Wash. Court of Appeals published opinion — 723448.pdf

3Allen also filed a petition for judicial review challenging the assessment of a $1,000 fine against
him. Allen argued the fine violated his right to due process. Swanson and the City stipulated the fine
should be stricken.

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No. 72344-8-1/13

the impersonation of Swanson "may be sufficient to constitute retaliatory action

pursuant to RCW 42.41.020(3)(b), it is insufficient under [former] SMC 4.20.850(D)."

No evidence was presented that the impersonation resulted in any
unwarranted adverse change in Mr. Swanson's employment status or the
terms and conditions of his employment. The ALJ's failure to cite SMC
4.20.850(D) in conjunction with RCW 42.41 appears to be a tacit
acknowledgment of that deficiency.

The court rejected the City's argument that even if the state law definition of

"retaliation" applied, the record did not support finding a SCL employee "posted the

comment or that Mr. Allen encouraged the conduct." The court concluded that "[w]hile

the record on this issue is not well developed, it is clear that the individual who posted

the comment had 'insider' information not known to the general public" and was

"encouraged to act by the behavior and conduct of Mr. Allen."

Given the historical context and Mr. Allen's prior dealings with Mr.
Swanson, a reasonable inference can be drawn that the poster was a City
Light insider who was encouraged to act by the behavior and conduct of
Mr. Allen. Other potential "suspects" may exist, but the burden of proof is
merely a preponderance of the evidence and no other individuals were
identified with similar interests or motives. Accordingly, this Court finds
that the record is sufficient to support the ALJ's factual finding.