Henry v. Wash. Dep't of Health

1

ERIKA HENRY and DANIEL HENRY, wife and husband, K.H., a minor child, and B.H. a minor child, Plaintiffs, v. WASHINGTON STATE DEPARTMENT OF HEALTH, UMAIR A. SHAH, JESSICA TODOROVICH, ROY CALICA, and JOHN DOES 1-10, Defendants.

No. 2:22-cv-00046-MKD

United States District Court, E.D. Washington

March 29, 2024

ORDER DENYING PLAINTIFFS' MOTION TO CERTIFY

AND

GRANTING IN PART AND DENYING IN PART

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND PLAINTIFFS' MOTIONS FOR SUMMARY JUDGMENT

ECF Nos. 39, 46, 48, 51

MARY K. DIMKE JUDGE

On October 13, 2023, the Court conducted a hearing on pending motions. ECF No. 78. Marshall Casey and Marcus Sweetser appeared on behalf of Plaintiffs. Nicholas Ulrich appeared on behalf of Defendants. The Court has reviewed the motions and the record, has heard from counsel, and is fully informed. The Court (1) denies Plaintiffs' Motion to Certify Questions to the Washington Supreme Court, ECF No. 48; (2) grants in part and denies in part Defendants' Motion for Summary Judgment, ECF No. 39; (3) grants in part and denies in part Plaintiffs' Motion for Summary Judgment on Preliminary Elements Under U.S. Constitution, ECF No. 46, and (4) denies as moot Plaintiffs' Summary Judgment Motion on Wrongful Termination in Violation of the Washington Constitution, ECF No. 51.

BACKGROUND

A. Factual History

On September 16, 2014, Plaintiff Erika Henry began working for Defendant Washington State Department of Health (“Department”). ECF No. 69 at 2 ¶ 1; ECF No. 42-1 at 8. She previously worked for the Spokane Regional Health District (“SRHD”), a local health jurisdiction. ECF No. 40 at 1 ¶ 2; ECF No. 56 at 2 ¶ 2; ECF No. 69 at 2 ¶ 3. SRHD is governed by its Board of Health (“SRHD Board”), whose members are local elected officials and appointees. ECF No. 47 at 2 ¶ 1.1; ECF No. 62 at 2 ¶ 1.1. During the period relevant to this case, Henry lived within SRHD's jurisdiction and was a constituent of Mary Kuney, an SRHD Board member. ECF No. 25 at 35 ¶ 2.103; ECF No. 32 at 13 ¶ 2.103.

On July 1, 2020, Henry took the position of Assistant Secretary of Health for Emergency Preparedness and Response for the Department, as an acting appointment. ECF No. 40 at 2 ¶ 4; ECF No. 56 at 2 ¶ 3; ECF No. 42-1 at 2. Defendant Jessica Todorovich, the Department's Chief of Staff, was Henry's direct supervisor and appointing authority. ECF No. 69 at 2 ¶ 2.

On October 30, 2020, media outlets reported that SRHD's Public Health Officer, Bob Lutz, had been fired. ECF No. 69 at 2 ¶ 4. That day, Henry emailed the following message to SRHD's Board members and Administrative Officer Amelia Clark from a personal, @gmail.com email address:

Subject: expect better from [the SRHD Board]

I'm writing to say that I am appalled by the [SRHD Board] support of Amelia Clark's baseless claims against Dr Lutz. Many of you know him personally and professionally, have for years. Yet you let an insecure weakling of a leader strong arm you into ousting him based on vague claims of what.... personality conflict? Tell her to grow up and do her job. People disagree with her because she makes impulsive decisions based on her own ego and inability to appear wrong. She is weak, and today the [SRHD Board] is no better. You sought no further evidence or testimonials from peers who actually know what they're talking about. You didn't consider his demonstrated performance and leadership before and during a global pandemic, the fact that his work is lauded regionally and statewide. Instead you've supported an action that endangers our public health response and, more egregiously, the actual health of the public.

I anticipate this will come to a public forum, perhaps within a few hours. When it does, I hope Amelia's inadequacies are exposed; she has been promoted to the level of her incompetence. One who cowers from criticism can't possibly lead in a time as trying as this, and certainly not for an agency as critical to our community as SRHD. It is the leader's responsibility to step beyond the comfort of their ego, to confront the challenges of our community, and to work with her own staff at all levels to ensure the most appropriate response to this public health crisis. She is unable to do that, instead calling on her friends to just make her problem go away.

Do you see that your actions have validated her lack of fortitude? You've shown her and our community that she can continue leading through conflict avoidance, selfish motives, and a little help from her [SRHD Board] buddies. What an embarrassment to this community.

Not all of you support Amelia. I hope you argued loudly and expect you will continue to do so. Let her know how insufficient her “leadership” is.

There could be an opportunity to right this wrong, though the consequences of [the SRHD Board's] initial actions will unfortunately ripple for months. What you do next will be an historic display of your values and alliances. Are you with facts and reason, or are you with baseless accusations and whining? Your community is watching intently.

Erika Henry

ECF No. 40 at 3-4 ¶ 13; ECF No. 56 at 3-4 ¶ 13; ECF No. 42-2 at 3 (“email from a personal account”), 35.

On December 20, 2020, Defendant Umair Shah was appointed as the Department's Secretary of Health. ECF No. 69 at 2 ¶ 6. Shah traveled to Spokane to meet with the SRHD Board on February 8, 2021, and Todorovich asked Henry to accompany Shah. ECF No. 40 at 5 ¶¶ 20-21; ECF No. 56 at 5 ¶¶ 20-21.

At the meeting, an SRHD Board member confronted Shah about Henry's email. ECF No. 40 at 6 ¶ 26; ECF No. 56 at 6 ¶ 26. Henry was distraught and texted Todorovich afterward, stating the SRHD Board member “tore [her] a new one in front of” Shah. ECF No. 40 at 7 ¶ 31; ECF No. 56 at 7 ¶ 31; ECF No. 42-2 at 36.

In that text conversation, Henry told Todorovich about her email, describing it as “an email as a private citizen (I never identified myself as a [Department] employee or having any connection to [public health]).” ECF No. 42-2 at 36-38; ECF No. 69 at 3 ¶ 11. Todorovich responded, “you have every right to express yourself as a private citizen to your local board.” ECF No. 42-2 at 36. An SRHD Board member later gave Shah a copy of the email. ECF No. 40 at 8 ¶ 37; ECF No. 56 at 8 ¶ 37.

A few days later, Todorovich reported Henry to the Department's Office of Human Resources because of the email. ECF No. 40 at 9 ¶ 40; ECF No. 56 at 8-9 ¶ 40. The Office of Human Resources assigned Defendant Roy Calica to investigate, and he completed an investigation report in March 2021. ECF No. 40 at 9 ¶ 41; ECF No. 56 at 9 ¶ 41; ECF No. 42-2 at 16-34.

On May 19, 2021, Todorovich sent Henry a disciplinary letter terminating her employment, citing the email, and Henry's failure to inform Department leadership of the email before February 8, 2021, as the reasons for the decision. ECF No. 69 at 3-4 ¶ 13; ECF No. 42-2 at 3-4, 7.

B. Procedural History

In February 2022, Erika Henry, her husband Daniel Henry, and their children, K.H. and B.H., filed suit in Spokane County Superior Court against the Department, Shah, Todorovich, and Calica. ECF No. 1-1. Defendants removed the case to federal court. ECF No. 1. On October 18, 2022, Plaintiffs filed an Amended Complaint. ECF No. 25.

The Amended Complaint brings claims alleging (1) Henry's wrongful termination in violation public policy under the Washington Constitution; (2) Henry's wrongful termination in violation of public policy under the First Amendment of the U.S. Constitution; (3) violation of Henry's First Amendment right by retaliation, pursuant to 42 U.S.C. § 1983; and (4) loss of consortium for Henry's husband and children. ECF No. 25 at 53-73.

PLAINTIFFS' MOTION TO CERTIFY

Plaintiffs seek to certify the following five questions to the Washington Supreme Court:

1. Does the Washington Constitution give less protections to a government employee than to every other person in Washington, when the government employee speaks outside of their employment, in their private capacity, and in a public forum?

2. Does the government's status as an employer give it a compelling interest to restrict speech done in a public forum under the Washington Constitution?

3. Does terminating a government employee for petitioning the government as a private citizen violate the public policy of the Washington Constitution?

4. Can the Department of Health policies that restrict outside activities and use of state resources for private gain, restrict a government employee from communicating on their own personal time to their elected and appointed government leaders?

5. Is one who has established a cause of action for the violation of a fundamental right entitled to recover damages for (a) the harm to the interest resulting from the violation; (b) the mental distress proved to have been suffered; and (c) special damages of which the violation is a legal cause?

ECF No. 48 at 2-3.

A. Legal Standard

In a diversity case, a federal court must seek “to approximate state law as closely as possible in order to make sure that the vindication of the state right” is not affected by the federal forum. Murray v. BEJ Minerals, LLC, 924 F.3d 1070, 1071 (9th Cir. 2019) (en banc) (quoting Ticknor v. Choice Hotels Int'l, Inc., 265 F.3d 931, 939 (9th Cir. 2001)) (quotation marks omitted). “If the state's highest appellate court has not decided the question presented,” then the federal court “must predict how the state's highest court would decide the question.” Id. (citation omitted). If allowed by state law, the federal court may “exercise [its] discretion to certify a question to the state's highest court.” Id. (citing Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974)). The Ninth Circuit instructs courts to consider four factors in this analysis:

(1) whether the

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