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McLean v. City of Tacoma9/24/1999
Carol J. McLean appeals a summary Judgement dismissing her lawsuit for wrongful discharge and other claims against her former employer, the City of Tacoma. McLean challenges the trial court's ruling that no factual issue existed as to whether McLean retired voluntarily; and she contends the court erred by considering the City's summary Judgement motion on reduced notice. We affirm.
FACTS
In March 1995, McLean, a retired hydroelectric plant operator for Tacoma's Department of Public Utilities, filed an amended complaint in Pierce County Superior Court against the City and some of its employees. McLean had developed health problems and alleged that the City failed to accommodate her "medical handicap." She claimed that in early 1992, the City had initiated disciplinary action against her for an operating error on the job, that negotiations concerning this action had failed, and that she felt compelled to take early retirement in October 1992. McLean alleged causes of action for: constructive discharge, intentional interference with business relationship, negligent/intentional infliction of emotional distress, employment discrimination, 42 U.S.C. sec. 1983 Civil Rights violation, and violation of the Americans with Disabilities Act (ADA).
The City promptly answered and counterclaimed. Nearly three years later, in March 1998, the City moved for summary Judgement. The City pointed out that in January 1997, the superior court clerk had noted the case for dismissal for want of prosecution; that a trial date of May 12, 1998, had been set; and that McLean's lawyer had recently filed notice of intent to withdraw. Since McLean commenced suit, she had allowed three years to pass without taking action in the case, other than obtaining a trial date and giving cursory responses to defense interrogatories. She had made no effort to take depositions of witnesses. The City argued that the statute of limitations had run on some of McLean's claims, that the individual defendants were immune from suit, and that the facts would not support the claims predicated on McLean's involuntary retirement.
CR 56(c) provides that summary Judgement motions must be filed and served at least 28 calendar days before hearing, and "shall be heard more than 14 calendar days before the date set for trial unless leave of court is granted to allow otherwise." The City filed its motion for summary Judgement on March 26, 1998, or 47 days before the May 12 trial date. By local rule, Friday is regular motion day in Pierce County Superior Court. PCLR 0.2(A)(2)(c). This meant that if the City's summary Judgement motion were to be heard on Friday, May 1, fewer than 14 days would remain before trial, but if the motion were heard the previous Friday, April 24, fewer than 28 days would have elapsed after filing and service.
Consequently, on April 1, 1998, the City moved to shorten the time for hearing the summary Judgement motion. The assistant city attorney submitted an affidavit stating his reasons for setting the motion for May 1, or 11 days before the May 12 trial date. He explained that the plaintiff's lawyer had withdrawn, requiring three days for serving McLean with the motion by mail (CR 5(b)(2)), thus the 31st day after filing of the motion would fall on April 26, a Sunday; that the next Friday would fall on May 1; that "{t}he issues raised by the Summary Judgement will undoubtedly require resolution before trial in any event for the sake of judicial economy"; and, "The intent of the rule, to provide adequate notice and an opportunity to respond is basically met in these circumstances."
The record does not contain any decision on the motion to shorten time; but implicitly i
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