Washington Fire Chief Awarded $734k For Wrongful Termination

A Washington fire chief was who terminated following a vote of no-confidence by the firefighter’s union, has been awarded $734,376.50 in damages by a federal court. Chief David Bathke was fired in 2019 by Ocean Shores Mayor Crystal Dingler after he refused her requests to resign.

Chief Bathke was hired by Mayor Dingler in 2017, and agreed to move to Washington state to take the fire chief’s position based on her assurances that he would have job security. In particular, she assured him that he would be subject to an “Exempt Employee Agreement” with the city that provided he could only be terminated “for cause.”

In December, 2018 following a no-confidence vote by IAFF Local 2109, Mayor Dingler placed Chief Bathke on administrative leave. An outside investigation was initiated into allegations of discrimination and hostile work environment, but that investigation was stopped when it became clear the allegations were not supported by the facts. Nevertheless, Mayor Dingle proceeded to terminate Chief Bathke, prompting him to file suit. More on the initial allegations.

US District Court Judge Benjamin H. Settle heard the case last month and in a decision handed down April 15, 2021 concluded that the city breached its agreement with Chief Bathke “by failing to act reasonably and use good faith in properly investigating the allegations or providing a fair process.”

More specifically, Judge Settle stated:

  • In reviewing Dingler’s actions, the Court is not permitted to substitute its view of whether Dingler’s decision to terminate Bathke’s employment was the correct one.
  • Instead, the Court is charged with determining whether “at the time plaintiff was dismissed defendant reasonably, in good faith, and based on substantial evidence believed plaintiff had [committed the violations].”
  • Although Dingler may have attempted to be objective in her findings and ultimate conclusions, her deliberative process was infected by an unfair process leading up to the pre-termination hearing.
  • When she wrote the letter proposing his resignation, she appeared to have made up her mind that Bathke’s employment was going to end.
  • It was contrary to best practices for her to be both the investigator and the decision maker.
  • Dingler made no attempt to delve into the individual complaints but accepted them at face value as reported to her by the firefighters; she could have sought out other witnesses and City documents that were relevant to issues.
  • She did not do anything more before the pre-termination hearing than rely on what turned out to be, in many cases, the firefighters’ inaccurate, misleading, or incomplete reports and allegations.
  • Even more astonishing is that her investigation did not include an interview with Bathke or an opportunity for him to provide evidence until the pre-disciplinary hearing itself.
  • This course of action also was a violation of standards for pre-disciplinary investigations in the employment arena according to the expert testimony.
  • Dingler’s actions and omissions, if viewed separately, might not constitute sufficient evidence of an unfair process.
  • But, taken as a whole, the cumulative effect of these rendered the decision to terminate as the product of an unfair process and, thus, as a legal matter made in bad faith.
  • The EEA provided that the standard for “just cause” is to be “cause with the grounds therefore the same as those for union represented employees.”
  • Bathke argues that, in the union context in the State of Washington, the Daugherty factors, which were originally presented in 1964 by arbitrator Carroll Daugherty and were endorsed in Civil Service Commission of City of Kelso v. City of Kelso, 137 Wn.2d 166 (1999), apply.
  • However, the outcome of the case does not depend upon whether the “for cause” standard includes the Daugherty rubric because this standard even without such a rubric “entails much more than a valid reason; it involves such elements as procedural fairness, the presence of mitigating circumstances, and the appropriateness of the penalty.”
  • Here there was a lack of procedural fairness.
  • Had the City performed a reasonable investigation before Dingler sent the Notice of Pre-Disciplinary Hearing (or even before the Pre-Termination Hearing), beyond taking the firefighters’ complaints as wholly credible, there is reason to believe the outcome would have, or should have, been different.
  • The Court does not find that Dingler’s decisions in this case were motivated by malice or bias. These need not be established for the Court to conclude that the termination process was not conducted in good faith.
  • After hearing testimony in six days of trial, listening to the audio recording of the pre-termination hearing, and reviewing the admitted documents, the Court concludes that Bathke was not procedurally treated fairly.
  • It is not important that Dingler may have intended to provide a fair process, the record as a whole demonstrates that it was not.
  • Bathke was blind-sided, without any prior notice or warning of the no confidence vote that was suddenly followed with Bathke being placed on administrative leave.
  • An attempt was made to conduct an investigation through an outside investigator, but when Nielsen found no evidence of discrimination or harassment, she was relieved of any further obligation to investigate, though she identified that there might be some performance issues.
  • At Dingler’s request, the union president sent the January 7, 2019 memo outlining the union’s complaints.
  • More troubling is that the memo included an attachment that in trial was referred to as the Maple Valley letter.
  • The Maple Valley letter originated from the Maple Valley, Arizona firefighters’ union and described Bathke as being deceitful, dishonest, and a snake.
  • [The union president] physically gave the letter to Dingler and later emailed it to her.
  • This document had been kept, not as a public document as part of the recruitment process, but by the union president to hold and bring out at the union meeting that resulted in a no confidence vote.
  • It can only be conjecture that this document served its purpose to bolster the credibility of the firefighters’ complaints and persuade Dingler that the only option available to her was to replace their supervisor.

Neither union was named as a defendant in the lawsuit. Here is a copy of the decision.

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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