The PAL sticker and the impersonation of Mr. Swanson to the Seattle
Times were undoubtedly hostile actions taken by SCL employees toward
Mr. Swanson that Mr. Allen either vocally or tacitly encouraged, if not
performed himself. Because I find that the PAL sticker was first on Mr.
Swanson's locker earlier than 30 days prior to Mr. Swanson's retaliation
complaint to the Office of the Mayor, I do not consider it in determining
whether SCL violated Chapter 42.41 RCW and Chapter 4.20 SMC.
However, at the time the impersonation of Mr. Swanson to the Seattle
Times took place, Mr. Allen was in a secondary supervisory position with
the City over Mr. [Swanson] because of his participation with the JATC, a
City committee with authority to negatively impact Mr. [Swanson]'s
apprenticeship. Consequently, Mr. Allen's encouragement and/or
commission of the impersonation of Mr. Swanson publicly to the Seattle
Times is actionable retaliation under Chapter 42.41 RCW.
The ALJ recommended suspending Allen for six months and ordered the City to
pay Swanson attorney fees and costs incurred in bringing his whistleblower retaliation
claim under chapter 42.41 RCW.
On October 17, 2013, the City filed a petition for judicial review in superior court.
The City argued the ALJ erred in relying on the state law definition of "retaliatory action"
rather than the definition of "retaliatory action" under former SMC 4.20.850(D). In the
alternative, the City argued substantial evidence did not support finding retaliation under
state law.3
The superior court ruled the ALJ erred "as a matter of law in relying on the
definition of retaliation found in RCW 42.41.020(3)(b)." The court concluded that while