Wash. Court of Appeals published opinion — D2 56466-1-II Published Opinion.pdf

No. 56466-1-II

true, he can make a prima facie case that he was performing a public obligation for which the Port

could not lawfully discharge him. But if Paddock knowingly and willfully made statements he did

not believe to be true, he was not performing a public obligation when he testified falsely, and he

cannot make a prima facie case for wrongful discharge in violation of public policy.

Under the summary judgment standard, we must view the evidence in the light most

favorable to Paddock and we must assume his declaration, and those of Hughes and the attorney

present in the deposition, are true. Under that standard, Paddock has made a prima facie case that

he was performing a public duty or obligation.

The burden then shifts to the Port to articulate a legitimate reason for discharging Paddock.

The burden is one of production, not persuasion, so we ask only whether the Port’s evidence, taken

as true, permits the conclusion that its reason for firing Paddock was lawful. Mackey, 12 Wn. App.

2d at 580-81. The Port presented evidence in the form of the investigator’s report, explaining that

it terminated Paddock for deliberately lying when he testified in response to a subpoena. See Br.

of Resp’t at 31-32. Assuming the Port’s evidence is true, this would be a lawful reason for

terminating Paddock’s employment.

Finally, “the burden shifts back to the employee to produce sufficient evidence to establish”

that “the employer’s alleged . . . reason for the adverse employment action was pretextual or that

even if the stated reason was legitimate . . . violation of public policy also was a substantial

motivating factor.” Mackey, 12 Wn. App. 2d at 581 (emphasis added). Here, we view the evidence