termination Through December 31, 2019 $333 Lost Dental Insurance Benefits 16 (discounted to present value) $9,113 Lost Life Insurance Benefits 17 (discounted to present value) $2,785 Total Future Lost Salary, Pension, and 18 Insurance Benefits $1,414,839 Less 50% Discounted Rate of Future Lost 19 Salary, Pension, and Insurance Benefits $707,419.50 Forgiveness of Loan 20 (discounted to present value) $66,149 Total Damages: $773,568.50 Less Unemployment Benefits Received $19,474 22 Net After Unemployment Benefits $754,094.50 1 Less Wages: Cal-Mat Covid-19 Temporary Assignment from December 2 14, 2020 to March 22, 2021 $19,718 Bathke’s Damages: $734,376.50 CONCLUSIONS OF LAW 1. This is a breach of contract case.

2. The Court initially had jurisdiction pursuant to 28 U.S.C. § 1331 (federal question) but now has jurisdiction pursuant 28 U.S.C. § 1367 (supplemental jurisdiction).

The Court has personal jurisdiction over the parties.

3. Bathke’s employment was governed by the Exempt Employee Agreement, plus the Union Contract, which states that Bathke could not be terminated “except for “cause” with the grounds therefor to be the same as those applicable to the City’s union- represented employees, including provisions relating to any reduction-in-force.”

4. Extrinsic evidence shows that, with respect to union represented employees, the City has a progressive, corrective discipline process.

5. The standard in Baldwin v. Sister of Providence in Washington, 112 Wn.2d 15 127 (1989), applies and was not met. This is because the Baldwin standard of discharge must satisfy the following elements: a. Fair and honest reason regulated by good faith on the part of the City; b. Reasons which are not arbitrary, capricious, or illegal; c. Reasons which are based on facts supported by substantial evidence; and d. Which is reasonably believed by the employer to be true. Id. at 139.

1 6. The City has breached this standard by failing to act reasonably and use good faith in properly investigating the allegations or providing a fair process to Chief Bathke.

4 7. The City breached its agreement with Bathke.

5 8. As a result of the breach, Bathke suffered damages in the amount of $734,376.50.

7 9. Since the dispute arose regarded the EEA, each party “shall be responsible for their own attorney’s fees in any Court action[.]” No award of attorney’s fees is made.

9 Dated this 15th day of April, 2021.

A BENJAMIN H. SETTLE United States District Judge