Fired Washington Chief Will Get Trial But COVID May Mean No Jury

A Washington state fire chief who was terminated in 2019 after a vote of no-confidence by his firefighters, has survived a motion to dismiss his wrongful termination suit by establishing a question of fact as to whether the city had just cause to terminate him. Fire Chief David Bathke has terminated by the City of Ocean Shores in March, 2019 after less than two years at the helm.

When hired in April, 2017, his employment agreement provided he could only be terminated for cause. In November, 2018 concerns from firefighters reached city officials prompting Mayor Crystal Dingler to place Chief Bathke on administrative leave. He was terminated when he refused the city’s proffered separation agreement that would have given him four-months of severance pay.

Bathke sued in US District Court for the Western District of Washington alleging “(1) breach of contract, (2) failure to provide due process, (3) failure to provide a name clearing hearing, (4) declaratory relief, (5) retaliation, (6) promissory fraud, and (7) negligent misrepresentation.” The city moved for summary judgment on the entire case.

US District Court Judge Benjamin H. Settle granted the city’s motion on six of the seven counts, but ruled in favor of Chief Bathke on the first claim: breach of contract.  In explaining his ruling, Judge Settle wrote:

  • “In a wrongful termination case, whether an employer properly determined it had just cause for termination is a question for the trier of fact.”
  • In this case, Bathke’s declaration and supporting evidence sufficiently creates a question of fact on the issue of whether the City had just cause to terminate him.
  • In reply, Defendants attempt to undermine the holding in Lund by misquoting employment discrimination cases.
  • Defendants, however, fail to provide any persuasive authority or reason to take this question of fact away from the factfinder.
  • Therefore, the Court denies Defendants’ motion on Bathke’s breach of contract claim.

A jury trial was scheduled for November 3, 2020. However, in a sign of the times, Judge Settle discussed the realities of litigation in 2020, and specifically the impossibility of holding jury trials:

  • Regarding trial, the Court does not know when civil jury trials will resume in this district. Although the courthouse is currently scheduled to open September 8, 2020, jury trials will not begin at that time and, when jury trials do begin, the Court has numerous criminal trials that must be held before civil trials.
  • The parties should consider a bench trial if they intend to keep their November 3, 2020 trial date.
  • In the event that this trial is reset to a date in mid-to late-2021, the Court may consider declining supplemental jurisdiction over the remaining state law claim.

The last sentence is a polite was of recommending that the parties either settle the matter, or consent to a bench trial. The alternative is Judge Settle may decline to keep the case in federal court since all the federal claims have been dismissed and the lone remaining claim, breach of contract, is a state law claim for which either side has a right to demand it be heard in federal court.

Here is a copy of the ruling.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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