Petition for Writ of Certiorari — Theresa Ortloff, Petitioner v. Dave Trimmer, et al.

Supreme Court briefNov 19, 2019

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No. __________

_______________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

_____________________

THERESA ORTLOFF,

Petitioner,

DAVE TRIMMER, STEVEN VONHEEDER,

ELIZABETH KOSA, LYNNE GRIFFITH, AND

AMY SCARTON,

Respondents.

_____________________

On Petition for a Writ of Certiorari

To the United States Court of Appeals

for the Ninth Circuit

_____________________

PETITION FOR A WRIT OF CERTIORARI

_____________________

SHAWN HART

HART LAW OFFICE PLLC

P.O. Box 85342

Seattle, WA 98145

(206) 612-1809

Washington State Bar No. 25917

HartLawOffice@aol.com

Counsel for Petitioner

_______________________________________________

A. QUESTIONS PRESENTED FOR REVIEW

Must the entire record, including motives,

main thrust of the speech, and all instances of

speech be reviewed under Connick v. Myers, 461

U.S. 138 (1983) to determine if there is a public

interest associated with the speech under the First

Amendment?

Does Connick v. Myers, 461 U.S. 138 (1983)

require a public employee to protect a large class of

persons to be protected under the First Amendment

when the employee criticizes an illegal pay padding

scheme and an inefficient record keeping system in

an attempt to help junior employees?

Is criticism of an inefficient public employee

record keeping system, such as paper notes kept by

a dispatcher showing work assignments and

availabilities, speech protected by the First

Amendment?

Does placement of a public employee on a

blacklist that violates state law, such as the Do Not

Hire/Dispatch List, violate Procedural Due Process

under the Fourteenth Amendment?

Does placement of a public employee on a

blacklist that violates state law, after the employee

criticizes shorting the pay of junior employees and

inefficient recordkeeping systems, constitute

retaliation under the First Amendment?

When an illegal blacklist subsequently

causes an employee to not be dispatched after the

employee is rehired under a collective bargaining

agreement, does the constructive discharge

constitute retaliation under the First Amendment

and a violation of Substantive Due Process?

When a Federal Court interprets the

meaning of a collective bargaining agreement

phrase, such as a “bona fide” reason for

termination, must it consider practice, usage, and

custom of the term, and determine if it is vague

under standard contract interpretation rules?

Does a collective bargaining agreement

create a property right for purposes of due process

under the Fourteenth Amendment where the state

agency’s employment specialist earlier rules

unavailabilities and comments from supervisors

limited the decision maker and could not form the

basis for terminating the employee?

Is Procedural Due Process under the

Fourteenth

Amendment

violated

when

probationary employee with a property right in the

job is sent a termination letter without notice or

opportunity to respond to the disciplinary

allegations?

10.

Is Procedural Due Process under the

Fourteenth

Amendment

violated

when

probationary employee with a property right in the

job is terminated without having any disciplinary

charges brought from the written code of conduct

and progressive disciplinary procedure?

iii

11.

Is the Fourteenth Amendment Substantive

Due Process Clause violated when most of the

alleged unavailabilities used for termination are

shown to be false or double counted, and less in

number than other similarly situated employees

who were not terminated?

12.

Does a government manager violate the

Liberty Clause of the Fourteenth Amendment by

maintaining and distributing a blacklist in

violation of a state anti-blacklisting law, where the

blacklist prevents a re-hired public employee from

being dispatched and constructively discharged?

13.

Does a government manager violate the

Liberty Clause of the Fourteenth Amendment by

sending an internal e-mail that is then leaked to

the Press which makes adverse comments about

the whistleblower in an attempt to deflect blame

for Press criticism of unsupported raises for the

managers?

14.

Is a party required to first determine if emails are reasonably accessible under Federal Rule

of Civil Procedure 26(b)(2)(B) before the party can

limit discovery and production of the e-mails under

Federal Rules of Civil Procedure 33(a)(1) and

34(a)(1)(A) with search terms?

15.

Is the test for whether electronically stored

information is “reasonably accessible” under

Federal Rule of Civil Procedure 26(b)(2)(B) an

objective test and if so, are e-mails that have been

located, read, and collated “reasonable accessible”?

B. PARTIES TO THE PROCEEDING

The caption contains the names of all

the parties to the proceedings below.

C. TABLE OF CONTENTS AND TABLE OF

CITED AUTHORITIES

1. TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW i

PARTIES TO THE PROCEEDING . . . . . iv

TABLE OF CONTENTS AND TABLE OF

AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . v

Table of Contents . . . . . . . . . . . . . . . v

Appendices Table of Contents . . . . . ix

Table of Cited Authorities . . . . . . . xv

CITATION TO OPINION BELOW . . . . . . . 1

BASIS FOR JURISDICTION . . . . . . . . . .

CONSTITUTIONAL PROVISIONS

AND LEGAL PRINCIPLES INVOLVED . . 2

STATEMENT OF THE CASE . . . . . . . . . . 3

Relevant Facts . . . . . . . . . . . . . . . . . 3

Discovery Issues at the District

Court . . . . . . . . . . . . . . . . . . . . . . . . 10

Summary Judgment at the

District Court . . . . . . . . . . . . . . . . . 13

Appeal to the Ninth Circuit . . . . . . 13

REASONS FOR GRANTING THE WRIT . 14

The Ninth Circuit misinterpreted

Connick v. Myers in ruling on Appellant’s

First Amendment Free Speech cause of action,

creating a conflict with an important precedent

of this Court, and the opinion differs with other

circuits regarding what parts of the

record must be considered . . . . . . . . . . . . . . . . . . 14

Connick requires an examination

of the record as a whole for an effective

determination of the public interest and

to balance the interest of the employer

and employee . . . . . . . . . . . . . . . . . . . . . . . 16

Resisting a pay padding scheme

involving shorting the pay of junior

employees so the managers can pad

their pay is speech protected by the

First Amendment . . . . . . . . . . . . . . . . . . . 17

Connick does not require a large

class of persons to be protected, helping

employees resist a pay padding scheme is

protected, and the spreadsheet can be

distinguished from the Connick memo . . . 19

Criticizing an inefficient public

employee record keeping system is also

protected by the First Amendment . . . . . . 21

vii

The Ninth Circuit’s adoption of the

District Court’s dismissal of Appellant’s

retaliation claim violates Pickering . . . . . . . . . .

The Ninth Circuit misinterpreted

Roberts v. U.S. Jaycees and Pickering v.

Board of Education when ruling on

Appellant’s Association Claims . . . . . . . . . . . . .

This Court’s rules governing the

interpretation of collective bargaining

agreements were not followed, causing the

Ninth Circuit to not find a property right in

Appellant’s job . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

The Appellees’ employment law

specialist designated in the hiring letter

to interpret the rules that applied to

Appellant created a limit on the ability

to terminate and a property right under

the Fourteenth Amendment . . . . . . . . . .

The Ninth Circuit’s interpretation of

this Court’s precedent gives an employee

bringing a claim under the Fourteenth

Amendment fewer rights than statutory

enactments . . . . . . . . . . . . . . . . . . . . . . . . 29

The LaCroix unavailability was

not a bona fide reason related the business

operation and Appellant had fewer

unavailabilites than other employees who

were not terminated . . . . . . . . . . . . . . . . . 30

viii

Having found no Property right in her

job, the Ninth Circuit did not discuss

Appellant’s Procedural Due Process claims . . . . 31

Appellant’s Substantive Due Process

rights were violated when the termination

was based on false information, and after she

was rehired, a blacklist caused a constructive

discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The Ninth Circuit misinterpreted this

Court’s long line of cases that have defined

the Liberty Interest under the Fourteenth

Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The blacklist violated Appellant’s

Fourteenth Amendment Liberty Interest,

because it prevented Appellant from

being dispatched in 2014 after the union

rehired her under the CBA . . . . . . . . . . . 34

The Griffith e-mail leaked to the

Press, was initially circulated internally

to all WSF workers and labeled the

whistleblowers “former disgruntled

employees” . . . . . . . . . . . . . . . . . . . . . . . .

The Ninth Circuit’s opinion created

an important federal question regarding

when electronically stored information

must be produced . . . . . . . . . . . . . . . . . . . . . . . .

The standard of review for the

legal interpretation of “reasonably

accessible” for electronically stored

information should be de novo . . . . . . . . . 37

After a party locates and reads

responsive e-mails, they are “reasonably

accessible” for interrogatories and

requests for production under an objective

test, and the party can not condition

production on search terms . . . . . . . . . . 38

The union copies of Appellees’

smoking gun e-mails show the motive

for the withholding, and the Appellees

continue to withhold e-mails and other

documents . . . . . . . . . . . . . . . . . . . . . . . . . 40

CONCLUSION . . . . . . . . . . . . . . . . . . . . . 40

2. APPENDICES TABLE OF CONTENTS

Order Denying Rehearing and Rehearing

En Banc, United States Court of Appeals

for the Ninth Circuit, Ortloff v. Trimmer,

et al., 9th Cir. Case No. 18-35538, dkt. 36

(August 23, 2019) . . . . . . . . . . . . . . . . . . . . . . App. 1

Opinion, United States Court of Appeals

Appeals for the Ninth Circuit, Ortloff v.

Trimmer, et al., 9th Cir. Case No. 18-35538,

dkt. 35 (July 18, 2019) . . . . . . . . . . . . . . . . . . App. 2

Judgment, United States District Court

For the Western District of Washington,

Ortloff v. Trimmer, et al., U.S. Dist. Ct.

(W.D. Wash.) Case No. 2:16-cv-01257-RSL,

dkt. No. 76 (May 29, 2018) . . . . . . . . . . . . . . App. 6

Opinion, United States District Court

For the Western District of Washington,

Ortloff v. Trimmer, et al., U.S. Dist. Ct.

(W.D. Wash.) Case No. 2:16-cv-01257-RSL,

dkt. No. 75 (May 29, 2018) . . . . . . . . . . . . . . . App. 7

Order on Plaintiff’s Motion for Discovery

Default or to Compel Discovery Responses,

United States District Court For the

Western District of Washington,

Ortloff v. Trimmer, et al., U.S. Dist. Ct.

(W.D. Wash.) Case No. 2:16-cv-01257-RSL,

dkt. No. 35 (June 5, 2017) . . . . . . . . . . . . . . App. 20

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . App. 24

Wash. Rev. Code § 47.64.170 . . . . . . . . . . . App. 25

Wash. Rev. Code § 49.44.010 . . . . . . . . . . . App. 26

Wash. Rev. Code § 49.52.050(2) . . . . . . . . . App. 28

46 C.F.R. § 15.405 . . . . . . . . . . . . . . . . . . . . App. 29

46 C.F.R. § 199.180(b)(1) . . . . . . . . . . . . . .

App. 30

Marine Employee’s Beneficial Association

Collective Bargaining Agreement, MEBA,

Unlicensed Engineers, 2011-2013, § 29.08

(Rule prohibiting managers from

taking penalty time from junior employees)

2:16-cv-01257-RSL, dkt. 62, p. 14 . . . . . . . App. 31

Collective Bargaining Agreement, MEBA,

Unlicensed Engineers, 2013-2015, § 33.01

(Probationary employees)

2:16-cv-01257-RSL, dkt. 49-1, p. 86 . . . . .

App. 32

Code of Conduct with Progressive

Disciplinary Process, Washington State

Ferries, 2013

2:16-cv-01257-RSL, dkt. 49-1, p. 89-92 . . .

App. 33

Susannah Frame, “State Ferries

apologizes for misleading claims about

pay raises,” King-5 News Transcript,

December 2, 2016

2:16-cv-01257-RSL, dkt. 23, p. 17 . . . . . . .

App. 36

Susannah Frame, “Whopping pay raises

on deck for some ferry workers,” King-5

News Transcript, November 22, 2016

2:16-cv-01257-RSL, dkt. 23, p. 12 . . . . . . .

App. 40

E-mail from Lynne Griffith to WSDOT

WSF All Staff, Subj: Media Coverage,

November 21, 2016

2:16-cv-01257-RSL, dkt. 45, p. 2 . . . . . . . .

App. 46

xii

Jeff Duncan, MEBA Union Branch Agent

copy of e-mail from Elizabeth Kosa to Jeff

Duncan, Bill Knowlton, and Chad Scott,

January 22, 2015 containing blacklist and

Linda Manning E-mail dated January 22,

2015

2:16-cv-01257-RSL, dkt. 48, p. 167 . . . . . . App. 48

Bill Knowlton, MEBA Union

Representative copy of e-mail from Jeff

Duncan to George Capacci, cc Elizabeth

Kosa, Chad Scott, Bill Knowlton, Susan

Moriarty, and Scott Nicholson, January

7, 2015

2:16-cv-01257-RSL, dkt. 48, p. 163 . . . . . . . App. 49

Letter from Steven Vonheeder to Theresa

Ortloff, November 22, 2013. (Termination

Letter)

2:16-cv-01257-RSL, dkt. 49-1, p. 67 . . . . . . App. 50

E-mail from Pete Williams to Elizabeth

Nicoletti (Kosa), November 12, 2013

2:16-cv-01257-RSL, dkt. 49-1, pp. 31-32 . .

App. 52

E-mail from Theresa Ortloff to Rachel

Morrison, October 7, 2013

2:16-cv-01257-RSL, dkt. 49-1, pp. 32-33 . .

App. 53

E-mail from Linda Manning to Elizabeth

Nicoletti (Kosa), November 7, 2013

2:16-cv-01257-RSL, dkt. 49-1, p. 42 . . . . . . App. 55

xiii

E-mail from Elizabeth Nicoletti (Kosa) to

Linda Manning, November 5, 2013

2:16-cv-01257-RSL, dkt. 49-1, p. 42 . . . . . . App. 56

E-mail from Mike LaCroix to Theresa

Ortloff, copied to Shane Kelly and

Elizabeth Nicoletti (Kosa), November 5,

2013

2:16-cv-01257-RSL, dkt. 49-1, p. 50 . . . . . . App. 57

E-mail from Thomas Grabecki to Rachel

Morrison, October 5, 2013

2:16-cv-01257-RSL, dkt. 49-1, p. 18 . . . . . . App. 58

E-mail from David Trimmer to Elizabeth

Nicoletti (Kosa), August 13, 2013

2:16-cv-01257-RSL, dkt. 48, p. 43 . . . . . . . . App. 59

E-mail from Elizabeth Nicoletti (Kosa) to

David Trimmer, August 12, 2013

2:16-cv-01257-RSL, dkt. 48, pp. 43-44 . . . . App. 61

E-mail from David Trimmer to Elizabeth

Nicoletti (Kosa), August 11, 2013

2:16-cv-01257-RSL, dkt. 48, p. 44 . . . . . . . . App. 62

Excerpt, Declaration of Theresa Ortloff,

October 2, 2017, p. 2.

2:16-cv-01257-RSL, dkt. 48, p. 2 . . . . . . . . . App. 63

Excerpt, Washington State Ferries Time

Sheet for David E. Trimmer for time period

07/01/13 to 07/31/13, line 5

2:16-cv-01257-RSL, dkt. 62, p. 10 . . . . . . . . App. 65

xiv

Excerpt, Washington State Ferries Time

Sheet for David E. Trimmer for time period

06/01/13 to 06/30/13, line 5

2:16-cv-01257-RSL, dkt. 62, p. 9 . . . . . . . . . App. 66

Excerpt, Washington State Ferries Time

Sheet for David E. Trimmer for time period

05/16/13 to 05/31/13, line 5

2:16-cv-01257-RSL, dkt. 62, p. 8 . . . . . . . . . App. 67

Excerpt, Washington State Ferries Time

Sheet for David E. Trimmer for time period

04/01/13 to 04/15/13, line 3

2:16-cv-01257-RSL, dkt. 62, p. 7 . . . . . . . . . App. 68

Excerpt, Washington State Ferries Time

Sheet for David E. Trimmer for time period

03/16/13 to 03/31/13, line 6

2:16-cv-01257-RSL, dkt. 62, p. 6 . . . . . . . . . App. 69

Excerpt, Letter from David H. Moseley and

Steven R. Vonheeder to Theresa Ortloff,

March 6, 2013 (Hiring Letter)

2:16-cv-01257-RSL, dkt. 49-1, p. 82-83 . . . . App. 70

Excerpt, Special Projects List produced in

Newmon et al. v. Nitchman et al. containing

the name “Dave E. Trimmer, Jr.”

2:16-cv-01257-RSL, dkt. 46, p. 5 . . . . . . . . . App. 71

Excerpts, Plaintiff’s Interrogatories and

Requests for Production to Lynne Griffith

with Answers and Responses, pp. 7,8,12,13.

2:16-cv-01257-RSL, dkt. 23, p. 29,30,34,35 . App. 72

Excerpts, Declaration of Theresa Ortloff,

July 24, 2017, pp. 2-12.

2:16-cv-01257-RSL, dkt. 49, pp. 2-12 . . . . . . App. 76

Excerpts, Deposition Transcript of Dave

Hurtt, June 2, 2017, p. 4-13.

2:16-cv-01257-RSL, dkt. 48, pp. 122-31 . . . . App. 89

3. TABLE OF CITED AUTHORITIES

Cases

Allen v. City of Beverly Hills, 911 F.2d 367

(9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Anderson v. Liberty Lobby, Inc. 477 U.S.

242 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,30

Board of Regents v. Roth, 408 U.S. 564 (1972) . . 27

Cleveland Board of Education v. Loudermill,

470 U.S. 532 (1985) . . . . . . . . . . . . . . . . . . . . . . . 31

Cohen v. Fred Meyer, Inc., 686 F.2d 793

(9th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Connick v. Myers, 461 U.S. 138

(1983) . . . . . . . . . . . . . . . . . . . . 14,15,16,17,18,19,20

County of Sacramento v. Lewis, 523 U.S. 833

(1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Fair Housing of Marin v. Combs, 285 F.3d

899 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . 35,36

xvi

Garrison v. Louisiana, 379 U.S. 64 (1964) . . . . . 20

Givhan v. W. Line Consol. Sch. Dist.,

439 U.S. 410 (1979) . . . . . . . . . . . . . . . . . . . . . . . 17

Harrah Independent School District v.

Martin, 440 U.S. 194,198 (1979) . . . . . . . . . . . . . 33

Hyland v. Wonder, 972 F.2d 1129 (9th Cir.

1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Marable v. Nitchman, 511 F.3d 924 (9th Cir.

2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,6,18,20

Mathews v. Eldridge, 424 U.S. 319 (1976) . . . . . 31

McGinest v. GTE Serv. Corp., 360 F.3d 1103

(9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Mitchell v. Hillsborough County, 468 F.3d

1276 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Moore v. Commercial Aircraft, 278 P.3d 197

(Wash. Ct. App. Div. I), rev. denied, 291 P.3d

254 (Wash. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . 21

New York Times Co. v. Sullivan, 376 U.S. 254

(1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Palmer v. Pioneer Inn Assoc., Ltd., 338 F.3d

981 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . 37

Paul v. Davis, 424 U.S. 693 (1976) . . . . . . . . . . . 34

xvii

Pickering v. Board of Education, 391 U.S.

563 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23,25

Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) . 25,26

Roth v. U.S., 354 U.S. 484 (1957) . . . . . . . . . 20,34

Transportation-Communication Employees

Union v. Union Pacific R.R., 385 U.S. 157

(1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27,28

Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . 23

Statutes

28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . 13

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . 2

29 U.S.C. § 623(f) . . . . . . . . . . . . . . . . . . . . . . . 29,30

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . 2,3,14

42 U.S.C. § 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Wash. Rev. Code § 47.64.170 . . . . . . . 3,18,19,23,27

Wash. Rev. Code § 49.44.010 . . . . . . . . . . . . 3,21,24

Wash. Rev. Code § 49.52.050(2) . . . . . . . . . 18,19,23

Other

Sup. Ct. R. 10(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 14

xviii

Sup. Ct. R. 10(c) . . . . . . . . . . . . . . 14,22,25,27,34,37

U.S. Const. amend. I . . . . . . . . . . . . . . 2,13,14,22,23

U.S. Const. amend. XIV. . . . . . . . . . . . 2,26,31,33,34

Fed. R. Civ. P. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Fed. R. Civ. P. 26(b)(1) . . . . . . . . . . . . . . . . . . 37,38

Fed. R. Civ. P. 26(b)(2)(B) . . . . . . . . . . . . . . . . 37,38

Fed. R. Civ. P. 33(a)(1) . . . . . . . . . . . . . . . . . . . .

Fed. R. Civ. P. 34 (a)(1)(A) . . . . . . . . . . . . . . . . 37,38

Fed. R. Civ. P. 37(b)(2)(A)(vi) . . . . . . . . . . . . . . .

Fed. R. Civ. P. 37(c)(1)(C) . . . . . . . . . . . . . . . . . .

Fed. R. Civ. P. 56(a) . . . . . . . . . . . . . . . . . . . . . . . 15

46 C.F.R. § 15.405 . . . . . . . . . . . . . . . . . . . . . . . . . 4

46 C.F.R. § 199.180(b)(1) . . . . . . . . . . . . . . . . . . . . 4

Fed. R. Civ. P. 26 advisory committee’s note;

26(b)(2)(B)(2006 Amendment) . . . . . . . . . . . . 38,39

Chief Justice John Roberts, “2015 Year-End

Report on the Federal Judiciary,” December

31, 2015, p. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

The Petitioner, THERESA ORTLOFF,

requests the Court issue a writ of certiorari to

review the Order of the Ninth Circuit Court of

Appeals entered in this case on July 18, 2019

(Appendix “App.”-2), and the Order denying

rehearing and rehearing en banc entered on August

23, 2019 (App.-1).

D. CITATION TO OPINION BELOW

Order Denying Petition for Rehearing and

Rehearing En Banc, Ortloff v. Trimmer, et al., 9th

Cir. Case No. 18-35538, dkt. 36 (August 23, 2019).

App-1. The mandate issued on September 3, 2019.

Opinion, Ortloff v. Trimmer, et al., 9th Cir.

Case No. 18-35538, dkt. 35 (July 18, 2019.), 773

Federal Appendix 903 (Mem). App.-2.

Judgment, Ortloff v. Trimmer, et al., U.S.

Dist. Ct. (W.D. Wash.) Case No. 2:16-cv-01257-RSL,

dkt. No. (“Dist.Ct. dkt.”) 76 (May 29, 2018). App.-6.

Opinion, Ortloff v. Trimmer, et al., U.S. Dist.

Ct. (W.D. Wash.) Case No. 2:16-cv-01257-RSL, dkt.

75 (May 29, 2018), 2018 WL 2411755. App.-7.

Order on Plaintiff’s Motion for a Discovery

Default or to Compel Discovery, Ortloff v. Trimmer,

et al., U.S. Dist. Ct. (W.D. Wash.) Case No. 2:16-cv01257-RSL, dkt. No. 35 (May 29, 2018). App.-20.

E. BASIS FOR JURISDICTION

The jurisdiction of the Court is invoked

pursuant to 28 U.S.C. § 1254(1).

F. CONSTITUTIONAL PROVISIONS

AND LEGAL PRINCIPLES INVOLVED

The First Amendment to the Constitution

provides in relevant part: “Congress shall make no

law … abridging the freedom of speech … or the

right of the people peaceably to assemble ...” U.S.

Const., amend. I.

The Due Process Clause of the Fourteenth

Amendment to the Constitution provides that no

“State [shall] deprive any person of life, liberty, or

property without due process of law.” U.S. Const.,

amend. XIV.

The Federal Civil Rights Law states: “Every

person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State …, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges,

or immunities secured by the Constitution and

laws, shall be liable to the party injured in an

action …” 42 U.S.C. § 1983, App.-24.

Washington State’s Blacklisting Law,

Section 49.44.010 prohibits blacklisting states

blacklisting is established if there is an act to “…

send or deliver … or publish or cause to be

published any statement for the purpose of

preventing any other person from obtaining

employment …” Wash.Rev.Code § 49.44.010, App.26.

Washington State’s Law authorizing a

collective bargaining agreement and making it

state law is Section 47.64.170. Wash.Rev.Code §

47.64.170. App.-25.

G. STATEMENT OF THE CASE

1. Relevant Facts

Theresa Ortloff was a probationary on-call

oiler at the Washington State Ferries (“WSF”) who

was terminated in November, 2013. App.-50. In

2014, her union, the Marine Employees’ Beneficial

Association

(“MEBA”)

concluded

she

was

wrongfully terminated, she was rehired under the

collective bargaining agreement (“CBA”), and her

name was sent to the WSF Dispatcher to be

dispatched. The management of the Washington

State Ferries had a secret, illegal blacklist that

Appellant was placed on which prevented her from

being dispatched.

App.-48.

No notice or

opportunity to be heard were given prior to the

2013 termination or the 2014 refusal to dispatch,

raising Procedural Due Process issues under the

Fourteenth Amendment. App.-82,84.

The case has important First Amendment

issues, because throughout the case, each of the

reasons for termination have been shown to be

false or not rule violations. Appellees are now

down to one incident where Staff Chief LaCroix

attempted to short Appellant’s pay under a wider

pay padding scheme to short the pay of junior

employees so the managers could pad the withheld

pay as overtime.

The Appellant spent 18 months preparing to

be an oiler at the Ferries. App.-76. She attended a

two month school down in San Diego, California.

Id. She attended classroom training, and she

performed an internship working on several ferries.

Id. Staff Chief Kavanaugh certified Theresa Ortloff

was qualified to work as an oiler under U.S. Coast

Guard regulations 46 C.F.R. §§ 15.405 and

199.180(b)(1). App.-76,22,23. Ms. Ortloff was

again certified under the U.S. Coast Guard

regulations by another chief on August 8, 2013 by

another chief. Dist.Ct. dkt. 49-2, p. 30.

The Washington State Ferries is the largest

ferry system in the nation with 23 regular domestic

ferry routes and one international run.

Unfortunately, down in the depths of the engine

rooms, a group of chiefs have a regular system of

pay padding that has developed over the last 25

plus years.

The pay padding schemes have

partially resisted detection, because the senior

“staff” chief on each ferry signs off on the hand

written pay sheets, including his own, and sends

them ashore to an accounting department.

During her deposition, Kosa (maiden name

Nicoletti in some e-mails) admitted the average

amount the chiefs add to their pay is $51,000 per

year on a $99,000 base salary. Dist.Ct. dkt. 48, p.

75. Shortly after this case was filed in 2016, 50

chiefs and senior personnel attempted a 25% per

year pay increase, which would have raised yearly

compensation up to as much as $210,000, since

many were padding at least $70,000, but the

whistleblowers and the news media defeated the

plan. App.-40.

The Appellant’s boyfriend, Floyd McLaughlin

is a Washington State Ferry chief who has been

engaged in whistleblower activities at the WSF for

at least 19 years. Dist.Ct. dkt. 26, p. 2. He has

prevented wasteful spending that likely amounts to

tens of millions of dollars, and maybe more

depending on how future savings are calculated.

Mr. McLaughlin has testified in several

administrative and federal court proceedings,

including Marable v. Nitchman, 511 F.3d 924 (9th

Cir. 2007) and he is generally known at the Ferries

as a whistleblower. Dist.Ct. dkt. 26, pp. 2,3. Mr.

McLaughlin has been regularly harassed and he

was even harassed between two days of testimony

in Federal Court, causing a U.S. District Court

judge to order a defendant in that case to stay off

the social media he was using to harass Mr.

McLaughlin and damage his business plans. Id. at

p. 3. The Marable case and the revelation the

management had run up $1 billion in debt stopped

several of the pay padding schemes 12 years ago,

but it appears the pay padding has slowly

percolated back into the engine rooms.

When Appellant reported for work on the

Ferry Chelan in August, 2013, her supervisor

Trimmer immediately created a hostile work

environment. App.-77. He followed her around and

while Appellant was hooking up a sewage

connection, he came out from where he was hiding

and yelled at her to go below to the engine room

without explanation. Id.

That night Trimmer wrote a series of

adverse e-mails regarding Appellant.

App.-62.

Kosa was a manager above Trimmer and requested

Trimmer follow the written progressive disciplinary

policy which starts with counseling. App.-61,33.

Trimmer refused to follow the written progressive

disciplinary policy. App.-59. Trimmer also did not

bring Appellant up on any Code of Conduct

charges. App.-59,33. In fact to this day, the

Appellees admit Appellant violated no rules.

Dist.Ct. dkt. 48, pp. 23,58-60.

While investigating the motive for Trimmer’s

adverse e-mails, Appellant discovered Trimmer had

been involved in the Special Projects and when the

Marable case largely shut them down with

McLaughlin’s testimony, Trimmer likely lost

overtime. App.-71.

Following the Marable

verdict, the local NBC affiliate KING-5 News

reporter Susannah Frame broadcast an award

winning series called, “Waste on the Water,” and

public criticism helped shut many of the pay

padding programs down. App.-41,42.

Appellant discovered Trimmer was engaged

in shorting the pay of junior employees in violation

of Washington State Law during the timeframe he

harassed Appellant. App.-63-69, Dist.Ct. dkt. 62,

pp. 1-2. The CBA has a provision for double time

for junior employees for cleaning that is

particularly dirty, called penalty time, but

managers are forbidden to claim this double time

on their chief’s pay except in emergencies. App.-31,

Dist.Ct. dkt. 62, p. 2. Trimmer was taking this

time and doubling his chief’s pay, so he paid

himself $87 per hour to do basic cleaning on his off

time. App.-63-69.

Trimmer refused to provide his W-2’s during

discovery,

citing

privacy

exception

Washington’s Public Records Act, and many pay

sheets he did provide showed signs of being

amended. The pay sheets provided are not filed

with the Federal Government and therefore could

have

been

amended

without

detection.

Nonetheless, after some documents were provided

after the close of discovery, Appellant discovered

Trimmer padded approximately $17,000 in pay in

2013 and violated Washington State Law by

shorting junior employees. App.-63-69, Dist.Ct.

dkt. 62, pp.1-2.

In late 2013, Kosa suggested she heard

“stirrings” in the fleet regarding Appellant’s

performance. App.-56. The “stirrings” included the

Trimmer e-mails about Appellant that violated no

rules. App.-62. The e-mails included to criticize

Appellant included her complaint about the

employee recordkeeping system that was allowing

someone to go into the Dispatcher’s office and

throw away slips of paper that showed when

Appellant was to be dispatched for work and when

she was unavailable with advanced approval.

App.-53,54,58.

Kosa requested an opinion from Manning,

the employment specialist designated in the hiring

letter to interpret the rules related to Appellant’s

employment.

App.-56,70.

Manning stated on

November 7, 2013, all unavailabilities and all other

issues did not support termination. App.-55. This

only left alleged unavailabilities 20 and 21 (which

are double counted since the watch goes past

midnight) and are in response to the LaCroix

harassment. App.-75,80.

Appellant was sent to the boat on which

LaCroix was a manager. After Appellant filled out

her pay sheet, LaCroix changed her pay rate to an

incorrect lower pay.

Ms. Ortloff opposed the

incorrect pay (since she had heard about this pay

padding method by the managers) and she was

harassed. LaCroix sent an e-mail to Kosa claiming

he felt harassed after he changed Appellant’s pay to

an incorrect amount. App-56. Appellant requested

an unavailability according to the rules and there

was no effect on the ferry since it was tied up at the

time.

App.-80,81.

To prevent other junior

employees from having their pay shorted,

Appellant made a spreadsheet to show the junior

employees how to calculate their pay and explained

the spreadsheet to fellow junior employees. App.81, ¶ 31. It is believed the spreadsheet is still in

use to this day. Id.

The Appellees, and Manning, the personnel

specialist designated in the hiring letter to

interpret the rules that apply to Appellant, admit

the Appellant violated no Washington State Ferry

rules. App.-55,70.

Appellant then received a letter of

termination from Vonheeder without any notice or

opportunity to be heard. App.-50. Appellant and

her union representative requested a hearing to

respond to the allegations, which have been shown

to be unfounded, but the request was denied. After

the MEBA union reviewed the case in 2014, it

decided Ms. Ortloff had been wrongfully terminated

and rehired her under the CBA.

App.-83,84.

Appellant’s name was sent as an employee to be

dispatched, but the management refused to

dispatch Appellant. Id.

Manning ultimately

admitted to Appellant in late December, 2014 the

management had blacklisted her in some way and

she would never be hired. App.-84. See App.-48 for

one of the blacklists.

The early months of this case demonstrate

the atmosphere that has allowed the pay padding

to creep back down into the engine rooms and take

root. It appears some managers who had been

scheming a pay increase realized the case would

bring unwanted attention to the unfounded

request, so they chose that moment to attempt the

pay increase. App.-40. It proposed the manager’s

current $99,000 base salary plus their average

$51,000 in overtime and padding, be increased by

another $70,000, making the compensation for

some of these 50 managers up to $210,000. Id.

Whistleblowers informed KING Channel 5 News of

the unfounded proposed raise, KING-5 investigated

the raise, and wrote a news story that was

broadcast on television and published on their

website.

Griffith argued she had a study that

supported the raise. App.-36,46. KING-5 looked at

the study and found it did not support the raise and

in fact showed the managers were being overpaid

compared to their peers. Id. Right before the

second story aired, Griffith sent an internal e-mail

to all WSF employees that blamed the criticism on

“former disgruntled employees.” App.-46. The email was leaked to KING-5, and it formed the basis

of another news story. Id. Griffith then announced

her intention to resign two months later, on or

about January 31, 2017.

2. Discovery Issues at the District Court

After the Appellees were served with the

Complaint, Appellees admitted they located the emails related to Appellant’s employment and the emails related to the six possible comparator

probationary

employees

identified

the

Complaint.

Appellees stated they were reading the emails related to the case, with several Assistant

Attorneys General, and were not sure they could

get them all read before in Initial Disclosures were

due. The Appellees then stated they did read all of

the relevant e-mails prior to the due date of the

Initial Disclosures in December, 2016. Dist.Ct. dkt.

23, pp. 57.

Appellant submitted a set of interrogatories

and requests for production that were due a couple

days before Griffith was scheduled to resign.

Griffith provided interrogatory answers but

failed to provide most of the e-mails related to

Appellant, that the Appellees had admitted they

located and read a month earlier. Griffith also

submitted a list of 21 unavailabilities for Appellant.

In her detailed declaration Appellant showed at

least 11 were either false statements through

documentation or double counted. App.-76-80.

Griffith then physically left the State of

Washington, and claimed she wanted to spend

more time with family.

Appellant requested all e-mails related to

her that Appellees read. The Appellees stated they

would only provide the e-mails if the Appellant

provided “search terms.” The Appellant reminded

Appellees they previously read the e-mails and they

were accessible. Appellant further did not know

key information, such as the terms being used in

Appellees’ illegal blacklisting system. During a

discovery conference, the Appellees cited statistics

about Appellant’s unavailabilities compared to the

comparators from the e-mails, showing not only

that they located and read the e-mails, but they

had collated the information in the e-mails

sufficiently to produce statistics. Dist.Ct. dkt. 23,

pp. 57.

After the discovery conference Appellant

filed a discovery motion to get the e-mails related to

the Appellant and comparator probationary

employees for the five months they were on

probation. The Appellees to not provide the emails, which suggested the content of some of emails was adverse. The motion was denied in part

and required Appellant to provide 10 search terms

for the e-mails related to the Appellant. App.-23.

The discovery deadline was looming, so the

Appellant chose one of the comparators, Dave

Hurtt, and deposed him in the last few days of

discovery.

had

approximately

unavailabilities, including 2 related to his

girlfriend and he was not fired. App.-89-92.

Appellant had between 7 and 10 unavailabilities

and she was fired. App.-76-82. The Appellees’

employee record keeping system is ineffective, and

therefore Appellant’s documentation proving it was

between 7 and 10 is the best estimate. Id.

During one of the depositions at the end of

discovery, Appellant was handed four e-mails the

MEBA union had given the Washington State

Attorney General’s Office 30 days before. App.48,49. Apparently the union was watching the

proceedings and noticed the blacklists had not been

discussed and introduced the blacklisting e-mails

by providing them to the Appellees.

The e-mails are classic smoking gun e-mails

that discuss one of the blacklists the management

had been secretly keeping in violation of

Washington State Law. App.-26. The e-mails show

Kosa distributing the blacklist, which contains the

Appellant’s name. App.-48. They should have been

provided five months earlier when the requests for

production were due, because they are responsive

to Interrogatory No. 1 and Request for Production

A. App-75 (indicating Appellees had 1,458 e-mails

related to Appellant).

3. Summary Judgment at the District

Court

The District Court suspended the case just

before trial. Since the Appellees repeatedly stated

the Appellant had not updated the Complaint to

reflect the facts she discovered in the case,

Appellant filed a Motion to Amend the Complaint,

which was granted. After the Complaint was

amended, the District Court dismissed the case by

summary judgment. App.-7.

4. Appeal to the Ninth Circuit

The Appellant filed an appeal to the Ninth

Circuit Court of Appeals. The basis of jurisdiction

was 28 U.S.C. § 1291. The Ninth Circuit affirmed

the District Court in an Order filed on July 18,

2019.

App.-2.

Appellant filed a Motion for

Rehearing and Rehearing En Banc, which was

denied on August 23, 2019. App.-1.

H. REASONS FOR GRANTING THE WRIT

The Ninth Circuit misinterpreted

Connick v. Meyers when ruling on Appellant’s

First Amendment Free Speech cause of

action, creating a conflict with an important

precedent of this Court, and the opinion

differs with other circuits regarding what

parts of the record must be considered.

The Appellant brought Cause of Action

Three under the First Amendment Free Speech

Clause, and like all of Appellant’s causes of action,

under 42 U.S.C. §§ 1983 and 1988. U.S. Const.,

amend. I, 42 U.S.C. §§ 1983, 1988.

The Ninth Circuit’s opinion should be

reviewed under Supreme Court Rule 10(c) since it

decided an important issue of federal law that

conflicts with an important precedent of this Court.

S.Ct.R. 10(c).

The Ninth Circuit’s opinion is brief, but it

does not appear to consider all parts of the record

that other circuits consider, making it also

reviewable under Rule 10(a) for this reason. The

Eleventh Circuit, for example, interprets the

Connick “whole record” to include the “main thrust”

of the speech, the motive of the speech, and who the

speech is communicated to.

Mitchell v.

Hillsborough County, 468 F.3d 1276,1283 (2006).

The standard of review for a summary

judgment order is de novo.

The court must

determine, viewing the evidence in the light most

favorable to the nonmoving party, whether there

are any genuine issues of material fact and

whether the movant was entitled to judgment as a

matter of law. Fed.R.Civ.P. 56(a), Anderson v.

Liberty Lobby, Inc., 477 U.S. 242,249 (1986). The

Court must not weigh the evidence or determine

the truth of the matter but only determine whether

there is a genuine issue for trial. Id.

There are three examples of protected

speech. Appellant caught LaCroix shorting her pay

to support a pay padding scheme. App.-80,81.

Appellant showed there is a pattern of this conduct

when she showed Appellee Trimmer was involved

in the same scheme. Trimmer took hours from

junior personnel, just as LaCroix had attempted,

and then padded that time up at his chief’s rate of

pay. App.-63-69.

The second example of speech and conduct

protected by the First Amendment is the

production and distribution of a spreadsheet with

instructions to other junior personnel to prevent

the managers from shorting their pay. App.-81.

Third, Appellant criticized the inefficient, ad

hoc paper recordkeeping system which allowed

junior employees to be harassed by removing the

slips of paper from the Dispatcher’s office that

indicated work assignments and approved

unavailabilities. App.-53,54.

There are two relevant time periods; the

2013 termination and the 2014 refusal to hire due

to the blacklist after the union rehired Appellant

and the management refused to dispatch her.

Connick requires an examination

of the record as a whole for an effective

determination of the public interest,

and to balance the interest of the

employer and employee.

The Ninth Circuit erred in interpreting

Connick v. Myers, 461 U.S. 138, 146 (1983), because

it did not consider the whole record. It stated even

if there was a connection between helping other

employees and her discharge, the First Amendment

would not protect the actions. App.-4, n. 1. The

Ninth Circuit went on to state there were no facts

connecting the discharge to championing the rights

of probationary employees generally. App.-4.

The Ninth Circuit did not consider all of

Appellant’s motives and actions, such as criticizing

the recordkeeping for on-call oilers that allowed the

paper slips containing the work assignments and

unavailabilities of junior employees to be easily

discarded. App.-53,54. The main thrust was

clearly to improve the conditions that were causing

inefficiency and enabling harassment.

Id.

Appellant could have focused only on her own

interests by ignoring the pay padding and the

inefficient record keeping system, but she chose to

help others whose rights were being violated

through respectful criticism.

In Connick, this Court stated, “Whether an

employee’s speech addresses a matter of public

concern must be determined by the content, form,

and context of a given statement, as revealed by

the whole record.” Connick, 461 U.S. at 148.

Content of the speech is the most important

factor when examining the record as a whole. See

Givhan v. W. Line Consol. Sch. Dist., 439 U.S.

410,415-16 (1979).

Resisting a pay padding scheme

involving shorting the pay of junior

employees so the managers can pad

their pay is protected by the First

Amendment.

Placing this argument in context, this was

right at the end of Appellant’s five-month

probationary period in late 2013.

The WSF

employment specialist Manning had just stated

Appellant could not be fired for all unavailabilities

and comments up to that time. App.-55. Appellant

was therefore sent to the boat LaCroix worked on,

and LaCroix immediately went to work violating

Appellant’s rights.

LaCroix attempted to short Appellant’s pay

and she respectfully challenged the action.

Appellant had heard managers were changing the

pay of junior employees to a lower amount and then

padding that pay as overtime. Ms. Ortloff caught

manager LaCroix attempting to illegally change

her pay. In response, LaCroix harassed Ms. Ortloff

and tried to suggest she was harassing him for

making the request to stop shorting her pay and

return the money improperly withheld, so she

requested an unavailability according to the rules.

App.-80,81. Ms. Ortloff then made a spreadsheet

explaining the pay procedure and gave it to several

junior employees so that the managers could not

change the pay of junior employees and then use

that withheld pay to pad their own overtime. App.81. The spreadsheet is in use to this day. Id.

Appellant showed a pattern of managers

shorting the pay of junior employees so they could

pad their pay with double time. App.-63-69,31.

Appellee Trimmer was a part of the scheme to

short the pay of other junior personnel on his

watches and pad his own pay with overtime. Id.

This was a method of secretly padding pay that was

difficult for the WSF accounting department or

State Auditor to detect because it shifted the hours

and double time to the chiefs without a new activity

being generated (unlike the Special Projects

Marable stopped, which created fictitious projects).

The taxpayer was harmed because the pay and

overtime for a chief is much higher, allowing the

chiefs to claim $87 per hour for basic cleaning on

their off time. This violated state law, including

the law adopting the rules of the CBA, and the law

prohibiting the unlawful withholding of the junior

employees’ pay when Trimmer took their hours.

Rev. Code Wash. §§ 47.64.170(7), 49.52.050(2),

App.-26,27,28,31.

By not interpreting Connick to require an

examination of the whole record, the Ninth Circuit

opinion also overlooks the actions of Trimmer who

was involved in the scheme, his harassment of

Appellant, and the adverse e-mails with no

disciplinary charges. Appellant added instructions

to her spreadsheet to stop the withholding of the

pay of other junior employees so the managers

could not pad the pay as overtime. Second, it

overlooks the speech related to the system of poor

record keeping that applied to all employees, but

impacted the junior on-call employees the most.

Connick does not require a large

class of persons to be protected, helping

employees resist a pay padding scheme

is protected, and the spreadsheet can be

distinguished from the Connick memo.

The Ninth Circuit suggested Connick

requires a large class of persons before an employee

is protected under the First Amendment. App.-4, n.

It was suggested the handful of junior

employees Appellant helped with their pay does not

amount to the 15 people the Connick memo

involved.

Appellant stated she shared the

spreadsheet with others and appears to be in use

today. App.-81. The shorting Appellant proved

after discovery by Trimmer will also likely prevent

many junior employees from being shorted in the

future. Additional junior employees were helped

when Appellant criticized the Dispatcher’s record

keeping system. App.-63-69.

The Ninth Circuit drew other parallels to the

Connick memo. Appellant’s speech differs from the

employee in Connick, because the speech is not a

questionnaire distributed to challenge how an office

is managed. It opposed illegal shorting of pay. The

spreadsheet was not a questionnaire like in

Connick, but a spreadsheet and explanation for

calculating pay intended to prevent illegal conduct

by state managers.

Therefore, the form and

content were very different from the Connick

questionnaire discussing management methods.

Washington State Law prohibits the

withholding of pay.

Rev. Code Wash. §§

49.52.050(2), 47.64.170, App.-28,31. LaCroix was

clearly violating this standard and he eventually

admitted he was violating the CBA by returning

the money. The MEBA union agreement stated

probationary employees had to correct these issues

themselves, because it states they do not have

access to the grievance procedure. App.-32. When

LaCroix harassed Appellant and she requested an

unavailability, the ferry was tied up, so there was

no effect on the boat in requesting a relief. App.-81.

LaCroix apparently sensed trouble and

claimed he was being harassed. App.-57. Since

Manning had said all unavailabilities and all issues

she received notice of prior to November 7, 2013 did

not meet the standard for termination, the

Appellees terminated Appellant for the LaCroixrelated unavailabilities. App.-55.

This is precisely the type of First

Amendment speech we want to protect due to the

history of corruption at the Washington State

Ferries. In Marble v. Nitchman, the Appellant’s

boyfriend was an important witness who identified

widespread pay padding that shows this problem

has persisted for more than 20 years. Marable, 511

F.3d at 924.

In Connick, the Court noted, “The First

Amendment “was fashioned to assure unfettered

interchange of ideas for the bringing about of social

changes desired by the people.” Connick, 461 U.S.

at 145 (citing Roth v. U.S., 354 U.S. 484 (1957),

New York Times Co. v. Sullivan, 376 U.S. 254,269

(1964)).

The Court further stated, “speech

concerning public affairs is more than selfexpression; it is the essence of self-government.”

Id. (citing Garrison v. Louisiana, 379 U.S. 64,74-5

(1964)).

The Appellees appear to have abandoned all

of the unavailabilities and all other actions cited for

termination except for this one related to LaCroix

(because their employment specialist stated all

action before the date of this unavailability did not

warrant termination). App.-55. Vonheeder then

used the LaCroix unavailability as a basis for firing

Ortloff. App.-50. The e-mails make it clear Kosa

assisted in the termination and the termination

letter. App.-51,55,56,57,48,49. Griffith was also

on notice of the ongoing violation of Constitutional

rights through the telephone conference with Floyd

McLaughlin. Dist.Ct. dkt. 45, p. 4 (McLaughlin

discussing Griffith telephone call).

In 2014, Appellant’s union determined she

was wrongfully terminated in late 2013 and rehired

her under the CBA. App.-83. Kosa participated in

the blacklisting, and Griffith knew unconstitutional

violations were occurring but failed to act. App.-48.

The blacklisting violated Washington State Law

and prevented Appellant from being dispatched,

causing a constructive discharge. Rev. Code Wash.

§ 49.44.010, App.-26,48. Washington State Courts

have ruled the blacklisting law applies to

employment civil actions. Moore v. Commercial

Aircraft, 278 P.3d 197,203 (Wash. Ct. App. Div. I),

rev. denied, 291 P.3d 254 (Wash. 2012)(quoting

R.C.W. § 49.44.010).

Criticizing an inefficient public

employee record keeping is also

protected by the First Amendment.

The third example of protected speech was

criticism of the employee recordkeeping system

that tracked the work assignments and

unavailabilities of junior employees in the

Dispatcher’s Office. As argued above, the Ninth

Circuit overlooked these complaints. Appellant

periodically requested unavailabilities just like the

other probationary on-call oilers. Her requests

were repeatedly lost. App.-53,54,58. This was

another type of harassment, and the inefficient

system prevents us from knowing who was

discarding the notes containing Appellant’s work

assignments and unavailabilities.

Appellant brought this to the attention of the

managers. App.-53,54. Appellant had experience

in modern record keeping, because she worked at

Physio-Control Corporation for almost 30 years.

She therefore suggested a better system of record

keeping, such as a computerized or e-mail system.

Id. The managers immediately suggested she was

committing misconduct by identifying the problem

and suggesting the improvements. App.-52. Kosa

submitted this suggestion by Appellant to Manning

as another reason for termination (and once again,

the Progressive Disciplinary System, the Appellees’

written disciplinary system was not used). App.56,33.

The Ninth Circuit’s adoption of the

District Court’s dismissal of Appellant’s

retaliation claim violates Pickering.

The Ninth Circuit’s opinion on Appellant’s

retaliation claim, appears to violate an important

precedent of this Court. S.Ct.R. 10(c). To prove

First Amendment retaliation, Appellant must prove

she undertook a protected activity; the employer

subjected her to an adverse employment action;

and a causal link between her protected activity

and the adverse employment action. Pickering v.

Bd. of Education, 391 U.S. 563,574 (1968),

McGinest v. GTE Serv. Corp., 360 F.3d 1103,1124

(9th Cir. 2004).

To show retaliation protected by the First

Amendment, Appellant must show protected

activity was one of the reasons and but for that

activity, she would not have been fired. Villiarimo

v. Aloha Island Air, Inc., 281 F.3d 1054,1064-65 (9th

Cir. 2002). Causation can be proven with timing

where the activity follows on the heels of protected

activity. The Appellant must prove the Appellees

knew of the protected activity. Cohen v. Fred

Meyer, Inc., 686 F.2d 793,796 (9th Cir. 1982),

Here there are four examples of retaliation.

Three occurred in 2013, and one occurred in 2014.

In 2013, it was suggested Appellant was

committing misconduct by criticizing the poor

record keeping system. App.-52. Appellant was

sent to LaCroix’s boat, likely to be harassed, and

LaCroix attempted to short her pay which violated

the CBA and State Law. CBA, § 29.08, Rev. Code

Wash. §§ 47.64.170(7), 49.52.050(2), App.-25,28,31.

Appellant resisted the illegal pay padding scheme

of the managers who short the pay of junior

employees, then pad that pay as overtime.

Appellant showed Trimmer was also involved in

this same scheme. In retaliation for criticizing

their system of pay padding, LaCroix claimed he

was being harassed, after he attempted to short

Appellant’s pay, and sent an adverse e-mail to

Kosa.

LaCroix harassed Appellant, so she

requested an unavailability. App.-80,81.

Vonheeder

then

used

the

LaCroix

unavailability as the basis for firing Appellant,

after

Manning

indicated

all

unavailabilities did not satisfy the CBA’s “bona fide

reason(s) related to the business operation”

requirement for termination. App.-51,75.

This

was retaliation, and but for her speech resisting the

illegal shorting of her pay, she would not have been

terminated.

It has been shown Appellant had 7-10

unavailabilities. App.-85. The Appellees refused to

provide the information on the comparators.

Appellant deposed comparator Dave Hurtt, who

stated he had approximately 13 unavailabilites and

he was not fired.

App.-89-92.

The LaCroix

unavailability request followed the proper

procedure and there was no effect on the ferry since

it was tied up at the time. Appellant was also

brought up on no Code of Conduct charges under

the Appellees’ Progressive Disciplinary Policy.

The third way Appellant was retaliated

against was to be placed on the blacklist. App.-48.

The blacklist violated Washington State Law. Rev.

Code Wash. § 49.44.010, App.-26.

The union

provided their copies of some of the Appellees’

withheld e-mails that show Kosa distributing the

illegal blacklist. App.-48. It should be noted

whistleblower Musselman is also on the blacklist.

In 2014, Appellant was rehired by the union

under the CBA and sent over to the WSF to be

dispatched.

The WSF refused to dispatch

Appellant because she had been placed on the

blacklist. Appellant was therefore constructively

discharged.

Griffith was on notice of the

Constitutional violations occurring but failed to act.

Dist.Ct. dkt. 45, p. 4 (McLaughlin discussing

Griffith telephone call). In fact, after she later sent

the 2016 memo criticizing the whistleblowers,

Griffith resigned and left the State of Washington.

The Ninth Circuit misinterpreted

Roberts v. U.S. Jaycees and Pickering v. Board

of Education when ruling on Appellant’s

Association Claims.

The Ninth Circuit stated there was no

protected association with Floyd McLaughlin, then

assumed arguendo that even if other associations

existed, those associations would not be protected.

App.-4, n. 1. This conflicts with Roberts v. U.S.

Jaycees and Pickering v. Board of Education.

S.Ct.R. 10(c), Roberts v. U.S. Jaycees, 468 U.S.

609,618 (1984), Pickering, 391 U.S. at 574.

There are two types of association here.

First there is Freedom of Association for expressive

purposes under Cause of Action Two. Appellant

must show she was a part of a group or identified

as being a part of a group that engaged in a

collective goal or action for expressive purposes,

and membership or perceived membership in the

group was a substantial motivating factor for the

adverse action. Roberts, 468 U.S. at 618.

Appellant coordinated with other junior

employees to prevent the managers from shorting

their pay. LaCroix attempted to short Appellant’s

pay, she resisted the illegal act, was harassed, and

requested an unavailability. Manning stated all

unavailabilities up to then did not satisfy

termination. Vonheeder then terminated Appellant

for this availability (which is double counted as

number 20 and 21). App.-75,82. Appellant was

placed on a blacklist and was not dispatched when

she was rehired the next year. App.-48,84.

The second type of association is for personal

relationships under Cause of Action One.

Appellant must show she was perceived to have a

personal relationship and it was a substantial

motivating factor in an adverse action. Roberts,

468 U.S. at 609. Appellant was the girlfriend of

whistleblower McLaughlin. Kosa submitted the

two unavailabilities related to McLaughlin as a

reason to terminate Appellant and these were

included in the Vonheeder list supporting

termination. App.-74,79, Dist.Ct. dkt. 48, p. 78, dkt.

45, p. 4

(Kosa admitted to receiving e-mail

referring to Floyd as Theresa’s “other half”,

McLaughlin

explained

relationship

and

harassment to Griffith).

The comparator was

allowed to be unavailable for reasons related to his

girlfriend but Appellant’s similar unavailabilities

were used to terminate her. App.-89-92. Appellant

showed that once the false entries and double

counting are removed from the list of 21, her 7 to

10 unavailabilities are less than the comparator’s

approximately 13 unavailabilities. App.-76-80.

This Court’s rules governing the

interpretation

collective

bargaining

agreements were misinterpreted, causing the

Ninth Circuit to not find a property right in

Appellant’s job.

The Ninth Circuit ruled there was no

property right under the Fourteenth Amendment

because the CBA stated an employee can be

terminated for any “bona fide reason(s) related to

the business operation”. App.-4. The Ninth Circuit

cited Allen v. City of Beverly Hills, 911 F.2d

367,371-72 (9th Cir. 1990).

Allen was a California case and that court

stated, “in California … public employment is not

held by contract but by statute ...” Allen, 911 F.2d

at 373.

The present case is a Washington State case

and in Washington, the Legislature authorized the

MEBA union and the State of Washington to

negotiate the terms of a collective bargain

agreement and enter into an agreement. App.-25,

Wash.Rev.Code § 47.64.170. Therefore, we need to

look to the terms of the CBA to interpret the degree

of the property right conferred.

By not analyzing the meaning of the phrase

“bona fide” in the CBA phrase, “bona fide reason(s)

related to the business operation”, the Ninth

Circuit ceded the interpretation to the government

employer. The words “bona fide” created a definite

limit on the employer that qualify as an expectation

of entitlement and protected property interest.

Board of Regents v. Roth, 408 U.S. 564,577 (1972).

The Ninth Circuit’s opinion violates

important precedent of this Court when

interpreting collective bargaining agreements.

S.Ct.R. 10(c). Collective bargaining agreements are

generally governed by federal law and traditional

rules of contract construction apply when not

inconsistent with federal labor law.

See

Transportation-Communication Employees Union

v. Union Pacific R.R., 385 U.S. 157,160-61

(1966)(citation omitted), in which this Court stated;

“In order to interpret such an agreement it is

necessary to consider … the practice, usage

and custom pertaining to such agreements.

This is particularly true when the agreement

is resorted to for the purpose of settling

jurisdictional

dispute

over

work

assignments.” Id., 385 U.S. at 161.

Here the phrase, “bona fide reason(s) related

to the business operation” is not defined in the

CBA. We therefore turn to the practice, usage and

custom pertaining to such agreements.

The Appellees’ employment law

specialist designated in the hiring letter

to interpret the rules that applied to

Appellant created a limit on the ability

to terminate and a property right under

the Fourteenth Amendment.

When Appellant received her hiring letter,

Manning was designated in the letter to interpret

the rules that applied to Appellant’s employment.

App.-70. At one point Kosa asked Manning to

evaluate whether the Trimmer e-mails, all

unavailabilities, and all other issues met the

termination standard under the CBA. App.-56.

Manning indicated the unavailabilities and all

other issues did not meet this standard, “… right

now you have nothing.” App.-55. This shows the

wording of the CBA placed a limit on the decision

maker, and a property right.

Second, the Appellees refused to provide the

unavailabilities of the comparators in discovery.

The Appellant therefore deposed one of the

comparators

who

had

approximately

unavailabilities with two associated with his

girlfriend and he was not terminated. App.-89-92.

Appellant had 7 to 10 unavailabilities, including

two related to her boyfriend, and she was

terminated. App.-82.

The comparator with more unavailabilities

was not fired, which means the practice, usage, and

custom of the phrase “bona fide reason(s) related to

the business operation” placed a limit on the

employer and was an expectation of entitlement

and protected property interest.

The Ninth Circuit’s interpretation

of this Court’s precedent gives an

employee bringing a claim under the

Fourteenth Amendment fewer rights

than similar statutory enactments.

The inconsistency of the Ninth Circuit’s

interpretation can be seen in a comparative study

of other statutes. In other employment statutes

such as the Age Discrimination in Employment Act,

the phrase “bona fide” is used in the phrases: bona

fide occupational qualification, bona fide seniority

system, and bona fide employee benefit plan but it

is not defined. See 29 U.S.C. § 623(f). If we were to

simply say the phrase “bona fide” is not defined in

the statute, and therefore we have to defer to the

employer, there would be no limits on the employer

and it would frustrate the purpose of the statute.

Similarly, if one were to say the CBA’s “bona

fide” requirement means whatever the employer

decides, then the phrase becomes meaningless. It

would ignore this Court’s rules for interpreting

collective bargaining agreements.

Employees

bringing a claim under this provision would have

less protection under the Fourteenth Amendment

than they would under statutory enactments using

this phrase such as the Age Discrimination in

Employment Act. Id.

The LaCroix unavailability was

not a bona fide reason related the

business operation and Appellant had

fewer

unavailabilites

than

other

employees who were not terminated.

The LaCroix unavailability can be dealt with

several ways. First, Manning effectively ruled 19

unavailabilities are not a bona fide reason related

to the business operation. App.-55,74. Appellant

later showed at least 11 of the 21 are false or

double counted with documentation. App.-76-80.

The second reason the unavailability related

to the LaCroix harassment is not dispositive is

because the comparator had 13 unavailabilities and

he was not terminated, and Appellant’s 7-10 are

less than 13.

The Appellees withheld the

comparator e-mails to the present day. As the nonmoving party in summary judgment, Appellant is

entitled to a presumption the other comparators

had this number or more unavailabilities.

Anderson, 477 U.S. at 249.

Third, the unavailability related to the

LaCroix harassment (which is double counted) was

needed because LaCroix tried to intimidate

Appellant after she caught him shorting her pay in

violation of the CBA and State Law. Appellant

showed how the shorting scheme worked by

showing Appellee Trimmer was engaged in the

same scheme in that he was shorting the time of

junior employees then claiming that time himself.

This allowed him to claim overtime on his chief’s

pay and “clean” on his off time at $87 per hour.

Appellant received approval for the unavailability

related to the LaCroix harassment, albeit on short

notice due to harassment, and there was no effect

on the ferry because it was tied up at the time.

App.-81.

Finally, public policy does not support

finding an unavailability related to resisting an

illegal pay padding scheme, a bona fide reason

related to the business operation.

Having found no property right in her

job, the Ninth Circuit did not discuss

Appellant’s Procedural Due Process claims.

The Ninth Circuit opinion found no property

interest, so it did not discuss Appellant’s

Procedural Due Process claims.

Public employees with a property right in

their job are entitled to a termination hearing that

must give the employee notice of the alleged

disciplinary charges and a right to respond. U.S.

Const., amend. XIV, Cleveland Board of Education

v. Loudermill, 470 U.S. 532,538-39 (1985).

Appellant showed above she had a property right in

her job.

Procedural

Due

Process

requires

consideration of the private interest affected, the

risk of an erroneous deprivation, and the probable

value of additional safeguards. Mathews v.

Eldridge, 424 U.S. 319,335 (1976).

Here there are two time periods. First, in

late 2013, Appellant was terminated with no

hearing. App.-82. The private interest was great

because she spent 18 months preparing for the job,

which included specialized schooling in another

state and an internship.

The risk of erroneous deprivation was high

because 15 days before, Manning stated on

November 7, 2013 Appellant’s unavailabilities did

not meet the standard for termination, and more

than half were shown to be false or double counted.

App.-55,74. Appellant’s 7-10 unavailabilites were

less than other comparators.

App.-89-92.

Therefore Appellant should not have been

terminated. This means the additional safeguards

would have been valuable with almost no cost other

than a short hearing.

The second Procedural Due Process violation

was the placement of the Appellant on an illegal

blacklist with no notice or opportunity to be heard.

This action should be a prima facie violation of the

Fourteenth Amendment, because it is illegal, and

once on the list, Appellant was not able to get off

the list when she showed her termination was

wrongful. App.-26,48.

The third Procedural Due Process violation

was the 2014 constructive discharge with no notice

or opportunity to be heard. App.-84. The union

decided Appellant had been wrongfully terminated

in 2014, hired her under the CBA, and sent her

name to be dispatched.

Appellant was on the

blacklist so she was not dispatched, so she was

constructively discharged.

Appellant’s Substantive Due Process

rights were violated when the termination

was based on false information, and after she

was rehired, a blacklist caused a constructive

discharge.

Substantive due process is violated when

officials act in an arbitrary or capricious manner, or

in a manner that shocks the conscience. U.S.

Const., amend XIV, County of Sacramento v. Lewis,

523 U.S. 833,845-46 (1998), Harrah Independent

School District v. Martin, 440 U.S. 194,198 (1979).

This right includes a right to be "free from

discharge for reasons that are arbitrary and

capricious, or for reasons that are trivial or

unsupported by a basis in fact. Id.

Appellant was terminated without any Code

of Conduct charges being alleged.

The

unavailabilities also contained false statements.

Appellant had fewer unavailabilities compared to

other employees who were not fired, and the only

unavailabilities after the employment specialist

made her ruling related to the LaCroix

harassment. App.-76-80,89-92.

Appellant was then put on a blacklist that

violated state law and caused a constructive

discharge the following year when her union

rehired her.

These facts are arbitrary and

capricious and unsupported by a basis in fact.

County of Sacramento, 523 U.S. at 845-46, Harrah

Independent School District, 440 U.S. at 198. The

blacklist also shocks the conscience.

The Ninth Circuit misinterpreted this

Court’s long line of cases that have defined

the Liberty Interest under the Fourteenth

Amendment.

The Ninth Circuit’s opinion decides the

Appellant’s Fourteenth Amendment Liberty

Interest claims in a way that conflicts with

decisions of this Court. S.Ct.R. 10(c), U.S. Const.,

amend XIV.

This Court has ruled public employees have

a Fourteenth Amendment liberty claim under 42

U.S.C. § 1983 against supervisors who make

adverse statements about the employees. Paul v.

Davis, 424 U.S. 963,701,708-10 (1976)(citing Roth,

408 U.S. at 577). The rule in Paul has come to be

known as the "stigma plus" test for establishing

deprivation of liberty based on governmental

defamation and requires a stigmatizing statement,

the accuracy of which is contested, plus the denial

of some more tangible interest or the alteration of a

right or status. Paul, 424 U.S. at 701,711.

The blacklist violated Appellant’s

Fourteenth Amendment Liberty Interest,

because it prevented Appellant from being

dispatched in 2014 after the union rehired

her under the CBA.

The Ninth Circuit applied Hyland v. Wonder,

972 F.2d 1129 (9th Cir. 1992) and found the

blacklist did not severely stigmatize appellant.

App.-4. This misinterprets Paul and Roth, because

it redefines a tangible interest or an alteration of a

right, since the blacklist caused the constructive

discharge. Paul, 424 U.S. at 711.

After the Appellant was fired in 2013, she

was put on a blacklist and therefore could never be

hired. The blacklist violates state law. App.-26,48.

Appellant’s union reviewed her case in 2014 and

ruled she had been wrongfully terminated and the

union rehired her under the CBA and sent her

name to the WSF management for dispatching.

App.-83,84. Since Appellant was on a blacklist, and

there was no known procedure for getting a name

off the blacklist, she was not dispatched. Id.

Thus the blacklist prevented Appellant from

being dispatched and caused a constructive

discharge, economic harm, and emotional distress.

The Griffith e-mail leaked to the Press,

was initially circulated internally to all WSF

workers and labeled the whistleblowers

“former disgruntled employees”.

A few months after Appellant filed her case

in the District Court, a group of 50 engine room

chiefs plus a few others attempted an unsupported

pay raise. App.-40. They wanted an unsupported

pay raise as hight as $70,000.

Id.

The

whistleblowers believe the WSF is sinking into debt

so they blew the whistle to KING-5 News.

KING-5 News wrote and broadcast a story

on the proposed raise, showing the pay padding at

the WSF is still a matter of great public concern.

Griffith stated she had a study that supported the

requested pay raises. App.-46. Hours before the

story was aired, Griffith sent an e-mail to all WSF

employees and blamed the criticism on “former

disgruntled employees.” Id. KING-5 then proved

Griffith’s study showed the managers were already

being overpaid. App.-36.

The Griffith e-mail violated Appellant’s

Fourteenth Amendment Liberty interests in two

ways. First, internally, it damaged her reputation

and effectively made it impossible for her to get

work with any person or company associated with

those who received the e-mail, because it made her

look like she was stabbing her fellow union

members in the back after being fired.

Combined with the blacklist, the e-mail put a

cloud over Appellant’s loyalty to the union and any

future employer.

Externally, it damaged her

reputation because it was leaked to the Press and

made a part of the later story when Griffith

resigned.

The oiler job Appellant trained for is part of

a larger engine room team in a large engine room.

These engine rooms exist on larger vessels such as

ferries, cargo ships, and cruise ships. Appellant

would have to move to another state to work on a

similarly large ferry, or ship out to other ports on a

larger vessel to use her training. Appellant would

face some of the same union managers and former

ferry managers who received the memo, and thus

her ability to use her training is mostly destroyed.

The Ninth Circuit’s opinion created an

important federal question regarding when

Electronically Stored Information, must be

produced.

The Ninth Circuit affirmed the District

Court rule that a party which has reasonably

accessible electronically stored information can

limit the identification and production of the

electronically stored information by requiring

search terms. App.-5. This is an important federal

question that has not been, but should be decided

by this Court. Sup.Ct.R. 10(c).

Under the discovery rules, a Court has the

authority to order discovery or grant a discovery

default. Fed.R.Civ.P. 37(b)(2)(A)(vi), 37(c)(1)(C),

Fair Housing of Marin v. Combs, 285 F.3d 899,90506 (9th Cir.), cert. denied, 123 S.Ct. 536 (2002).

The standard of review for the legal

interpretation of “reasonably accessible” for

electronically stored information should be

de novo.

Generally, the standard of review for an

order denying a motion for a discovery default and

denying in part a motion to compel discovery is

abuse of discretion. Fair Housing of Marin, 285

F.3d at 905. Where discovery sanctions relate to

the resolution of a legal issue, the review is de

novo. Palmer v. Pioneer Inn, 338 F.3d 981,985 (9th

Cir. 2003). The Ninth Circuit appears to have only

applied the abuse of discretion standard. App.-5.

The standard for interpreting the legal definition of

“reasonably

accessible”

relates

electronically stored information under Federal

Rules of Civil Procedure 26(b)(2)(B), 33(a)(1), and

34(a)(1)(A) should be de novo. Palmer, 338 F.3d at

985.

After a party locates and reads

responsive e-mails, they are “reasonably

accessible” for interrogatories and requests

for production under an objective test, and

the party can not limit or condition

production on search terms.

The issue is whether a party can limit or

condition the identification and production of emails under Rule 34(a)(1)(A), on the requesting

party guessing what words are in the e-mails with

search terms, where the party resisting production

has shown the e-mails are reasonably accessible by

locating, reading, and collating the e-mails.

Federal Rule of Civil Procedure 26(b)(1)

states in part: “… Parties may obtain discovery

regarding any nonprivileged matter that is relevant

to any party's claim or defense and proportional to

the needs of the case …” Fed.R.Civ.P. 26(b)(1).

The party resisting production has the

burden to show the e-mails are not reasonably

accessible because of undue burden or cost.

Fed.R.Civ.P. 26(b)(2)(B). A party is not required to

provide electronically stored information if the

information is not reasonably accessible because of

undue burden or cost. Id. This test should be an

objective one. The 2006 Advisory Committee Notes

on Rule 26(b)(2)(B) state a party, “should produce

electronically stored information that is relevant,

not privileged, and reasonably accessible.”

Fed.R.Civ.P. 26(b)(2)(B) advisory committee’s note

(2006).

Later in the notes, the Advisory Committee

again states there is a precondition of finding

information not reasonably accessible before a

party can limit the production of the information;

“If the parties cannot agree whether, or on what

terms, sources identified as not reasonably

accessible …” Id. It is only after the electronic

information is determined to be reasonably

inaccessible that search terms are required. Id.

The Advisory Committee’s approach is

common sense, because requiring an Appellant to

guess what words were in the Appellees’ e-mails

related to Appellant, which the Appellees already

read and were using to prepare their defense would

make the discovery rules largely meaningless.

Since the Appellees read the e-mails, it would have

taken 30 seconds to drag them onto a thumb drive.

Dist.Ct. dkt. 23, p. 57.

Requiring the Appellees to provide the emails related to the Appellant they read and were

using to prepare their case is consistent with the

Chief Justice’s commentary on proportionality and

the needs of the case, and the purpose of the rules

to be just, speedy, and inexpensive. Fed.R.Civ.P. 1,

Chief Justice John Roberts, “2015 Year-End Report

on the Federal Judiciary,” December 31, 2015, p. 5.

After realizing they could not reasonably

claim the e-mails they were using were

inaccessible, Appellees stated they might want to

redact the e-mails, without citing a valid privilege

as required by the interrogatory instructions.

App.73.

During a discovery conference, the Appellees

started citing statistics gleaned from the withheld

e-mails, which shows they had read the e-mails in

great detail and collated the information. Dist.Ct.

dkt. 23, pp. 57.

The union copies of Appellees’ smoking

gun e-mails show the motive for the

withholding, and the Appellees continue to

withhold e-mails and other documents.

Smoking gun e-mails identify the motive for

withholding e-mails in this case. The union was

following this case and noticed key documents

related to the blacklist, or blacklists, had not

become a part of the case. Therefore, a few weeks

before the end of discovery, the union provided

their copies of some of Appellees’ e-mails to the

Appellees. One of the union officials who had

copies of the e-mails was set to testify in

Appellant’s case. The Appellees then gave those emails to Appellant on or about the last day of

discovery. App.-48,49. The e-mails show Kosa

distributing one of the blacklists that contained

Appellant’s name.

Id.

Many other e-mails

continue to be withheld.

I. CONCLUSION

The Appellant requests the Court grant the

petition for a writ of certiorari. The Court should

reverse the Ninth Circuit’s decision upholding the

District Court’s Order granting Summary

Judgment, reinstate Appellant’s claims, and

remand the case for trial. To the extent the Court

addresses the discovery issues, the Court should

order the production of the withheld discovery

related to the Appellant and the comparators.

Dated this 19th day of November, 2019.

Respectfully Submitted,

HART LAW OFFICE PLLC

/s/ Shawn Hart

__________________________

SHAWN HART, WSBA# 25917

P.O. Box 85342

Seattle, WA 98145

(206) 612-1809

E-mail: HartLawOffice@aol.com

COUNSEL FOR THE PETITIONER

APPENDIX

App. 1

FILED

August 23, 2019

MOLLY C. DWYER, CLERK

US COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THERESA ORTLOFF, former

Employee of the Washington

State Ferries and a single

woman

Plaintiff-Appellant,

DAVE TRIMMER, Chief of the

Washington State Ferries,

et al.,

Defendants-Appellees.

No. 18-35538

D.C. No. 2:16-cv01257-RSL

Western District of

Washington,

Seattle

ORDER

Before: BOGGS,* BERZON, and WATFORD, Circuit

Judges.

Judge Berzon and Judge Watford have voted

to deny the petition for rehearing en banc, and Judge

Boggs has so recommended.

The full court has been advised of the petition

for rehearing en banc and no judge has requested a

vote on whether to rehear the matter en banc. Fed.

R. App. P. 35.

The petition for rehearing en banc is denied.

__________________

The Honorable Danny J. Boggs, United

States Circuit Judge for the U.S. Court of Appeals for

the Sixth Circuit, sitting by designation.

App. 2

773 Fed.Appx. 903 (Mem)

This case was not selected for publication in West's

Federal Reporter.

See Fed. Rule of Appellate Procedure 32.1 generally

governing citation of judicial decisions issued on or

after Jan. 1, 2007. See also U.S. Ct. of App. 9th Cir.

Rule 36-3.

United States Court of Appeals, Ninth Circuit.

Theresa ORTLOFF, former employee of the

Washington State Ferries and a single woman,

Plaintiff-Appellant,

Dave TRIMMER, Chief of the Washington State

Ferries; et al., Defendants-Appellees.

No. 18-35538

Submitted July 12, 2019* Seattle, Washington

FILED July 18, 2019

Attorneys and Law Firms

Shawn Hart, Esquire, Attorney, Hart Law Office

PLLC, Seattle, WA, for Plaintiff - Appellant

Scott M. Barbara, Newell D. Smith, Assistant

Attorney Generals, AGWA - Office of the Washington

Attorney General, Seattle, WA, for Defendants –

Appellees

Appeal from the United States District Court for the

Western District of Washington, Robert S. Lasnik,

District Judge, Presiding, D.C. No. 2:16-cv-01257RSL

App. 3

Before: BOGGS,** BERZON, and WATFORD,

Circuit Judges.

MEMORANDUM***

The panel unanimously concludes this

case is suitable for decision without oral argument.

See Fed. R. App. P. 34(a)(2).

The Honorable Danny J. Boggs, United

States Circuit Judge for the U.S. Court of Appeals for

the Sixth Circuit, sitting by designation.

***

This disposition is not appropriate for

publication and is not precedent except as provided

by Ninth Circuit Rule 36-6.

Theresa Ortloff sued several Washington State

Ferries officials after she was discharged from her job

as a probationary on-call oiler for the State Ferries.

She alleges that she was discharged on account of

First Amendment protected behavior and that her

Fourteenth Amendment due-process rights were

violated. The district court granted summary

judgment to the State Ferries officials. We affirm.

The district court properly granted

summary judgment on Ortloff’s First Amendment

claims. Ortloff did not submit evidence that would

allow a reasonable juror to conclude that the asserted

First Amendment protected activity was a

substantial factor in her discharge. See Eng v.

Cooley, 552 F.3d 1062, 1071 (9th Cir. 2009). First,

nothing in the record indicates that Ortloff’s

discharge was connected to any expressive

association with Floyd McLaughlin. Second, the

record also does not contain any facts connecting

App. 4

Ortloff’s discharge to championing the rights of

probationary employees generally.1

The district court also properly awarded

summary judgment to the State Ferries officials on

Ortloff’s Fourteenth Amendment claims. Under the

collective-bargaining agreement governing Ortloff’s

employment,

the

State

Ferries

could

discharge *904 her for any “bona fide reason(s)

relating to the business operation.” Employees who

can be discharged for any bona fide reason lack a

property interest in their employment. See Allen v.

City of Beverly Hills, 911 F.2d 367, 371–72 (9th Cir.

1990).

Nor can Ortloff make out a Fourteenth

Amendment claim based on either the State Ferries’

decision to place her on a do-not-hire list, or the

reference in a press release to certain “disgruntled

former employees.” Fourteenth Amendment dueprocess protections based on government defamation

are triggered only when a person is “severely

stigmatize[d]” by the government statement. Hyland

v. Wonder, 972 F.2d 1129, 1141 (9th Cir. 1992). There

is no evidence that Ortloff’s inclusion on a single

employer’s

do-not-hire

list

was

“genuinely

debilitating,”

she

could

obtain

jobs

elsewhere. Id. Nor does the record, viewed favorably

to Ortloff, support the conclusion that any member of

the public would interpret the press release

mentioning “disgruntled former employees” as

Even if there were such a connection, it is

questionable whether the First Amendment would

protect Ortloff from discharge on that account. See

Connick v. Myers, 461 U.S. 138, 146 (1983).

App. 5

referring to Ortloff, or that any such interpretation, if

it occurred, would be severely stigmatizing.

The district court did not abuse its

discretion in denying Ortloff’s motion for default

judgment, based on asserted misconduct by the State

Ferries officials during discovery. The district court

reasonably concluded that the discovery dispute

between the parties was the product of unreasonable

behavior on both sides, and that even though the

defendants were in part to blame for the impasse,

their conduct was not the type of “extreme

circumstance[ ]” that would warrant issuing a default

judgment. United States ex rel. Wiltec Guam, Inc. v.

Kahaluu Const. Co., 857 F.2d 600, 603 (9th Cir.

1988).

AFFIRMED.

App. 6

United States District Court

WESTERN DISTRICT OF WASHINGTON

THERESA ORTLOFF,

DAVE TRIMMER

JUDGMENT IN A CIVIL

CASE

CASE NUMBER:

C16-1257RSL

___

Jury Verdict. This action came before the

Court for a trial by jury. The issues have been tried

and the jury has rendered its verdict.

Decision by Court.

This action to

consideration before the Court. The issues have been

considered and a decision has been rendered.

THE COURT HAS ORDERED THAT

Judgment is entered in favor of defendants

against plaintiff.

May 30, 2018

William M. McCool

Clerk

/s/ Kerry Simonds

By, Deputy Clerk

App. 7

2018 WL 2411755

United States District Court, W.D. Washington,

at Seattle.

Theresa ORTLOFF, Plaintiff,

Dave TRIMMER, et al., Defendants.

Case No. C16-1257RSL

Signed 05/29/2018

Attorneys and Law Firms

Shawn G. Hart, Seattle, WA, for Plaintiff.

Newell David Smith, Scott M. Barbara, Attorney

General of Washington, Seattle, WA, for Defendants.

ORDER GRANTING MOTION FOR SUMMARY

JUDGMENT

Robert S. Lasnik, United States District Judge

This matter comes before the Court on

“Defendants' Motion for Summary Judgment.” Dkt. #

36. The Court has reviewed the parties' memoranda,

declarations, exhibits, and the remainder of the

record. 1 For the following reasons, the motion is

GRANTED.

1 The Court concludes the motion can be decided on

the papers submitted. Plaintiff’s request for oral

argument is denied.

App. 8

I. BACKGROUND

In this civil rights case, plaintiff Theresa

Ortloff claims that her constitutional rights were

violated when she was terminated from her job as an

oiler with the Washington State Ferries (WSF).

Plaintiff started with WSF in July 2013, after

being hired as an “on call” oiler under a probationary

employment arrangement. Probationary employment

is a way for employers to evaluate employees during

a trial period in order to gauge the employee’s job

performance before permanent employment is

granted. The terms of plaintiff’s employment were

governed by a Collective Bargaining Agreement

(CBA), the relevant portion of which provides:

Newly hired employees shall serve a

probationary period of five (5) calendar

months. The employee may be terminated

during the probationary period or at the end of

a probationary period for a bona fide reason(s)

relating to the business operation and said

employee shall not have recourse through the

grievance procedure.

Dkt. # 38-1 at 3.

Plaintiff claims she was mistreated and

eventually terminated because she advocated for

probationary employees and because she was dating

Floyd McLaughlin, a WSF engineer who previously

testified in a widely publicized whistleblower case

against the agency. She relies on a number of

interactions and email conversations as evidence of

mistreatment, abuse, and retaliation.

App. 9

In August 2013, plaintiff had a negative

interaction with defendant David Trimmer, the Chief

Engineer aboard the ferry Chelan. Afterward,

Trimmer wrote an email to the oiler dispatcher and

to defendant Elizabeth Kosa, the Senior Port

Engineer and one of plaintiff’s supervisors. In it, he

asked that plaintiff not be assigned to the Chelan

again because she lacked “a basic level of

understanding of ship board systems and

operations.” Dkt. # 38-1 at 6. He followed up in that

email conversation by listing in detail plaintiff’s

shortcomings and the reasons he did not want her

assigned to his vessel again. Dkt. # 38-1 at 5.

Plaintiff also had a dispute with Chief Staff

Engineer Michael LaCroix, who is not a defendant,

over the proper pay code for what appears to be one

hour of work in November 2013. See Dkt. # 38-1 at

14–16 (Ortloff-LaCroix email exchange); Dkt. # 49-2

at 12 (timesheet). Days later, plaintiff called and

cancelled her shift aboard the ferry Kennewick

because LaCroix would also be working aboard. Her

last-minute cancellation drew a complaint from the

vessel’s captain. Dkt. # 38-1 at 8–9.

Plaintiff

had

difficulties

with

other

cancellations and unavailabilities, which were of

concern because the on-call nature of her position

required that she be available in case dispatch

needed to bring her in. In particular, the dispatcher

discussed with plaintiff that she called in as

unavailable because she was driving McLaughlin to

the airport. Dkt. # 37-1 at 30.

App. 10

Eventually, the complaints about plaintiff’s

work performance and unavailability during her

probationary period led management to decide she

should be terminated. Plaintiff was terminated in a

letter dated November 22, 2013, and sent by

defendant Steven Vonheeder, Director of Vessels.

The letter read in relevant part:

I have determined your performance and

commitment to Washington State Ferries

during your probation period does not meet

expectations of an On-Call employee by being

available for work at all times. On too many

occasions you have been called to be

dispatched and assignments have been refused

or negotiated for a variety of reasons.

Dkt. # 41-1 at 2.

In 2014, plaintiff again sought to be hired as

an oiler but was unsuccessful. Plaintiff later learned

that her name appeared on a “Do Not Hire” list—a

list of individuals management had decided not to

hire again in the future. See Dkt. # 48 at 163.

Plaintiff filed a complaint under 42 U.S.C. §

1983, alleging that her negative interactions and

eventual termination were done in retaliation for

constitutionally protected conduct. In particular, she

claims that she suffered mistreatment and

termination because she was associated with and

supported McLaughlin. She claims this engendered

animus and hostility against her because of his role

in the years-old whistleblower case, which upset

App. 11

people within WSF. She also claims that her pay

dispute with LaCroix amounted to advocacy for the

rights of probationary employees, and that her

mistreatment and termination were in retaliation for

that advocacy. After discovery, defendants moved for

summary judgment. Dkt. # 36.

II. DISCUSSION

Summary judgment is appropriate “if the

pleadings, the discovery and disclosure materials on

file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is

entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). The party seeking summary judgment

“bears the initial responsibility of informing the

district court of the basis for its motion.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the

moving party has satisfied its burden, it is entitled to

summary judgment if the nonmoving party fails to

designate “specific facts showing that there is a

genuine issue for trial.” Id. at 324. The Court will

“view the evidence in the light most favorable to the

nonmoving party ... and draw all reasonable

inferences in that party’s favor,” Krechman v. Cty. of

Riverside, 723 F.3d 1104, 1109 (9th Cir. 2013), but a

“summary judgment motion cannot be defeated by

relying solely on conclusory allegations unsupported

by factual data,” Taylor v. List, 880 F.2d 1040, 1045

(9th Cir. 1989).

First Amendment Claims

In causes of action one, two, three, and seven,

plaintiff claims she was punished in retaliation for

App. 12

conduct protected by the First Amendment. Her

claims allege that she was terminated, harassed, and

precluded from being rehired because she advocated

on behalf of probationary oilers and because of her

association with McLaughlin.

To prevail on her claims, she “must prove (1)

that the conduct at issue is constitutionally

protected, and (2) that it was a substantial or

motivating factor in the punishment.” Settlegoode v.

Portland Pub. Sch., 371 F.3d 503, 510 (9th Cir. 2004).

Assuming

plaintiff’s

association

with

McLaughlin or her purported advocacy amounted to

protected conduct, 2 the record does not support a

reasonable inference that either was a substantial or

motivating factor for punishment. She alleges she

was punished in the form of harassment, false

statements, termination of her probationary

employment, and WSF’s refusal to rehire her. For

defendant Trimmer, she points to their interaction

aboard the Chelan and to the emails asking that she

not be assigned there in the future. Plaintiff’s

characterizations of the interaction and emails strain

2 The

parties do not engage whether plaintiff can

survive summary judgment on the element of

protected conduct, but the Court has its own doubts.

Plaintiff does not cite any cases, nor is the Court

aware of any, that hold “association for expressive

purposes,” Dkt. # 68 at 16–18, can serve as the basis

for a cognizable First Amendment claim. As for her

advocacy, there is tenuous support in the record

whether the grievances she raised with superiors

were on a matter of public concern or expressed in

her capacity as a private citizen. See Eng v. Cooley,

552 F.3d 1062, 1070 (9th Cir. 2009).

App. 13

reasonableness based on the record,33 but even if the

record supported her assertions that he harassed her,

spied on her, or spread false statements about her,

nothing in the record connects those alleged bad acts

to protected conduct. She homes in on a portion of his

email that says, “She should not have an Oilers

endorsement. I know how she got it but she shouldn't

have it.” Dkt. # 49-1 at 9. Plaintiff argues that refers

to her relationship with McLaughlin. Trimmer gave a

different interpretation in his deposition,4 but even

plaintiff’s interpretation does not reasonably give rise

to an inference that McLaughlin’s previous testimony

or plaintiff’s advocacy were substantial or motivating

3 For example, plaintiff states Trimmer was “spying”

on her and “secretly observing” her while she worked,

Dkt. # 2, 14, but the record cites supporting those

characterizations—which refer to plaintiff’s own

affidavit—mention nothing of spying or secretive

observation, see Dkt. # 49 ¶ 11. She describes

Trimmer’s email as “abusive,” Dkt. # 44 at 2, when it

mostly reads like a run-of-the-mill complaint about

work performance, Dkt. # 49-1 at 9–10. Finally, she

asserts that his email “associated the adjective

‘stupid’ with Ms. Ortloff,” Dkt. # 44 at 2, when the

email actually said, “Generally speaking, I do not

believe she is a stupid person,” Dkt. # 49-1 at 9

(emphasis added).

4 In his deposition, Trimmer explained his statement

as meaning “she got her credentialing, her oilers

endorsement, by going to some short-term school for

a month or two, and then serving a limited

internship on a Washington State Ferry vessel.” Dkt.

# 48 at 31.

App. 14

factors for her treatment. See Settlegoode, 371 F.3d

at 510.

Plaintiff also claims retaliation stemming from

the pay dispute with LaCroix. The record does not

support a reasonable inference that constitutionally

protected conduct was a substantial or motivating

factor of any retaliation that might be inferred from

that dispute. See id.

Finally, plaintiff makes much of the number of

times WSF recorded her as unavailable. One of

defendants' interrogatory responses reflects twentyone unavailabilities, but plaintiff makes the case that

she was only unavailable ten times. She cites this as

evidence that she was fired on pretext. Even were

plaintiff correct about the unavailability discrepancy,

the record does not suggest it would have made a

difference.

Instead,

the

issue

with

her

unavailabilities was that she alerted dispatch at the

eleventh hour and was at times unavailable for

illegitimate reasons. The apparent discrepancy

plaintiff emphasizes is not evidence of pretextual

firing or retaliation.

The record simply does not support a

reasonable inference that protected conduct was a

motivating factor, much less a substantial one, for

any of the alleged harassment, mistreatment, or

decisions to terminate and not rehire her. Instead,

the record suggests the defendants resolved that her

performance was not adequate to be kept on after her

probationary period and that her performance and

interpersonal conflicts also made her unsuitable for

hiring a second time. For these reasons, the Court

concludes that summary judgment in favor of

defendants is appropriate on causes of action one,

two, three, and seven.

App. 15

B. Due Process Claims

Plaintiff’s remaining claims allege violations of

plaintiff’s rights to procedural and substantive due

process. “A threshold requirement to a substantive or

procedural due process claim is the plaintiff’s

showing of a liberty or property interest protected by

the Constitution.” Wedges/Ledges of California, Inc.

v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994).

Plaintiff claims she was deprived of both a property

interest in continued probationary employment and a

liberty interest in her reputation, business, and

employment opportunities.

Property Interest

To make out a due process claim based on a

constitutionally protected property interest, plaintiff

must show she had a legitimate claim of entitlement

to continued probationary employment and not

merely “an abstract need or desire” or “unilateral

expectation of it.” Bd. of Regents of State Colleges v.

Roth, 408 U.S. 564, 577 (1972). “[T]he existence and

dimensions of [claimed property interests] ‘are

defined by existing rules or understandings that stem

from an independent source such as state law.’ ”

McGraw v. City of Huntington Beach, 882 F.2d 384,

389 (9th Cir. 1989) (quoting Roth, 408 U.S. at 577).

Washington law generally provides that state

employees serving under a probationary employment

arrangement have no constitutionally protected

property interest in continued employment. State ex

rel. Swartout v. Civil Serv. Comm'n of City of

Spokane, 25 Wn.App. 174, 182 (1980). That finds

App. 16

support in the CBA’s text, which explicitly provides

that probationary employees may be terminated

during the probationary period without recourse to

any grievance procedures. See Dkt. # 38-1 at 3.

Plaintiff argues that the CBA creates a

property interest because it provides that

probationary employees may be terminated “for a

bona fide reason(s) relating to the business

operation.” Id. Ninth Circuit precedent makes clear

that where the only substantive restrictions on

government decisionmaking are “reasonableness” or

“good faith,” it does not give rise to a constitutionally

protected property interest. Allen v. City of Beverly

Hills, 911 F.2d 367, 371 (9th Cir. 1990); Jacobson v.

Hannifin, 627 F.2d 177, 180 (9th Cir. 1980). Whatever

constraints the CBA’s “bona fide reason(s)” language

places on the termination of probationary employees,

it does not create for plaintiff a property interest

sufficient to support a due process claim. See id. For

that reason, the Court concludes summary judgment

for the defendants is warranted on causes of action

four and five.

Liberty Interest

Plaintiff also brings a due process claim based

on the deprivation of a constitutionally protected

liberty interest. The liberty interest protected by the

Fourteenth Amendment extends to a person’s right to

engage in the common occupations of life. Hyland v.

Wonder, 972 F.2d 1129, 1141 (9th Cir. 1992).

Termination of public employment may implicate

that interest if the government “so severely

stigmatize[s] the employee that she cannot avail

herself of other employment opportunities.” Id. The

App. 17

stigma must be “severe and genuinely debilitating” so

as to prevent her from taking advantage of other

employment opportunities. Id. Assertions of general

workplace “incompetence or inability to get along

with others,” however, do not implicate a protected

liberty interest. Wheaton v. Webb-Petett, 931 F.2d

613, 617 (9th Cir. 1991). In addition, “[u]npublicized

accusations do not infringe constitutional liberty

interests,” Bollow v. Fed. Reserve Bank of San

Francisco, 650 F.2d 1093, 1101 (9th Cir. 1981), and

the lost business or employment prospects must

extend beyond a specific employer, Llamas v. Butte

Cmty. Coll. Dist., 238 F.3d 1123, 1128 (9th Cir. 2001),

as amended (Mar. 14, 2001); see id. (“We have

consistently held that people do not have liberty

interests in a specific employer.”).

Here, plaintiff cannot show the existence of a

constitutionally protected liberty interest. None of

the allegedly stigmatizing statements was made

publicly. 5 See Bollow, 650 F.2d at 1101. The

statements in plaintiff’s termination letter were not

“severe and debilitating,” Hyland, 972 F.2d at 1141,

and instead appear limited to statements of poor

workplace performance, see Wheaton, 931 F.2d at

617.

Any impairment of future employment

prospects resulting from her termination or from the

5 Defendant Lynne Griffith’s 2016 email addressing a

media report about wasteful WSF spending, Dkt. #

49-2 at 39, could not even conceivably amount to a

publicly stigmatizing statement. It was written years

after this case’s relevant events, it mentions

“disgruntled former employees” with no suggestion

that those employees include plaintiff, and it has no

other plausible connection to plaintiff.

App. 18

refusal to hire her again was limited to WSF.

Plaintiff “remained free to obtain employment ... with

any other employer,” Cafeteria & Restaurant Workers

Union, Local 473 v. McElroy, 367 U.S. 886, 896

(1961), and WSF was not constitutionally obligated to

consider hiring someone it had already terminated

once.

The Court concludes that plaintiff has not

sufficiently shown a liberty interest adequate to

support a due process claim, and that summary

judgment for the defendants is warranted on cause of

action six.

III. CONCLUSION

For the foregoing reasons, 6 the Court

concludes that viewing all the evidence in the light

most favorable to plaintiff and drawing all

reasonable inferences in her favor, there is no

genuine issue of material fact and defendants are

entitled to judgment as a matter of law. Defendants'

motion for summary judgment, Dkt. # 36, is

GRANTED. The Clerk of Court is directed to enter

judgment in favor of defendants and against plaintiff.

Defendants additionally argue that they are

entitled to qualified immunity, because plaintiff

cannot show violations of a clearly established

statutory or constitutional right. See Pearson v.

Callahan, 555 U.S. 223, 231 (2009). The Court need

not address those arguments given the Court’s

conclusion that summary judgment is warranted on

the underlying claims.

App. 19

Not Reported in Fed. Supp., 2018 WL 2411755, 2018

IER Cases 189,541

App. 20

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

THERESA ORTLOFF,

No. C16-1257RSL

Plaintiff,

ORDER ON

PLAINTIFF’S

MOTION FOR

DISCOVERY

DEFAULT OR TO

COMPEL

DISCOVERY

RESPONSES

DAVE TRIMMER, A Chief of

the Washington State Ferries,

et al.,

Defendants.

This matter comes before the Court on

plaintiff’s “Motion for Discovery Default or to Compel

Discovery.” Dkt. # 22. Plaintiff seeks an order

compelling defendants to produce several thousand

emails that defendants mentioned in response to

plaintiff’s interrogatories. Having reviewed the

memoranda, declarations, and exhibits submitted by

the parties, the Court finds as follows.

In this lawsuit, plaintiff sues her former

employer, the Washington State Ferries (WSF), as

well as various other WSF employees, for several

alleged violations of her constitutional rights,

harassment, and retaliation. Plaintiff seeks an order

requiring defendants to produce all emails in their

possession “related to” plaintiff herself, as well as all

App. 21

emails “related to” six comparator employees.

Defendants have indicated that they are willing to

produce emails generated by running searches for the

seven names in question, but ask plaintiff to provide

additional search terms so that they might limit the

total number of responsive emails to those that are

relevant to this case. Moreover, defendants have by

now produced an additional batch of emails “related

to” plaintiff herself. Dkt. # 28 at 7. Plaintiff still

seeks production of the “comparator” emails, as well

as emails “related to” plaintiff from the email

accounts of other WSF employees, and argues that

defendants’ unwillingness to produce all responsive

emails is evidence of bad faith.

You don’t need a weatherman To know which

way the wind blows. Bob Dylan Subterranean

Homesick Blues © Columbia Records 1965

The ill winds that have blown this discovery

dispute into this courtroom are a product of an

outrageous posture by plaintiff’s lawyer (seeking a

default judgment of $900,000 for a minor discovery

dispute where the primary cause is his own failure to

communicate with opposing counsel) and an overly

restricted response perspective by the State’s lawyer,

who must have a better idea of what relevant

documents plaintiff is entitled to even without the

benefit of agreed “search terms.” The Court is

extremely disappointed in the fact that this motion

was filed, and the parties must do a better job of

meeting face-to-face and working through future

problems related to discovery.

Under the Federal Rules of Civil Procedure,

parties may generally obtain discovery regarding any

App. 22

non-privileged matter that is relevant to any party’s

claim or defense and proportional to the needs of the

case. Information need not be admissible at trial to

be discoverable. Fed. R. Civ. P. 26(b)(1). During

discovery, parties must, without awaiting a discovery

request, provide to the other parties a set of initial

disclosures, including copies or descriptions of all

documents, electronically stored information, and

tangible things that the disclosing party has in its

possession or control and that the disclosing party

may use to support its claims or defenses, Fed. R.

Civ. P. 26(a)(1)(A)(ii). Additionally, a party may

request the production of certain documents in the

other party’s control; the party served with such

requests for production must comply within 30 days.

Fed. R. Civ. P. 34(b)(2)(A). The party seeking

discovery may move for an order compelling

disclosure or discovery after good-faith attempts to

obtain compliance without court action have been

unsuccessful. Fed. R. Civ. P. 37(a)(1).

Though plaintiff requests entry of default

against the defendants as a discovery sanction, the

Court concludes that default would be a

disproportionately harsh penalty in the context of

this relatively minor discovery dispute, where –

contrary to plaintiff’s hyperbolic assertions – there

does not appear to be any evidence of willfulness or

bad faith. See Fair Housing of Marin v. Combs, 285

F.3d 899, 905 (9th Cir. 2002) (“In the Ninth Circuit,

[default] sanctions are appropriate only in ‘extreme

circumstances’ and where the violation is ‘due to

willfulness, bad faith, or fault of the party.’”

(citations omitted)).

Rather, the dispute here appears to result

from the parties’ failure to cooperate. Plaintiff’s

App. 23

attorney was wrong to resist defendants’ good-faith

effort to provide relevant discovery by refusing the

request for additional search terms. Such resistance

ultimately creates more work for everyone, including

the Court. In addition, the State knows enough about

the allegations here to figure out what plaintiff

needs: any emails from or to any of the WSF

defendants mentioning the plaintiff, plus anything

mentioning the comparator employees in the context

of their refusing work assignments or showing a lack

of mechanical aptitude during their probationary

periods.

For all of the foregoing reasons, plaintiffs’

motion to compel discovery responses (Dkt. # 22) is

GRANTED in part. The parties are directed to meet

and confer to establish additional search terms that

will assist defendants in narrowing the universe of

responsive emails to those that are truly relevant to

this litigation. This conference shall take place no

later than seven days from the date of this order.

Once additional search terms have been designated,

defendants shall produce the narrowed batch of

responsive emails no later than Friday, June 16,

2017. To the extent privacy concerns remain, the

parties are encouraged to consider a stipulated

protective order limiting the use of discovery

materials to this litigation.

DATED this 5th day of June, 2017.

(Signed)

_________________________

Robert S. Lasnik

United States District Judge

App. 24

42 U.S.C. § 1983

Civil action for deprivation of rights

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at

law, suit in equity, or other proper proceeding for

redress, except that in any action brought against a

judicial officer for an act or omission taken in such

officer’s judicial capacity, injunctive relief shall not

be granted unless a declaratory decree was violated

or declaratory relief was unavailable. For the

purposes of this section, any Act of Congress

applicable exclusively to the District of Columbia

shall be considered to be a statute of the District of

Columbia.

App. 25

Rev. Code Wash. § 47.64.170

Collective bargaining procedures

…

(2) A ferry employee organization or organizations

and the governor may each designate any individual

as its representative to engage in collective

bargaining negotiations.

…

(7) It is the intent of this section that the collective

bargaining agreement or arbitrator's award shall

commence on July 1st of each odd-numbered year

and shall terminate on June 30th of the next oddnumbered year … . After the expiration date of a

collective bargaining agreement negotiated under

this chapter, except to the extent provided in

subsection (11) of this section and RCW 47.64.270(4),

all of the terms and conditions specified in the

collective bargaining agreement remain in effect

until the effective date of a subsequently negotiated

agreement, not to exceed one year from the

expiration date stated in the agreement. Thereafter,

the employer may unilaterally implement according

to law.

…

App. 26

Rev. Code Wash. § 49.44.010

Blacklisting - Penalty

Every person in this state who shall wilfully and

maliciously, send or deliver, or make or cause to be

made, for the purpose of being delivered or sent or

part with the possession of any paper, letter or

writing, with or without name signed thereto, or

signed with a fictitious name, or with any letter,

mark or other designation, or publish or cause to be

published any statement for the purpose of

preventing any other person from obtaining

employment in this state or elsewhere, and every

person who shall wilfully and maliciously "blacklist"

or cause to be "blacklisted" any person or persons, by

writing, printing or publishing, or causing the same

to be done, the name, or mark, or designation

representing the name of any person in any paper,

pamphlet, circular or book, together with any

statement concerning persons so named, or publish

or cause to be published that any person is a member

of any secret organization, for the purpose of

preventing such person from securing employment,

or who shall wilfully and maliciously make or issue

any statement or paper that will tend to influence or

prejudice the mind of any employer against the

person of such person seeking employment, or any

person who shall do any of the things mentioned in

this section for the purpose of causing the discharge

of any person employed by any railroad or other

company, corporation, individual or individuals,

shall, on conviction thereof, be adjudged guilty of

misdemeanor and punished by a fine of not less than

App. 27

one hundred dollars nor more than one thousand

dollars, or by imprisonment in the county jail for not

less than ninety days nor more than three hundred

sixty-four days, or by both such fine and

imprisonment.

App. 28

Rev. Code Wash. § 49.52.050(2)

Rebates of wages - False Records - Penalty

Any employer or officer, vice principal or agent of any

employer, whether said employer be in private

business or an elected public official, who

…

(2) Willfully and with intent to deprive the employee

of any part of his or her wages, shall pay any

employee a lower wage than the wage such employer

is obligated to pay such employee by any statute,

ordinance, or contract; or

…

Shall be guilty of a misdemeanor.

App. 29

46 C.F.R. § 15.405

Familiarity with vessel characteristics.

Each credentialed crewmember must become

familiar with the relevant characteristics of the

vessel appropriate to his or her duties and

responsibilities prior to assuming those duties and

responsibilities. As appropriate, these may include,

but are not limited to, general arrangement of the

vessel, maneuvering characteristics, proper operation

of the installed navigation equipment, proper

operation of firefighting and lifesaving equipment,

stability and loading characteristics, emergency

duties, and main propulsion and auxiliary

machinery, including steering gear systems and

controls.

App. 30

46 C.F.R. § 199.180(b)(1)

199.180. Training and drills.

(1) Every crewmember with emergency duties

assigned on the muster list must be familiar with

their assigned duties before the voyage begins.

App. 31

29.08 Licensed officers assigned to vessels in a

licensed capacity shall not perform work normally

assigned to unlicensed personnel except in case of

emergency.

App. 32

33.01 Newly hired employees shall serve a

probationary period of five (5) calendar months. The

employee may be terminated during the probationary

period or at the end of a probationary period for a

bona fide reason(s) relating to the business operation

and said employee shall not have recourse through

the grievance procedure.

App. 33

(WSF Logo)

Washington State Ferries

HRSM GENR 0030

Code of Conduct

Policy

WSF shall enforce rules of professional conduct for

all WSF employees.

Objective

To maintain an effective, productive and professional

work environment.

Responsibility

Upon acceptance of employment with WSF, each

individual employee agrees to abide by these and

other lawful rules and regulations.

WSF management is responsible for enforcement of

Code of Conduct and will respect the civil rights,

constitutional rights collective bargaining agreement

rights and Merit System rights of employees and will

not violate those rights in the execution of it

disciplinary processes.

Procedure

Progressive Disciplinary Process

The progressive disciplinary process includes:

App. 34

- Verbal counseling used to alert employee of

violation(s), of rules, or below standard work

performance.

- Written notices used to formally notify employees of

rule violations(s), serves as a warning for future

violations, and provides an action plan for corrective

action.

- Suspension (may be the first step in progressive

discipline for a more serious offense)

- Reduction in salary or demotion to a position of

lower classification.

- Termination of employment occurs when a verbal or

written warning, suspension, or reduction in salary

or demotion is not effective in achieving the desired

change of behavior.

If you are found to have violated rules 1 through 6,

you may be immediately terminated from

employment.

1. Insubordination

…

2. Alcohol or Illegal Drug Use

…

3. Theft

…

4. Neglect of Duties

…

Falsification of Documents or Disclosure of

Confidential Records

…

6. Criminal (or Disorderly) Conduct

…

Note: Failure to abide by the following rules may

lead to disciplinary action up to and including

App. 35

immediate termination or, if less serious, to

progressive discipline.

7. Unauthorized Possession of Weapons

…

8. Cash/Check Handling Procedures

…

9. Violation of Safety Rules

…

10. Dependability

Failure to report for work on time or repeated

absences from duty.

11. Discrimination or Harassment

…

12. Unethical Conduct

…

13. Threats or Acts of Violence

…

14. Discourtesy to Others

…

15. Violations of Policies and Rules

…

16. Work Regulations

…

17. Abandoning Worksite

…

18. Off-Duty Conduct

…

19. Poor Work Performance

Repeated failure to perform duties at the level or

standard required of your assigned position.

20. Testing positive for alcohol or drugs while at

work, but not being under the influence.

…

App. 36

State Ferries apologizes for misleading claims

about pay raises

The Washington State Ferry system is correcting

inaccurate information its director released in

advance of a KING 5 Investigation last week.

Author: Susannah Frame

Published: 5:54 AM PST December 2, 2016

On Monday, November 21, the KING 5 Investigators

reported on pay increases for some ferry workers

recommended and supported by State Ferries

management. While the average American will

receive a 3% increase in 2017 and federal employees

are set to see a 1% bump in pay, two groups of ferry

employees are on tap to get 25% and 28% pay raises

over the next two years. The groups are

approximately 25 staff masters (also known as

captains) and 25 staff chief engineers who oversee

operations below deck in the engine room.

Minutes before the 10 p.m. broadcast on the

November 21, a ferry worker forwarded an internal

email to KING written by the top ferry executive,

Asst. Secretary of Washington State Ferries Lynne

Griffith. Griffith sent the communication to all ferry

employees. In it she criticized the upcoming news

report for disregarding data that supported the

double-digit raises.

“The media report tonight is based, in part, on

comments from disgruntled former employees and

ignores the recruitment and retention study that

App. 37

clearly demonstrates the gap in their compensation. I

believe this type of media coverage does not

accurately reflect how you are valued by our

organization and the communities we all serve,”

wrote Griffith.

Griffith did not communicate to the approximately

1,600 employees that neither she nor any member of

her executive team had shared any sort of

recruitment and retention study with KING 5. The

reporters met with Griffith and her top management

for approximately one hour to discuss the raises and

other new perks for ferry workers four days prior to

the broadcast.

In the email to staff, Griffith pointed to the survey as

the core reason behind the proposed wage hikes.

“(The raises were) based on factual information from

a comprehensive salary survey,” wrote Griffith. State

Ferries offered the survey as the basis for the

increases in communications to the Governor’s Office

as well.

KING 5 has since analyzed the 128 page 2016

Marine Employees’ Compensation Survey, compiled

by the state’s Office of Financial Management

(OFM), the budget wing of the Office of the Governor.

KING has found the survey does not support the

proposed increases. In fact, staff chief engineers for

Washington State Ferries make 20% more, not 25%

less, than the comparable group cited in the study.

State Ferries staff masters earn a base wage of 0.1%

less than the comparable group, not 28% less.

App. 38

After alerting State Ferries that the data didn’t

support the increases as outlined to the workforce

and

the

Governor’s

Office,

the

agency’s

communications director said that was a

“communications error.”

“It was not fair of us to put that in the email,” said

Ian Sterling, Communications Director for State

Ferries. “I apologize for that….it’s erroneous to say

the salary increases were based on the survey. It’s

not a useful document (in this context).”

Sterling said he’d done additional research to find

better comparisons than those used by OFM, as the

2016 Marine Employees’ Compensation Survey found

only one comparable maritime entity to compare to

WSF salaries – the Alaska Marine Highway System.

Asst. Secretary Griffith told KING that the raises

were needed for several other reasons as well:

– The positions are critical for safe and efficient

operations of the boats.

– Many of these employees are approaching

retirement age, and a higher pay is needed to attract

people to replace them.

– Some employees with less responsibility earn a

base wage that’s higher than the staff chief engineers

and the staff masters

“So it’s an equity issue and a fairness issue and it’s

the right thing to do,” said Griffith, who came to

State Ferries in 2014. “This is recommended by

management and the reason it was, is because one,

we have the best of the best. I want to keep them,

App. 39

and I want to be sure we’re attracting the best of the

best in the future.”

A staff chief annual base wage is about $99,000. But

with overtime, travel time and other perks, these

workers routinely take home much more. In 2015 the

average take home pay was approximately $150,000

per year. One of the top earners collected $171,000 in

total compensation. Assuming this staff chief

continues earning overtime and other added

payments, the 25% raise would increase his total

compensation to $214,000 - more than double his

base wage.

“Everybody was really blindsided by this (proposed

increase),” said a current ferry employee who did not

want to be identified. “Someone who is already

making almost $200,000 a year and you’re going to

give them a 25% increase? That’s a BMW every year.

And that’s a game changer when it comes to

pensions.”

The co-chair of the state’s Joint Transportation

Commission was surprised to learn of the proposed

raises.

“How do you justify this in a system that is hurting

for money?” asked Sen. Curtis King, R-Yakima. “It’s

a system that we’ve had to scrape and find money so

that we can replace the boats and we can keep this

system alive. This doesn’t make any sense to me.”

The collective bargaining agreements have been

agreed to by the unions representing State Ferries

employees and management, but the legislature has

the final say.

App. 40

Whopping pay raises on deck for some ferry

workers

Susannah Frame, KING 4:40 AM. PST November 22,

2016

About 50 Washington State Ferries employees

could get huge pay increases next year if the contract

negotiated between ferry system managers and the

workers' unions is approved.

The raises would cost the state an additional

$1.2 million a year and would come at a time when

the ferry system continues to face budget challenges,

and riders are being asked to pay more.

Without prompting from the workers' unions,

ferry system managers suggested a pay hike of 28

percent for the approximately 25 staff masters (also

known as captains) working in the fleet. A 25 percent

raise was proposed for the fleet's staff chief engineers

-- the approximately 25 workers who oversee

operations below deck.

The double-digit raises for the two groups still

need to be approved by the legislature. In the

meantime, most other ferry employees are set to

receive pay increases of between 4 percent and 8

percent in the next biennium.

The system’s top executive, Assistant

Secretary of Washington State Ferries Lynne

Griffith, said the proposed boosts in pay are

reasonable because the positions are critical for safe

and efficient operations of the boats. She also said

the current base pay isn’t competitive with private

industry, and since many of these employees are

App. 41

approaching retirement age, higher pay is needed to

attract people to replace them.

Griffith also justified the raises by noting that

some other ferry workers with less responsibility

earn higher base pay.

“So it’s an equity issue and a fairness issue,

and it’s the right thing to do,” said Griffith, who came

to State Ferries in 2014. “This is recommended by

management and the reason it was, is because one,

we have the best of the best. I want to keep them,

and I want to be sure we’re attracting the best of the

best in the future.”

A staff chief annual base wage is about

$99,000. But with overtime, travel time and other

perks, these workers routinely take home much

more. In 2015 the average take home pay was

approximately $150,000 per year. One of the top

earners collected $171,000 in total compensation.

Assuming this staff chief continues earning overtime

and other added payments, the 25 percent raise

would increase his total compensation to $214,000 more than double his base wage.

The co-chair of the state’s Joint Transportation

Commission was surprised to learn of the proposed

raises.

“How do you justify this in a system that is

hurting for money?” asked Sen. Curtis King, RYakima. “It’s a system that we’ve had to scrape and

find money so that we can replace the boats, and we

can keep this system alive. This doesn’t make any

sense to me.”

The KING 5 Investigators found that the ferry

system has changed compensation practices in the

five years since reforms were put in place in response

to KING 5's investigative series, Waste on the Water.

App. 42

That series, which aired in 2010 and 2011, revealed

millions of tax dollars wasted for years by

management providing extra pay to workers, much of

which was not part of collective bargaining

agreements.

For example, some relief (fill in) workers were

able to double their salaries by choosing to work

routes far from their home and getting paid travel

time and mileage for the long commutes. The

investigation also found employees getting paid

thousands of dollars a year to drive to and from work

for “special assignments” that, despite the short-term

implied by their name, lasted for some workers as

long as 10, 12 and 15 years.

Staff chief engineers, who run operations

below deck, were found to be assigning themselves

hundreds of hours of overtime and in some cases

gaming the system to earn triple time.

Asked if it seemed reasonable, given the history, to

reward staff chief engineers with a 25 percent pay

raise, WSF's Griffith said they deserve “every penny

that they get.”

“Have they had to correct their ways and are

there better controls in place? Absolutely. And I’m

not going to withhold from them or any other staff

chief or staff master because of something that

happened in the past that we have since remedied. It

doesn’t seem fair,” said Griffith. “(The problems

uncovered in) Waste on the Water (have) been

corrected. The management team in place is due

diligence. That can’t repeat. (The practices) can’t

repeat. So move on.”

But KING 5 found the ferry system agreed to

reverse the pay reforms made after Waste on the

Water by adding different paths for compensation.

App. 43

In 2011, WSF quit paying relief workers' travel

time to drive to and from work. To make up for the

lost travel money, they started to receive

“assignment pay” instead. Assignment pay is an

additional 20 percent pay bump for every day

worked. This premium is paid to all relief workers,

whether they drive five or 50 miles to work.

“The Washington State Ferry negotiating team

felt we had a good opportunity after Waste on the

Water to cut some costs and take care of the travel

time abuses taking place,” said former WSF

Operations Director Steve Rogers, who served on the

collective bargaining team for 16 years.

“But it backfired because the Labor Relations

Office (LRO) wasn’t concerned with eliminating the

cost factor as much as eliminating the public

perception,” Rogers said.

The LRO negotiates master agreements on

behalf of the governor with union-represented

employees.

“The governor’s negotiators were willing to

appease the unions without taking anything away

from them and changing the perception at the same

time. I told them the perception ruse wasn’t going to

last long,” said Rogers.

A representative from Gov. Inslee’s office told

KING they couldn’t address the allegations made by

Rogers.

“We can’t speak to previous negotiations.

Regardless of comments from former employees, the

data demonstrates there is a market gap. There are

46 individuals in these classifications who are central

to managing safety for all passengers and crew,”

wrote Tara Lee, Deputy Communications Director,

Office of Governor Jay Inslee.

App. 44

The contract for years 2017 and 2018 includes

assignment pay enhancements. Now the relief

workers are scheduled to receive the premium pay

meant to make up for lost travel compensation, even

when they’re not driving anywhere. The 20 percent

extra will be added to their checks when the

employees are sick, on vacation or using comp time.

“That usurped everything we thought we may

have gained. Now you’re getting an hour-and-half

equivalent of travel time pay even if you’re sitting in

Hawaii,” said Rogers.

WSF's Griffith said she didn’t know why the

employees are set to receive the money meant to

make up for travel time but that she would look into

it. The perk is expected to cost State Ferries more

than $400,000 per biennium.

Waste on the Water also prompted the

legislature to reduce overtime pay rates from double

time to time-and-a-half. The goal was to bring the

compensation in line with other state employees. But

in the years since that change was made, WSF

agreed to “call back pay” -- when ferry workers are

called in on a day off they receive time-and-a-half for

all hours worked, plus an additional four hours of

straight time pay. The addition essentially brings the

overtime rate back to double time. (Employees

working overtime hours on a regularly scheduled day

do not receive the call back pay.)

“They’re right back to where they started.

They’re at double time for eight hours,” said former

WSF manager Pete Williams. Williams negotiated

collective bargaining agreements for the ferry system

for 11 years.

App. 45

“They took a temporary reduction over the

years, but they gained back equal to or in some cases

more than they had before," he said. “It’s ridiculous.”

Sponsor of the legislation that reduced

overtime pay to time-and-a-half, Rep. Judy Clibborn,

D-Mercer Island, wasn’t aware of the reorganized pay

structure until contacted Monday by KING. She said

she’s not disappointed in the change.

“If we were still seeing a system with missing

runs and people gaming the system like you exposed

in Waste on the Water then I would be upset. I’m not

upset because we have a well-run, well-oiled ferry

system,” said Clibborn, who is co-chair of the Joint

Transportation Committee. “I’m feeling so good about

the way the ferry system is being run today.”

Current management is new, and officials said

they can’t speak to leadership’s motivation for adding

the new forms of compensation in the years after

2011. But Griffith stands by the jumbo pay raises for

some along with other add-ons agreed to by her staff

in the most recent rounds at the bargaining table.

“These are highly skilled, technically sound

individuals who are responsible for thousands of

passengers safety every single trip,” said Griffith.

The legislature could ask for changes.

“As we go through the budget process (in the

upcoming legislative session) we will start working

on the transportation budget and we will see what

the justification was (for the raises) and will decide

whether or not we want to authorize it,” said Sen.

King.

App. 46

From: Griffith, Lynne

Sent: Monday, November 21, 2016 4:01 PM

To: WSDOT WSF All Staff

Subject: Media Coverage

Hello fellow ferry employees.

I am so proud of our system and the hard work you

perform every single day. I've had the pleasure of

being your Assistant Secretary since September

2014. We’ve cut the number of missed sailings due to

crewing by more than half and made management

more responsive and accountable to the needs of the

fleet.

We expect media coverage to air on King 5 tonight at

11:00p.m. <https://remotemail.wsdot.wa.gov/

OWA/UrlBlockedError.aspx> that focuses on the

tentative salary increases negotiated for our Staff

Masters and Staff Chiefs. I wanted to touch base

with you before the segment airs.

As many of you know, we have a significant

recruitment and retention problem looming in these

and other positions. These positions play critical

safety and leadership roles in our fleet. With so many

of these skilled mariners nearing retirement age,

strategic decisions are needed to prepare.

Even with the proposed increase in pay, the people

who fill these positions will still not earn what their

counterparts in the private sector make. It gets us

closer to market rates, but still below what other

App. 47

organizations can offer for salary. See the 2016

Marine Employees’’ Compensation Survey here

<http://www.ofm.wa.gov/reports/Marine_Employees_

Compensation_Survey_and_Appendix_2016.pdf>.

The media report tonight is based, in part, on

comments from disgruntled former employees and

ignores the recruitment and retention study that

clearly demonstrates the gap in their compensation. I

believe this type of media coverage does not

accurately reflect how you are valued by our

organization and the communities we all serve.

Your management team stands behind this decision

and you. It was based on factual information from a

comprehensive salary survey.

I’m asking you to stay positive and focused on your

important work.

WSF employs amazing people and together we will

continue to operate one of the safest and largest ferry

systems in the world.

Thank you for all you do.

Lynne

Lynne Griffith

Assistant Secretary

WSDOT, Ferries Division

App. 48

Jeff Duncan

From:

Kosa, Elizabeth <KosaE@wsdot.wa.gov>

Sent:

Thursday, January 22, 2015 3:18 PM

To:

Jeff Duncan; Bill Knowlton; Chad Scott

Subject:

FW: Do not re-hire

As requested from our MEBA monthly today

Regards,

Elizabeth Kosa

Washington State Ferries

Senior Port Engineer

Office: (206) 515-3827

cell: (206) 375-5612

KosaE@wsdot.wa.gov

From: Manning, Linda

Sent: Thursday, January 22, 2015 3:17 PM

To: Kosa, Elizabeth

Cc: Ragsdale, Stacey

Subject: Do not re-hire

This is our current do not re-hire list

Crystal Connor

Lance Musselman

Lyle Sloan

Theresa Ortloff

Linda Manning, Supervisor

Human Resources Consultant

WSDOT/WSF

Desk: (206) 515-3790 / Fax: (206) 515-3489

manningl@wsdot.wa.gov

App. 49

_________________________________________________

From: Jeff Duncan (mailto:jduncan@mebaunion.org)

Sent: Wednesday, January 7, 2015 12:53

To: Capacci, George

Cc: Kosa, Elizabeth; Chad Scott; Knowlton, Bill

Subject: Do not hire

George,

We spent fifteen (15) minutes in our files and pulled

a couple of examples of “Do Not Hire/Dispatch”

letters for you. As you can see in the most recent

letter it refers to a “list” maintained by WSF. Please

provide the Union with the most current form of the

Do Not Hire/Dispatch list.

Best Regards,

Jeff Duncan

Seattle Branch Agent

(Logo)

Marine Engineers’ Beneficial Association

Founded 1875

…

App. 50

(Logo)

Washington State Department of Transportation

…

November 22, 2013

Theresa Ortloff

5524 148th PL SW

Edmonds, WA 98026

Dear Ms. Ortloff,

This is to inform you of termination of your

probationary appointment as an On-Call Oiler

employee with the Washington State Department of

Transportation, Ferries Division (WSF), and effective

November 26, 2013. Please return all WSF property

in your possession to:

your Supervisor or the

Washington State Ferries, 2901 3rd Ave, Suite 500,

Seattle, WA 98121-1012, ATTN: Security.

This action is taken pursuant to Rule 33.01 of the

Collective Bargaining Agreement by and between

Washington State Ferries and the Marine Beneficial

Association (MEBA) that specifically states:

“Newly hired employees shall serve a

probationary period of five (5) calendar

months. The employee may be terminated

during the probationary period or at the end of

a probationary period for a bona fide reason(s)

relating to the business operation and said

employee shall not have recourse through the

grievance procedure.

App. 51

I have determined your performance and

commitment to the Washington State Ferries during

your probation period does not meet expectations of

an On-Call employee by being available for work at

all times. On too many occasions you have been

called to be dispatched and assignments have been

refused or negotiated for a variety of reasons.

Based upon the language of the referenced

agreement between MEBA and WSF, I find it

necessary to terminate your employment effective

immediately. It is most unfortunate that this action

is necessary, and we wish you well in your future

endeavors.

Sincerely,

(Signature)

Steven Vonheeder, P.E.

Director of Vessels

Washington State Ferries

cc:

Personnel File

Bill Knowlton, MEBA Business Agent

Elizabeth Nicoletti, Senior Port Engineer

App. 52

From: Williams, Pete

Sent: Tuesday, November 12, 2013 11:53 AM

To: Nicoletti, Elizabeth

Cc:

Rodgers, Steve; Vonheeder, Steve; Capacci,

George A; Wharton, Donna

Subject: FW: Dispatch

Elizabeth,

I am forwarding you an e-mail from Theresa Ortloff.

Initially it seems like she is trying to be proactive. A

closer look and read reveals she somewhat thinks

dispatch is required to work around her availability.

It is my understanding she is an on-call oiler. The

suggestion that she does her best to notify dispatch of

when she is available and expects dispatch to work

with her availability would and is setting a new level

of on-call status. Of course she can call in if she is

sick or can schedule an occasional day off but the

idea she can provide a list of availability days is not

something on-calls are allowed to do.

In addition she has used unavailable status to take

her significant other to or pick up from the airport.

Yesterday, she called in 1.25 hours before work

stating work on the Kennewick for a boiler watch,

stating she has a disagreement with the Chief about

pay. The avenue for pay issues lies in the CBA

utilizing the grievance procedure. …

App. 53

From: Ortloff, Theresa

Sent: Monday, October 07, 2013 10:18 PM

To: Morrison, Rachel

Subject: Dispatch

Rachel,

I just wanted to say a few things about our

conversation the other day on the phone. I want to

work with Dispatch as a TEAM, communication is

the most important key to understanding on both

ends to make sure we're both on the SAME PAGE!!!

…

I suggested emailing you all the pertinent info.

needed for Appt.'s etc... & letting you know days I can

work Nights or Days around the Appt.s & you said

not a good idea, I didn't agree with your answer so I

mentioned from now on I'll document everything

needed on my end & also have Dispatch reiterate to

make sure we're both on the same page before we get

off the phone. I'm sure being a Dispatch employee is

not an easy job & I understand that but if we try

harder to communicate & are on the same page

hopefully we'll have less issues.

Examples of things the past few months with

Dispatch: I understand some of these items listed

below will change if you get calls from other boats

etc... needing or not needing On-Calls.

1.) They'd schedule a day for me to work & then they

would call back & cancel & give it to someone else &

App. 54

also when I worked a few days at 1 location & not

letting me finish the last day I was to be scheduled to

work the same boat the few days prior, this has

happened a few times.

2.) Say I was to work a different day than they first

told me.

3.) Saying they needed an Oiler the first phone call &

calling back & said they needed a Chief instead.

4.) Appt.s' confusion etc..., mix-up could be on either

end- I might of thought I told Dispatch correctly but

didn't or maybe Dispatch misunderstood etc... not

sure but hopefully we can improve on the

communication & again make it all work together as

a Team effort. I am willing to try & work with

Dispatch, let me know of any suggestions you may

have to improve the process.

App. 55

From: Manning, Linda

To: Nicoletti, Elizabeth

Cc: Kelly, Shane

Subject: RE: Theresa Ortloff issues

Date: Thursday, November 07, 2013 10:23:44 AM

Is there reason for her not make probation. If so,

please provide because right now you have nothing.

Linda

Linda Manning

WSDOT/Ferries Division

Human Resource Consultant

manninl@wsdot.wa.gov

206/515/3790 Desk

206/515/3489 Fax

App. 56

From: Nicoletti, Elizabeth

Sent: Tuesday, November 05, 2013 8:35 AM

To: Manning, Linda

Cc: Kelly, Shane

Subject: Theresa Ortloff issues

Please read these. Ms. Ortloff is currently on

probation. I have also has stirrings that there are

issues in the fleet with her performance. Let me

know what you think and we can discuss.

Regards,

Elizabeth Nicoletti

Washington State Ferries

Seattle, WA 98121-3014

…

App. 57

From: LaCroix, Mike

Sent: Tuesday, November 05, 2013 7:53 AM

To: Ortloff, Theresa

Cc: Kelly, Shane; Nicoletti, Elizabeth

Subject: FW: Kennewick time sheet incorrect code

S/B 465 for YARD OILER

Theresa,

In my e-mail from yesterday copied below I stated

that your pay would be submitted as Pay Code 450,

provided you with detailed references regarding why

I considered that to be the correct pay code, and

asked nicely that if you had any more questions to

please contact a Port Engineer or Union

Representative. Since then you have called at least

one of the Oilers working aboard Kennewick, called

the Kennewick engine room phone, and then emailed

me three separate times.

I have no interest in, nor time for debating whether

or not sweeping the deck constitutes duties above

and beyond a security watch.

Please stop calling and emailing me as it is

approaching a level of harassment.

Mike LaCroix

SCE Kennewick

App. 58

From:

Sent:

To:

Subject:

Grabecki, Thomas

Saturday, October 05, 2013 1:53 PM

Morrison, Rachel

Theresa Ortloff relief 10/7?

She called in saying she called in ahead of time to

schedule a doctor for 10/7. There’s no record of that.

She said she put it in 3 weeks ago and is very

frustrated that there’s no record of this. She is not

canceling any of her future work days currently

scheduled. I told her I would tell you and she may be

calling tomorrow to talk to you. She wanted you to

know she’s very frustrated. I just said I’d pass the

message.

Thomas

App. 59

From: Trimmer, David (Dave)

To: Nicoletti, Elizabeth

Subject: RE: Theresa Ortloff

Date: Tuesday, August 13, 2013 7:10:05 AM

Senior P/E Nicoletti,

Negative on the documentation/counseling directly

with Ms. Ortloff. It would have been pointless. I will

make a list of her deficiencies. You might give John

Settles a call and get his impression of her

performance. She was there the two nights previous

to being here. In a nutshell, they “mustered up the

patience to go step by step through stuff with her”.

That quote is from an email correspondence I had

with John.

Generally speaking, I do not believe she is a stupid

person. Just completely out of her element. She

works from lists. A list for going on shore power, a

list for pumping sewage (poorly executed), etc. She is

following the lists but I do not believe she

understands what she is doing. I have standing

directives for the Oiler on my watch and I present

this to all new Oilers who show up as Reliefs. It lets

them know what I expect of them and how to fill out

the Oiler Reading’s chart, etc. It ensures that we are

operating on the same page. It is about three pages

long, of a larger font, and covers things like when to

check main engine lube oil level and how to enter it

on the chart, to maintain consistency between

watches. Pretty basic. The second evening here she

happened to leave it laying on her desk. It was

heavily annotated, highlighted and underlined to the

point of being comedic. Under the section ‘Main

App. 60

Engine Lube Oil: Ideally checked when the engine is

at idle…’ above this was written and circled

‘dipstick’. I was tempted to make a copy of it but felt

it would have been an invasion of her privacy.

A question she had, while taking on water the second

night, was ‘Should both the tanks (flush/potable) be

full before shutting off the water?’. She was not

kidding.

Catching her before she disconnected a full sewage

hose, on the second night. She should not have an

Oilers endorsement. I know how she got it but she

shouldn’t have it. She might be all right if she were

to have a year or two as a wiper but I doubt there are

many that are willing to watch over her for that long.

It’s only a matter of time before she hurts herself or

destroys a piece of machinery.

I’ve been here for 15 years and this is the first time

that I have notified dispatch not to send someone

back to my watch. I would suggest you keep an eye

on Ms. Ortloff. Six months and then WSF owns her.

Have a good day,

Dave

App. 61

From: Nicoletti, Elizabeth

Sent: Monday, August 12, 2013 9:28 AM

To: Trimmer, David (Dave); Morrison, Rachel

Cc: Wilson, Paul

Subject: RE: Theresa Ortloff

David,

Were you able to fill out any performance

documentation/counseling (formal or informal) with

Ms. Ortloff directly. I would like to document your

conversations with her and keep them on record.

Give me a call on my Cell 206 375 5612

Regards,

Elizabeth Nicoletti

Washington State Ferries

Senior Port Engineer

Office: (206) 515-3827

cell: (206) 375-5612

NicoleE@wsdot.wa.gov

App. 62

From: Trimmer, David (Dave)

Sent: Sunday, August 11, 2013 6:56 AM

To: Morrison, Rachel

Cc: Nicoletti, Elizabeth

Subject: Theresa Ortloff

Good morning Rachel.

I hope you had pleasant and relaxing days off.

I realize that you have a shortage of Oilers and have

difficulty filling positions of employees who are sick

or on vacation. Having said that, in the future, the

services of Ms. Ortloff will not be required on this

watch. Please do not dispatch her to the Chelan, CWatch. Her level of knowledge regarding the

maritime industry is zero. We do not have the time to

train someone from the bottom up and I can’t have

my Assistant following her around and showing her

everything, repeatedly. When a new Oiler is sent to

this vessel, they need to have a basic level of

understanding of ship board systems and operations.

Ms. Ortloff does not possess this. Any instruction

given to a new Oiler, on our part, is supplemental

and vessel specific. I am really quite surprised that

she has an Oiler’s endorsement. Her further

employment with WSF will need to be addressed by

the Port Engineers office.

Thank you for your attention to this matter and I

hope it does not work a hardship on you in filling the

C-Watch Oiler position on the Chelan. If you have

any questions feel free to call me.

Have a good day,

Dave

App. 63

…

I received a copy of some WSF timesheets of

Dave Trimmer from 2010 to 2013. I can’t determine

if these are the original timesheets or if they have

been amended, in part because the defendants have

not provided the bi-weekly pay stubs and the end of

the year IRS W-2 Forms. The bi-weekly pay stubs

show overtime and other amounts a worker received.

Timesheets are filled out by a manager like Trimmer,

and his supervisor is supposed to review and initial

them and sign them. Bi-weekly pay reports are then

issued which detail overtime and other pay the

person received. At the end of the year, W-2’s or

1099’s are then issued based on the bi-weekly pay

reports. Some of the timesheets did not have proper

initials and signatures. Other timesheets were

resubmitted more than once because I found a few

multiple copies for the same two week period.

Attached as Exhibit A is a true and correct

copy of some of the 2013 relevant Trimmer

timesheets received from the Defendants. After

reviewing the Trimmer timesheets for the years

2011, 2012, and 2013, it has become obvious Trimmer

was adding penalty pay for penalty time. “Penalty

pay” is a category of extra pay, usually double time,

for certain dirty jobs, such as going below the deck

plates to inspect and clean the bilges. Attached as

Exhibit B is Section 29.08 of the 2011-2013

Unlicensed MEBA contract which states penalty time

should be given to unlicensed employees, which

means oilers or wipers (who have a lower rate of

pay), unless it is an emergency. Exhibit B, p. 3, §

29.08. Trimmer was not an oiler or wiper, and

instead a chief. In Exhibit A, Page 1 line 6, page 2

line 3, page 3, line 5, page 4 line 5, and page 5 line 5

App. 64

show Trimmer was routinely claiming penalty time

for what appear to be routine cleaning operations for

approximately $87 per hour. Trimmer added

approximately 83 hours of penalty time in 2011,

approximately 72 hours of penalty time in 2012, and

approximately 42 hours of penalty time in 2013.

App. 65

…

(Logo) Washington State

Department of Transportation

Ferries Vessel Engine Time Sheet

Employee ID Employee Name Department

565335

Trimmer David E. Engine

Pay Cycle

Start Date End Date

07/01/2013 07/31/2013

Work Watch Class

Pay Reason … Work Days

Order

Worked Paid Code Code … Mo

…

5) 858305 C 405

405 07

…

App. 66

…

(Logo) Washington State

Department of Transportation

Ferries Vessel Engine Time Sheet

Employee ID Employee Name Department

565335

Trimmer David E. Engine

Pay Cycle

Start Date End Date

06/01/2013 06/30/2013

Work Watch Class

Pay Reason … Work Days

Order

Worked Paid Code Code … Mo

…

5) 858305 C 405

405 07

…

App. 67

…

(Logo) Washington State

Department of Transportation

Ferries Vessel Engine Time Sheet

Employee ID Employee Name Department

565335

Trimmer David E. Engine

Pay Cycle

Start Date End Date

05/16/2013 05/31/2013

Work Watch Class

Pay Reason … Work Days

Order

Worked Paid Code Code … Mo

…

5) 858305 C 410

410 07

…

App. 68

…

(Logo) Washington State

Department of Transportation

Ferries Vessel Engine Time Sheet

Employee ID Employee Name Department

565335

Trimmer David E. Engine

Pay Cycle

Start Date End Date

04/01/2013 04/15/2013

Work Watch Class

Pay Reason … Work Days

Order

Worked Paid Code Code … Tu

…

3) 858305 C 410

410 07

…

App. 69

…

(Logo) Washington State

Department of Transportation

Ferries Vessel Engine Time Sheet

Employee ID Employee Name Department

565335

Trimmer David E. Engine

Pay Cycle

Start Date End Date

03/16/2013 03/31/2013

Work Watch Class

Pay Reason … Work Days

Order

Worked Paid Code Code … Su

…

6) 858305 A 410

410 07

…

App. 70

(Logo)

Washington State

Department of Transportation

…

March 6, 2013

Theresa Ortloff

5524 148th PL SW

Edmonds, WA 98026

Dear Ms. Ortloff:

Congratulations! This letter is to confirm your

probationary appointment with the Washington

State Department of Transportation, Ferries Division

to the position of on-call Oiler effective March 11,

2013. …

…

If you have questions regarding your employment,

please

contact

your

Human

Resources

representative, Linda Manning, at (206) 515-3790.

Welcome Aboard!

Sincerely,

(Signature)

David H. Moseley

Assistant Secretary

Washington State

Ferries

(Signature)

Steven R. Vonheeder

Director of Vessel

Maintenance

Preservation &

Engineering

Washington State Ferries

cc: Office of Human Resources

Bill Knowlton, MEBA Business Agent

App. 71

…

14-Nov-00 TRIMMER, JR. DAVID E … 20 $724.40

…

App. 72

PRIVILEGE

Should the Defendant refuse to produce any

document requested herein on the grounds of

privilege, state for each such document:

(1) The basis for the claim of privilege;

(2) The type of document (e.g., letter, memorandum,

contract, etc.), the date of the document and the

subject matter of the document;

(3) The name, address and position of the author of

the document and of any person who assisted in its

preparation;

(4) The name, address and position of each addressee

or recipient of the document or any copies of it; and

(5) The present location of the document and the

name, address and position of the person having

custody of it.

INTERROGATORIES

PRODUCTION

AND

REQUESTS

FOR

INTERROGATORY NO. 1: Identify all documents

related to Theresa Ortloff.

ANSWER: Objection. This request is overly broad,

unduly burdensome, and vague as to what is sought.

As such, it is not reasonably calculated to lead to the

discovery of admissible evidence in that it is not

limited in time, scope or subject matter. Defendant

has no personal knowledge of this case and does not

personally possess any documents relating to

Theresa Ortloff. Subject to and without waiving

objections, as an accommodation to these

App. 73

interrogatories, Defendant's counsel is investigating

Washington State Ferries' knowledge of the

allegations in the case and further identifying

relevant documents. Most documents have already

been provided in the initial lay down. As to emails

relating to Theresa Ortloff, it would be unduly

burdensome for Washington State Ferries to produce

all emails, it would take approximately 90 hours to

review and redact the 1,458 emails plus attachments.

Therefore, it is requested that Plaintiff identify

specific "search terms" so as to limit the scope of the

search.

REQUEST FOR PRODUCTION A: Produce all

documents related to the previous interrogatory.

RESPONSE: See response to Interrogatory No. 1.

App. 74

INTERROGATORY NO. 4: Identify each and every

instance referred to in the termination letter dated

November 22, 2013, which is attached to these

interrogatories as document P3, that Ms. Ortloff was

"called to be dispatched and assignments have been

refused or negotiated for a variety of reasons".

ANSWER: This Defendant has no personal

knowledge of any instances referred to in the

termination letter dated November 22, 2013. As an

accommodation, Washington State Ferries has

identified the following:

1. 08-08-13 (evening)

2. 08-09-13 (morning)

3. 08-11-13 (evening)

4. 08-12-13 (morning and evening)

5. 08-13-13 (morning)

6. 09-05-13 (day shift)

7. 09-25-13 (evening)

8. 09-26-13 (morning)

9. 10-04-13 (evening)

10. 10-05-13 (morning and day shift)

11. 10-07-13 (day shift and evening)

12. 10-08-13 (morning)

13. 10-14-13 (evening)

14. 10-15-13 — Ortloff later changed her mind and

asked for work on this date.

15. 10-16-13 (day shift)

16. 10-17-13

17. 10-31-13 — Ortloff may have reported late, or not

at all, for a watch this date.

18. 11-04-13 (day shift)

19. 11-05-13

App. 75

20. 11-10-13 (evening) — Ortloff cancelled her

participation on this watch 75 minutes prior to watch

starting.

21. 11-11-13 (morning) — Ortloff cancelled her

participation on this watch 75 minutes prior to watch

starting.

Theresa Ortloff was eligible to potentially work

during 104 different calendar days. She removed

herself from all or part of 21 of those days.

REQUEST FOR PRODUCTION D: Produce all

documents related to the previous interrogatory.

RESPONSE: See Attachment 1, Bates No. 70010001

70010016.

App. 76

… Attached as Exhibit AH is a true and

correct copy of the progressive disciplinary policy I

received when I went through new employee

indoctrination at

the Washington State Ferries. I was never brought

up on any Code of Conduct for violating any code of

conduct for any unavailability. …

In 2012, I decided to train to become an oiler

at the Washington State Ferries after working

approximately

years

Physio-Control

Corporation. In support of my plan to become a WSF

oiler, I paid for and attended the TRL Maritime

School in San Diego, California from about February

to March, 2012.

I decided to participate in an internship

program at the Washington State Ferries and worked

on the Ferry MV Spokane with assistant engineer

Maureen McGarrity, from about May, 2012 to

September, 2012.

On September 8, 2012, Staff Chief Dennis

Kavanagh certified I was qualified under U.S. Coast

Guard regulations 46 C.F.R. §§ 15.405 and

199.180(b)(1) to work as an oiler at the Washington

State Ferries. See Break-In record Exhibit AV.

On July 8, 2013, I signed up on the Oiler list to

get hired at the MEBA Union and paid $35 to MEBA.

On July 9, 2013, I went to the MEBA Union Hall and

was hired as an on-call oiler and paid 3 months of

$50 monthly MEBA union dues, which totaled $150.

During the July, 2013 timeframe, I attended

orientation/new hire training at the Washington

State Ferries that lasted approximately one month.

Griffith in her interrogatories claims I was

unavailable 21 times. The following paragraphs with

a “#” symbol respond to each of the Griffith’s

App. 77

numbered alleged unavailabilities: #1 & 2) On

August 8 , 2013 my first Watch started & it ended

the next morning of August 9, 2013, they count 1

Watch as 2 days. I served as an on-call oiler on a

Washington State Ferry for the first time, and

observed various oiler duties. Exhibit AI.

10.

#3, 4 & 5) I do not think Dispatch called me to

work evening of 08-11-13, morning &

evening of 08-12-13 and morning of 08-13-13. I

wouldn’t have turned work down because it

was my first week as a new Oiler. Those would have

been 2 Watches start work in the evening

& ended next mornings & they count 1 Watch as 2

days.

11.

On August 10 and 11, 2013 I served as an oiler

on the Washington State Ferry Chelan. Chief

Trimmer was my supervisor. Chief Trimmer

immediately established a hostile work environment.

I was attempting to pump sewage and Chief Trimmer

approached me and claimed I was thinking about

disconnecting sewage hoses, he yelled at me, and told

me to go back down below to the Engineering

Operating Station. I was observing the pumping

process in the correct manner. Trimmer did not ask

me what I was doing, and he did not offer to help or

instruct me.

12.

Trimmer stated he did not have time to train

me and he would not allow his assistant to instruct

me.

13.

My public Records Act request identified above

included the August 11, 2013 Trimmer e-mail to

dispatcher Rachel Morrison in which he told her not

to send me back to his boat. Exhibit C.

14.

On August 13, 2013, Trimmer sent an e-mail

to Nicoletti (Kosa) in which he criticized my abilities

App. 78

and in my Complaint I allege Trimmer made a

reference to Floyd McLaughlin by stating, “She

should not have an Oiler’s endorsement. I know how

she got it but she shouldn’t have it.” Exhibit D.

15.

#6) On September 5, 2013 Dispatch called to

ask about the doctor appointment on the 6th &

wanted to know if I was still going to work evening of

September 6th & I said yes, which I did work that

evening & they made an error in their records &

counted that as an unavailability. Exhibits AJ, AO, p.

4, 4th entry, AQ.

16.

#7 & 8) On September 25, 2013 I was going to

work that evening until Dispatch called & said they

were putting Chris Sutton in my place because he

had seniority. This is two mistaken unavailabilities

because they count 1 Watch as 2 days for evening of

September 25, 2013 /morning of September 26, 2013.

Exhibits F, AO, p. 3, 1st entry.

17.

#9) On evening of October 4, 2013Rachel

Morrison approved me not working that evening

because I had to take Floyd McLaughlin to the

Airport that next morning of October 5, 2013.

Everything related to taking & picking Floyd up from

the Airport were all approved ahead & in fact Rachel

asked Floyd to take vacation at that time because a

Relief Chief needed work. Exhibit H, McLaughlin

Declaration, ¶ 6.

18.

In addition to the monthly $ 50 MEBA union

dues, a MEBA union member is also required to pay

a $4,000 initiation fee within the first two years of

being a union member. On October 3, 2013, I paid

$500 toward the $4,000 union initiation fee, and I

paid 3 months of the $50 monthly union fees which

totaled $650.

App. 79

19.

#10) On morning of October 5, 2013 I took

Floyd McLaughlin to the Airport approved ahead by

Rachel Morrison. I also worked that night. Exhibit

AK, Airline Itinerary attached to the Declaration of

Floyd Mclaughlin. McLaughlin Decl., Ex. C.

20.

#11 & 12) On the morning of October 7, 2013, I

got off work that morning from a night watch the

night before and I also had a doctor appointment this

same day. I don’t recall being called to work the

evening of October 7, 2013 which would have ended

the morning of October 8, 2013, again they count 1

Watch as 2 days. Exhibits G, AK, AR.

21.

#13) On the evening of October 14, 2013

Rachel Morrison approved my not working that

evening because I had to pick Floyd McLaughlin up

from the Airport that next morning of October 15,

2013. Everything related to taking & picking Floyd

up from the Airport were all approved ahead & in

fact Rachel asked Floyd to take vacation at that time

because a Relief Chief needed work. Exhibit H.

22.

#14) I changed my mind about working the

evening of October 15, 2013 because Floyd called me

on or around October 14, 2013 & said he made a

mistake must of looked at his Itinerary wrong & now

I don’t have to pick him up from the Airport until

morning of October 16, 2013. So I called Dispatch

right away & said I can now work evening of October

15, 2013 & I did. Exhibits H, AL.

23.

#15) On October 16, 2013 I got off work that

morning from a Night Watch night before & then

later that morning I went to the Airport & picked up

Floyd McLaughlin & also worked that same evening

again. Exhibits H, AL.

24.

#16) On October 17, 2013 I got off work that

morning from a Night Watch night beforeExhibit AL.

App. 80

25.

#17) On or about October 31, 2013, I worked

on the Ferry Kennewick a

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