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Nachiem v. State6/27/2005
7 P.2d 612 (1997).
Nachiem attempts to prove pretext through the timing of the discipline and through affidavits from several colleagues attesting to her skill as a nurse. The affidavits say that Nachiem was disciplined more harshly than others for comparable conduct because of her pursuit of the grievances, and assert that she has been a target of management because of her efforts to focus on client safety. For example, one nurse said she has observed 'unfair retaliation' by management against Nachiem 'for complaining and pursuing grievances over needed improvements in the care that is provided to the clients. She is not the only one who has been silenced, but she is one of the most visible.'
The affidavits by Nachiem's co-workers are too conclusory to establish that Fircrest's plausible reasons for demoting her were actually a pretext for retaliation. They praise her generally, but do not specifically rebut the reasons for demoting her as stated by the defendants. Nachiem's demotion was not so particularly close in time to her grievances against Anderson as to establish retaliation as a motive, especially given her history of incurring the dissatisfaction of her supervisors for various performance problems. As in White, the evidence when viewed in the light most favorable to the plaintiff is insufficient.
To overcome an employer's summary judgment motion, the employee must do more than express an opinion or make conclusory statements. Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57, 66, 837 P.2d 618 (1992). Nachiem has the burden of establishing specific and material facts to support her claim. Hiatt, 120 Wn.2d at 66. She has failed to meet this burden, and the trial court properly dismissed her retaliation claim on the basis that there was insufficient evidence to establish that her involvement in protected activity was a substantial factor in the adverse employment action.
WRONGFUL DEMOTION IN VIOLATION OF PUBLIC POLICY
Nachiem asks this court to expand the tort of wrongful discharge to include wrongful demotions. Our courts do not recognize a cause of action for wrongful discharge that is based on anything less than a discharge of the employee. White v. State, 131 Wn.2d 1, 19-20, 929 P.2d 396 (1997). To expand the cause of action 'would be opening a floodgate to frivolous litigation and substantially interfering with an employer's discretion to make personnel decisions.' White, 131 Wn.2d at 19. To subject each disciplinary action of an employer to the scrutiny of the judiciary 'would not strike the proper balance between the employer's right to run his business as he sees fit and the employee's right to job security.' White, 131 Wn.2d at 20. The White court clearly meant to preclude the tort that Nachiem is now advocating.
Nachiem argues that the Supreme Court later implicitly endorsed the extension of the tort in Robel v. Roundup, Inc., 148 Wn.2d 35, 59 P.3d 611 (2002). She cites Justice Bridge's statement in dissent that the Robel majority, without justification, 'extends the tort of wrongful discharge to encompass an act by an employer short of actual or constructive discharge.' Robel, 148 Wn.2d at 70. Nachiem overlooks later cases in which this court concluded the dissent in Robel incorrectly characterizes the majority opinion. E.g., Kirby v. City of Tacoma, 124 Wn. App. 454, 472, 98 P.3d 827 (2004).
Following White, we conclude the tort of wrongful discharge may not be extended to encompass a 'wrongful demotion' cause of action.
DISCOVERY AND PROTECTIVE ORDER
Nachiem issued 38 interrogatories and eight requests for production at a time when retaliation was the one claim remaining in her lawsu
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