O'Brien v. Koskinen

DEBI O'BRIEN, a married woman, Appellant, v. HUGH KOSKINEN, a single man, MATT PURVIS and JANE DOE PURVIS, and the marital community thereof, DAN LAWSON and JANE DOE LAWSON, and the marital community thereof, PAULETTE KETZA and JOHN DOE KETZA, and the marital community thereof, ROD HOWERY and JANE DOE HOWERY, and the marital community thereof, and VIVIAN SMITH and JOHN DOE SMITH, and the marital community thereof, Defendants, LEONARD CARDER and JANE DOE CARDER, and the marital community thereof, and ABM INDUSTRIES ("ABMI") and ABM PARKING SERVICES (d/b/a "Ampco" and ABM Onsite Services West), Respondents.

No. 74367-8-I

Court of Appeals of Washington, Division 1

April 3, 2017

UNPUBLISHED OPINION

Dwyer J.

Debi O'Brien appeals from orders entered in the King County Superior Court sanctioning, pursuant to Civil Rule (CR) 11 her and her attorneys and dismissing, pursuant to CR 56(c) her claims against Leonard Carder, ABM Parking Services Inc., and ABM Industries Incorporated (ABMI). O'Brien contends that the superior court erred by imposing sanctions on the basis that she had not brought her claims against four individuals in a good faith effort to extend the law but rather, for the improper purpose of forum shopping. O'Brien also contends that the superior court erred by denying her motion for a continuance of the summary judgment hearing and by dismissing her claims.

There was no error. We affirm.

I

A

O'Brien was hired by ABM Parking in 2007. ABM Parking is a corporation providing parking management services nationwide to owners of office complexes and surface lots. O'Brien was tasked with human resources coordination and operations management for the Seattle/Bellevue branch. In 2009, pursuant to her responsibilities as a human resources coordinator O'Brien was asked by Hugh Koskinen, senior branch manager for the Seattle/Bellevue branch, to investigate a complaint made by Melody Dillon regarding sexually inappropriate conduct by two ABM Parking valets and, later, to discipline the valets for their conduct. O'Brien complied.

In 2010, as part of an ABM Parking customer service initiative and pursuant to her responsibilities as operations manager, O'Brien was asked to regularly visit parking locations managed by the Seattle/Bellevue branch of ABM Parking, conduct a "walk-through" inspection of those locations, and document improvements needed to be made thereto. This request was made by Koskinen and Leonard Carder, then-regional vice president of ABM Parking. In addition to O'Brien, other ABM Parking managers were also asked to conduct these inspections. At the time, O'Brien stated that she believed that the parking locations managed by ABM Parking were unsafe. Over several months, O'Brien failed to complete the assigned number of inspections and Dan Lawson, her direct supervisor, wrote two disciplinary memoranda regarding her conduct.^[1]

Beginning in 2012, pursuant to her responsibilities as operations manager, O'Brien was asked by Carder and Matt Purvis, assistant branch manager for ABM Parking's Seattle/Bellevue branch, to help with concerns regarding one of their client's parking locations, the Pacific Place Garage (PPG). They requested that O'Brien assist in investigating PPG's unusually high balance for its accounts receivable as well as reports from clients that they were not being billed for their customers' parking validations. O'Brien found several issues with the operation of PPG, including a validation stamp in the billing system without a name assigned to it and numerous individuals with outstanding balances for their monthly parking permits. Purvis instructed O'Brien to attempt to collect the unpaid balances but her efforts to coordinate such action with the manager of the PPG were unsuccessful.

In August 2012, O'Brien was assigned to work at the Spokane Fair. As part of its yearly contract with the Fair, ABM Parking assigned a group of salaried employees to assist with parking. O'Brien had last been assigned to work at the fair in 2009.^[2] After learning that she was assigned to work the fair in 2012, O'Brien sent an e-mail to Paulette Kezta, manager of ABM Parking's operations at the Spokane Fair. In her e-mail, O'Brien expressed her apprehension about standing on her feet for the long shifts, explaining that she was "not young anymore" and that "[t]he older I get the more issues I get with standing long hours." Ketza responded to O'Brien, saying that ABM Parking was trying to avoid having its employees work the 15-hour shifts that had been worked in the past and was hoping to avoid those long hours by increasing its staffing for the fair. O'Brien thanked Ketza, replying that "all of my needs have been met!" At the fair, O'Brien worked 8 hours on one day and 12 hours on two other days. While there, O'Brien did not communicate additional concerns about standing and, afterward, explained only that she worked pretty long hours and was tired when she got back.

B

Starting in 2012, ABM Parking began to see revenues from its Seattle/Bellevue branch decline. It lost several bids to renew parking contracts in the Seattle and Bellevue area. The City of Seattle notified ABM Parking that it was not renewing its contract for the PPG-a contract worth $20, 000 per month in revenue. In addition, due to advances in automation at the branch's clients' parking locations, it became less necessary for ABM Parking to have employees "out in the field."

Consequently, Rod Howery, the new regional vice president for ABM Parking, ^[3] began to look for ways to reduce the Seattle/Bellevue branch's administrative expenses. He discussed the potential elimination of positions with Madeline Kwan, human resources director for ABM Parking. They identified two positions: O'Brien's human resources and operations management position and the position of Ken Eichner, an auditor. Both worked at the Seattle/Bellevue branch. They determined that O'Brien's human resources duties could be performed by human resources employees at the San Francisco branch and that her operations management duties could be assigned to hourly employees at specific parking locations. O'Brien's parking location inspection duties were not re-assigned to another manager.^[4]

Howery and Kwan planned to proceed with the layoffs in October 2012. However, they did not do so until the following year. They desired to notify O'Brien and Eichner in person but were unable to coordinate a time prior to December when both would be in the Seattle/Bellevue branch office. Then, because they wished to avoid giving a termination notice during the holiday season, they waited until early February 2013 to do so.

In January 2013, Kwan discussed the termination decision for O'Brien's and Eichner's positions with Vivian Smith, vice president of human resources for ABMI.^[5] Smith's services were part of a human resources support agreement between ABM Parking and ABMI in which ABM Parking could submit to ABMI facts and information pertaining to a termination decision and have ABMI's human resources personnel review the decision for red flags. Smith and Kwan discussed the termination decision during a telephone conversation and Smith approved the decision.

On February 6, 2013, Howery and Kwan met with Eichner and O'Brien in Seattle and informed them that their positions were being eliminated. O'Brien recalled that Kwan told her "[t]hat we had lost some locations, and so they were reorganizing and had to eliminate my position." As planned, ABM Parking did not hire a new employee to replace O'Brien and her duties were either eliminated or taken on by other employees.

C

In October 2013, O'Brien sued ABM Parking and ABMI (ABM Defendants) in the King County Superior Court alleging age discrimination, retaliation, and associational discrimination pursuant to Washington's Law Against Discrimination (WLAD), chapter 49.60 RCW, as well as wrongful termination, breach of contract, and intentional infliction of emotional distress. One month later, the ABM Defendants removed the case to federal court. United States District Court Judge John C. Coughenour was assigned to the case. As their reason for removal, the ABM Defendants cited complete diversity of citizenship between the parties^[6] and an alleged amount in controversy exceeding the federal jurisdictional minimum.

O'Brien then amended her complaint to join a Washington resident, Carder, as a defendant. O'Brien then moved to remand the case back to the King County Superior Court, asserting that Carder's residential status destroyed the federal district court's diversity jurisdiction. In response, the ABM Defendants filed a motion to dismiss the claim against Carder, arguing that he was not an indispensable party to the litigation. The district court granted the ABM Defendants' motion and Carder was dismissed from the case.

For the next year and a half, between November 2013 and March 2015, the federal lawsuit continued with the parties conducting discovery.^[7] During that time, O'Brien requested and received two trial continuances.

Then, in March 2015, with four depositions scheduled and less than a month remaining until discovery was set to close, O'Brien moved to voluntarily dismiss her federal action against the ABM Defendants. O'Brien explained that she had discovered grounds to bring an action in state court against several of the ABM Defendants' individual managers and supervisors. Meanwhile, ABM Parking and ABMI each moved for summary judgment as to O'Brien's remaining claims. The district court granted O'Brien's motion and dismissed her action without prejudice.^[8] It thus did not entertain the summary judgment motions.

D

In the same month that O'Brien moved to dismiss her federal action against the ABM Defendants,...