By: Erica Shelley Nelson and Sarah Burke
In Plancich v. County of Skagit, a Skagit County deputy sheriff was discharged for abuse of authority after he participated in a traffic stop that recovered property stolen from his relatives. The deputy alleged that the investigation into this conduct was retaliation for his support of an opponent in a Sheriff’s election and filed a First Amendment claim. The Federal District Judge Robert Lasnick found that the deputy had a triable issue because the investigation and his support of the opposing candidate occurred closely together and the Department had a history of discriminatory treatment for officers who supported the losing Sheriff’s candidate. But the Court dismissed the First Amendment claim, accepting the County’s argument that an intervening arbitration decision finding just cause for the discharge which also held that there was no retaliatory claim precluded the First Amendment lawsuit under the doctrine of “collateral estoppel.”
In 2010, Deputy Martin Plancich initiated a traffic stop that led to the recovery of interior house doors, valued at $45,000, which had been taken from the residence of his sister and brother-in-law. Plancich eventually moved into the home. A criminal investigation was opened into Plancich’s conduct but it was ultimately determined that no criminal charges would be filed. Prior to this incident, in 2008, Plancich was serving as a first responder to a multiple homicide case that involved a fellow deputy and friend. Five days later, Planchich suffered a heart attack and filed a Workers’ Compensation claim. In 2009, Plancich endorsed a candidate for Sheriff who ultimately lost.
Though criminal charges were not filed, the Department did find that Plancich had abused his authority and terminated him. The termination was taken to arbitration where the arbitrator found that the L&I claim and political support were not sufficient to show bias in the decision to terminate Plancich and that the Department had just cause for the termination.
Plancich then brought state claims of wrongful termination, political retaliation, outrage, emotional distress, respondeat superior, and negligent supervision, all of which are based on the theory that Plancich was terminated because he filed an L&I claim and/or supported the Sheriff’s political opponent. The Department argued that these claims were barred by collateral estoppel and moved for summary judgment.
The Court found that when applying collateral estoppel, the question is not whether the claims raised in both proceedings have identical elements, but rather whether the claims raised in the subsequent proceeding turn on an issue that was already determined in the first proceeding. Because the arbitrator had already addressed the termination, those claims were estopped. However, the district court found that Plancich had shown a genuine issue of fact for his First Amendment claim and denied the Department’s motion for summary judgment. The Court believed that because the investigation into the door recovery began just before the new Sheriff was put in charge, Plancich had no other discipline on his record, and evidence was submitted by multiple officers showing that political supporters often faced retaliation when supporting the losing candidate.
In summary, a deputy sheriff could go forward with his First Amendment after he was discharged for abuse of authority and claimed this action was in retaliation for his support of a losing Sheriff because the investigation into this conduct occurred close to the time the new Sheriff began his duties. However, the district court granted summary judgment on the officer’s other claims finding that he was estopped because the arbitrator had previously determined those issues.
In this case, during the disciplinary arbitration, the arbitrator reviewed the evidence, considered whether the Department was motivated by retaliatory animus in terminating the deputy, and issued findings on that particular issue against the deputy. Thereafter, the deputy alleged state law claims where the deciding issue was whether his termination was motivated by retaliatory animus.
The Court essentially concluded the deputy was barred from raising those state law claims in court because the arbitrator already decided the issue during the arbitration. Nevertheless, there are circumstances, which are not uncommon, where the issues raised in a disciplinary arbitration are not considered or ruled on by the arbitrator. In those situations, an employee’s court claims based on other legal issues may not be barred by collateral estoppel, but it is a very case-by-case determination.
There may be strong arguments that can be presented either in labor arbitration under the labor contract or as civil claims in court. Unions representing employees in such arbitrations should consult with their members concerning other related pending claims and make knowing tactical decisions about which issues to present or not present in arbitration. The action here by the Guild to argue the retaliation issue seemingly was the right call, although proving unlawful retaliation to an arbitrator can be difficult. Had the argument been successful, though, he would have been reinstated. But the failure of that argument did have an eventual negative impact on the member’s separate civil claim.
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