Wash. Court of Appeals published opinion — 341038_pub.pdf

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We need not identify the bearer or resolve the nature of the burden of proof

because, no matter who carries the burden and the extent of the burden, we hold that

Gonzaga University is entitled to summary judgment on the justification element.

Imposing the burden of proof on the employer does not necessarily mean the employer

may not gain summary judgment on the element. A defendant, even an employer in an

employment case, may gain summary judgment by establishing an uncontroverted

affirmative defense. Thornton v. Federal Express Corp., 530 F.3d 451, 457-58 (6th Cir.

2008); Fitzgerald v. Salsbury Chemical, Inc., 613 N.W.2d at 282.

We next visit the second question of whether the employer must be motivated by

the overriding justification when discharging the employee from employment in order to

avoid liability. This question becomes relevant if facts show that Gonzaga University

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No. 34103-8-111
Martin v. Gonzaga University

knew of the insubordination of David Martin, but fired David Martin only because of his

advocacy of student safety. Under these facts, the individual or individuals terminating

Martin's employment knew about, but cared nothing about, the insubordination of Martin

and only wished to retaliate against Martin because of his raising safety concerns or

speaking to the student newspaper. We answer the second question in the negative. The

university may avoid liability if insubordination constitutes a justifying reason under the

law and overrides the advocacy of safety concerns regardless of whether insubordination

motivated the firing.

We secure our decision, freeing the employer from showing the overriding