ash-Left 1 1aw2??91971?37 AMCPT 22 e? Amended Complaint 6461921 I ll IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF WHATCOM Case No.: 18~2~01 971-37 MATHEW BABICK, Plaintiff; AMENDED COMPLAINT WESTERN WASHINGTON UNIVERSITY, Defendant. COMES NOW the Plainti? and complains of Defendants as follows: I. PARTIES, JURISDICTION, AND VENUE 1. Plaintiff Mathew Babick was at all times material to this action, a resident of Whateom County, Washington. 2. Defendant Western Washington University, (?Western Washington?) was designated by the Washington Legislature through enactment of a statute now codi?ed as RCW 288.35.010 as a public institution of higher education, and a regional university. Western Washington is an agency of the state of Washington, and is primarily located in Bellingham, Washington. 3. Western Washington was the employer of Mathew Babiok, who was assigned to work SKRINAR LAW OFFICES 524 TACOMA AVENUE SO TACOMA, WA 98402 (253} 383-0708 0 (253) 383-3673 FAX pskrinar@skrinarlaw.com AMENDED COMPLAINT FOR DAMAGES 1 Western Washington?s Bellingham, Washington campus. All of the actions complained of herein took place in Bellingham, Washington. 4. Mathew Babick alleges claims herein against Western Washington under the Washington Law Against Discrimination, Chapter 49.60 RCW, Open Public Meetings Act RCW 42.30.et. seq, and statutes related to the Board of Trustees obligations to all employees (RCW 283.35.et.seq. 5. This Court has jurisdiction over the parties and claims herein pursuant to RCW 2.08.010, RCW 42.30.et.seq. and RCW 42.30.120. 6. Venue is proper in this Court under RCW 4.92.010. II. FACTUAL ALLEGATIONS 7. As an agency of the state of Washington, Western Washington is subject to the laws of the state of Washington applicable to government agencies. 8. Western Washington is governed by an eight-member Board of Trustees (the ?Board?), which possesses fundamental authority over the university. The Board is ultimately responsible for the operations of the university. The Board elects from amongst its members the principal of?cers of the Board, and appoints the president of the university. 9. Western Washington?s Trustees have established a committee, called the Audit Committee, who function is to oversee the quality and integrity of the accounting, auditing, compliance, and reporting practices of WWU. The Audit Committee is responsible for ensuring that appropriate policies are in place, that university operations are conducted effectively, and that internal controls are implemented. The Audit Committee acts in an oversight role to advise the full Board of Western Washington?s business and financial risks, receive critical internal audit reports, and monitor compliance and ethical issues. SKRINAR LAW 524 TACOMA AVENUE SO TACOMA, WA 98402 (253} 383-0708 0 (253) 3836673 FAX pskrinar@skrinarlaw.com AMENDED COMPLAINT FOR DAMAGES - 2 10. The Audit Charter states that the Committee is to oversee the effectiveness of the internal audit program. 1 l. The President of Western Washington reports to the Board, is responsible for general supervision of Western Washington, and ensures that all laws and policies adopted by the Board are observed. The Board?s key public policy for Internal Audit is that the Audit Director must follow nationally recognized standards for the internal audit profession. At the time of Mr. Babick?s employment, the President of Western Washington was Bruce Shepard (the ?President?). 12. In the spring of 2014, Western Washington conducted a national, competitive recruitment process to ?ll the position of Director of Internal Audit. (hereinafter, the ?Internal Auditor?). Mr. Babick, age 55, applied for the position, and Western Washington hired Mr. Babick as its Internal Auditor. 13. The Audit Director?s purpose at Western Washington is to evaluate and improve the effectiveness of risk management, control, and governance processes. The Auditor?s roles include monitoring, assessing, and analyzing organizational risk and controls; and reviewing and continuing information demonstrating compliance with policies, procedures, and laws. The University requires its Audit Director to follow codi?ed audit standards that provide, in part, this guidance: Auditing is a cornerstone of good public sector governance. By providing unbiased, objective assessments of whether public resources are managed reSponsibly and effectively to achieve intended results, auditors help public sector organizations achieve accountability and integrity, improve operations, and instill con?dence among citizens and stakeholders. 14. The Audit Committee Charter establishes the relationship between the Audit Committee, the President, and the Internal Auditor, and provides in pertinent part that ?[t]he SKRINAR LAW OFFICES 524 TACOMA AVENUE so TACOMA, WA 98402 (253) 38343708 (253) 383-3673 FAX pskrinar@skrinarlaw.com AMENDED COMPLAINT FOR DAMAGES 3 internal auditor is responsible for providing an independent appraisal function which evaluates the university?s activities to assist the Board of Trustees, President and University leadership team in the discharge of their oversight, management, and operating responsibilities.? 15. As lead Internal Auditor, Mr. Babick was responsible for the day~to~day operations of the Of?ce of the internal Auditor. Mr. Babick?s ?rst day on the job was August 29, 2014. 16. Mr. Babick was compensated with an annual salary of $105,000, and a full range of employment bene?ts, including an additional ten percent matching retirement contribution. 17. The trustees delegated their oversight for auditing the President?s travel expenses to the Of?ce of the Internal Auditor. The President?s employment contract with the university, a public document, required this expense audit he performed. 18. The chair of the Trustees is required to review the President?s expenses or designate a university employee to do so who does not report to the President. 19. The President Shepard resisted Mr. Babick?s audit steps during the expense audit when Mr. Babick sought a receipt for one of the President?s reimbursed expenses. At ?rst, the President objected that Mr. Babick was acting beyond the scope of Mr. Babick?s duties. Then even after Mr. Babick showed the President a clause in his contract demonstrating the item was in fact within the scope of the audit, the President continued to resist and did not provide the receipt. 20. During this audit, Mr. Babick discovered that the Board and President were in violation of a contract provision regarding the expense audit. 21. Mr. Babick completed the audit and distributed the audit report to the Audit Committee in accordance with his of?ce?s practices and audit standards. The President then scolded Mr. Babick for not allowing President to control distribution of the audit report. The SKRINAR LAW OFFICES 524 TACGMA AVENUE SO TACOMA, WA 98402 (253) 383-0708 0 (253) 383-3673 FAX AMENDED COMPLAINT FOR DAMAGES 4 Present?s attempt to control distribution of the audit report?s ?ndings about his own expenses was both unusual and in violation of audit standards and university policy. 22. Western Washington?s Audit Committee meets prior to the start of the full Board of Trustee?s meeting. Prior to the Audit Committee meeting on April 9, 2015, Mr. Babick had drafted the meeting?s agenda. However, President Shepard revised the agenda by removing materials concerning best practices of audit committees at other universities that Mr. Babick planned to provide to the Audit Committee. 23. The President?s unilateral deletion of of audit materials violated the provisions of the committee charter policy that allows the Audit Director unobstructed access to the Audit 24. During the April 9, 2015 Audit Committee meeting, Mr. Babick began to raise and disclose issues about auditing the President?s travel expenses, the President immediately silenced Mr. Babick and halted the discussion before Mr. Babick could inform the Trustees of his concerns. By doing so, President Shepard improperly interfered with Mr. Babick?s public duties. 25. President Shepard?s actions violated both the university policy and recognized audit standards that required Mr. Babick to inform the Trustees of his audit ?ndings and concerns. 26. President Shepard?s interferences with the audit adversely impacted Mr. Babick?s professional judgments. 27. Audit standards mandate that Mr. Babick remain independent by ensuring he not subordinate or defer his audit judgment to others. 28. On April 10th, 2015 the day after President Shepard silenced Mr. Babick at the SKRINAR LAW OFFICES 524 TACOMA AVENUE SO TACOMA. WA 98402 (253) 33343708 0 (253) 383-3673 FAX pskrinar@skrinarlaw.com AMENDED COMPLAINT FOR DAMAGES - 5 Audit Committee meeting, he summoned Mr. Babick to his of?ce at 1:00 pm. and ?red him. 29. Under Washington law, a regional university?s employees must be publicly discharged by the board of trustees of the university. 30. A few minutes past 8:00 am. on April 10, 2015 the Board altered their agenda, went into executive session to discuss Mr. Babick?s employment, and reconvened a short time later without taking any action. 31. The President failed to give Mr. Babick a written performance evaluation while servicing as Western Washington?s Internal Audit Director. The President?s failure violated University policy requiring such evaluations. 32. Responding to the President?s threat of termination, Mr. Babick submitted his resignation to effect on May 15, 2015. CAUSES OF ACTION Plaintiff re-alleges and incorporates the allegations above to each of the following: A. LACK OF GOOD CAUSE. 1. Section 288.35 . 120 (2) RCW provides that the employees of a regional university such as Western Washington ?shall hold their positions, until discharged therefrom by the board for good and lawful reason.? 2. Western Washington did not have good and lawful reason to discharge Mr. Babick. 3. 1 Mr. Bahick was terminated by Western Washington. 4. Mr. Babick was damaged by Western Washington?s illegal actions. B. VIOLATION OF THE OPEN PUBLIC MEETINGS ACT 1. RCW 42.30.030 mandates that all meetings of a governing body be open to the SKRINAR LAW OFFICES 524 TACOMA AVENUE SO TACOMA, WA 98402 (253) 383-0708 0 (253) 383-3673 FAX AMENDED COMPLAINT FOR DAMAGES - 6 ?113 public unless an exception applies. 2. RCW 42.30.020 (2) de?nes a ?governing body? as including any committee of a governing board that acts on behalf of the governing body. 3. On April 9, 2015, the Audit Committee violated RCW 4230030 by not publicly noticing its meeting and by meeting outside of public View, in a private meeting. 4. RCW 42.30.110 provides when a governing body takes ?nal action to discharge or discipline an employee, that action must be taken in a meeting open to the public. 5. The Board met in closed session on April 10, 2015, at which time a decision was made to terminate Mr. Babick. 6. The Board violated the Washington Open Public Meetings Act by taking action to terminate Mr. Babick?s employment in closed session. C. VIOLATION OF PUBLIC POLICY. 5. Mr. Babick reasonably believed that his refusal to disregard his obligations to properly audit the expense account of Western Washington?s president constituted a refusal to engage in an illegal act. 6. Mr. Babick performed a public duty by properly auditing the expense account of Western Washington?s president, and conducting this audit and other audits in accordance with university-mandated adherence to professional standards. . 7. Mr. Babick engaged in protected activity when he attempted to call the attention of the Board to his audit of the expense account of Western Washington?s president. 8. Mr. Babick engaged in a legal right when he audited the expense account of Western Washington?s president, and reported to the Board?s Audit Committee. 9. Western Washington?s termination of Mr. Babick?s employment constituted a SKRINAR LAW OFFICES 524 TACOMA AVENUE SO TACOMA, WA 98402 (253) 383-0708 9 (253} 38333673 FAX pskrinar@skrinarlaw.com AMENDED COMPLAINT FOR DAMAGES - 7 27violation of public policy. D. RETALIATION 10. Mr. Babick exercised his right to freedom of speech by speaking out on audit issues and other matters of public concern. Western Washington?s President Shepard, under color of state law, unlawfully retaliated against Mr. Babick from one day to the next. 11. Mr. Babick?s reporting to the Board of audit discrepancies constituted statutorily protected activity. 12. Western Washington unlawfully retaliated against Mr. Babick by constructively discharging him, failing to supervise President Shephard, and in its actions described herein. 13. President Shepard terminated Mr. Babick. Mr. Babick believed he had the authority to terminate after meeting with the Board and representing their decision to endorse termination. 14. Mr. Babick was damaged by the wrongful acts of the Defendants. E. NEGLIGENT INFLICTION 0F EMOTIONAL DISTRESS 15. President Shephard acted in the scope of his employment when he engaged in the wrongful conduct described in this complaint. 16. Western Washington breached various duties it owed to Mr. Babick. 17. Western Washington negligently in?icted emotional distress on Mr. Babick in each of the actions described herein. 18. Mr. Babick was damaged by the wrong?il conduct of the Defendant. IV. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for damages as appropriate to compensate for such injuries, as described above, under law as appropriate, including: SKRINAR LAW OFFICES 524 TACOMA AVENUE SO TACOMA, WA 98402 (253) 383?0708 0 (253) 383?3673 FAX pskrinar@skrinariaw.com AMENDED COMPLAINT FOR DAMAGES 8 4 ?lmymFor judgment against Defendants for lost wages and bene?ts, including prejudgment interest; 2. For judgment against Defendants for impaired future earning capacity; 3. For judgment against Defendants for emotional distress, pain and suffering in amounts to be proven at trial; 4. That Plaintiff be awarded all other actual damages pursuant to RCW 49.60, RCW 51.48.025, and other applicable law; 5. For an award of attorney?s fees and costs pursuant to RCW 49.52, 49.48 and 49.60; and 6. For such other and further relief as this court deems just and equitable. DATED this day of August 2019. SKRINAR LAW OFFICES Patricia P. Sk?nar, WSBA #13772 Of Attorneys for Plaintiff LAW OFFICE OF JULIE OBERBILLIG Julie Oberbillig, WSBA #42469 Of Attorneys for Plaintiff SKRINAR LAW OFFICES 524 TACOMA AVENUE SO TACOMA, WA 98402 (253) 3830708 0 {253) 3836673 FAX pslqinar@sleinarlaw.com AMENDED COMPLAINT FOR DAMAGES 9 famedthe undersigned, certify that I served a copy of this document on all parties or their counsel of record on the date below by fax, email, US. Mail, or hand delivery on this 7th day of August 2019 as follows: Amended Complaint: Suzanne M. LiaBraaten, WSBA 39382 Assistant Attorney General Torts Division 7141 Cleanwater Drive SW POB 40126 Olympia, WA 98504-0126 P: (360) 586-6413 F: (360) 5866655 E: AND Alexander Foster~Brown, WSBA 52149 Washington Attorney General's Of?ce 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 P: (206) 389-3898 E: alexander@atg.wa.gov I declare under penalty of perjury, under the laws of the state of Washington, that the foregoing is true and correct. Dated this 7th day of August 2019 at Tacoma, Washington. ?6 3 v. ?e PATRI A PADILLA WSBA #13772 pskrinar@skrinarla 141.com SKRINAR LAW OFFICES 524 TACOMA AVENUE SO TACOMA, WA 98402 (253) 383?0708 0 (253) 38343673 FAX AMENDED COMPLAINT FOR DAMAGES - 10