Dezihan v. State

BURTON A. DEZIHAN, Appellant, v. STATE OF WASHINGTON, Respondent.

No. 37262-6-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

March 23, 2021

UNPUBLISHED OPINION

STAAB, J. — Burton Dezihan sued the State of Washington alleging four causes of action: whistleblower damages, negligence, invasion of privacy, and blacklisting. Mr. Dezihan claims that he has been unable to obtain government employment since the State wrongfully released his identity on a whistleblower complaint.

The trial court dismissed Mr. Dezihan's whistleblower complaint on summary judgment, finding that Mr. Dezihan does not qualify for whistleblower protection because he was not a state employee at the time he filed his complaint. Although the court denied the State's statute of limitations motion, the court nevertheless dismissed Mr. Dezihan's remaining three causes of action, concluding that they were based on his whistleblower status. Mr. Dezihan appealed. The State cross-appealed on the statute of limitations issue.

We affirm dismissal, although on alternative grounds. We agree that Mr. Dezihan does not qualify for protection under the "State Employees Whistleblower Act", chapter 42.40 RCW. In addition, we hold that the three-year statute of limitations bars his other claims.

FACTS

1. Factual history

Washington has adopted a public policy of protecting state employees who disclose improper governmental actions. RCW 42.40.010. In 2008, Burton Dezihan and Don Gillespie filed a whistleblower complaint with the state auditor's office (Auditor). The complaint alleged that an employee of the Washington State Department of Transportation—Ferries (Washington Ferries) was using state resources and time to conduct personal activities.

At the time they filed their complaint, Mr. Gillespie was an employee of the Washington Ferries. Mr. Dezihan, the plaintiff in this case, was not a state employee. He was, however, a volunteer for the "Fish and Wildlife Commission Americans with Disabilities Act Advisory Committee."

Mr. Gillespie apparently filled out the complaint form, and both he and Mr. Dezihan signed it. The complaint form indicates on its face that being an employee of the state of Washington is a requirement for whistleblower status. Mr. Dezihan claims that while he was at the Auditor's office to file the complaint, he spoke with aninvestigator, Sandra Miller, and explained his status as a volunteer for the Fish and Wildlife Advisory Committee. Ms. Miller allegedly assured Mr. Dezihan that his volunteer work qualified him for whistleblower protection.

Over the next several months, Mr. Dezihan received several letters from the Auditor's Office advising him of the progress of the complaint. Each letter assured Mr. Dezihan that his identity was protected. Ultimately, the Auditor and the State Ferries substantiated the whistleblower complaint.

Meanwhile, from 2008 to 2013, Mr. Dezihan applied for numerous and varied state, local, and federal government jobs. He was not hired for any of these jobs. There is no evidence in the record as to why Mr. Dezihan was not hired. The State suggests that Mr. Dezihan would not allow potential employers to contact his prior employer.

Mr. Dezihan claims that he was not hired because he was retaliated against and blacklisted for his whistleblower complaint. In support of this claim, Mr. Dezihan testified that in 2012, an unidentified hiring manager from the Department of Social and Health Services (DSHS) told Mr. Dezihan that he did not get the job he applied for because he (Mr. Dezihan) was a whistleblower.¹

Mr. Dezihan's whistleblower complaint apparently caused significant problems for Washington Ferries. In 2015, Mr. Dezihan and Mr. Gillispie attended the trial of a third Washington Ferries employee, who sued the state, claiming that he was being retaliated against as the perceived whistleblower. Mr. Dezihan claims that during a break in the trial, he and Mr. Gillespie overheard a conversation in which an assistant attorney general admitted receiving a completely unredacted copy of the whistleblower complaint. The assistant attorney general also allegedly commented that an unredacted copy of the complaint had been released on a statewide "interlink" system and was available to all state agencies.²

2. Procedural History

In January 2018, Mr. Dezihan filed this lawsuit against the State of Washington, raising four causes of action: 1) violation of the whistleblower statute, 2) violation of the anti-blacklisting statute, 3) invasion of privacy, and 4) negligence. The State filed a motion to dismiss under CR 12(b)(6) for failure to state a claim upon which relief can begranted. The trial court denied the motion because there were factual issues that needed to be developed as to whether Mr. Dezihan qualified as an employee for purposes of the Whistleblower Act.

Following discovery, the State filed for dismissal on summary judgment. The court granted the State's motion, dismissing Mr. Dezihan's whistleblower claim because he was not a state employee. The court dismissed Mr. Dezihan's other three claims, finding that they were based on his whistleblower status.

ANALYSIS

1. Standard of Review.

We apply a de novo standard when reviewing the trial court's decision on summary judgment. Wash. Imaging Servs., LLC v. Dep't of Revenue, 171 Wn.2d 548, 554-55, 252 P.3d 555 (2011). Summary judgment is appropriate only when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Malnar v. Carlson, 128 Wn.2d 521, 534-35, 910 P.2d 455 (1996). The facts are examined in the light most favorable to the nonmoving party. Marincovich v. Tarabochia, 114 Wn.2d 271, 274, 787 P.2d 562 (1990). If a reasonable person could come to only one conclusion, the court grants the motion. Id.

As the moving party, the State has the initial burden to show that there are no genuine issues of material fact. CR 56(c). Once that initial burden is satisfied, the burden shifts to Mr. Dezihan, the nonmoving party, to thwart summary judgment bypresenting evidence that demonstrates a dispute of material fact. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005). Mr. Dezihan's burden requires him to produce more than mere allegations or denials; it requires specific admissible facts showing a genuine dispute. CR 56(e).

Like the trial court below, we only consider admissible evidence in deciding whether summary judgment is proper. Lynn v. Labor Ready, Inc., 136 Wn. App. 295, 306, 151 P.3d 201 (2006). A party cannot rely on hearsay to defeat a motion for summary judgment. Id.

2. Does Mr. Dezihan qualify for protection under the State Whistleblower Act?

In 2008, when he filed his whistleblower complaint with the State Auditor's Office, Mr. Dezihan admits that he was not an employee as that term is commonly used. He asserts nonetheless that his work on the Fish and Wildlife Commission Americans with Disabilities Act Advisory Committee qualifies him as a state employee for purposes of the State Whistleblower Act because he was receiving $100 per day that he worked for the committee. Alternatively, he argues that we should interpret the term "employee" liberally to include those who volunteer for state committees. Finally, he argues that the State should be estopped from claiming that Mr. Dezihan does not qualify as a whistleblower because it repeatedly assured him that he qualified.

We apply rules of statutory construction to determine if Mr. Dezihan qualifies as an employee under the State Whistleblower Act. "[A]s with all issues of statutory interpretation, our primary goal is to carry out legislative intent, and give meaningful effect to the language our legislature enacted." Doty v. Town of S. Prairie, 155 Wn. 2d 527, 533, 120 P.3d 941 (2005). "When the statutory language is unambiguous, we derive this intent from the language used in the statute and related statutes, giving effect to every provision." Id.

The State Employee Whistleblower Protection Act, chapter 42.40 RCW sets forth the policies and protections afforded state employees. As noted above, Washington State's policy is to protect state employees who disclose improper governmental action. RCW 42.40.010. To qualify as a "whistleblower," a person must be an employee of the state. RCW 42.40.020(10). The Act defines an "employee" as "any individual employed or holding office in any department or agency of state government." RCW 42.40.020(2). This language is clear and unambiguous.

Mr. Dezihan's work on the Advisory Committee does not qualify him as a state employee. By statute, Advisory Committee members serve without compensation, though they may be reimbursed for expenses. RCW 77.04.150(5). Because he was not compensated for his time, Mr. Dezihan was a volunteer for the Advisory Committee. As the Supreme Court has noted, it is a "common sense notion that volunteers andemployees are mutually exclusive categories with juxtaposed definitions." Doty, 155 Wn.2d 540-41.

Despite the clear language set forth in the statute, Mr. Dezihan argues that we should apply the definitions of employee and employer used in the Washington Administrative Code for purposes of the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW. This Act applies to employers who employ eight or more employees. RCW 49.60.040(11). In determining which employers are subject to the WLAD, the code specifically includes unpaid persons who are generally treated in the same manner that an employee would be treated, i.e., selection, discipline, work assignments. WAC 162-16-220. Mr. Dezihan's reliance on this definition is misplaced.

Since the Whistleblower Act already contains an unambiguous definition of employee, there is no need to go beyond the Act for further clarification. See State v. Roggenkamp, 153 Wn.2d 614, 621, 106 P.3d 196 (2005) ("If the language is unambiguous, a reviewing court is to rely solely on the statutory language.")...