ROBINSON v. DEPT. OF AGRICULTURE, 145 Wn. App. 1017 (2008)

Affirmedby unpublished opinion per Sweeney, J., concurred in by Korsmo, J., and Thompson, J. Pro Tem.

An employer may not retaliate against an employee because the employee files a grievance. That is against the public policy of this state. Here, Graydon Robinson's subordinates complained to higher management that he had created a hostile work environment. The employer investigated and concluded that some of the complaints were valid. Mr. Robinson filed a grievance and demanded an investigation. The employer demoted Mr. Robinson.

He quit and then sued for constructive wrongful discharge complaining that he was demoted because he filed a grievance. We agree with the trial judge. There is no showing here that he was constructively discharged. And we affirm the summary dismissal of his complaint. The Department of Agriculture employed Graydon Robinson as a seed program manager in Yakima, Washington, in 2003. Mr. Robinson supervised a team of professional staff responsible for all seed program activities statewide.

Mr. Robinson's subordinates complained to his supervisor, Robert Gore, that Mr. Robinson created a hostile work environment, failed to delegate, intentionally interfered with staff, displayed an inappropriate management style, made demeaning comments, and treated some employees differently than others. John Eastin was a human resource consultant in the department's Olympia office. Mr. Gore and Mr. Eastin met with Mr. Robinson in Olympia to discuss the complaints and other management issues. Both made it clear to Mr. Robinson that retaliation or retaliatory conduct against his subordinates would not be tolerated.

Mr. Gore sent Mr. Robinson a letter of reprimand on March 25, 2003, following an internal investigation of Mr. Robinson's conduct. Mr. Gore also sent Mr. Robinson "Program Management Instructions" that laid out new conditions of Mr. Robinson's role as program manager. Mr. Robinson filed an internal grievance. And he requested a full independent investigation of the complaints against him.

The outside investigator concluded that Mr. Robinson had retaliated against his subordinates.

Mr. Gore demoted Mr. Robinson with a detailed written explanation. He said that Mr. Robinson had neglected his duties as a manger, was insubordinate in disregarding Mr. Gore's orders not to retaliate against workers who had complained, and displayed misconduct by inappropriate behavior toward employees. The demotion was effective at the end of the shift on August 20, 2003.

The department transferred Mr. Robinson to a nonsupervisory position in Vancouver, Washington. Mr. Robinson never started the new job. Instead, he took months of extended leave, both paid and unpaid. Mr. Robinson then requested more leave through the shared leave program (a program by which state agency employees may obtain leave donated from other agency employees). The department denied his request.

Mr. Robinson resigned on April 1, 2004. He resigned, in part, because of his wife's medical condition. The department had no knowledge of her condition until after it demoted him.

Mr. Robinson sued the department for wrongful discharge in violation of public policy. He claimed that his demotion was in retaliation for his filing a grievance and that the department's conduct amounted to a constructive discharge. The trial judge summarily dismissed his complaint. Constructive Discharge in Violation of Public Policy Mr. Robinson contends that he has made a prima facie showing of constructive discharge because he was demoted after he filed a grievance. And the fact that he had a nondiscriminatory motive (his wife's illness) should not relieve the department of responsibility for its discriminatory motive (retaliation). The department responds that, first of all, Mr. Robinson voluntarily quit his job. And second, he told them that he quit in part because of his wife's health. Finally, the department argues that transfer to a nonsupervisory position, one Mr. Robinson never worked at, does not amount to an intolerable working condition as a matter of law.

We review the trial court's grant of summary judgment de novo.Blumenshein v. Voelker,124 Wn. App. 129,133,100 P.3d 344(2004). The question is always whether there are genuine issues of material fact. CR 56(c);Allstot v. Edwards,116 Wn. App. 424,430,65 P.3d 696(2003). Facts and reasonable inferences must be considered in the light most favorable to the nonmoving party.Allstot,116 Wn. App. at 430.

The department complains that Mr. Robinson did not exhaust his administrative remedies.Simpson Tacoma Kraft Co. v. Dep'tof Ecology,119 Wn.2d 640,646,835 P.2d 1030(1992). But he need not do so if his complaint is that the state discharged him in violation of public policy.Smith v. Bates TechnicalColl.,139 Wn.2d 793,809,991 P.2d 1135(2000);Allstot,116 Wn. App. at 431.

The first question here is whether Mr. Robinson was wrongfully discharged.Allstot,116 Wn. App. at 433. An action for wrongful discharge may be either express or constructive.Riccobono v. Pierce County,92 Wn. App. 254,263,966 P.2d 327(1998). He must show that: (1) the employer deliberately made the working conditions intolerable for the employee; (2) a reasonable person in the employee's position would be forced to resign; (3) the employee resigned solely because of the intolerable working conditions; and (4) the employee suffered damages.Allstot,116 Wn. App. at 433;Haubry v. Snow,106 Wn. App. 666,677,31 P.3d 1186(2001).

Working conditions are intolerable when the employer subjects the employee to "aggravating circumstances or a continuous pattern of discriminatory treatment."Allstot,116 Wn. App. at 433;Haubry,106 Wn. App. at 677. That is usually a question of fact but the employee must produce evidence to create that issue of fact.Allstot,116 Wn. App. at 433;Haubry,106 Wn. App. at 677-78;Sneedv. Barna,80 Wn. App. 843,849-50,912 P.2d 1035(1996).

A resignation is presumed to be voluntary; and Mr. Robinson must rebut that presumption.Sneed,80 Wn. App. at 849;Micone v. Town of Steilacoom Civil Serv. Comm'n,44 Wn. App. 636,642,722 P.2d 1369(1986). "A voluntary resignation occurs when an employee abandons the employment because of a desire to leave, including such a desire motivated by dissatisfaction with working conditions."Barrett v.Weyerhaeuser Co. Severance Pay Plan,40 Wn. App. 630,638,700 P.2d 338(1985). Here, the department had ample well-documented grounds, including the results of an outside investigation, to take employment action.See Perry v.Costco Wholesale, Inc.,123 Wn. App. 783,794-95,98 P.3d 1264(2004). Indeed, the department may well have been subject to liability had it failed to take some employment action.Id.

Mr. Robinson has made no showing that the department made his working conditions intolerable. His subordinates complained that he created a hostile working environment, including inappropriate sexist remarks. They later complained that he retaliated against them because they complained and the department took action.

Moreover, Mr. Robinson did not work for any period of time in the Vancouver office. The department assigned him to the Vancouver office. John Lindgren, the regional manager, was his direct supervisor after the transfer. Mr. Robinson requested leave and Mr. Lindgren approved it. Mr. Robinson used all of his accumulated leave and applied for shared leave. The department denied that request as "unconscionable." He then left to start his own business. He was not fired. He was demoted; that is not a constructive discharge. And he was never in the new job long enough to determine whether the working conditions there were intolerable or not.Barrett,40 Wn. App. at 638. Instead, he voluntarily resigned.

Finally, Mr. Robinson did not resign solely because of the intolerable working conditions; that is required.Allstot,116 Wn. App. at 433. Mr. Robinson admitted that his wife's health was also a factor in his resignation.

We conclude that there are no genuine issues of material fact.Allstot,116 Wn. App. at 430. And the State is entitled to judgment as a matter of law.See id.

We therefore affirm the summary dismissal of his complaint.

A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW2.06.040.

KORSMO, J. and THOMPSON, J. PRO TEM., Concur.Page 1018