[00:00:00] Speaker 00:
Good afternoon and may it please the court.

[00:00:01] Speaker 00:
My name is Charles Hausberg and I represent the appellant Dr. Robert Lutz.

[00:00:06] Speaker 00:
I'd like to reserve three minutes for rebuttal please.

[00:00:10] Speaker 00:
We're here to appeal the trial court's grant of summary judgment that dismissed Dr. Lutz's procedural due process claim and we're requesting that this court reverse that ruling.

[00:00:21] Speaker 00:
The trial court's order did not apply the summary judgment standard correctly and, in essence, adopted the defendant's view of disputed facts rather than the evidence in the light most favorable to Dr. Lutz.

[00:00:30] Speaker 01:
Well, the district court did say that it was undisputed that

[00:00:36] Speaker 01:
that the health district gave Dr. Lutz notice on November the 5th, a hearing in advance, and was given the opportunity to speak at that hearing.

[00:00:47] Speaker 01:
What do you think is the strongest evidence you have in the record that indicates that

[00:00:51] Speaker 01:
He was actually terminated before the November 5th hearing.

[00:00:56] Speaker 00:
Thank you, Your Honor.

[00:00:57] Speaker 00:
The evidence that we presented is not one or two or three items.

[00:01:00] Speaker 00:
It's actually seven, eight or nine items.

[00:01:03] Speaker 00:
The strongest evidence is Dr. Lutz's own declaration, where he said that he was called into a meeting with no prior notice that he was going to be terminated, and he was terminated, quote, effective immediately.

[00:01:16] Speaker 00:
That termination was then emphasized again as effective immediately by the administrative officer of the regional health district.

[00:01:22] Speaker 00:
That's one item, Your Honor, but I'd like to go through a couple more if you would indulge me.

[00:01:26] Speaker 00:
The email from the defendant's attorney that same evening of October 29th, please be advised that Amelia has terminated Dr. Lutz's employment.

[00:01:35] Speaker 00:
Then, the testimony of board member Breanne Beggs, who's now a Superior Court judge here in Spokane.

[00:01:42] Speaker 00:
Judge Beggs testified at a deposition that he called Ms.

[00:01:44] Speaker 00:
Clark that same evening and asked if Dr. Lutz had been terminated, and she said yes.

[00:01:50] Speaker 00:
And then what we have is on October 30th.

[00:01:52] Speaker 01:
Well, what if their argument is, well, they began the process.

[00:01:56] Speaker 01:
They began the process of this termination, which culminated in his opportunity to present evidence at this hearing.

[00:02:04] Speaker 01:
What about that argument?

[00:02:06] Speaker 00:
Your Honor, there is no merit to that argument, because he was terminated, quote, effective immediately.

[00:02:11] Speaker 00:
And then multiple communications indicated that he was gone.

[00:02:14] Speaker 00:
He was fired.

[00:02:16] Speaker 00:
The email from the morning after, at 7 46 AM,

[00:02:20] Speaker 00:
on October 30th.

[00:02:22] Speaker 00:
Yesterday was Dr. Lutz's last day at the health district.

[00:02:25] Speaker 00:
And then we have declarations from other witnesses.

[00:02:28] Speaker 00:
Lindia Wilson, that she spoke with Ms.

[00:02:30] Speaker 00:
Clark on both October 29th and the 30th.

[00:02:33] Speaker 00:
And Ms.

[00:02:34] Speaker 00:
Wilson's testimony is Ms.

[00:02:35] Speaker 00:
Clark told her Dr. Lutz had been terminated and that the decision was final.

[00:02:40] Speaker 00:
That's Ms.

[00:02:40] Speaker 00:
Wilson's testimony.

[00:02:41] Speaker 00:
We have Mr. Steve Smith.

[00:02:43] Speaker 00:
He was on a call where Ms.

[00:02:45] Speaker 00:
Clark also said his last day was today.

[00:02:47] Speaker 00:
He's no longer an employee of the health district.

[00:02:50] Speaker 00:
And Ms.

[00:02:50] Speaker 00:
Clark again indicated that this was a lot of people's decision.

[00:02:53] Speaker 00:
It was a collective decision by the defendant.

[00:02:57] Speaker 00:
We've got other contemporaneous news release documents that again show that Dr. Lutz's last day was October 29th.

[00:03:03] Speaker 00:
That's what the health district said over and over again.

[00:03:06] Speaker 00:
And then

[00:03:07] Speaker 00:
suddenly they changed their tune because there's backlash.

[00:03:11] Speaker 00:
If we go back, we're going back now five and a half years to the COVID-19 pandemic.

[00:03:17] Speaker 00:
This was big news in Spokane.

[00:03:18] Speaker 00:
There was big backlash about this.

[00:03:21] Speaker 00:
And so after they're called out on this behavior, including after an October 30th press conference, where again they say at this press conference, Dr. Lutz is not there anymore.

[00:03:31] Speaker 00:
He is not the health officer.

[00:03:33] Speaker 00:
There's backlash and then the story completely changes and I would anticipate counsel will say he was actually placed on administrative leave.

[00:03:41] Speaker 00:
But that actually happened on November 2nd.

[00:03:43] Speaker 00:
The email on the record is Amelia now wants to place Dr. Lutz on administrative leave.

[00:03:48] Speaker 00:
That's from November 2nd.

[00:03:50] Speaker 00:
There's actually a contemporaneous email from October 30th.

[00:03:53] Speaker 00:
that says Dr. Lutz's last day was yesterday.

[00:03:56] Speaker 00:
That's with HR and Ms.

[00:03:57] Speaker 00:
Clark.

[00:03:58] Speaker 00:
The evidence, respectfully, is overwhelming that he was terminated.

[00:04:03] Speaker 00:
This decision was made, and it was made by the board on October 29th.

[00:04:08] Speaker 02:
So the district court seemed to put some amount of weight on the fact that Dr. Lutz was aware of the bylaws that gave the board control over his employment.

[00:04:21] Speaker 02:
Was that proper?

[00:04:22] Speaker 02:
Is that—are those bylaws relevant here?

[00:04:23] Speaker 02:
What do we make of that?

[00:04:25] Speaker 00:
Your Honor, they're not relevant.

[00:04:28] Speaker 00:
Because Dr. Lutz knew that his rights were violated, he doesn't have a claim.

[00:04:32] Speaker 00:
Respectfully, that logic does not make sense.

[00:04:34] Speaker 00:
He knew that he had been wronged, but that doesn't mean that he doesn't have a right or any redress to address that.

[00:04:40] Speaker 00:
Respectfully, he does.

[00:04:42] Speaker 00:
And what we're here for on this very claim is constitutional due process.

[00:04:47] Speaker 00:
That's what we're looking at.

[00:04:48] Speaker 00:
We're looking at Loudermill and the number of cases that come after it as to what Dr. Lutz is entitled to.

[00:04:54] Speaker 00:
And those cases say,

[00:04:56] Speaker 00:
that he was entitled to, before termination, that he was entitled to notice of the charges against him, an explanation of the evidence, and an opportunity to present his side of the story.

[00:05:06] Speaker 00:
But all this has to happen before the termination decision is made.

[00:05:10] Speaker 00:
The cases are very, very clear that if the decision has already been made, nothing else matters.

[00:05:16] Speaker 00:
That violation has occurred.

[00:05:18] Speaker 00:
Matthews, that we've cited before, the Oregon School District case, that's one of multiple cases here that says if the termination happened,

[00:05:26] Speaker 04:
You can't unring that bell the due process violation has occurred so on that question as a matter of law Do you have a case that says you can't unring the bell?

[00:05:36] Speaker 04:
I mean, I guess one way to look at this if There was an intent and a stated objectively intent to fire your client as of you know day one You know, but then they realized they should have

[00:05:50] Speaker 04:
given him due process, can they unring the bell and give the due process post-determination and cure essentially the due process deficiency?

[00:06:06] Speaker 00:
no your honor they can't they say oops they absolutely cannot your honor we they cannot the cases are very very clear that they can't clements the knudsen case matthews they're all abundantly clear that they cannot unring that bell and that once the violation has occurred there's nothing you can do to cure that part of the violation absolutely nothing

[00:06:26] Speaker 00:
That's the case we have here.

[00:06:27] Speaker 00:
And it's not just one piece of evidence.

[00:06:30] Speaker 00:
It's so many.

[00:06:31] Speaker 00:
It's seven, eight, nine pieces of evidence that needed to be weighed.

[00:06:35] Speaker 00:
But to her question, do you have a case that would say that?

[00:06:39] Speaker 00:
Yes, Matthews, Your Honor.

[00:06:42] Speaker 00:
The Ninth Circuit case, Matthews.

[00:06:48] Speaker 00:
And Your Honor, let me find another citation for you.

[00:06:56] Speaker 00:
The Knutson case that's in our briefing as well, and the Clements case, Your Honor.

[00:07:03] Speaker 00:
All of those cases that are in our brief all stand for this proposition that the violation has occurred, it cannot be cured, it cannot be unrun.

[00:07:12] Speaker 00:
And the summary judgment standard clearly indicates, and we all know, that you cannot weigh evidence, you cannot judge credibility on summary judgment.

[00:07:20] Speaker 00:
But when we look at the district court's ruling, that's what we see.

[00:07:23] Speaker 00:
We see no proper accounting for what happened on October 29th.

[00:07:27] Speaker 00:
None, none whatsoever.

[00:07:29] Speaker 00:
And so the summary judgment standard actually was flipped against Dr. Lutz.

[00:07:33] Speaker 00:
And so that's why we're asking the court to reverse this ruling.

[00:07:37] Speaker 00:
and reverse the court's grant to summary judgment.

[00:07:39] Speaker 00:
Does the court have any more questions for me?

[00:07:41] Speaker 00:
Otherwise, I'll reserve the rest of my time for rebuttal.

[00:07:44] Speaker 00:
Thank you.

[00:07:53] Speaker 03:
Good afternoon, Your Honors, and please the court and counsel.

[00:07:55] Speaker 03:
My name is Heather Yakely, and I'm with the law firm of Evans, Craven, and Lackey, and I am here representing the Spokane Regional Health District.

[00:08:05] Speaker 03:
I'm assuming you're going to have some questions for me, but I want to start with one important premise that I think sets the stage for this, which is neither one of these parties are unsophisticated.

[00:08:17] Speaker 03:
Dr. Lutz is a very well-educated physician.

[00:08:20] Speaker 03:
He served in leadership positions previous to this.

[00:08:24] Speaker 03:
And I do believe that it is relevant that he served on the Board of Health, specifically for the Spokane Regional Health District.

[00:08:33] Speaker 03:
One of the reasons that's important is I also disagree with Dr. Lutz's premise that the bylaws don't matter.

[00:08:41] Speaker 03:
I do believe that the bylaws actually do matter.

[00:08:47] Speaker 04:
Well, if the bylaws say that there had to be process, but his point is that they were violated, why does that matter?

[00:08:55] Speaker 03:
Actually, the bylaws don't say that there has to be due process.

[00:08:59] Speaker 03:
It simply says that they have to approve the termination.

[00:09:05] Speaker 03:
So plain language is approve the termination.

[00:09:09] Speaker 03:
Now.

[00:09:10] Speaker 01:
So when did they approve the termination?

[00:09:14] Speaker 03:
They approve the termination.

[00:09:15] Speaker 03:
If you look at the bylaws, if you look at the statute, the statute says that they need to make the decision.

[00:09:23] Speaker 03:
So he has to be given a notice and opportunity to be heard.

[00:09:26] Speaker 03:
So the statute, RCW 70.050, does say you have to be given due process.

[00:09:34] Speaker 03:
So go to my question, though.

[00:09:38] Speaker 03:
specifically to your question, they approved, if you want to go by the bylaws, or they heard, after giving him an opportunity to be heard, on November 5th.

[00:09:49] Speaker 02:
Right, but his argument is that that's not what happened here, that the bylaws were violated and that the decision was made on October

[00:09:59] Speaker 02:
29th.

[00:10:00] Speaker 02:
So I don't see what difference it makes that he may have been aware of the bylaws.

[00:10:06] Speaker 02:
The argument is that they violated his legal rights, that they did not give him the process to which he was due, that he was not given notice before October 29th.

[00:10:17] Speaker 03:
So I believe that the district court assessed the facts correctly, and those facts are he had a meeting on the 29th.

[00:10:27] Speaker 03:
His meeting was with Dr. Clark.

[00:10:30] Speaker 03:
She was the administrative officer and the chair to discuss employment performance issues or, in the alternative, the resignation.

[00:10:42] Speaker 02:
Right, but she stated to him, allegedly, you're terminated, effective immediately.

[00:10:47] Speaker 02:
And then his keys were revoked, his computer, his cell phone, his badges.

[00:10:53] Speaker 02:
Those are all usual indicia that someone has been

[00:10:56] Speaker 02:
not that someone is in the, that the board is in the process of making a decision about whether to revoke employment, but that their employment is over.

[00:11:06] Speaker 02:
Why is there no genuine issue there?

[00:11:10] Speaker 03:
Well, one, because the record is actually very clear from Ms.

[00:11:15] Speaker 03:
Clark and from the HR person that it is common when you are going to have somebody placed on administrative leave

[00:11:23] Speaker 03:
to take their keys, take their computer, take their access.

[00:11:26] Speaker 02:
How about the word you're terminated effective immediately?

[00:11:29] Speaker 02:
Is that common if someone has not actually been terminated effective immediately?

[00:11:34] Speaker 03:
And I agree that there's a question of fact specific to what Dr. Lutz says was said versus what Dr. Clark— But then if it's a question of fact, then that's the end of it, isn't it?

[00:11:46] Speaker 01:
Why?

[00:11:47] Speaker 03:
And I would like to tell you why, because what you have to look at is the timeline of this, right?

[00:11:56] Speaker 03:
There's a question of fact over what words were specifically said to Dr. Lutz.

[00:12:03] Speaker 03:
Sorry, I'm going to get my doctors confused.

[00:12:05] Speaker 03:
There's definitely a question of fact about that.

[00:12:06] Speaker 04:
So you have to assume his version of the facts, right?

[00:12:09] Speaker 04:
Sure.

[00:12:09] Speaker 04:
And you win anyway.

[00:12:10] Speaker 04:
So assume they did say, you're fired effective immediately on October 29th, scored an amount in the building.

[00:12:18] Speaker 04:
You're saying that we should not treat that as the termination date.

[00:12:22] Speaker 03:
as a matter of law or as a matter of fact as a matter of fact okay we should not treat that as the termination date because one day later dr let's

[00:12:34] Speaker 03:
He does a press release.

[00:12:35] Speaker 03:
This isn't like there's a question of somebody misunderstood me, the reporter misquoted me.

[00:12:40] Speaker 03:
There's nothing like that.

[00:12:40] Speaker 03:
This is a press release.

[00:12:42] Speaker 03:
And he says, I retained a lawyer, and I'm now waiting for a determination by the board.

[00:12:49] Speaker 03:
So that becomes relevant, particularly in this case when there is questions of fact.

[00:12:54] Speaker 03:
It becomes relevant because at the specific time when Dr. Lutz is saying, I was terminated, he knew he wasn't terminated.

[00:13:04] Speaker 01:
His arguments about— Counsel, I watched the press conference saying that, by Clark announcing that, he's fired, effective yesterday, meaning October—the press conference on October 30th.

[00:13:18] Speaker 01:
So that would have been October 29th.

[00:13:20] Speaker 03:
I can't dispute that Dr. Clark— You can't, because I watched it.

[00:13:26] Speaker 03:
Well, and, I mean, I can't dispute—and I think we say it in our briefing very clearly—can't dispute that Dr. Clark was not

[00:13:36] Speaker 03:
Skilled?

[00:13:37] Speaker 03:
Was not well prepared.

[00:13:39] Speaker 03:
I don't know what word you want to use.

[00:13:40] Speaker 03:
No doubt about it that her wording was not particularly effective yesterday.

[00:13:46] Speaker 01:
That's clear, isn't it?

[00:13:50] Speaker 03:
But I don't think that you can ignore— If you need to concede something, you can.

[00:13:54] Speaker 03:
But— Yeah, I mean, I think her words were clear, but I also think that the record is also very clear that she did not actually mean to say that.

[00:14:05] Speaker 03:
She says that.

[00:14:07] Speaker 02:
But she also said—she was also asked a question at that press conference about whether the board approved the resignation of Dr. Lutz.

[00:14:17] Speaker 02:
This is October 30th.

[00:14:19] Speaker 02:
And she said she took her action yesterday with the full support of the board.

[00:14:25] Speaker 02:
So, I mean, even if we assume that—

[00:14:28] Speaker 02:
she didn't have authority to do anything, and Dr. Lutz knew that she didn't have authority to do it, then you still get to the question of whether this hearing on November 5th was just a pretext for a decision that had already been made, which also would violate Dr. Lutz's due process rights.

[00:14:45] Speaker 02:
So, I mean, it seems like you still have a problem there, because how are we to know that the board really undertook a fair

[00:14:54] Speaker 02:
evaluation when you have Dr. Clark stating on October 30th that she took her action with the approval of the board.

[00:15:00] Speaker 02:
I mean, I just can't see why—how this is appropriate for summary judgment, but go ahead.

[00:15:10] Speaker 03:
with respect to her wording, she said she has the support of the board.

[00:15:14] Speaker 03:
And I think it's really important to make a distinction and look at the plain language, which is support.

[00:15:20] Speaker 03:
There is no person who has a supervisor above them who would fire a high-profile individual

[00:15:30] Speaker 03:
high-ranking employee without making sure that they have the full support of their board.

[00:15:35] Speaker 02:
Well, if she had the full support of the board, then what was the hearing on November 5th about?

[00:15:41] Speaker 02:
Go ahead.

[00:15:41] Speaker 03:
My point is, it's not a board making a decision.

[00:15:44] Speaker 03:
A board is saying, OK, we understand your reasoning behind this.

[00:15:47] Speaker 03:
We understand that you're having problems and that you don't think that you can work with him anymore.

[00:15:51] Speaker 03:
So you need to take the action that you can take.

[00:15:54] Speaker 02:
We'll support that.

[00:15:56] Speaker 02:
This seems like we're well past what some were judgment at this point.

[00:16:02] Speaker 04:
You're asking us to draw an inference from the record that the board did not in fact already approve the termination.

[00:16:09] Speaker 04:
But I think we're supposed to draw all inferences in favor of

[00:16:13] Speaker 04:
The non moving party under the summary judgment standards So if we draw all inferences from the record in favor of the non moving party, we would infer that in fact the board did approve Termination in the words that plain words that were actually used fired effective immediately with the full support of the board and the board in fact did so even assuming that you're correct as a matter of law only the board can make the decision to terminate and

[00:16:40] Speaker 04:
We could draw an inference from the record or a reasonable fact finder could find that, in fact, the board did fire Dr. Litz, excuse me, as of October 29.

[00:16:52] Speaker 04:
And that the rest was essentially a post hoc attempt to provide due process.

[00:17:01] Speaker 04:
And I understand that's only one inference.

[00:17:03] Speaker 04:
And it's also possible to draw the inference that you are arguing for.

[00:17:07] Speaker 04:
But these are inferences that

[00:17:09] Speaker 04:
under the summary judgment standard seem to me should be left for the jury.

[00:17:15] Speaker 03:
And I certainly respect and understand that concept.

[00:17:20] Speaker 03:
I don't believe that the trial court aired simply because of what we already have talked about, watching my time, which is there are other facts known.

[00:17:30] Speaker 03:
And wholly, they can't be disputed because they're Dr. Lutz's words.

[00:17:36] Speaker 03:
So he knew he was waiting for something further from the board, which happened on the 5th.

[00:17:44] Speaker 04:
He knew that.

[00:17:44] Speaker 04:
He could be taking an appeal, you know, to the board.

[00:17:46] Speaker 04:
I mean, it doesn't mean that it didn't happen.

[00:17:50] Speaker ?:
Right?

[00:17:50] Speaker 03:
But, I mean, anything is possible.

[00:17:53] Speaker 03:
That is true.

[00:17:55] Speaker 03:
But I don't think that you can separate those out when you look at the totality of the evidence.

[00:18:10] Speaker 00:
A few brief points to raise here.

[00:18:12] Speaker 00:
I think it's important to emphasize that.

[00:18:17] Speaker 00:
There's there are issues of fact here if there's testimony that needs to be addressed.

[00:18:21] Speaker 00:
It's for it's for the trial It's for the jury.

[00:18:23] Speaker 04:
How would you explain how do you respond to that?

[00:18:26] Speaker 00:
Said he's your client said he was waiting for a decision from the board I would say my client is not a lawyer and he could certainly be impeached at trial based on that statement But he has sworn declaration testimony that he was fired effective immediately on October 29th and

[00:18:41] Speaker 00:
And not only that, so that's impeachment at best.

[00:18:44] Speaker 00:
That's it.

[00:18:45] Speaker 00:
This is for the jury to decide.

[00:18:46] Speaker 00:
These are credibility issues at most.

[00:18:50] Speaker 00:
And this is what trials are about.

[00:18:52] Speaker 00:
It's not for summary judgment.

[00:18:53] Speaker 00:
And then what I would point you to, Your Honor, is all of these

[00:18:56] Speaker 00:
other evidence in the record that shows that he was terminated on the 29th er 265 is an email from the HR coordinator confirming that he was fired the prior day and then we have a press release document er 268 which says that on October 29th administrative officer Amelia Clark received support from the Spokane Board of Health to offer Dr. Bob Lutz the opportunity to resign by 4 p.m.

[00:19:22] Speaker 00:
on October 30th in lieu of termination

[00:19:25] Speaker 00:
Then it says, October 30th, as of 4pm today, Lutz did not submit a resignation, therefore he is terminated.

[00:19:31] Speaker 00:
These statements are all statements of board support to terminate Dr. Lutz.

[00:19:36] Speaker 00:
And this all happened with no notice whatsoever, none.

[00:19:39] Speaker 00:
There was no warning, no warning that his job was in jeopardy prior to the 29th.

[00:19:43] Speaker 00:
And so what I would say is,

[00:19:44] Speaker 00:
There are multiple witnesses that need to be vetted by a finder of fact.

[00:19:49] Speaker 00:
Ms.

[00:19:49] Speaker 00:
Wilson, Mr. Smith, Ms.

[00:19:51] Speaker 00:
Clark herself, the HR director who wrote this email saying his last day was the 29th, among many others.

[00:19:57] Speaker 00:
That's how I would respond to that, Your Honor.

[00:20:01] Speaker 00:
There is no dispute that this press conference, frankly, standing alone, is yet another piece of evidence that he was fired on the 29th.

[00:20:08] Speaker 00:
There are numerous issues of fact, and there are numerous items of evidence that can be pointed to, any one of which should have precluded summary judgment on this point.

[00:20:17] Speaker 00:
So, Your Honor, we're asking the Court to reverse this grant of summary judgment and reinstate Dr. Letts' claim for his violation of procedural due process, right?

[00:20:26] Speaker 00:
Does the Court have any final questions for me?

[00:20:29] Speaker 04:
Thank you.