Full opinion text
ORDER GRANTING SUMMARY JUDGMENT McDONALD, District Judge. Before the Court are Plaintiffs’ Motion for Partial Summary Judgment Re Defendant Allan’s Affirmative Defenses, Ct.Rec. 185; Plaintiffs’ Motion for Partial Summary Judgment Re Defendant Whitener-Moberg’s Affirmative Defenses, Ct.Rec. 190; Plaintiffs’ Motion for Partial Summary Judgment Re Defendants Grant County, Fancher, Allison and Snead’s Affirmative Defenses, Ct.Rec. 188; Defendant Allan’s Motion for Summary Judgment of Dismissal and for Statutory Costs, Ct.Rec. 178; Defendant Whitener-Moberg’s Motion for Summary Judgment, Ct.Rec. 174; and Defendants Grant County, Allison, Fancher and Snead’s Motion for Summary Judgment, Ct.Rec. 200. At hearing without oral argument, plaintiffs (“Keenan” and “Daniel Keenan”, collectively “the Keenans”) were represented by Robert A. Dunn and Keller W. Allen of McCormick, Dunn & Black, P.S., Spokane, Washington. Defendant Allan was represented by John Francis Kennedy of Tacoma, Washington. Defendant Whitener-Moberg was represented by Sheryl J. Willert of Williams, Kastner & Gibbs, Seattle, Washington. Defendants Grant County (“the County”), Fancher, Allison and Snead (collectively “the County Defendants”) were represented by Daniel E. Huntington of Richter-Wimberley, P.S., Spokane, Washington. CONTENTS A. SUMMARY. 1335 B. LITIGATION BACKGROUND . 1335 C. STANDARD FOR SUMMARY JUDGMENT. 1335 D. AGREED FACTS.:. 1336 E. DISPUTED FACTS. tH iO CO r-ri F. COUNT I: WRONGFUL DISCHARGE/BREACH OF CONTRACT. «X» io CO tH. 1360 G. COUNT II: FIRST AND FOURTEENTH AMENDMENT (DUE PROCESS, FREE SPEECH AND SEXUALLY HOSTILE WORK ENVIRONMENT) ... 1364 H. COUNT III: CONSPIRACY TO VIOLATE CIVIL RIGHTS. 1366 I. COUNT IV: WHISTLEBLOWER TERMINATION. 1366 J. COUNT V: RETALIATORY DISCHARGE . 1370 K. COUNT VI: SEXUAL HARASSMENT (HOSTILE WORK ENVIRONMENT) 1376 L. COUNT VII: AGE DISCRIMINATION . 1378 M. COUNT VIII: FAILURE TO PAY WAGES. 1382 N. COUNT VIII: FAILURE TO PAY WAGES. 1382 O. COUNT X: CONSUMER PROTECTION ACT. 1383 P. COUNT XI: DETRIMENTAL RELIANCE/PROMISSORY ESTOPPEL. 1385 Q. COUNT XII: NEGLIGENT MISREPRESENTATION. 1386 R. COUNT XIII: DEFAMATION. 1389 S. COUNT XIV: OUTRAGE. 1390 T. COUNT XV: INFLICTION OF EMOTIONAL DISTRESS. 1391 U. COUNT XVI: VICARIOUS LIABILITY OF THE COUNTY. 1391 V. COUNT XVII: NEGLIGENCE . 1392 W. COUNT XVIII: INVASION OF PRIVACY/FALSE LIGHT. 1393 X. COUNT XIX: LOSS OF CONSORTIUM. 1393 Y. CONCLUSION. A.SUMMARY A summary of the disposition of motions and claims is provided in the final pages of this Order. All claims are dismissed. B.LITIGATION BACKGROUND The Keenans filed suit on March 4, 1994. They state as causes of action: • I: wrongful discharge/breach of contract; • II: First and Fourteenth Amendment violations under 42 U.S.C. § 1983; • III: conspiracy to violate civil rights under 42 U.S.C. § 1986(3); • TV: whistleblower termination under RCW 42.41.010; •V: wrongful discharge in violation of state public policy; • VI: sexual harassment under RCW 49.60 and 42 U.S.C. § 2000e-3; •VII: age discrimination under 42 U.S.C. § 2000e, 29 U.S.C. § 623, RCW 49.60 and RCW 49.44.090; • VIII and IX: failure to pay wages under 29 U.S.C. § 201, RCW 49.52.050 and RCW 49.48.010; • X: Consumer Protection Act violation under RCW 19.86; •XI: detrimental relianee/promissory es-toppel; •XII: negligent misrepresentation; • XIII: defamation; • XIV: outrage; •XV: infliction of emotional distress; •XVI: vicarious liability of the County; • XVII: negligence; •XVIII: invasion of privacy/false light; and • XIX: loss of consortium (for Daniel Keenan). Keenan seeks compensatory damages (and/or reinstatement), punitive damages, in-junctive relief and attorneys fees. Trial is set for June 26, 1995. C.STANDARD FOR SUMMARY JUDGMENT A party is entitled to summary judgment where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The party seeking summary judgment must show that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law by “pointing out” to the Court that there is an absence of evidence to support the nonmov-ing party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325-26, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). “A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties’ differing versions of the truth.” SEC v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir.1982). The Court must construe all facts in favor of the non-moving party. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513-14. The party opposing summary judgment must go beyond the pleadings to designate specific facts establishing a genuine issue for trial. Celotex, 477 U.S. at 323-24, 106 S.Ct. at 2553; Claar v. Burlington Northern R. Co., 29 F.3d 499, 502 (9th Cir.1994) (experts cannot rely on unsupported conclusions); Marks v. United States, 578 F.2d 261, 263 (9th Cir.1978) (genuine issues are not raised by mere conclusory allegations). The nonmoving party may do this by use of affidavits (including his own), depositions, answers to interrogatories and admissions. Celotex 477 U.S. at 323, 106 S.Ct. at 2552-53. Summary judgment is required against a party who fails to make a showing sufficient to establish an essential element of a claim, even if there are genuine factual disputes regarding other elements of the claim. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552. There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Anderson, 477 U.S. at 249, 106 S.Ct. at 2510-11. D. AGREED FACTS According to the parties’ statements of material facts, the following facts are agreed under LR 56(c). The citation following the fact designates where the fact is found: in the Keenans’ (“K”), Allan’s (“A”), Whitener-Moberg’s (“W”), the County Defendants’ (“C”), or joint defendants’ (“D”) statements, of material facts, and the paragraph number of the fact. As an initial matter, it should be noted that most of the recited facts are not material. It may be that Hinojosa was not qualified for her position, or that the Judicial Commission breached its promise of confidentiality to Keenan. However, such immaterialities (even when disputed) are insufficient to get to a jury. Rather, Keenan must allege facts supporting her claims, against these defendants. To the extent the facts are undisputed and sufficient to determine the validity of a claim or defense, the Court will decide it on summary judgment. To the extent the facts are disputed or insufficient, the jury will decide them. For the benefit of the parties and a potential reviewing court in determining the extent to which Keenan supports her claims or merely raises immaterialities, this Court itemizes all agreed and disputed facts, whether or not material. Background of plaintiff Shirley Keenan.. Keenan was bom on October 16, 1947. Dl. Keenan never had a position of major responsibility or authority before being hired as Court Administrator. D21. On October 2, 1989, Keenan was hired as the Temporary Office Manager for Grant County District Court. K7; D2. At the time she was hired, Keenan’s employer was Grant County, by and through the district court, Allan and Judge Carl N. Warring. K15. In October, 1989, Keenan applied to become the Grant County District Court Administrator. K8. She was hired for that position in December, 1989, at the age of 42. K8. Her appointment was effective January 1, 1990. D3. Keenan was neither the youngest nor the oldest person employed at Grant County District Court. D44. Background of defendant Allan. Allan became a Grant County District Court Judge on April 1, 1982. Kl. He was appointed by the Grant County Commissioners to fill the position and was re-elected twice. Kl. He served from 1983 until December 31, 1994. D9. Background of defendant Whitener-Mo-berg. In November, 1990, Warring’s re-election bid was unsuccessful and he was replaced by Whitener-Moberg, who ran against him. K27; DIO. At the time of taking office on January 1, 1991, Whitener-Moberg replaced Warring as one of Keenan’s employers. K28; DIO. Background of defendant Fancher. Fancher began her service as a Grant County Commissioner on January 1, 1991. Dll. Background of defendant Allison. Allison began his service as a Grant County Commissioner on July 19, 1993. D12. At the time of the elimination of the district court administrator position, Allison had not yet begun his term. D77. Background of defendant Snead. Snead began his service as a Grant County Commissioner on January 1, 1993. D13. At the time of the elimination of the district court administrator position, Snead had not yet begun his term. D77. Employment policies/contract. Since October, 1985, Grant County has had an affirmative action and equal employment policy against discrimination in employment. K3; D105. At the time Keenan was employed, Grant County had an Employee Policy-Procedures Information Handbook. K4. On April 3, 1990, after consultation with Keenan, Warring drafted an employment contract for Keenan’s position. K10; D15; K489; K533; K706; K1039. It provided in relevant parts: 2. TERMINABLE AT WILL EMPLOYMENT: The employment relationship between the Employer and Employee shall be one of terminable at will and the relationship may be terminated by either party ' at' any time. This agreement is not a promise of continued employment and either party may terminate the employment relationship either for cause or without cause. 6. REIMBURSEMENT OF EDUCATIONAL EXPENSE: .... The Employee agrees that in the event.that the employment relationship is terminated for any reason during the next five (5) years commencing on January 1, 1990 the Employee agrees to reimburse the Employer for all Employer funds expended pursuant to this agreement. After the five (5) years of continuous employment commencing on January 1, 1990 the Employee will not be required to reimburse the Employer for these funds. Id. The contract was presented to Keenan and to the Grant County Prosecuting Attorney. K10. When it was presented to Keenan, it varied from her understanding of the terms of the agreement. Kll. Specifically, she objected to the contract’s inclusion of “terminable at will”. D16. Keenan so informed Allan. Kll. The contract was never signed. The parties never signed any written contract for. Keenan’s employment as the District Court Administrator. D22. Allan, Warring and Keenan dispute whether any oral promises were made (by Allan) that guaranteed Keenan’s employment for a five-year term. D17; K1051. Allan and Warring contend that Keenan was hired as an at-will employee. D18; K493; K899. Judge Evan Sperline testified that all Grant County Superior Court employees, including the administrator, serve at the will and pleasure of the superior court judges. D28. Former Grant County Commissioners did not make any representations to Keenan regarding the terms and conditions of her employment. D24. Allan offered to provide Keenan with additional training at Grant County expense and would not require reimbursement if Keenan were to remain with the district court for five years. D19; K403; K492; K717; K1040; K1052. In February, 1991, Keenan and Allan prepared a Position Information Questionnaire which stated that the position of Administrator was “a non-union position, and therefore any job security is based strictly on performance and the re-election of the judges.” K12; D25. Keenan did not disagree with Allan’s written response, in his capacity as supervisor, to the completed questionnaire. D26. Allan stated that he expected Keenan to deal with a large number of employees in the court in a skillful tactful manner, within the constraints of public employment law and common sense ... someone who is not only responsible, knowledgeable and efficient, but who can recognize when they have authority to proceed and implement their decisions and when they need to consult with judges.... The most important qualification is the ability to work with people. D27. In February, 1991, the district court issued a press release indicating that case filings had increased to record levels. K16. The press release indicated that if the case load continued to increase at the same pace, additional help would be needed. K16. Allan stated that the court was “stretched to the limit.” K16. In October, 1991, Keenan provided Allan and Whitener-Moberg with a comparison of the staffing requirements of Grant County versus King County District Court, which reflected that there were five supervisors in King County for the same number of employees as at Grant County. K126. Grant County negotiated and had in place a working agreement with Local Union No. 760 pertaining to the district court’s employees. K5; D97. Keenan’s Clerk II position (in 1992 and 1993) was covered by this agreement. D97. Article XVII of the agreement provided that district court clerks could be disciplined inclusive of termination for just cause. D98. Article XXII of the agreement provided for a three-step formal grievance procedure. D99. In mid-February, 1993, Grant County passed Resolution Ño. 93-5CC “to encourage reporting by its employees of improper governmental action taken by Grant County officials or employees” and “to protect Grant County employees who have reported improper governmental actions.” K160 (“February 16”); D101 (“February 25”). It provided: “Improper governmental action” does not include personnel actions, including employee grievances, ... reassignments, ... suspensions, demotions.... Grant County employees who become aware of improper governmental actions should raise the issue first with their su-pervisor_ Where the employee reasonably believes .the improper governmental action involves his or her supervisor, the employee may raise the issue directly with the Grant County Board of Commissioners (“the Commissioners”), or such other person as may be designated by the Commissioners to receive reports.... The supervisor, the Commissioners, or the Commissioners’ Designee, as the case may be, shall take prompt action to assist Grant County in properly investigating the report. ... After an investigation has been completed, the employee reporting the improper governmental action shall be advised of a summary of the results.... K161, K163. Keenan’s duties. Keenan’s responsibility as Administrator was for all non-judicial functions of the district court, including planning, implementing and managing the daily operations of the Court. K13. Among other things, Keenan was responsible for supervising district court employee performance, disciplinary actions and termination of district court employees when necessary. K14. Keenans’ involvement in Allan’s campaigns. The year 1990 was the first time .Allan was required to campaign (because he had never before been opposed). K23. Keenan worked on Allan’s campaign (to a degree that is disputed). She was one of only two people honored with a private thank-you dinner and Allan’s home, after the election. K46. Hinojosa’s involvement in Allan’s campaigns. In August, 1990, Delores Hinojosa assisted Allan on his re-election campaign. K26. She assisted at the Grant County fair by blowing up balloons and handing out brochures. K26. Hinojosa. Delores Hinojosa states that she first met Allan in 1989 when she accompanied a Spanish-speaking defendant who was appearing in front of Allan. K30. Hino-josa was acting as interpreter for the defendant. K30. There is a question whether Hinojosa may have previously appeared before Allan as a defendant. K31. Hinojosa worked as a volunteer interpreter from 1989 through 1990. K32. Allan had asked her to be a volunteer interpreter. K33. Hinojosa worked as a volunteer until she began getting paid for her work in district court. K34. Hinojosa applied for the position of Deputy Clerk I. K35. At the time of her application, the position required the ability to type a minimum of 55 words-per-minute. Accuracy is extremely important. (Requirement may be waived depending upon qualifications.) K35. Minimum requirements to be a Deputy Clerk I were the ability to use a 10-key adding machine; the ability to alphabetize and to file with speed and accuracy; knowledge of spelling, punctuation and grammar; the ability to report accurately and log different cases of other agencies; the ability to process case files, filings and court-related documents; and the ability to conform to the direction of the court in the performance of duties. K35. At the time of her application for employment as a district court clerk, Hinojosa was unable to type 55 words-per-minute. K36. On her application, Hinojosa stated that she had completed 12 years of schooling. K38. Also on her application, Hinojosa stated that she possessed a valid Washington driver’s license. K40. However, as of August, 1990, she neither had a license nor drove. K40. Hinojosa became a District Court Clerk effective September 1, 1990. K37. Numerous complaints were made to Keenan alleging discriminatory preferential treatment by Allan towards Hinojosa. K44. Keenan received numerous complaints about Hinojosa’s disruptive and poor job performance. K45. Allan’s stressors. During the first part of 1991, Allan’s father became sick. K49. Allan started taking trips to Newport, Washington, where his father and mother resided. K49. Allan estimated eight such trips. K49. Allan’s wife complained about how much time he was spending going to Newport. K50. During this time, Allan was observed as not being as congenial as he had been previously. K51. Allan also was suffering from weight loss and was diagnosed with illness. K52. Area lawyers also expressed their concern to Allan that he looked tired and haggard. K52. Keenan expressly attributes Allan’s behavioral changes in the summer and fall of 1991 to the deaths of his parents. D62; K688 (“and perhaps [also] [Keenan’s] good rapport with defendant Whitener-Moberg”); K910. Allan’s alleged infidelity. In approximately June, 1991, Whitener-Moberg and Keenan had a conversation regarding allegations that Allan was having an extra-marital affair with at least one of the district court’s employees. K54. Darla Cagle is a District Court Clerk I, hired by Alan in December, 1991. K56-57; A7. Particular incidents: Hinojosa’s walk-ojf. On about June 14, 1991, Hinojosa said to Keenan, “You can have this fucking job because there’s not enough dollar signs in there to put up with your bullshit and I go, am going home.” K64; D63. Hinojosa then went into the courtroom, got her purse and went home. K65; D63. Alan learned of the situation, immediately left court and stated that he was going to find out what was wrong with Hinojosa. K66; D66; K298-301; K780; K904. Alan walked the few blocks to Hinojosa’s home. D66. When Hinojosa got home, she called Darlene Cox, another district court clerk. K65. While they were on the phone, Alan arrived at Hinojosa’s door. K67. Alan got on the phone to talk with Cox. K67. Allan then told Hinojosa to stay at home: “You’ve got a headache. I will see you tomorrow, no problem.” K67. Alan returned to the courthouse within a few minutes. D66; K884 (“10-15 minutes”). The timing of A-Ian’s absence is confirmed by the contemporaneous memorandum written by court clerk Cheryl Gantenbein. D67. Keenan has no personal knowledge of when Allan left the office or when he returned. D65; K608; K951. Daniel Keenan admitted his wife’s account of the incident was inaccurate. D68. Mterward, Keenan called Hinojosa asking Hinojosa what she was doing at home. Hi-nojosa said, “I got a fucking headache and you gave it to me and I hung up the phone. And that is what I did and that’s how Judge Alan came to me house.” K68 At some point Alan appeared angry with Keenan and told her to stay out of his business. K70; A10. Based on the verified allegations in the Keenans’ complaint, the Spokane Spokesman Review newspaper printed an article on March 15, 1994, repeating Keenan’s allegation that “the 56-year-old judge actually left the bench in his robes one day to chase after his alleged sweetie, who stormed out of the building in a huff.” D64. Particular incidents: Hinojosa’s hospital visit In about June, 1991, Hinojosa injured her ankle. K75. Alan took Hinojosa to the hospital where she was treated. K75. Keenan’s performance in the first position. Keenan was loyal to Alan both in and outside of the workplace. K20. On June 14, 1991, Allan told Keenan that Alan and Whitener-Moberg were disappointed with Keenan’s failure to familiarize herself with the requirements of each of the functions performed by the various clerks. D29. On that same day, Alan also conveyed to Keenan the animosity some of her subordinates harbored towards her. D30. Allan also complained that Keenan did not listen to the judges. D31. Both Whitener-Moberg and Alan had several ongoing concerns about Keenan’s ability to handle personnel including hiring, firing, discipline, and morale. D32. Keenan incurred capital expense obligations without prior approval, failed to submit necessary budget extension requests, and failed to bill municipalities for .district court services. D33. Keenan consistently attempted to exercise authority in excess of the scope granted to her by the district court judges. D34. Keenan had an overly strong sense of ownership in her job that extended to the personnel files of her employees. D35. Whitener-Moberg lost trust in the accuracy of Keenan’s reports of district court activities. D36. Particular incidents: Allan’s notes to Keenan. At some point in 1991, Allan sent Keenan “green notes” of reprimand. K53, K86; A4; D43; K265-266; K346-347; K408; K413; K476-477; K592-593; K855-856; K894-895; K898; K997-999. Particular incidents: Allan’s threat to Keenan. At some point, Allan told Keenan never to speak to his wife again, and that he had advised his wife never to speak to Keenan again. K76. Particular incidents: Allan’s conduct towards Keenan. Allan made numerous verbal attacks upon Keenan and criticized her job performance. K77, K78. About June or July, 1991, Hinojosa observed that Keenan did something (Hinojosa didn’t know what) to make Allan mad. K79. Hinojosa observed that Allan and Keenan were (non-physically) fighting. K80. Hinojosa indicated that Allan would refer to Keenan as an “airhead”. K81. Allan’s conduct toward Keenan included screaming, throwing papers and files at her, and calling her names (“including “stupid,” “idiot,” and “bimbo”) in front of her subordinates. K92 (all); D49 (“bimbo”); K1108 (“bimbo”). Allan, stated to others regarding Keenan, outside of Keenan’s presence, “I would really like to slap her,” and “I would like to grab her by the short hairs and see if she’s really a true blond.” K93; D50; K391; K471; K1110. The Commission investigator told Keenan that Allan used the words “stupid” and “idiot” when referring to Keenan. D52; K1109. Allan allegedly told certain jailers, outside of Keenan’s presence, “that he only hired good-looking women in his court.” D51; K926. Keenan alleges a sexually hostile work environment was created (in part) by Allan’s use of “vulgar language”, but Keenan has not provided any specific examples of “vulgar language.” D53. The district clerics who have testified claim never to have heard Allan use any profanity or otherwise inappropriate language. D61. Keenan was allegedly offended by Hinojo-sa’s touching of Allan’s arm, shoulder and waist. D54; K954-955; K1094. Allan did not offensively touch Keenan. D58. Keenan did not notice whether Hinojosa touched other people in the same manner as she touched Allan. D59. Clerk Maureen Haker testified that Hinojosa touched both men and women in district court the same way she touched Allan. D60. Keenan alleges that there was a common perception, shared by all the clerks, that Allan and Hinojosa were having an affair. D55; K255-256; K258-259; K270-279; K326-329; K331; K364-365; K367; K384; K393; K481-484; K498-499; K504; K505; K517; K658; K735; K876; K917-918; K930-931; K1090. Keenan speculated to others that Allan might be having an affair with Hinojosa. D56; K658; K876; K953; K1092; K1099. Keenan alleges that Hinojosa received preferential treatment from Allan in the form of limited work assignments, greater toleration of work errors, and restrictions on Keenan’s ability to discipline Hinojosa. D57. Particular incidents: letter from, district court personnel to Allan. In late June, 1991, district court employees who worked for Keenan wrote Allan a letter: We feel that there is a lot of unjust criticism of Shirley and we as District Court employees would like to express our support for her.... We feel that in all fairness to Shirley, she should be given-the opportunity to express her side of the situation, if employees who have a grievance have brought it to you. K82; A14. The letter was written after Allan had screamed at Keenan in her office and Keenan had cried. K83. The letter was discussed with Whitener-Moberg before it was given to Allan. K84. In response to the letter, on July 2, 1991, Allan told the other employees: Mrs. Keenan works for me at my will and pleasure. I am, therefore, not interested in your opinion as to how she does her job. I will decide that. K85. Reduction of Keenan’s duties. On September 20,1991, Allan and Whitener-Moberg advised Keenan that certain of her job duties were being curtailed, effective immediately. K89. The judges removed Keenan’s powers regarding all personnel matters and directed her to attend a course in personnel management offered by the Institute for Court Management. D4; D37; K702; K703. On September 26, 1991, Keenan wrote Allan and Whitener-Moberg that their action of curtailing her duties was a “material breach of the contract between myself and Grant County.” K90. Keenan’s attendance at the Denver seminar. On September 27, 1991, Allan and Whitener-Moberg requested funding from the defendant Commissioners to send Keenan to Denver for training. K91; D39. Keenan attended the seminar from October 6-11, 1991. D38. At the seminar, Keenan took notes and specifically learned about litigation against judges, exceptions to the employment at-will doctrine, and the importance of documentation to the success of an employee’s claims. D40. While at the seminar, Keenan wrote down an Illinois ease where a plaintiff alleged that sexual discrimination motivated plaintiffs demotion by a judicial officer. D41. Upon her return from the seminar, Keenan told Allan that if judges participated in management decisions they could be personally sued. D42. Keenan’s complaint to Whitener-Moberg. On November 26, 1991, Keenan wrote Whitener-Moberg: This will confirm our conversation this date, wherein I asked you why Judge Allan had not approved my leave slips. You indicated to me that he had questioned you yesterday as to the number of days I “really” had available.... I consider this harassment towards me by Judge Allan and the implication that I am not being honest about my recordkeep-ing with respect to my leave time is not only insulting, but, uncalled for.... K87; A16. Allan’s complaint about Keenan’s poster. At some point (which date is disputed), Allan sent Keenan a note: Shirley— Sexual harassment is a two way street.— this is offensive to me. Besides it doesn’t belong in a public work place.— Please give it back to whomever it belongs to.— If I put up a female in a bikini like this in my office, the women around here wouldn’t stop talking about me for a year. K88; A17. Keenan’s consultations with attorneys. Keenan sought advice and legal counsel from Whitener-Moberg and from Anthony Menke. K96. Menke, pursuant to his agreement with Grant County, represented all the elected officials of Grant County for matters related to labor and personnel relations. K97. In 1991, Menke served as an attorney for the district court with respect to helping district court employees with employment law issues. K98. In his dealings with the district court, in either telephonic or written communications, Menke treated Keenan as a representative of the district court in employment law matters for the court (but not personal matters). K99. There were occasions when Menke considered Keenan to be liaison to his client, the District Court, on employment law matters. K100. That is, Menke believed that at times during her tenure, Keenan acted-as a representative of the judges and the attorney/elient privilege attached. K101. Menke thought he and Keenan worked well together. K127, K128. They exchanged many telephone calls during her tenure as Administrator. K127. Prior to December 31,1991, Menke was never critical of Keenan’s abilities to perform as the district court Administrator. K129. On several occasions in the fall of 1991, Whitener-Moberg and Menke told Keenan to file a formal complaint with the Washington Commission on Judicial Conduct (“the Commission”) about Allan’s conduct. K102. They pointed out to Keenan the specific rules of judicial conduct that they believed Allan had violated. K103. They discussed with Keenan how Allan’s conduct should be addressed. K104. Keenan told Whitener-Moberg that she was reluctant to make a complaint to the Commission because Allan was one of her employers. K105. Both Whitener-Moberg and Menke assured Keenan that her complaint would be kept confidential, and that Keenan would be protected from any reprisals by Allan. K106. Whitener-Moberg and Menke told Keenan that Allan would be removed from the bench once the Commission completed its investigation. K107. Keenan’s complaint to the Commission. Keenan alleges she first contacted the commission in fall, 1991. D84 (“November, 1991”); K1003 (“fall of 1991”). Keenan’s fall, 1991 contact was not the first time she had dealt with the Commission in its investigatory capacity. D85 (citing telephone calls in September and October, 1990). In December, 1991, Keenan filed a- complaint against Allan with the Commission. K108; K1030. Keenan testified that she reported Allan to the Commission to provide him with psychological help. D95. In January, 1992, Keenan provided the Commission with several documents, including 41-page handwritten journal prepared by Keenan in December of 1991. K109; D86. Keenan provided copies of the documents to Menke, at Menke’s request. K110. On the page dated October 16, 1991, Keenan says that she has already spoken to an attorney about her employment with Grant County. D87. On the page dated December 5, 1991, Keenan anticipates the possibility of a lawsuit. D88. Keenan cooperated with the Commission at all times. K121. Keenan knew Whitener-Moberg had no decisionmaking role in the Commission’s investigation and that she was only a witness. D94. Keenan’s leave of absence. About December, 1991, Keenan learned she was going to need surgery which would require a leave of absence from January, 1992 through mid-February, 1992. K122. Whitener-Moberg encouraged Keenan to take as much time off as was needed, advising that a side benefit would be that Keenan could avoid contact with Allan while the Commission conducted its investigation. K123. Keenan’s first termination. The implementation of the state-wide computer system for the district court, DISCIS, prompted a re-evaluation of court personnel needs. D47; K559; K690-691. Then Judge Evan Sper-line approached the Grant County Commissioners offering the services of Superior Court Commissioner Brown if the district court would pick up half the cost. D70; K211. Allan and Whitener-Moberg formally notified Keenan of the impending elimination of the Administrator position effective April 30, 1992, by letter of March 3,.1992. K130; D5; D71. The judges noted' that the district court had run very well in Keenan’s absence, that Commissioner Brown was working halftime in district court thereby allowing the presiding judge more time for administrative duties, and that the budgetary savings from the elimination of the position could be applied to fill the need for an additional clerk. D74. The judges offered Keenan a lower-paying, subordinate clerk’s position in the district eourt, created from the savings associated with the elimination of the administrator position. K130; D5; D75. Allan had urged that Keenan be offered the newly-created clerk’s position. D76. Keenan knew that Whitener-Moberg signed the March 3,1992 letter. D72; K479. See also K742; K1117. At the time, Keenan knew that Whitener-Moberg had been a judge “not very long.” D73. Keenan’s only assertion of breach of her understanding of her employment agreement occurred when the Administrator position was eliminated. D23. In the subordinate position, Keenan worked for younger, less experienced employees whom she had supervised only days before. K132. The subordinate position was accorded a rate of pay lower than that of these younger employees. K133. Keenan has no evidence that her Administrator duties were reassigned to younger employees. D48. Since the elimination of the Administrator position, management and supervisory duties have been allocated among the district court judges and the half-time Commissioner. D69. See also K210; K640. Keenan’s consultations with attorneys, continued. On the afternoon of March 3, 1992, Keenan placed two telephone calls to the offices of Hempovich, Nappi, the attorneys who eventually responded to the March 3,1992, letter. D78. The telephone number for Hempovich, Nappi is (509) 624-3233. D79. Between March 3, 1992 and March 30, 1992, Keenan called the offices of Hempo-vich, Nappi sixteen times. D80. Tape-recording. Sometime in March, 1992, Keenan taped a telephone conversation. D82. Representations after first termination. After receiving the March 3, 1992 letter, Keenan had a number of meetings and conversations with Whitener-Moberg and Menke. K134. The communications took place both at Keenan’s workplace, and after hours over the telephone. . K139. Keenan complained that her termination was retaliation (for the complaint to the Commission), and breached promises Whitener-Moberg had made to protect Keenan. K134, K135. Whitener-Moberg and Menke advised Keenan to accept the lower position, repeatedly representing that it would only be a short time before Allan would be removed from the bench. K137; K1023; D83. Whitener-Moberg assured Keenan that this would occur because of the mental and emotional instability and other health problems from which Allan was suffering. K138. Whitener-Moberg also represented to Keenan that as soon as Allan was removed from office, Keenan’s employment as Administrator would be reinstated. K138. Keenan’s acceptance of the lower position. Keenan accepted the lower district court position on March 30, 1992, by letter from her attorney. K140. Keenan began as a Clerk II effective May 1, 1992. D6. Keenan’s attorney wrote Allan and Whitener-Moberg: The elimination of the position of Court Administrator is in direct contravention to the promise and agreement that we had made for mu=y permanent employment. The elimination of the Court Administrator position and the transfer to Clerk II violates the agreement that we had made at the time that I was first hired. I want to make it unequivocally clear that my acceptance of the Clerk II position should not be construed as a waiver of any rights or remedies that I have for the violation of my Employment Agreement. It is solely my attempt to mitigate any damages ... K140; D81. Keenan’s performance in the second position. Allan continued to act hostile toward Keenan after Keenan complained to the Commission. K145. Allan’s discovery of the Commission complaint. Keenan does not know when Allan learned of the Commission complaint. D89. Keenan’s only proffer (besides inadmissible speculation) is the testimony of Dedra Osborn, who believes it was sometime after April, 1992. K486. Allan contends that it was June 17, 1992. D90. Sometime later, after Keenan had leaked information to the press about a possible court consolidation, Allan was at the Commissioners’ office looking for a document when Peggy Grigg told Allan that “a lady from Olympia” had come to Ephrata and spoken to a number of people, none of whom she recognized except Osborn and Keenan. D91; K750. From Grigg’s comment, Allan deduced that Keenan had filed the Commission complaint against him. D92; K750. Fancher’s discovery of the Commission complaint Fancher first learned of the Commission complaint from the (second) grievance filed by Keenan in December, 1992. D93; K190. First union grievance. On June 26, 1992, Keenan wrote a memorandum to A1 Hobart, her union secretary-treasurer: Jack Harum represented to me that he had filed formal grievances on my behalf and on behalf of Darla Cagle_ However, I have been advised by Peggy Grigg that nothing has been filed as of this date. This performance reflects a failure to provide adequate Union representation. K142. The memorandum was copied to Whitener-Moberg and Allan. K142. On July 23, 1992, Keenan wrote Jack Ha-rum, her union business agent: As Shop Steward for Grant County District Court, I have been asked to file the following grievance on behalf of the District Court Clerks (more than one to be named at a later date).... DISCRIMINATORY: Because the Clerk (Dolores) in the Moses Lake office is not required to travel to Ephrata (District Court’s main office), then clerks based in the Ephrata office should not be required to travel to the Moses Lake office. INCOMPETENCE: Because of the incompetence of the clerk (Dolores) in the Moses Lake office and because she is not able to perform her job duties it is unfair practice to require Ephrata clerks to fall behind in their work to have to drive to Moses Lake to “help” Dolores do her job, and because of her unique relationship with the Judge.... K143. The letter was copied to Whitener-Moberg and the Grant County Commissioners. K143. Keenan’s performance in the second position, continued. On July 29,-1992, Whitener-Moberg wrote Keenan: There are several circumstances which have come to my attention which may constitute a basis for serious disciplinary action up to and including discharge.... [Yjou are directed to attend a pre-disei-plinary action meeting on August 3, 1992.... The facts which have come to my attention regarding potential just causes and misconducts are described in the following paragraphs.... After this meeting the District Court Judges will reach a decision with respect to whether or not disciplinary action will be administered and if so will determine the severity of the disciplinary action. K144. Shortly before she was suspended, Keenan told Hinojosa that she had not begun to fight. D106. On September 10, 1992, Whitener-Moberg and Allan wrote • Keenan: After careful consideration of the responses received from you at the Pre-Disciplin-ary hearing on August 17, 1992 we have determined that your responses do not satisfactorily explain the alleged acts of mis-conduct_ We find your conduct constitutes acts of insubordination, incompetence, insolence, gross misconduct, violation of District Court directive, work rules and regulations, policies and procedures and breach of confidentiality.... You are hereby suspended without pay commencing September 21, 1992 through September 25, 1992 and from October 19, 1992 through October 23, 1992. Any further misconduct will, result in further disciplinary action inclusive of termination.... K148. Allan and Whitener-Moberg advised Grant County of this action. K149. Second union grievance. In mid-December, 1992, Maureen Haker filed a grievance against her reassignment to Clerk II (a lower-paying position). K151. Haker alleged that the reasons for the reassignment included age discrimination, preferential treatment, retaliation for filing grievances, and retaliation for testifying to the Commission. K151. On December 17,1992, Keenan wrote to A1 Hobart: Maureen B. Haker and the undersigned hereby request the Union to pursue a grievance on our behalf- Ms. Haker and I would also request the Union, on our behalf, to file an unfair labor practices action against Grant County, Judge Whitener-Moberg and Judge Allan.... Please also understand that the retaliation issues apply equally to Judge Janis Whitener-Moberg, who participated in and encouraged our’s and other’s testimony to the Judicial Conduct Commission in connection with charges of misconduct against Judge Allan. K152. The letter was copied to Whitener-Moberg, Allan and the Board of County Commissioners. K152. Keenan’s 'performance in the second position, continued. On January 7, 1993, Keenan wrote Allan and Whitener-Moberg: I would respectfully request that any further changes to my DISCIS [computer system] user status be communicated to me in person or in writing to avoid farther embarrassment to me.... If you have appointed a DISCIS coordinator, without giving every employee the opportunity to train or apply for that position, and of course consider experience, I would appreciate your communicating this to me as the shop steward, so that I may inform the union in connection with the unfair labor practices action they intend to file. I find it very difficult if not impossible to perform at any level in this office due to the lack of communication between the judges and the staff.... I certainly hope you can open the lines of communication in this office so that everyone is at least half advised as to what is going on from day to day. Further, I am hereby requesting that I be allowed an equal amount of overtime for the time spent fooling around unnecessarily with this mess today. K153. On January 11, 1993, Keenan wrote Whitener-Moberg and Allan: In answer to your allegations of January 8, 1193, please be advised that I consider this continued harassment my both Judges, to the point it is almost impossible for me to continue to perform my job.... If you are looking for incidences of misconduct, let me point out the following situations [regarding other employees] upon which you have taken no action whatsoever: .... Do these clerks have letters in their files? .... Given the incidences cited, I believe that the accusations leveled against me are unfounded and frivolous and therefore suggest that they be summarily dismissed.... K155. On January 13,1993, Dedra J. Osborn, the Grant County Clerk, wrote to Fancher, Sid Winder (Allison’s predecessor), Snead, Whitener-Moberg and Allan: I would like you to read this attached response and statement before Shirley Keenan’s pre-disciplinary hearing on Thursday, January 14th.... Since Judge Allan found out the people who testified [to the Commission],.... he demoted Shirley Keenan from Court Administrator to a Deputy Clerk II — using the excuse he felt there was not a need for that position in District Court and the judges could run the office themselves.... [T]he short time Mrs. Keenan was Court Administrator, that office ran the most efficient it ever has. You could actually get an answer from anyone you called in District Court_ Before and since Shirley was in the position of Court Administrator, Judge Allan has created an office that is intolerable. No one can answer your questions, because they do not know or have not been on that particular desk long enough, they are not courteous and I personally have stood at their front counter numerous times waiting for someone to acknowledge I was there.... I will even make District Court a proposition to show my faith in Shirley’s capabilities — transfer the funds for a Deputy II to my budget and on final approval from ... our county commissioners, I will hire Shirley back to work in my office that minute. ... The kind of complaints that are attached to the judges’ letter regarding Shirley Keenan, should never have made it as far as they did. They should have been filed, talked over with Shirley and then the employees told if they were doing their own job (and not joining in with Judge Allan’s harassment on Shirley) they should not be concerned with others. Why is this allowed — it is pure harassment?!_ I am quite concerned about the kind of treatment Shirley Keenan and other deputy clerks are being given in District Court by Judge Allan — this kind of open harassment is going to cost the county — not only the credibility of the department heads and county commissioners for allowing this, but monetarily in lawsuits. K157, K158. Third union grievance. In mid-February, 1993, Keenan filed another grievance on behalf of unnamed clerks: Employees being afforded opportunity to attend seminar; educational opportunity in Moses Lake on Thursday, February 11, 1993; without giving opportunity to employees with more experience and. seniority with District Court. Michele Jaderlund is being given the opportunity to attend when other employees have not even been asked, i.e., Missy Hatch, Wanda Stratton etc. K159. Keenan’s performance in the second position, continued. On February 22,1993, eleven district court employees wrote to Whitener-Moberg and Allan: We have all become witnesses to actions and verbal statements made by a Mrs. Shirley Keenan that we feel are unprofessional, disrespectful, unproductive and are a direct violation of working hours. These actions have been going on well over the past year and are continuing to occur daily.... Listed below are a few of the complaints_ The situation has escalated to a point where it is now intolerable. ... Our only recourse is to alert you to the severity of the situation and demand that something be done. K164. Fourth complaint (to Human Rights Commission). On March 18, 1993, Keenan complained to the Washington State Human Rights Commission that she was demoted based on her age. K165; D45. The complaint was forwarded to the district court and the Commissioners on March 31, 1993. K166. On April 30, 1993, Stephen Hallstrom, a County prosecuting attorney, responded to the Human Rights Commission: Complainant was not demoted_this position was eliminated by the Court, via a reduction in force action_ When Complainant’s position, i.e., Administrator, was eliminated, she was permitted to apply for an existing opening as a Deputy Clerk II. She was essentially rehired in this position around May of 1992, a position she holds to this day. By way of summary, the Ephra-ta judge had more time to supervise the Clerk’s office due to the acquired services [of] Judge Brown and DISCIS.... K167. Keenan’s performance in the second position, continued. On June 30, 1993, Faneher and Snead wrote to Allan and Whitener-Moberg: The Grant County Commissioners respectfully request that the on going Shirley Keenan matter b.e brought to a conclusion immediately. We respect and appreciate your desire to handle the situation within the union guidelines and parameters, but it is obvious that the system failed you, the County, and your other employees. Yesterday, the majority of your other employees spent their lunch hour in the Commissioner’s office, begging us to do something to end what they portray as an untenable situation. It is affecting their working conditions, morale, and even their health, to a point they feel compelled to quit if this problem isn’t resolved.... [TJhese complaints are coming on top of repeated complaints from the public about the rude employee.... Apparently, the agreement to trade Mrs. Keenan for an employee in the Clerk’s office is not going to work. Mrs. Osborn ... has also been shown the trade proposal, by Mrs. Keenan herself, but she maintains that none of her employees is willing to make the trade. K168. On July 6, 1993, Allan and Whitener-Mo-berg wrote Keenan: This is a follow up to our letter of September 10, 1992, indicating our decision to suspend you without pay for ten days. After several months of attempting to resolve this amicably, it is apparent that settlement is not possible. You are hereby directed not to report for work for ten days commencing July 7, 1993.... K170; D7. Keenan’s third (temporary) position. De-dra Osborn hired Keenan for ten days, beginning July 7, 1993, to work at superior court. K171; D127; K461. Osborn requested the Commissioners to approve a pay rate of $8.00 per hour. K171. The Commissioners notified Osborn they would not approve payment of Keenan’s salary in the superior court clerk’s office while Keenan was suspended from employment in district court. D128. Keenan worked 80 hours for Osborn. K172. Keenan was paid $83.53. K172; K359. Keenan filed a grievance seeking payment for overtime work in district court. D129. The grievance was decided in a Step 2 grievance procedure by the Commissioners under the collective bargaining agreement. D129. The overtime claim that was adjudicated in the grievance procedure is the same claim for which Keenan seeks recovery in this federal litigation. D130. Keenan’s consultations with attorneys, continued. On July 9, 1993, Keenan’s attorney wrote the County prosecutor, contending that Keenan’s ten-day suspension was illegal retaliation in violation of the state whistle-blower act. K173; D102. The attorney specified the requested relief and asked for an immediate hearing. D102. The County’s attorney, Stephen Hallstrom, responded to that letter on July 17, 1993. D103. Keenan’s attorney responded to Hallst-rom’s letter on July 22, 1993. D104. Keenan’s attorney failed to request an administrative hearing in that letter or any subsequent time. D104. Keenan’s performance in the second position, continued. On July 2, 1993, Keenan had an encounter with co-worker Jennifer Gunderson. D107. Gunderson filed a complaint with the Ephrata police department. D108. After an extensive hearing, an administrative law judge for the Employment Security Department concluded that Keenan had assaulted Gunderson. D109. On July 15, 1993, Whitener-Moberg and Allan wrote Keenan: As you know, Mr. Menke, our attorney and Mr. Pedersen, the Teamster’s attorney, have attempted in good faith to resolve issues involving a prior disciplinary action of suspension without pay. Out of respect for that attempted settlement process, we have held in abeyance further disciplinary action based on many instances of misconduct by you during and since the original written issuance of notification of suspension without pay. Since the attorneys’ attempts to resolve the suspension without pay issues have failed we must now proceed to address those additional instances of your misconduct.... The facts supporting the additional misconduct and just causes for potential discharge or termination are as follows.... [Y]ou are directed to attend a pre-dis-charge or termination meeting on July 21, 1993_ [Subsequent to the pre-dis-charge or termination meeting, the District Court judges shall make a determination as to whether to proceed with discharge or termination or some less severe disciplinary action. You will remain on suspended without pay status ... until a determination is made regarding disciplinary action. K174. The discharge hearing was held on August 11, 199B, and attended by Whitener-Moberg. K175. On August 20,1993, Whitener-Moberg and Allan wrote Keenan: [E]aeh and every act of misconduct constitutes just cause for termination and when considered along with all of the prior acts of misconduct support a decision to terminate your employment.... The facts supporting your termination are again summarized as follows: .... Your employment with Grant County District Court is hereby terminated. K176; D8. Post-termination public statements. Keenan contends Whitener-Moberg defamed her because Whitener-Moberg allegedly was the person who characterized Keenan’s body-check of Gunderson as an assault and encouraged the witnesses to label the conduct assaultive as well. DUO; K1055. Keenan relies on inadmissible hearsay and inferences she personally drew from the witnesses’ testimony about the assault before the administrative law judge. Dill; K1055 (speculation); K1057 (hearsay). The administrative law judge concluded Keenan intentionally ran into Gunderson. D112. Gantenbein, one of the eyewitnesses to Keenan’s encounter with Gunderson, first described Keenan’s conduct as an “assault” to Whitener-Moberg. D113. Whitener-Moberg did not encourage the witnesses to describe Keenan’s conduct as as-saultive; Gantenbein was the first person to characterize Keenan’s conduct as an assault. D114. Whitener-Moberg had a reasonable basis upon which to believe Keenan had assaulted Gunderson, as she received reports from Gunderson and three eye witnesses. D115. Webster’s New World Dictionary defines “harpy” — a word used in the Spokesman Review article, outside of quotation marks — as “a relentless, greedy, or grasping person” or “a shrewish woman.” D116. On February 15,1994, Fancher, Snead and Allison wrote a letter to the citizens of Grant County about Keenan’s claims against the County. K177. On February 17, 1994, the Grant County Journal published it as a letter to the editor. K177; D117. Keenan identifies the Commissioners’ letter as the basis for her defamation claim against the County. Dll'8; K1125, K1126. By the time the Commissioners published their letter, there had been numerous newspaper articles regarding Keenan’s and Osborn’s claims against the County. D119; K226, K229, K247. Prior to publishing their letter, the Commissioners had reviewed the judges’ documentation of reasons for Keenan’s suspension. D120. The judges had documented the reasons for Keenan’s suspension in correspondence dated July 29, 1992; September 10, 1992; July 6, 1992; and July 15, 1992. D121. Prior to publishing their letter, the Commissioners had reviewed documentation from district court indicating Keenan had assisted Osborn’s request to have Osborn’s son’s DWI case heard by a particular judge chosen by Osborn. D122. Keenan admitted it was inappropriate for a district court clerk to circumvent the affidavit of prejudice procedure and schedule a hearing in front of a particular judge at the request of a defendant. D123. Prior to publishing the letter, Fancher had received complaints about Keenan’s conduct from the public. D124. Prior to publishing their letter, the Commissioners had received letters from the district court clerks complaining about Keenan’s conduct, and Fancher had met with the clerks who threatened to walk off the job if something wasn’t done regarding Keenan. D125. Prior to publishing their letter, the Commissioners reviewed a report concerning an incident where Keenan ran into another district court clerk (Gunderson) who filed an assault charge. D126. Fifth complaint (to County). On August 24, 1993, Keenan’s attorney filed a Notice of Claim for Damages with the County: Shirley D. Keenan and Daniel E. Keenan ... present you with this claim for damages against the County of Grant ... pursuant specifically to RCW 36.45.020 and RCW 4.96.020.... The injuries are described as follows: ... income loss to claimant Shirley D. Keenan; such loss of income having led directly to claimant’s consequential damages including moratory interest, finance charges, and losses related to a forced bankruptcy. The County’s breach of employment contract, its retaliatory conduct, harassment, creation of a hostile work environment, libel and slander, tortious interference with a business relationship, and conspiracy to deprive Mrs. Keenan of her civil rights.... K179. Keenan sought two continuances of the arbitration of her grievance before ultimately withdrawing her claim. D100. Sixth complaint (to the EEOC). On March 4, 1994, Keenan’s attorney wrote to the Equal Employment Opportunity Commission: a formal charge of sex, hostile work environment, and age discrimination against the County of Grant.... This charge is filed under Title VII of the Civil Rights Act ... and the Age Discrimination in Employment Act.... Shirley D. Keenan desires to pursue the above-referenced claims in her action in U.S. District Court. Accordingly, she would request that the EEOC issue a Right to Sue letter for these claims right away in lieu of any investigation by the EEOC. K180; D46. Seventh complaint (to the Court). Also on March 4, 1994, the Keenans filed this suit. Conclusion of Commission investigation. On May S, 1994, Allan and the Commission entered into a Stipulation: 1. The Commission has determined ... A. During the years 1988-1990, Respondent [Allan] engaged in intemperate behavior toward his benchmate, Judge Carl Warring, consisting of written notes and verbal comments witnessed by other persons .... 3. With regard to Allegation A, intemperate behavior towards his benchmate, the Respondent agrees and stipulates to accept the Reprimand imposed by the Commission and will not contest the Commission’s determination as to the facts set forth above and imposition of the Reprimand. 4. The Respondent agrees that he will resign from office effective December 31, 1994.... K181; A38; D96. The Commission determined that Allan committed other acts of misconduct, but Allan denied these. K183; A38. The Commission had investigated the other allegations. K184. On June 3, 1993, the Commission entered an Order of Reprimand and Closure in its investigation. K182. Menke’s subpoenaed files. When subpoenaed in October, 1994, Menke had in his possession certain documents (# AFM 030 to 095) about which he had no specific recollection of their origin. Klll-116, K120. These documents include Keenan’s handwritten journal, received by Menke in December, 1991. Kill, K114. Menke also had' documents (# AFM 001 to 029), which he is “very, very” certain that he received in December, 1991 from Allan. K117. Menke also believed that he received documents #AFM 096-132 in December, 1991 from Allan. K118-119. Keenan’s emotional distress claims. Keenan allegedly has suffered from rashes, itching, and uncontrollable crying. D131; K891-894. County’s litigation positions. Grant County, Fancher, Allison and Snead are appellants in a pending state court appeal of Dedra J. Osborn, Grant County Clerk v. Grant County, by and through the Grant County Commissioners, App. No. 13833-0-III. K1152. (Argument was heard on May 2, 1995; a written opinion is expected in about three months.) In the appeal, the County and Commissioners are represented by John D. Knodell of the Grant County Prosecutor’s Office, in Ephrata. In litigation here, they are represented by private attorney Daniel E. Huntington of Richter-Wimberley, P.S., in Spokane. Each counsel alleges that it is unaware of the representations of the other. C1-C2. Osborn in her appeal is represented by the same attorney who represents Keenan in the litigation here. C4, adopted by judicial notice. In briefing on the appeal, the County and Commissioners stated that the Commissioners are an employer of all district court employees. K1155 and K1158, citing Supplemental Brief of Appellant, at 28-29, 29-30; K1161, citing Reply Brief at 18-19. However, Fancher had filed a certification with the trial court stating that the Commissioners did not have any authority to hire, fire or discipline district court employees. C3, citing Certification of Helen I. Fancher in Support of Defendant’s Motion to Dismiss, at 3, adopted by judicial notice. Further, in briefing here, the County and Commissioners stated that The relationship between Shirley Keenan as a district court' employee and Grant County through its Commissioners is limited to wage bargaining under the employment bargaining agreement between the County and district court clerks and the Commissioners’ role as arbiters between the clerks and district court judges in the second step of the grievance procedure set out in the bargaining agreement. The county and commissioners do not have the requisite employer status necessary to create any liability for the Keenans’ employment-based claims. K1154, citing Memorandum in Support of