text:
Dicomes v. State
Bakki v. Boeing Co.
IIED is also referred to as the tort of outrage. See, e.g., Dicomes v. State, 782 P.2d 1002, 1012 (Wash.…
Smith v. Bates Technical College
A cause of action for wrongful discharge in violation of public policy exists where an employee is fired for…
293 Citing Cases
Full title:DEANNA DICOMES, Appellant, v. THE STATE OF WASHINGTON, ET AL, Respondents
Court:The Supreme Court of Washington. En Banc
113 Wn. 2d 612 (Wash. 1989)
113 Wash. 2d 612
782 P.2d 1002
The Supreme Court of Washington. En Banc
holding that privately delivering a termination letter and briefly responding to media inquiries regarding the termination "cannot be considered atrocious and intolerable in a civil society"
Summary of this case from Bakki v. Boeing Co.
No. 55887-6.
[1] Master and Servant — Termination — Violation of Public Policy — Burden of Proof. A discharged employee who claims that the discharge contravened a clear mandate of public policy has the burden of proving such a contravention.
[2] Master and Servant — Termination — Violation of Public Policy — Question of Law or Fact. For purposes of an action for wrongful discharge based on the discharge having contravened a clear mandate of public policy, the scope of the phrase "clear mandate of public policy" is an issue of law.
[3] Master and Servant — Termination — Violation of Public Policy — Whistleblowing — Determination. In determining whether a discharge for reporting alleged employer misconduct is actionable, a court will examine the nature and degree of the employer misconduct and the reasonableness of the manner in which the employee reported or attempted to remedy the misconduct. The employer misconduct need not constitute a clear statutory violation to support a claim for wrongful discharge, but it must constitute a violation of either the letter or policy of the law and the employee's action must have been made to further some public good, as opposed to a private or proprietary interest.
[4] Medical Treatment — Discipline — Medical Disciplinary Account — Surplus Funds — Budget Request — Necessity. RCW 18.72.380-.400 do not require the Department of Licensing to request in its budget the appropriation of surplus funds accumulated in the medical disciplinary account.
[5] Public Employment — Discharge — First Amendment Rights — Balancing Test. A discharge based on a public employee's speech involving a matter of public concern does not violate the employee's First Amendment rights unless the employee's interest as a citizen in commenting on matters of public concern outweighs the public employer's interest in providing effective and efficient public service.
[6] Public Employment — Discharge — First Amendment Rights — Policy Maker — Effect — Test. The free speech interest of a public employee who holds a confidential, policymaking, or public contact position may be overridden by the State's interest in maintaining political loyalty and confidentiality among its high level employees so that the government can function effectively. A policy maker is one who makes discretionary decisions with limited or no supervision on issues where there is room for political disagreement on goals or their implementation.
[7] Public Employment — Discharge — Due Process — Liberty Interest — Test. The discharge of a public employee does not deprive the employee of a liberty interest in future employment without due process of law unless the grounds for the discharge call into question the employee's good name, honor, or integrity or the government imposes a stigma or other disability that forecloses the employee's freedom to take advantage of other employment opportunities.
[8] Outrage — Elements — Nature of Conduct. The tort of outrage requires conduct that is so outrageous in character and so extreme in degree that it exceeds all possible bounds of decency and would be regarded as atrocious and utterly intolerable in a civilized community. Insults, indignities, or activities undertaken in bad faith or with malice are not sufficiently extreme to be actionable.
[9] Outrage — Elements — Question of Law or Fact. The issue of whether conduct is sufficiently outrageous to be actionable is a question of fact, but it can be decided by the court as a matter of law when reasonable minds could not differ as to whether the conduct is sufficiently extreme to constitute the tort of outrage.
[10] Outrage — Discharge of Employee — In General. An employee's discharge, by itself, does not constitute actionable outrage.
DORE, J., did not participate in the disposition of this case.
Nature of Action: A public employee claimed that her discharge was wrongful because it was in retaliation for her revelation that her employer's proposed budget did not include the expenditure of certain surplus funds.
Superior Court: The Superior Court for Thurston County, No. 86-2-01598-9, Richard A. Strophy, J., on January 21, 1988, granted a summary judgment in favor of the State.
Supreme Court: Holding that the discharge did not contravene a clear mandate of public policy, violate the employee's First Amendment rights, deprive the employee of her liberty interest in future employment without due process, or constitute outrageous conduct, the court affirms the judgment.
Peter D. Francis and Todd C. Nichols, for appellant.
Kenneth O. Eikenberry, Attorney General, and Michael Madden, Assistant, for respondents.
BRACHTENBACH, J.
This case involves the alleged wrongful discharge of appellant-plaintiff, Deanna Dicomes, a state employee. Plaintiff claims that she was discharged in contravention of public policy; that the discharge violated her First Amendment right to freedom of speech, and deprived her of her liberty interest in future employment without due process. She also claims that the discharge constituted outrageous conduct on the part of the state employer. The trial court dismissed these claims on the State's motion for partial summary judgment. We accepted certification of plaintiff's appeal and affirm.
In August 1982, the Director of the Department of Licensing (DOL), appointed plaintiff to the position of executive secretary to both the Washington Medical Disciplinary Board (MDB) and the Board of Medical Examiners (BME). Where appropriate, the MDB and BME will be collectively referred to as the "Boards." The executive secretary served at the pleasure of the Director of DOL, and the position was exempt from the provisions of Washington's civil service law, RCW 41.06. RCW 18.72.155.
The DOL is responsible for the supervision of business and professions administration. RCW 46.01.055. Among other specific responsibilities, DOL collects an annual disciplinary assessment levied on medical practitioners, RCW 18.72.380, which is deposited in a special medical disciplinary account, RCW 18.72.390; it then submits a budget to the Governor, providing for funding of the disciplinary efforts of the MDB, RCW 43.88.090.
As executive secretary, plaintiff was generally responsible for the organization and supervision of the administrative functions and activities of the Boards. One of her specific responsibilities was forecasting and compiling budget requests. She was also responsible for communicating DOL decisions regarding budget and staffing to the Boards.
In preparation for the 1985 legislative session, plaintiff developed a budget proposal that she presented to her superiors at DOL. Her proposal included the expenditure of surplus funds that had accumulated in the medical disciplinary account. Plaintiff then discovered that DOL's proposed budget did not include expenditure of these surplus funds. It was her opinion that the Boards should know about the availability of surplus funds in account. She approached her superiors at DOL and suggested that if they did not tell the MDB about the surplus, she would do so herself. Her superiors told her that she "didn't want to do that to [her]self." Deposition of Deanna Dicomes, at 67.
We accept as true Dicomes' claim that she was told this budget was DOL's final recommendation.
Plaintiff released the budget data, including the fact that DOL did not budget the surplus funds, to Dr. Robert Coe, chair of the MDB at the time, just prior to the Washington State Medical Association (WSMA) annual meeting. This was in response to a request by Dr. Coe that plaintiff provide budget information to the Boards. Apparently, Dr. Coe and other members of the MDB were generally concerned about funding for medical discipline; but there is no indication that Dr. Coe, or other MDB members, had prior knowledge of the available surplus. Dr. Coe conveyed the budget data to the WSMA in his report on the status of the MDB.
According to the Director, exposing the budget data created a "public uproar" between the medical profession and DOL. The Director felt that plaintiff's actions were intolerable, and he decided to take corrective action. On the recommendation of the assistant director, and within 2 working days of the WSMA annual meeting, DOL conducted a "management study." The management study identified incidents of mismanagement in DOL's medical section, and led to Dicomes' termination.
Plaintiff claims that the management study was a pretext. For purposes of the summary judgment motion, the trial court assumed that plaintiff was discharged because she released information regarding her employer's alleged wrongful or illegal conduct. On appeal, we make the same assumption since the question of whether the discharge was premised on the management study or was in retaliation for exposing budget data would raise issues of fact precluding summary judgment. For purposes of this appeal, defendants accept this assumption without admitting its truth.
This case raises the following issues: (1) whether plaintiff was wrongfully discharged in contravention of a clear mandate of public policy; (2) whether the discharge violated plaintiff's constitutional right to free speech; (3) whether the discharge deprived plaintiff of her liberty interest in future employment without due process; and (4) whether the discharge constituted outrageous conduct.
The general rule in regard to employment contracts indefinite in duration is that either the employer or the employee may terminate the contract at will. Roberts v. ARCO, 88 Wn.2d 887, 894, 568 P.2d 764 (1977). In recent years, dissatisfaction with the common law at-will rule has led to the development of several exceptions to its operation. The present appeal deals with application of the "public policy" exception to the at-will doctrine, which was expressly adopted by this court in Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 232, 685 P.2d 1081 (1984). See also Krystad v. Lau, 65 Wn.2d 827, 400 P.2d 72 (1965).
[1, 2] The essence of the public policy exception is that an employee will have "a cause of action in tort for wrongful discharge if the discharge of the employee contravenes a clear mandate of public policy." Thompson, at 232.
In determining whether a clear mandate of public policy is violated, courts should inquire whether the employer's conduct contravenes the letter or purpose of a constitutional, statutory, or regulatory provision or scheme. Prior judicial decisions may also establish the relevant public policy. However, courts should proceed cautiously if called upon to declare public policy absent some prior legislative or judicial expression on the subject.
Thompson, at 232 (citing Parnar v. Americana Hotels, Inc., 65 Haw. 370, 380, 652 P.2d 625 (1982)). In these claims, the employee has the burden to show that the discharge contravened a clear mandate of public policy. Thompson, at 232. The question of what constitutes a clear mandate of public policy is one of law. H. Perritt, Employee Dismissal Law and Practice § 7.11 (2d ed. 1987); Cloutier v. Great Atl. Pac. Tea Co., 121 N.H. 915, 926, 436 A.2d 1140 (1981) (Bois, J., dissenting).
A majority of states recognize the public policy exception. See, e.g., Cummins v. EGG Sealol, Inc., 690 F. Supp. 134, 137-38 (D.R.I. 1988) (collecting cases). The key in these cases is the proper definition of public policy. The leading case recognizing the public policy exception discussed the meaning of "clearly mandated public policy" and concluded:
In general, it can be said that public policy concerns what is right and just and what affects the citizens of the State collectively. . . . Although there is no precise line of demarcation dividing matters that are the subject of public policies from matters purely personal, a survey of cases in other States involving retaliatory discharges shows that a matter must strike at the heart of a citizen's social rights, duties, and responsibilities before the tort will be allowed.
(Citation omitted.) Palmateer v. International Harvester Co., 85 Ill.2d 124, 130, 421 N.E.2d 876 (1981).
Courts have found contravention of a clear mandate of public policy in four general areas: (1) where the discharge was a result of refusing to commit an illegal act, see, e.g., Tameny v. ARCO, 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330 (1980) (termination for refusal to engage in price-fixing); (2) where the discharge resulted due to the employee performing a public duty or obligation, see, e.g., Nees v. Hocks, 272 Or. 210, 536 P.2d 512 (1975) (discharge because employee absent from work to serve on jury duty); (3) where the termination resulted because the employee exercised a legal right or privilege, see, e.g., Kelsay v. Motorola, Inc., 74 Ill.2d 172, 384 N.E.2d 353 (1978) (pursuit of workers' compensation claim); and (4) where the discharge was premised on employee "whistleblowing" activity, see, e.g., Wagner v. Globe, 150 Ariz. 82, 722 P.2d 250 (1986).
[3] Along with a growing number of jurisdictions, we recognize the public policy found in protecting employees who are discharged in retaliation for reporting employer misconduct, i.e., employee "whistleblowing" activity. See, e.g., Palmateer v. International Harvester Co., supra; Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980); Harless v. First Nat'l Bank, 246 S.E.2d 270 (W.Va. 1978), cited in Thompson v. St. Regis Paper Co., supra. In the context of public employment, our Legislature has similarly recognized the importance of encouraging employees to report "improper governmental actions." RCW 42.40.010. Improper governmental action is defined as any action taken by a public official that (1) violates state law, (2) is an abuse of authority, (3) is a substantial and specific danger to the public health or safety, or (4) is a gross waste of public funds. RCW 42.40.020(3).
In determining whether retaliatory discharge for employee whistleblowing activity states a tort claim for wrongful discharge under the public policy exception, courts generally examine the degree of alleged employer wrongdoing, together with the reasonableness of the manner in which the employee reported, or attempted to remedy, the alleged misconduct. See 1 L. Larson, Unjust Dismissal § 7.02 (1989).
DOL argues that the scope of what constitutes contravention of public policy should be restricted to reports of employer misconduct amounting to clear statutory violations. This approach has found acceptance in several other jurisdictions that recognize wrongful discharge claims premised on whistleblowing activity. See, e.g., Trought v. Richardson, 78 N.C. App. 758, 338 S.E.2d 617 (1986) (allegation of violation of state nursing practice act insufficient to qualify for narrow public policy exception); Petrik v. Monarch Printing Corp., 143 Ill. App.3d 1, 493 N.E.2d 616 (1986) (internal dispute based on alleged employer misconduct regarding chosen accounting methods did not give rise to level of clearly mandated state public policy since it was not the type of dispute that affects citizens collectively); Adler v. American Standard Corp., 291 Md. 31, 432 A.2d 464 (1981) (uncovering improper accounting practices did not state cause of action because plaintiff unable to show any violation of state law).
Plaintiff argues that DOL's activity with respect to the medical discipline budget proposal violates the mandate of RCW 18.72.390. She contends that even if the employer's conduct she reported did not technically violate the statute, that statute embodies a sufficiently clear legislative intent prohibiting the Director's conduct so as to protect her against retaliatory discharge for releasing the budget data to Dr. Coe.
We recognize the need to allow employers to make personnel decisions without fear of incurring civil liability, Thompson, at 232, and that restricting these wrongful discharge claims to reports of clear statutory violations surely satisfies that need. However, such a standard is unduly restrictive and does not comport with our examination of the public policy exception in Thompson, or with the definition of what constitutes "improper governmental action" in our State's whistleblower statute.
In Thompson, we cited with approval the West Virginia Supreme Court's decision in Harless, which recognized the need to distinguish between employee conduct motivated by purely private interests, and that conduct motivated by a concern for the welfare of the general public. Thompson, at 232. We also stated that in finding a contravention of public policy, courts could look to the letter or purpose of a statute. Thompson, at 232. And we note that in the whistleblower statute, our Legislature clearly does not restrict reports of improper governmental action solely to clear statutory violations. See RCW 42.40.020(3)(a)(ii) and former RCW 42.40.020(3)(b).
Thus, in determining whether a discharge contravenes the public policy of protecting employees who report employer misconduct, we will consider whether the employer's conduct constituted either a violation of the letter or policy of the law, so long as the employee sought to further the public good, and not merely private or proprietary interests, in reporting the alleged wrongdoing. See Palmateer, 85 Ill.2d at 131.
We do not decide today whether judicial review of good faith reports of official misconduct, as outlined in RCW 42.40 and reported to the State Auditor, is similarly restricted. This case does not involve a report made pursuant to that statute.
A similar conclusion was reached by the Arizona Supreme Court in Wagner v. Globe, supra, where the court stated:
The relevant inquiry is not limited to whether any particular law or regulation has been violated, although that may be important, but instead emphasizes whether some "important public policy interest embodied in the law" has been furthered by the whistleblowing activity.
Wagner, at 89. The court also noted that the Arizona Legislature had recognized that whistleblowing activity is worthy of protection. Wagner, at 89; see Ariz. Rev. Stat. Ann. § 38-532.
With these principles in mind, we review the statutory scheme implicated by plaintiff's report of DOL's alleged misconduct — RCW 18.72.380-.400. These statutes cover the discipline of medical practitioners and the funding required to implement disciplinary measures. From 1979 to 1983, medical discipline was funded from license renewal fees paid by physicians. See former RCW 43.24.085. In 1983, responding to lobbying by the Washington State Medical Association, the Legislature effectively doubled the amount of funds collected from physicians for medical discipline. RCW 18.72.380. This legislation also created a "medical disciplinary account" within the State's general fund, which requires that
All assessments, fines, and other funds collected or received pursuant to this chapter shall be deposited in the medical disciplinary account and used to administer and implement this chapter.
RCW 18.72.390. The Director of Licensing is required to "allocate all appropriated funds to accomplish the purposes of this chapter." RCW 18.72.400.
Plaintiff argues that this legislative scheme embodies a clear mandate that all funds collected and deposited in the medical disciplinary account must be used for medical disciplinary purposes. Plaintiff asserts that when all available funds are not budgeted, they are not being "used" as required by statute. Specifically, she argues that the Director violated the letter and purpose of RCW 18.72.390 by failing to include in the 1985-87 biennium budget a request for supplemental appropriation of a surplus in the medical disciplinary account that had accumulated during the 1983-85 biennium. Clerk's Papers, at 126. A review of the State's basic budgetary procedures necessitates a contrary conclusion.
[4] Under the state budget and accounting act, RCW 43.88, funds are "appropriated" upon adoption of a budget by the Legislature. RCW 43.88.080. The Governor submits a budget to the Legislature, RCW 43.88.060, which consists of budget proposals compiled by individual agencies, RCW 43.88.090. It is the responsibility of an agency head, such as the Director of Licensing, to formulate a budget, subject to legislative appropriation by adoption of the budget as developed by the Legislature. RCW 43.88.090. Thus, it is generally within the discretion of the agency head and the Governor to determine the scope and extent of budgetary requests.
The trial court reached a similar conclusion, but based its decision, in part, on improper grounds. The trial court interpreted language contained in the current version of RCW 18.72.390 ( i.e., " balances in the medical disciplinary account shall be credited to the general fund.") to evidence a legislative intent that not all funds need be committed in a budget proposal. That language was added by Laws of 1985, ch. 57, § 6, after Dicomes' discharge. The trial court noted the possible limitation of this reasoning, and it did not serve as the sole basis for its conclusion that there was no contravention of public policy.
With this general framework in mind, RCW 18.72.380.400 should be read as follows: The Director submits a budget to the Governor, who approves and compiles all such requests for presentation to the Legislature. Based on this proposal, the Legislature appropriates certain funds, which the Director is required to allocate toward medical discipline. None of the appropriation may be used for any other purpose, nor may the Director earmark medical disciplinary account funds for any other purpose in a budget proposal. However, there is no requirement in this legislative scheme that the Director commit all available funds in a budget proposal or seek supplemental appropriation.
It is important to emphasize the clear legislative intent that it, the Legislature, retained ultimate control over the medical disciplinary account funds. The statute only authorizes the Director to allocate appropriated funds to accomplish the purposes of the law. RCW 18.72.400.
It is apparent that the Legislature did not share plaintiff's views regarding the mandate of budgeting the accumulated surplus. Despite a special Senate committee hearing on plaintiff's grievances, see Deposition of Deanna Dicomes, at 139-40, and exhibit 10, the Legislature did not appropriate the accumulated surplus. See Laws of 1985, 1st Ex. Sess., ch. 6, § 402, p. 2356 (appropriating $880,000 for medical disciplinary account in 1985-87 biennium); Laws of 1985, ch. 405 (supplemental budget; no appropriation to medical disciplinary account).
In this case, plaintiff reported what she felt constituted a blatant disregard on the part of DOL for statutorily prescribed budgetary action. As discussed, we do not find any violation of state law in the Director's decision not to include the medical disciplinary account's surplus funds in his budget proposal. Nor can we find a clearly articulated legislative intent to abrogate this necessary element of discretion. Moreover, the Director's actions in question constitute neither an abuse of authority, nor a gross waste of public funds. And while plaintiff may argue that budget proposals for medical discipline relate to the public health or safety, we do not accept her claim that the failure to budget surplus funds substantially and specifically endangers it.
Further, by releasing the budget data in the manner Dicomes chose, she compromised the loyalty and confidentiality required of her position as executive secretary, and unnecessarily interfered with the political and discretionary decisionmaking process of her appointed supervisor and ultimately of the Governor. While it appears that plaintiff was not motivated by personal or proprietary interests, the means she employed to report her employer's alleged misconduct were unreasonable under these circumstances. Providing the budget data to Dr. Coe in disregard of her superior's requests, with the knowledge of the confidential situation at hand, fully expecting that her report would result in dismissal, plaintiff compromised the delicate working relationship between the Boards and DOL. Further, plaintiff was not confronted with the choice of violating the law or sacrificing her job. She was faced with a difference of opinion as to her superior's chosen course of action. In the arena of discretionary political decisionmaking, plaintiff's arguably good faith belief in the righteousness of her conduct is too tenuous a ground upon which to base a claim for wrongful discharge. While we do not restrict such claims solely to incidents of whistleblowing that involve employer statutory violations, we are cognizant of the need to avoid frivolous lawsuits and employer liability when the employee's conduct is merely praiseworthy from a subjective standpoint, or when the public may derive some remote benefit. See Palmateer v. International Harvester Co., 85 Ill.2d 124, 136, 421 N.E.2d 876 (1981) (Ryan, J., dissenting).
We conclude that the facts of this case present no contravention of a clear mandate of public policy under the principles articulated above. Therefore, plaintiff has failed to state a cause of action for wrongful discharge under the public policy exception, and the trial court's dismissal of this claim on summary judgment is affirmed.
It is well established that a public employee is entitled to reinstatement for a discharge that infringes that employee's constitutionally protected interest in freedom of speech. Perry v. Sindermann, 408 U.S. 593, 597-98, 33 L.Ed.2d 570, 92 S.Ct. 2694 (1972); Pickering v. Board of Educ., 391 U.S. 563, 574, 20 L.Ed.2d 811, 88 S.Ct. 1731 (1968). Whether speech is constitutionally protected is a question of law. Connick v. Myers, 461 U.S. 138, 148 n. 7, 75 L.Ed. 2d 708, 103 S.Ct. 1684 (1983). In Connick, the Court outlined a 2-step test for determining the scope of First Amendment rights of public employees. See Meyer v. UW, 105 Wn.2d 847, 850-51, 719 P.2d 98 (1986).
[5] First, the court must determine whether the speech involves a matter of public concern. Connick, at 147-48. Second, the court must balance the interest of the employee as a citizen commenting on matters of public concern with the interest of the State as employer in providing effective and efficient public service. Connick, at 150.
DOL concedes that the content of the speech in question bears on a matter of public concern. Even absent this concession, we would find that the content of plaintiff's expression, which related to the discipline of the State's medical practitioners, touched upon matters of public import. The key here is that plaintiff was not simply speaking to matters of personal interest, such as disputes over internal office affairs as in Connick. She was not disputing her pay, hours, or conditions of employment. Rather, the speech sought "to bring to light actual or potential wrongdoing or breach of public trust. . .". Connick, at 148.
[6] In addition to the content of the employee's speech, the court must examine its context. Connick, at 152-53; Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 415 n. 4, 58 L.Ed.2d 619, 99 S.Ct. 693 (1979). Here the focus is on the effective functioning of the public enterprise and the extent to which the employee's speech interferes with or impedes those operations. Rankin v. McPherson, 483 U.S. 378, 388, 97 L.Ed.2d 315, 107 S.Ct. 2891 (1987). In this context, it is important to examine "the extent of authority and public accountability the employee's role entails." Rankin, at 390. If the "employee serves no confidential, policymaking, or public contact role, the danger to the agency's successful functioning from that employee's private speech is minimal." Rankin, at 390-91.
Thus, there are limits on the extent to which an employee in a sensitive or policy-making position may freely criticize superiors and the policies they espouse. This principle is related to the more expansive rules regarding discharge for reasons of political patronage. See Elrod v. Burns, 427 U.S. 347, 49 L.Ed.2d 547, 96 S.Ct. 2673 (1976); Branti v. Finkel, 445 U.S. 507, 63 L.Ed.2d 574, 100 S.Ct. 1287 (1980). While these cases, and their progeny, involve political patronage dismissals, and are therefore factually distinguishable from the case at bar, they identify various factors to be considered in determining whether a speaker is such a policy maker whose First Amendment rights may be restricted by overriding governmental interests. See generally Juarbe-Angueira v. Arias, 831 F.2d 11, 13 (1st Cir. 1987) (collecting cases).
In the determination of whether a public employee might be considered a "policy maker" for First Amendment purposes, considerations include whether the speaker establishes priorities, develops programs, procures funding, conducts studies, controls a budget or prepares budget requests, and whether the speaker is given broad discretion and is relatively unsupervised in carrying out these responsibilities. See Alfaro de Quevedo v. de Jesus Schuck, 556 F.2d 591, 593 (1st Cir. 1977). A court may also consider whether the speaker's position involves decisionmaking on issues where there is room for political disagreement on goals and their implementation. See Roman Melendez v. Inclan, 826 F.2d 130, 133-34 (1st Cir. 1987). Another consideration is whether the statement was made by an appointed executive or high ranking official vested with the authority to carry out discretionary governmental functions, such that the statement challenges the political choices represented by the administration's election to office. Gonzalez v. Benavides, 712 F.2d 142, 148 (5th Cir. 1983).
In Gonzalez, the Fifth Circuit Court of Appeals cogently summarized the purpose behind limiting protection for policymakers:
There is a governmental interest in securing those unique relationships between certain high level executives and the elected officials at whose grace they serve. For this narrow band of relationships, refusing to grant First Amendment found tenure would seem to take away little freedom not already lost in accepting the appointment itself, at least when the appointive job has the sweep of authority and discretion as to be central to the elected official's duty. The holder of such a position can hardly have any reasonable expectation but that his policy choices must publicly fall within the protective license issued by his appointing officer. His selection presumably included that supposition. To say that loss of that job is the price for his public declaration chills little.
Gonzalez, at 148.
In sum, a public employee's interest in freedom of speech may be overridden where the State shows a need for political loyalty and confidentiality of its employees who are vested with discretionary authority and policy-making responsibilities.
We note that while plaintiff's status as a policymaker is relevant to this court's assessment of the impact of her speech on the government employer's interest in managing the workplace, that status does not support a blanket exception to First Amendment protection: "The point is simply that the balancing test articulated in Pickering [ v. Board of Educ., 391 U.S. 563, 20 L.Ed.2d 811, 88 S.Ct. 1731 (1938)] is truly a balancing test, with office disruption or breached confidences being only weights on the scales." Porter v. Califano, 592 F.2d 770, 774 (5th Cir. 1979).
In this case, examining the bulk of plaintiff's job responsibilities leads us to conclude that she should be considered a policymaker. The position of executive secretary has broadly defined duties, which include organizing and supervising the administrative functions and activities of the Boards, representing the Boards at state and national meetings, recommending policy and procedural improvements for the Boards, forecasting and compiling budget requests, and establishing administrative policies and procedures to ensure effective implementation of the medical discipline statute. Even Dicomes described herself as the "CEO" of the Boards, Clerk's Papers, at 106, and categorized her duties as "program management/policy development," Clerk's Papers, at 117.
Another fact that supports our conclusion that plaintiff is a policymaker for First Amendment purposes is that the position of executive secretary is exempted by statute from civil service status. RCW 18.72.155. Exempt positions, absent specific statutory enumeration, are defined as those "involving substantial responsibility for the formulation of basic agency or executive policy . . ." RCW 41.06.070(27).
While it may be argued that plaintiff did not actually formulate policy, her position as executive secretary involved substantial discretion and autonomy, and she was clearly involved in the development and communication of policy.
It is equally important to consider the fact that her speech might have a "detrimental impact on close working relationships for which personal loyalty and confidence are necessary . . ." Rankin, at 388. Further, plaintiff's vital role as a public spokesperson for the Boards shows a high degree of public contact and accountability; thus, her speech relating to the Board's activities could significantly impact or impede the effective functioning of the public enterprise.
In sum, we hold that the Director's interest in providing an effective and efficient public service, and in maintaining a close working relationship with his appointed executive secretary, outweighs plaintiff's interest in speaking out on matters of discretionary budgetary decisionmaking, even though that speech may relate to matters of public concern. Plaintiff occupied a position involving the development of policy and requiring a high degree of discretion and autonomy. Her position was also one in which personal loyalty and confidentiality were necessary elements. The First Amendment "does not require that [the Director] tolerate action which he reasonably believed would disrupt the office, undermine his authority, and destroy close working relationships." Connick, at 154. Thus, no First Amendment rights were violated by the discharge, and the trial court's summary dismissal of this claim is affirmed.
LIBERTY INTEREST/DUE PROCESS
[7] Plaintiff argues that her discharge deprived her of a liberty interest in future employment without due process. In this context, a liberty interest is infringed if (1) "the government dismisses an employee based on a charge that calls into question his good name, honor or integrity", or (2) "if the government imposes a stigma or other disability that forecloses the employee's freedom to take advantage of other employment opportunities." Giles v. Department of Social Health Servs., 90 Wn.2d 457, 461, 583 P.2d 1213 (1978), cited in Ritter v. Board of Comm'rs, 96 Wn.2d 503, 510, 637 P.2d 940 (1981).
Plaintiff argues that her loyalty was called into question thus implicating her good name, honor, or integrity. This claim is unpersuasive. The only evidence of any mention of disloyalty is found in respondents' declarations in support of summary judgment, and in internal discussions of Dicomes' job performance, neither of which can supply support for her claim. Bishop v. Wood, 426 U.S. 341, 348, 48 L.Ed.2d 684, 96 S.Ct. 2074 (1976). Further, DOL's statements regarding Dicomes' inefficiency, which are supported by the record, do not implicate integrity or honor. Giles, at 461.
Finally, the DOL has not taken any affirmative steps to foreclose Dicomes' opportunity to seek employment elsewhere. See State ex rel. Swartout v. Civil Serv. Comm'n, 25 Wn. App. 174, 184, 605 P.2d 796, review denied, 93 Wn.2d 1021, cert. denied, 449 U.S. 992 (1980). Her employment opportunities may have been diminished, but not foreclosed, see Ritter, at 510, as evidenced by her subsequent employment as executive secretary of the South King County Multi-Service Center.
Therefore, Dicomes' liberty interest in future employment was not infringed by the discharge, and the trial court is affirmed.
TORT OF OUTRAGE
[8-10] The basic elements of the tort of outrage are: "(1) extreme and outrageous conduct; (2) intentional or reckless infliction of emotional distress; and (3) actual result to the plaintiff of severe emotional distress." Rice v. Janovich, 109 Wn.2d 48, 61, 742 P.2d 1230 (1987); Restatement (Second) of Torts § 46 (1965). The conduct in question must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Grimsby v. Samson, 85 Wn.2d 52, 59, 530 P.2d 291 (1975). The question of whether certain conduct is sufficiently outrageous is ordinarily for the jury, but it is initially for the court to determine if reasonable minds could differ on whether the conduct was sufficiently extreme to result in liability. Phillips v. Hardwick, 29 Wn. App. 382, 387, 628 P.2d 506 (1981).
Plaintiff argues that her discharge constituted outrageous conduct because it allegedly showed her to be an incompetent and disloyal employee. She argues that the management study was "an intentionally prepared false report created for the sole purpose of embarrassing, humiliating and then terminating Ms. Dicomes. .. ". Reply Brief of Appellant, at 30. She asserts that if this allegation is true, it would constitute outrageous conduct. We disagree.
First, even if the purpose of the study was to fire plaintiff, the fact of the discharge itself is not sufficient to support a claim of outrage. Evrard v. Jacobson, 117 Wis.2d 69, 342 N.W.2d 788 (Ct.App. 1983). It is the manner in which a discharge is accomplished that might constitute outrageous conduct. Here DOL discharged plaintiff by privately delivering a termination letter, and briefly responding to media inquiries regarding the dismissal. This cannot be considered atrocious and intolerable in a civilized society.
Second, mere insults and indignities, such as causing embarrassment or humiliation, will not support imposition of liability on a claim of outrage. Restatement (Second) of Torts § 46, comment d (1965); Grimsby, at 59.
At worst, plaintiff's allegations amount to a showing of bad faith. And even if they rose to the level of malice, which the trial court determined they did not, no claim of outrage could be stated. See Restatement (Second) of Torts § 46, comment d (1965).
Dicomes has the burden of proof on this claim of outrageous conduct, and as the nonmoving party on summary judgment, she cannot rest on the mere allegations of her pleadings; she must set forth specific facts showing that there is a genuine issue of material fact. CR 56(e); Meyer v. UW, 105 Wn.2d 847, 852, 719 P.2d 98 (1986). She has failed to do so, and the trial court's dismissal of this alternative theory of liability is affirmed.
Based on the foregoing analysis, we affirm the judgment below. DOL requested an award of costs and attorney fees on appeal in its brief, but has not filed an affidavit of fees and expenses and, therefore, has failed to fully comply with RAP 18.1.
CALLOW, C.J., UTTER, DOLLIVER, PEARSON, ANDERSEN, DURHAM, and SMITH, JJ., and HAMILTON, J. Pro Tem., concur.
holding that Washington courts "consider whether the employer's conduct constituted either a violation of the letter or policy of the law" when determining "whether a discharge contravenes the public policy of protecting employees who report employer misconduct"
Summary of this case from Bailey v. Alpha Techs. Inc.
holding as a matter of law that "the fact of . . . discharge itself," "mere insults and indignities" such as "embarrassment or humiliation," and "bad faith" or "malice" are insufficient to support a claim of outrage
Summary of this case from Vopnford v. Wellcare Health Plans
holding speech relating to budget of medical disciplinary board was of public concern
Summary of this case from Benjamin v. Wash. State Bar Ass'n
concluding that court may dismiss claim if reasonable minds could not differ over whether conduct was extreme and outrageous
Summary of this case from Trizuto v. Bellevue Police Dep't
Summary of this case from Kitch v. City of Kirkland
determining privately discharging plaintiff and responding to media inquiries about her discharge did not constitute extreme and outrageous conduct
Summary of this case from Doe v. Elson S Floyd Coll. of Med.
In Dicomes, the plaintiff alleged that her employer intentionally prepared a false report identifying incidents of mismanagement, and then used it to fire her. Dicomes, 113 Wash.2d at 616, 630–31, 782 P.2d 1002. The Washington Supreme Court noted that the plaintiff had been discharged privately although her employer had responded briefly to media inquiries regarding her termination.
Summary of this case from Richards v. Healthcare Res. Grp., Inc.
summarizing the prevailing view among courts that the tort of outrage cannot be supported by evidence that "the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by 'malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort."
noting that court may resolve outrage claim if it determines that reasonable minds could not differ as to whether the conduct at issue was sufficiently outrageous
Summary of this case from Hummel v. Nw. Tr. Servs., Inc.
In Dicomes, the Plaintiff argued that her discharge constituted outrageous conduct because it allegedly showed her to be an incompetent and disloyal employee.
Summary of this case from Armijo v. Yakima HMA, LLC
explaining why plaintiff's termination was not in contravention of a public policy by noting that "plaintiff's arguably good faith belief in the righteousness of her conduct is too tenuous a ground upon which to base a claim for wrongful discharge. . . . we are cognizant of the need to avoid frivolous lawsuits and employer liability when the employee's conduct is merely praiseworthy from a subjective standpoint, or when the public may derive some remote benefit"
Summary of this case from Lord v. Swire Pacific Holdings
In Dicomes, the plaintiff alleged that she was fired for releasing information regarding her employer's, the director of the department of licensing, alleged illegal activity.
Summary of this case from Hubbard v. Spokane County
In Dicomes v. State, 113 Wn.2d 612, 782 P.2d 1002 (1989), involving whistleblowing, the court refused to find the public policy exception applied.
Summary of this case from Ellis v. City of Seattle
In Dicomes "we recognize[d] the public policy found in protecting employees who are discharged in retaliation for reporting employer misconduct, i.e., employee `whistleblowing' activity."
Summary of this case from Bennett v. Hardy
In Dicomes, the court noted that disputes related to conditions of employment do not implicate the First Amendment because they raise matters of private concern, not public concern.
Summary of this case from FOSS v. DEPARTMENT OF CORRECTIONS


Fiction: Therapeutic riding is only for kids.
Fact: This unique form of therapy is offered to both children and adults. In fact, one of our classes deemed the "Estrogen Equestrians" are a group of adults that have been riding at Windrush for many years; one rider has been here for 18 years.
Fiction: There is only a regular riding program during the summer.
Fact: Windrush offers a youth "at risk" summer program for inner city youths. There is also a special needs half day program which includes a daily equine activity designed to help the participants learn more about their horse friends through hands-on educational fun and riding instruction.


The ordinary denizen watches more than cinque hours of living television all day. The average inhabitant then spends another 32 time unit a day on time-shifted television, an hour exploitation the Internet on a computer, an hour and digit minutes on a smartphone and two hours, 46 minutes listening to the radio. The Nielsen story suggests that our media habits wealthy person remained fair footsure over the past few years, though smartphone pattern and time-shifted receiving system are growing. By ethnic groups, Nielsen finds that soul Americans watch an fair of 218 hours of television a month. one time we passing 65, we period thomas more than 7 60 minutes a day. For all social groups, TV viewing period of time increases steadily as we get older, according to the walking 2014 "Cross-Platform Report" discharged by the Nielsen media ratings company.
Teens and adolescent adults still melodic phrase in to TV — but they period of time considerably more video on You Tube, Netflix and additional Internet sources, according to a new study. And even more alarming for the traditional TV biz, most say they can live without cable or heavenly body television. Consumers aged 13-24 watch 12.1 hours of television per week on You Tube, social group media and else clear online sources, and another 8.8 hours weekly on Netflix and other subscription-video services, according to a sketch fielded by digital-media unwavering withstand Media.
This statistic contains accumulation on the average abstraction of time people in divers countries spend looking TV. In 2016, Americans watched 270 minutes of TV per day, while multitude from Sweden merely watched 148 written record per day. Of the time period that Americans spent watching television set in 2016, 240 minutes was washed-out watching live TV and a further 30 moment was washed-out watching time-shifted TV.


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redpajama_set_name: RedPajamaWikipedia


I don't know what the weather is like where you live, but here it's nice and warm and spring is definitely is in the air. Flowers are starting to appear, the day is getting longer and Passover is just three weeks away...well, spring is here for sure! To celebrate spring here's a fun freebie for you!
1. PNG file for digital designs: copy the png file and use it as part of your digital designs. It will work with graphic programs like photoshop. This type f file has no background so you can plant it anywhere.
2. JPG file for traditional designs: copy the file and print it on paper. Then you can cut it around the edges or cut it in a shape or a frame with your cutting machine.
I can't believe Passover is coming so quickly. I haven't started cleaning yet - this Sunday for sure.


Yeah but Hulk would rob every home run with his jumping ability. Plus I wouldn't want him so close to the other players. Keep him in the outfield where he can't punch anybody.
Astros just making noise about Sonny Gray to get the White Sox to lower their demands?
I doubt they'd be that far along in trade talks simply as a bluff.
They don't need Abreu for that.
Meet the new Twins, same as the old Twins.
Batman Begins and Dark Knight are close to a tie. Batman Begins probably is slightly worse, but it's also 12 minutes shorter.
I'm a busy man, those 12 minutes are important!
And now that it's a dark night, that's gonna do it for us tonight. Thanks for hanging out, as always.


Guilt free or Gluttony? What are we talking about?
Do you know the importance of mindful eating? Chances are, if you are "eating clean" you're overlooking this essential concept. While I'm definitely in favor of nourishing our bodies through a healthy diet, sometimes we get so caught up in the quality of our food that we forget the importance of quantity.
I was thinking about my previous post on the best foods to eat for flat abs, and realized that some people might misunderstand my point. Yes, those foods are good for you and you should be eating them. But… you shouldn't be stuffing yourself with berries and kale and salmon.
That might sound a little bit ridiculous. Who would do that, right? But in all honestly, people do it all the time. I know I used to do this and sometimes I can still fall into that mentality. We think that just because we're eating clean, that gives us license to eat as much as we want. Water is also good for you, it's essential for life, but people have died from drinking way more water than our bodies were meant to consume.
Food is a blessing, but if we abuse it, it can be a curse. Even healthy food, if not consumed in moderation, can cause you to gain weight and feel bloated and lethargic. I think that's why the 21 Day Fix has become really popular. The idea behind it is eating clean foods in proper portions. People that may have been eating clean all their life are losing weight on this program simply because they are learning to properly portion out their food. It's not rocket science, it's common sense. Whether you're overeating pizza or overeating quinoa, the fact is – you're overeating.
I believe that mindful eating is truly about eating with purpose and intention. It's not a diet, it's a mentality. Instead of thinking, "I can eat as much fruit and vegetables as I want." Your mindset is to eat healthy foods until you are satisfied.
I'll always remember reading the book, "Reshaping It All," by Candace Cameron. It was so insightful and this one line really stuck with me.
Her book is all about being disciplined eaters and learning moderation in all things. This is the point that I want to get across. Food is a blessing and eating is a pleasurable experience, but when we make food an idol – by obsessing over it, indulging in it, or giving it power over us – than we need to take a step back and analyze our situation.
Have we convinced ourselves that just because veggies and fruit are guilt-free foods that we can eat as much as we want? There comes a time when we need to ask ourselves if guilt-free is a good thing, or are we just allowing gluttony to take over. I believe that stuffing yourself with veggies is just as bad as stuffing yourself with burgers and fries. A dietitian or nutritionist might not agree with me, but hear me out. It's not about what you are eating, but the why behind it. I believe that any food consumed in gluttony is harmful to your body. Sure, those veggies are waaay more nutritious for you body, but is that type of eating good for your soul? Personally, I don't believe it is.
I hope this has given you some food for thought, and I would love to hear your opinion about this topic. Do you agree with me on the importance of mindful eating? Please comment below and share your thoughts about eating clean and overeating healthy foods. I am by no means an expert in the field of nutrition. I've read a lot and learned a lot from my personal experience, but these are just my thoughts. I'm eager to hear your input as well. Thanks for reading! And remember, sharing is caring! I would really appreciate if you would tweet about this post or share it on Facebook. Thanks!


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text:
Join/Renew AACP
The American Academy of Cardiovascular Perfusion
Characteristics of an Effective Perfusion Education Program
Guidelines of Perfusion Practice
Officers, Council, Committees
Council Page
Charles C. Reed Memorial Lectures
Thomas G. Wharton Memorial Lectures
Student Articles and Videos
Student Membership Application
2003 Thomas G. Wharton Memorial Lecture
The AACP > 2003 Thomas G. Wharton Memorial Lecture
"Hail to the Unsung Hero"
John M. Toomasian
May 6, 2003 marks the golden anniversary of John H. Gibbon's successful use of a heart-lung machine in a human being. The patient was Cecelia Bavolek, an 18 year-old college freshman that had a large atrial septal defect characterized by a 9 L/min left to right shunt. During the 45-minute period of extracorporeal circulation in which the defect was repaired, total cardiopulmonary bypass was achieved for a period of 26 minutes. This case was monumental, opening the door for many others such as Kirklin and DeWall to further develop and refine the pump oxygenator. Along the Cecelia Bavolek case was reported in the New York Times on May 8, 19531, Gibbon chose to report his series in an obscure regional medical journal one year after the cases were completed2. The use of the heart-lung machine culminated decades of research in the laboratory and opened the floodgates to intracardiac surgery. The need for a perfusionist for clinical extracorporeal circulation specialists was born on that day fifty years ago.
Gibbon's success however followed decades of diligent and painstaking research by his laboratory team. Many unknown individuals made significant contributions to the development of cardiopulmonary bypass. At the time, cardiovascular surgery was at its infancy and for the most part had been limited to the pericardium. Shumacker3 and Litwak4 have eloquently recounted the early history of cardiothoracic surgery and the development of the heart-lung machine. It was only 15 years prior to Gibbon's clinical trial that in 1938, Dr. Robert E. Gross, the father of contemporary cardiovascular and pediatric surgery ligated the first patent ductus5. Four years later in 1942 Clarence Craaford reported the repair of aortic coarctation in infants6. In 1945 Dr. Alfred Blalock performed the first palliative systemic pulmonary connection, with collaboration with Helen Taussig, a shunt used routinely today that bears their names7. At the same time Bailey in Philadelphia8; Harken in Boston9 and Brock in London10 described a closed mitral commissurotomy. None of these extracardiac procedures required cardiopulmonary bypass. However, intracardiac surgery would not be feasible until some modality was perfected to mechanically support the circulation. It was hypothesized that this concept, a "pump oxygenator" could ultimately provide the tool to allow for the heart to be incised and explored from within.
In October 1952 Time magazine published an article describing the use of a mechanical pumping device used during a mitral commissurotomy11. Dr. Forest Dodrill from Detroit's Harper Hospital used this device as a mechanical substitute and shunted blood from the upper left heart to the patient's aorta without a gas exchange device. The shunt allowed the surgical team access to the mitral valve during the 50-minute period of extracorporeal circulation. The pump was built by General Motors and consisted of a bank of 6 rubber pistons that was configured to look like a V-12 automobile engine. There were 6 pumps configured for both the right and left heart. The article concluded to say, "The real answer to successful all out heart surgery is likely to be a device which will take over both sides of the heart and lungs". This article proved to be prophetic 6 months later Gibbon and his team successfully used his pump oxygenator successfully.
Gibbon was credited to be the first to successfully use a pump oxygenator, but he was one of many trying to develop and use such a device. Many prominent physicians and researchers of the day were involved in this research. Was Gibbon truly the first? It is important to note that in Italy in August 1952, Dr. Mario Dogliotti used a bubble oxygenator as a precautionary measure in resecting a mediastinal tumor that was compressing the right heart12. The device functioned well and the patient recovered.
Under slightly different circumstances the first successful use of cardiopulmonary bypass would have fallen to Dr. Clarence Dennis and his associate Richard Varco at the University of Minnesota12. Two years earlier in 1951, Dennis and Varco attempted to use cardiopulmonary bypass in 2 cases. Prior to the second case the "machine operator" had a severe head cold. Medicated with decongestants and working in what could be best described as a "fog", the level control circuit was not activated. As a result the patient received a fatal air embolism. The first clinical pump accident occurred before the first clinical success.
The concept of extracorporeal perfusion had been described a century earlier by LeGallois13 who thought mechanical support might preserve the life of any part of the body. Over the next century many observations were made regarding the mechanical oxygenation of blood, blood pressure and pumping mechanisms. In the 1930's the famed aviator Charles Lindbergh described a perfusion system for a mechanical pump be substituted for the heart14. Along with Alexis Carrel, the pair worked on several innovative ideas related to circulation and the interaction of the blood with other organs.
Gibbon did not have the resources to sustain development of his devices had it not been for a $26,000 grant from the NIH and Thomas Watson, the chairman of IBM. Watson and IBM provided additional funding, personnel and engineering support to Gibbon's laboratory. Unknowns such as engineers Thomas Stakes and John Flick Jr., helped develop Gibbon's screen mesh oxygenator that worked optimally with a .029″ wire screen. Another key collaborator and overlooked by history was Dr. Bernard J. Miller, who served as the perfusionist and operated the machine in Cecilia Bavolek's case but was also instrumental in developing and describing early perfusion techniques such as cardiotomy suction, left ventricular venting and controlled ventilation. Much has been said and made of Mary Gibbon, John Gibbon's wife and long-time research partner. She and John Gibbon's devoted lab technician Charles Kraul were true unsung heroes. They performed and implemented many experimental protocols relative to the development of Gibbon's heart-lung machine. In addition development of the heart-lung apparatus and almost all artificial organs would not have progressed without the numerous and significant contributions of Dr. Willem Kolff who not only developed the drum kidney used in early dialysis, but was instrumental in developing gas exchange devices and pump mechanisms that are used widely today. The early heart-lung machines were built from contributions from many unsung individuals who all seemed to work towards a common goal.
Webster's dictionary15 defines the adjective unsung as "not celebrated or praised". The noun hero is defined as "a figure with great strength or ability", "an industrious warrior" or "one that shows great courage". Many descriptive permutations could be made by combining these two words, but it is probably safe to state an unsung hero does things that do not draw attention, make the headlines or appear in the box score, yet their function is of significant importance to a specific task or role.
There have been countless unsung heroes throughout time and history. Early in the first century AD there was a man living in Damascus named Ananias who was an early follower of Christianity. At the same time Saul, a religious zealot and a man who was processed and convicted to destroy any proliferation of Christianity was on a journey to Damascus to encounter and arrest Christian sympathizers. On that journey Saul was mysteriously blinded. After 3 days Ananias was given a vision to go and lay his hands on Saul in order to heal and restore his sight. One can only imagine the feelings Ananias must have had to go and aid his enemy. Ananias did what he was commanded and as a result Saul's sight was restored. However Ananias' touch did more than just restore Saul's eyesight. Saul was converted and with that conversion became Paul, the great apostle of the early Christian church. Paul was the instrument that spread Christianity throughout middle Asia and southern Europe. Ananias had been the vehicle for Paul's conversion and it is certainly possible that if it had not been for Ananias, the history of the early Christian church might have been different. Paul had laid hands on his enemies, but Ananias laid hands of healing.
I was raised in an athletic household. My father taught social science in the morning and was the basketball coach in the afternoon at Fresno City College in central California for over 3 decades. I spent many afternoons in my father's gymnasium learning the game and interacting and helping with the various teams. I recall a photograph that was taken early in his coaching career that showed his team at halftime which pictured the coach, his players. Each team member had a place and filled a certain role. Even the team's manager and towel boy all served specific purposes. The team's fortunes were partially due to role of each person and not just to the score of a particular game. Not everyone on the team made the box score after each game but the character and personality of the team was made up contributions of both the teams stars and unsung players, even the towel boy.
In 1972 Bo Schembechler led the top ranked Michigan football team to the Rose Bowl to play Stanford. Michigan was 11-0 and heavily favored to win and secure a national championship. Stanford was 8-3 and was a 2-touchdown underdog. In the third period, Michigan was leading 3-0 and driving for a lead securing touchdown that by all accounts would have established the momentum for the rest of the game. However Stanford prevented a Michigan score with a dramatic goal line stand. One of the unsung heroes on that defensive series was Stanford linebacker Jim Merlo, who made a crucial tackle during that goal line stand. The change in momentum ultimately provided Stanford an opportunity to win the game, which they did by converting a last second field goal. Although Stanford's place-kicker was the game's hero, the unsung play of the Stanford defense and linebacker Jim Merlo provided the change in momentum for this great upset.
The field goal in football provides an analogy applicable to the role of a perfusionist in the operating room. In a field goal attempt the participants include the offense (consisting of the snapper, holder, place-kicker and linesmen) and the defense. The goal of the defense is to block or deny the kick, whereas the offense is to score. In most cases the place-kicker gets the glory if the kick is successful, but if the kick is blocked the offensive line may have failed and gets the criticism. What position might a perfusionist play in this analogy?
Many valid comments and analogies have been made relating aviation and perfusion. Many comparisons have been made between pilots and perfusionists. Both use checklists and both attempt to provide a safe environment for the individuals they serve. However there are contrasts to the pilot-perfusionist analogy. Whereas pilots are the captains of their ship, perfusionists are not captains of the operating room. Pilots get more notoriety, by comparison to perfusionists as it pertains to innovation or news in their respective fields. So does the aviation industry have a perfusionist?
A strong case could be made that an air traffic controller is like a perfusionist. Controllers have high technical skills. They often work under pressure situations and are as good as there last take off or landing. In addition air traffic controllers are only mentioned if something goes wrong.
One tool that air traffic controllers use in managing air traffic is what is known as a flight control strip. These computer generated data strips provide information for each aircraft in their route of flight and are used in conjunction with radar. These data strips are produced periodically and show not only the flight number but the aircraft type, transponder type, air and ground speed, the sector within the control center in which the plane is traveling, the Zulu time over a specific landmark, altitude, route of flight and the specific transponder signal that aircraft is squawking. Like a perfusionist, air traffic controllers insure passenger safety and often the air traffic controllers' work is unsung.
In 1987, the Los Angeles Lakers played the Boston Celtics for the NBA Championship. It was a classic matchup between two storied teams. The participants were Hall of famers: Magic Johnson, Larry Bird, Kareem Abdul-Jabbar, James Worthy, Dennis Johnson and Kevin McHale to name a few. Entering game 6 the Lakers lead in the series 3 games to 2 and were playing at home. A Boston win in game six would force a series deciding 7th game. Students of professional basketball would know that the Celtics are hard to beat in a game 7 regardless of the venue. Therefore the pressure was on Lakers to establish the momentum and win the game. The teams traded the lead back and forth into the 3rd quarter and neither was able to take control. However in one possession the game's momentum changed. Boston had the ball and attempted a pass to a player inside the key. Out of nowhere Los Angeles forward James Worthy intercepted the ball. His momentum carried him towards the out of bounds line and in order to save the ball from going out of bounds Worthy had to dive head first and tip the ball back in play, while at the same time sacrificing his body by skidding down the end line face first. The effort was successful, for Magic Johnson end up with the ball and scored. The play electrified the crowd and energized the team. In an instant the Lakers had taken command and Boston was unable to overcome it. Los Angeles went on to win the game and the championship; James Worthy was a hero but his unsung play never made the box score.
Joe Theisman was an All-American quarterback at University of Notre Dame and was a finalist for the Heisman trophy in 1979. He played quarterback in the NFL for 11 seasons for the Washington Redskins, being the NFL's most valuable player in 1983. He played in 2 Super bowl games, leading the team to a victory over Miami 27-17 in 1982. He had a debilitating leg injury in 1985 that ended his career. What many people did not know that both his daughter and father have had open-heart surgery. At the Mechanisms of Perfusion Meeting in 2000, Theisman paid an emotional tribute to the average perfusionist stating: "you (perfusionists) are significant not just to the patients and surgeons you assist and the hospital and operating you work in but to the lives of the people you give back life". He continued by saying "I want to thank you, each and everyone one of you for your profession, professionalism and what you (perfusionists) do to save lives".
Tom Wharton was an unsung hero. His impact on the perfusion profession was considerable. He was drawn to perfusion technology, perfusion education and engineering. Tom was the first Executive Director of the American Board of Cardiovascular Perfusion and his name is still listed in the Booklet of Information. Later in his career he worked at William Harvey Research. More importantly, Tom was friend and supporter of the average perfusionist. He never sought notoriety, preferring to blend into the background and remain anonymous. However, he had high standards and believed that perfusionists should seek and maintain elevated educational goals. He believed in this so strongly that he felt compelled to give his own personal resources to fund and help found this Academy. Tom Wharton fits all of Mr. Webster's definitions.
There are several unsung heroes in perfusion. There have been some significant strides made in the field, both in perfusion technology and education. As perfusionists reflect on the first fifty years of cardiopulmonary bypass, it is important to acknowledge the history and some of the key people, places, and milestones that have shaped the growth and development of cardiopulmonary bypass. First on the list were the pioneers that brought perfusionists together to meet in a scientific setting. The founders and early members of AmSECT, despite many differences had the foresight to press for formal recognition of perfusion as an allied health profession, credentialing and certification for professional status and accreditation for training and educating their successors in formal programs and universities. Others who never got their names in the box score include: the engineers and technicians who developed the devices and equipment that seldom fail or malfunction, the program directors, teachers, educators who train the novice student perfusionist day in and day out, the people who developed certification, licensure and accreditation that made the credential be of value, the perfusionists who travel on foreign missions or outreach to help care for individuals without the same resources available in most western countries, the speakers who present their research at meetings, the authors that have written textbooks and chapters for a field that is relatively very small, the pioneers of procedures related to cardiopulmonary bypass used outside the operating room, and of course the families who put up with perfusion lifestyle. However a big tribute belongs to average perfusionist who dutifully comes to work each day and cares for his patient. These are the unsung that weather criticism, work past adversity, and come into work at all hours of the day and night because they are dedicated and committed. These people know they will never be interviewed on television or be on the front page of the newspaper. They do not seek fame, but insist on the best care for their patients. The best compliment for them is not to be noticed. The unsung hero over the first fifty years of bypass is the average perfusionist in the trenches.
Francis D. Moore, the late Chairman of the Department of Surgery at the Harvard Medical School listed cardiac surgery on the top of his list of the 7 most significant achievements and advancements in the 20th century. He stated "The need to enter the heart openly under direct vision required artificial support of the circulation"16. As perfusion celebrates its golden anniversary, each perfusionist should reflect back on the past and recall some of the great achievements and events that perfusionists have been a part. Perfusionists have been participants in the treatment of congenital, valvular and coronary heart diseases. Perfusionists have had a front row seat for new and innovative procedures such as transplants and artificial devices. Perfusionists have been a part of medical history. As cardiopulmonary begins the second half of its first century, perfusionists should be very proud. Even though technology has and will change what perfusionists do, cardiopulmonary bypass is safe modality and it has benefited millions of patients. For the average "Joe" perfusionist, the unsung hero on the heart-lung machine's golden anniversary, take a bow for a job well done.
Acknowledgement: My gratitude is extended to Dr. Michael D. Black, my friend and colleague from Stanford University Medical Center for his technical assistance and help in the multi-media preparation for the Thomas G. Wharton Memorial Lecture.
1. The New York Times, May 8, 1953.
2. Gibbon JH Jr. Application of a mechanical heart and lung apparatus to cardiac surgery. Minn Med. 1954; 37:171-80.
3. Shumacker HB, Jr. The Evolution of Cardiac Surgery. Bloomington, Indiana: Indiana University Press, 1992.
4. Litwak RS. The growth of cardiac surgery: historical notes. Cardiovasc Clin 1971; 3(2):5-50.
5. Gross ER, Hubbard JP. Surgical ligation of the patent ductus arteriosus. JAMA 1939; 112:729.
6. Craaford C, Nylin G. Congenital coarctation of the aorta and its surgical treatment. J Thorac Cardiovasc Surg 1945; 14:347-61.
7. Blalock A, Taussig HG. The surgical treatment of malformations of the heart in which there is pulmonary stenosis or pulmonary atresia. JAMA. 1945; 128:189.
8. Bailey CP. The surgical treatment of mitral stenosis (mitral commissurotomy) Dis Chest 1949; 15:377.
9. Harken DE, Ellis LB, Ware PF, Norman LR: The surgical treatment of mitral stenosis. I. Valvuloplasty. New Engl J Med 1948; 239:804.
10. Baker C, Brock RC, Campbell M. Valvotomy for mitral stenosis: Report of six successful cases. Brit Med J 1950; 1:1283.
11. Time Magazine, October 27, 1952, p 59.
12. Shumacker HB, Jr. The Evolution of Cardiac Surgery. Bloomington, Indiana: Indiana University Press, 1992: 255.
13. LeGallois CJJ. Experiences sur le principe de la vie, natamment sur celui des mouvements di Coeur, et sur le siege de ce principe; suivies du rapport fait au mouvements du couer. Paris: D'Hautel, 1812.
14. Lindbergh CA. An apparatus for the culture of whole organs, J Exper Med 1935; 62: 409-31.
15. Webster's New Collegiate Dictionary. Springfield, MA.: G & C. Merriam Company, 1980: 532, 1274.
16. Moore FD. Perspectives, surgery. Perspectives in Biology and medicine 1982; 25:698-721.
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Police need help locating missing Laurel County man
Local News WTVQ News Desk - January 19, 2021 0
The Kentucky State Police is still investigating the disappearance of Casper Burkhart, 58, of Corbin.
Kentucky Chamber releases report on racial equity in state, ways to improve
Study addresses education, criminal justice, economic development
Laurel investigators look for missing 54-year-old
Man was last seen Saturday.
Volkswagen settlement to fund cleaner-burning school buses
$8.3 Million Award for Cleaner-Burning School Buses for 93 school districts
Tags Cabela's
Tag: Cabela's
Santa's debut at Cabela's is socially distant and marks the start of the holidays
WTVQ Admin - November 8, 2020 0
Santa took a ride around Cabela's parking lot Saturday, greeting the families that came to the debut from a distance.
Cabela's/Bass Pro Shops hiring in Lexington, other locations
Steve Rogers - July 8, 2020 0
Adding 5,000 jobs nationwide as people want 'outside' in pandemic.
Dozens Camp out at Cabela's for Grand Opening
Echo Gamel - March 16, 2016 0
Dozens in Lexington were eager to see Cabela's open it's doors Wednesday morning and decided to camp out for the grand opening.
Cabela's offers sneak peek of new Lexington store
36Pab - March 1, 2016 0
Cabela's new store in Lexington will open soon. It's a store for people who love the outdoors.
Cabela's announces opening date of Lexington store
36Pab - February 4, 2016 0
On Thursday, Cabela's announced plans to celebrate the official grand opening of its new Lexington store on Wednesday, March 16, with a unique ribbon-cutting ceremony followed by a weekend-long celebration featuring giveaways, family activities, guest appearances and more.
Cabela's hiring more than 100 workers
WTVQ News Desk - November 30, 2015 0
New jobs are coming to the Lexington area and applications are being accepted now.
UPDATE: Cabela's Announces Plans For Store In Lexington
Tom Kenny - October 23, 2014 0
Cabela's announced plans Thursday to open a 70,000 square foot store in the new Hamburg Place II development on Polo Club Boulevard near the intersection of I-75 and Man O' War Boulevard.
Cabela's May Be Coming To Lexington
Tom Kenny - August 27, 2014 0
Lawyers for the popular outdoors store Cabela's filed an application for a zone change for nearly 15-acres near the corner of Man O' War and Polo Club boulevards, according to a report in the Lexington Herald-Leader.


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Assistant Professor of Mechanical Engineering Systems and Controls
Location: Durham, New Hampshire
Category: Faculty-Engineering-Mechanical
Date Posted: November 8, 2022
Operating Title
UNH CEPS Mechanical Engineering
The Department of Mechanical Engineering (ME) at the University of New Hampshire (UNH) invites applications for a tenure-track faculty position in dynamic systems and control at the rank of assistant professor, with a starting date of August 21, 2023.
The ME Department at UNH seeks excellence through diversity among its administrators, faculty, staff, and students. The Department is particularly interested in creative scholars who can make fundamental contributions to the investigation of dynamic systems control. Areas of interest include but are not limited to: applications to autonomous marine, ground and/or aero/astro robotics (mechatronics, distributed robotics, decentralized multi-agent systems, etc.); control theory development, (e.g., for PDE control, flow control, data-driven control); biological and chemical sensing development for aquaculture systems; energy applications (e.g., marine energy conversion, power networks); manufacturing applications (smart manufacturing, factory automation, industrial robotics, and subtractive and/or additive manufacturing), smart city; health care; and emerging methods in AI for perception, estimation and control of dynamic systems.
The successful candidate will build on current strengths in the department and will have opportunities to engage in interdisciplinary collaborations across campus. Possible affiliations include the Electrical and Computer Engineering Department, School of Marine Science and Ocean Engineering, Integrated Applied Mathematics Program, the NSF EPSCoR-funded NH Center for Multiscale Modeling and Manufacturing of Biomaterials (NH BioMade), the UNH John Olson Advanced Manufacturing Center, Center for Sustainable Seafood Systems, the Atlantic Marine Renewable Energy Consortium, and the Institute for the Study of Earth, Oceans, and Space.
Additional Job Information
The successful candidate is expected to (1) establish and maintain a
productive level of high-quality scholarly work; (2) excel as a teacher at both
the undergraduate and graduate levels; (3) successfully mentor graduate
research students; and (4) participate in Department, College and University
service activities.
Applicants are required to submit the following:
- a letter of interest
- a full curriculum vitae
- a statement of teaching
- a statement of research
- a statement of diversity, equity, and inclusion
- names and contact information of at least three references.
The target date for applications is December 15, 2022, but the search will remain open until the position is filled. Consideration of applications will begin immediately.
Questions should be addressed to: Christopher White, Professor and Chair, Mechanical Engineering Department, University of New Hampshire, Durham, NH, 03824, Chris.White@unh.edu.
UNH is a federal contractor within the meaning of the Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors. This position may require that you be vaccinated against COVID-19 in the future, unless you apply for and receive a religious or medical exemption. You may not test out of this requirement.
Posting Number
PF0718FY23
Acceptable Minimum Qualifications
Applicants must hold a Ph.D. in Mechanical Engineering or a closely related discipline with professional and/or academic experience and accomplishments, a demonstrated record of exceptional research and teaching, and a demonstrated ability to work collaboratively with diverse communities. More information on our department can be found at https://ceps.unh.edu/mechanical-engineering.
Salary is complemented by a comprehensive benefits package which includes medical, dental, retirement, tuition, and paid time off.
Quick Link to Posting
https://jobs.usnh.edu/postings/52307
Percent Time Information (FTE)
Tenure-Track
Interested Internal Candidates Exist?
This position is responsible for the supervision of
A background check will be required as a condition of employment.
The University System of New Hampshire is an Equal Opportunity/Equal Access/Affirmative Action employer. The University System is committed to creating an environment that values and supports diversity and inclusiveness across our campus communities and encourages applications from qualified individuals who will help us achieve this mission. The University System prohibits discrimination on the basis of race, color, religion, sex, age, national origin, sexual orientation, gender identity or expression, disability, genetic information, veteran status, or marital status.
INTERFOLIO USERS: If using Interfolio to submit letters of reference, please follow the special instructions at this link: https://pa-hrsuite-production.s3.amazonaws.com/2729/docs/126635.pdf.
Instructions for reference providers can be access at: https://support.interfolio.com/m/29600/l/266335-submit-a-letter-of-recommendation-to-interfolio.
Institution Information
The University of New Hampshire is an R1 Carnegie classification research institution providing comprehensive, high-quality undergraduate and graduate programs of distinction. UNH is located in Durham on a 188-acre campus, 60 miles north of Boston and 8 miles from the Atlantic coast and is convenient to New Hampshire's lakes and mountains. There is a student enrollment of 13,000 students, with a full-time faculty of over 600, offering 90 undergraduate and more than 70 graduate programs. The University actively promotes a dynamic learning environment in which qualified individuals of differing perspectives, life experiences, and cultural backgrounds pursue academic goals with mutual respect and shared inquiry.
The UNH Diversity Resource Guide with information and programming available in the seacoast area, New Hampshire, and the region can be found here: https://www.unh.edu/hr/diversity-resource-guide
Open Rank Tenure-Track Faculty Positions - Mechanical & Aerospace Engineering
Assistant Professor or Associate Professor, Mechanical and Aerospace Engineering (Space, Aerospace, and Hypersonics)
Assistant Professor or Associate Professor, Decarbonized Energy (Department of Mechanical and Aerospace Engineering or School of Modeling, Simulation, and Training)
Mechanical Engineering Faculty - 10 month


In 1984, I heard Hans Bethe give a talk in which he suggested the dark matter might be neutrinos. This sounded outlandish – from what I had just been taught about the Standard Model, neutrinos were massless. Worse, I had been given the clear impression that it would screw everything up if they did have mass. This was the pervasive attitude, even though the solar neutrino problem was known at the time. This did not compute! so many of us were inclined to ignore it. But, I thought, in the unlikely event it turned out that neutrinos did have mass, surely that would be the answer to the dark matter problem.
Flash forward a few decades, and sure enough, neutrinos do have mass. Oscillations between flavors of neutrinos have been observed in both solar and atmospheric neutrinos. This implies non-zero mass eigenstates. We don't yet know the absolute value of the neutrino mass, but the oscillations do constrain the separation between mass states (Δmν,212 = 7.53×10−5 eV2 for solar neutrinos, and Δmν,312 = 2.44×10−3 eV2 for atmospheric neutrinos).
In order to make up the dark matter density (Ω ≈ 1/4), we need ∑mν ≈ 12 eV. The experimental upper limit on the electron neutrino mass is mν < 2 eV. There are three neutrino mass eigenstates, and the difference in mass between them is tiny, so ∑mν < 6 eV. Neutrinos could conceivably add up to more mass than baryons, but they cannot add up to be the dark matter.
In recent years, I have started to hear the assertion that we have already detected dark matter, with neutrinos given as the example. They are particles with mass that only interact with us through the weak nuclear force and gravity. In this respect, they are like WIMPs.
Here the equivalence ends. Neutrinos are Standard Model particles that have been known for decades. WIMPs are hypothetical particles that reside in a hypothetical supersymmetric sector beyond the Standard Model. Conflating the two to imply that WIMPs are just as natural as neutrinos is a false equivalency.
That said, massive neutrinos might be one of the few ways in which hierarchical cosmogony, as we currently understand it, is falsifiable. Whatever the dark matter is, we need it to be dynamically cold. This property is necessary for it to clump into dark matter halos that seed galaxy formation. Too much hot (relativistic) dark matter (neutrinos) suppresses structure formation. A nascent dark matter halo is nary a speed bump to a neutrino moving near the speed of light: if those fast neutrinos carry too much mass, they erase structure before it can form.
One of the great successes of ΛCDM is its explanation of structure formation: the growth of large scale structure from the small fluctuations in the density field at early times. This is usually quantified by the power spectrum – in the CMB at z > 1000 and from the spatial distribution of galaxies at z = 0. This all works well provided the dominant dark mass is dynamically cold, and there isn't too much hot dark matter fighting it.
The power spectrum from the CMB (low frequency/large scales) and the galaxy distribution (high frequency/"small" scales). Adapted from Whittle.
How much is too much? The power spectrum puts strong limits on the amount of hot dark matter that is tolerable. The upper limit is ∑mν < 0.12 eV. This is an order of magnitude stronger than direct experimental constraints.
Usually, it is assumed that the experimental limit will eventually come down to the structure formation limit. That does seem likely, but it is also conceivable that the neutrino mass has some intermediate value, say mν ≈ 1 eV. Such a result, were it to be obtained experimentally, would falsify the current CDM cosmogony.
Such a result seems unlikely, of course. Shooting for a narrow window such as the gap between the current cosmological and experimental limits is like drawing to an inside straight. It can happen, but it is unwise to bet the farm on it.
It should be noted that a circa 1 eV neutrino would have some desirable properties in an MONDian universe. MOND can form large scale structure, much like CDM, but it does so faster. This is good for clearing out the voids and getting structure in place early, but it tends to overproduce structure by z = 0. An admixture of neutrinos might help with that. A neutrino with an appreciable mass would also help with the residual mass discrepancy MOND suffers in clusters of galaxies.
If experiments measure a neutrino mass in excess of the cosmological limit, it would be powerful motivation to consider MOND-like theories as a driver of structure formation. If instead the neutrino does prove to be tiny, ΛCDM will have survived another test. That wouldn't falsify MOND (or really have any bearing on it), but it would remove one potential "out" for the galaxy cluster problem.
Tiny though they be, neutrinos got mass! And it matters!
If the only dark matter existing in the universe is in the form of neutrinos then virtually all angular momentum will be held by baryons (normal matter) at all observable scales and red shifts. In the LCDM model most of the angular momentum, at all observable ages of the universe (at all red shifts) will be held by dark matter.
Do you know of work done on differences in how a MOND universe would evolve and the standard LCDM universe, particularly in terms of angular momentum and its distribution across galaxies and perhaps even across galaxy clusters?
In a universe consisting mostly of dark matter will zero net angular momentum of baryonic be conserved as rigorously in the observations (at various scales) compared with if baryonic matter alone existed?
In LCDM, galaxies are thought to gain their angular momentum by torques applied when their halos are near maximum expansion. Presumably the baryons and dark matter are well mixed at this time, so share a fraction of angular momentum in proportion to their mass (17% for baryons). The distribution of angular momentum observed in the baryonic component of galaxies does not trace the original distribution as indicated by simulations, so it is necessary to build models that expel low angular momentum baryons or otherwise redistribute it among the light and dark matter. Since most of the angular momentum is held in the dark matter, it is hard to say much more.
In MOND, the angular momentum is directly calculable since what you see is what you get. I imagine objects acquire their angular momentum in a similar manner – protogalaxies torque each other as they decouple from the Hubble expansion. There is less mass to torque, and MOND has a longer range for such things since it is effectively 1/r rather than 1/r^2. Bob Sanders looked into this long ago, e.g., arXiv:0712.2576 and astro-ph/9710335.
Interesting. Usually the large scale structure constraints are said to require a neutrino smaller than this, so it is a new one to invoke this king of mass to soothe these tensions.
One of the predictions I made when working on the CMB (1999,2000,2004) was that there would appear to be more power at high multipoles because lensing is enhanced by early structure formation in MOND. The tension Planck sees could be interpreted as corroboration of that. However, I don't pretend to understand the CMB acoustic power spectrum beyond L > 600 in MOND, so I don't really know what to make of this.
It would be nice if LCDM could settle on an acceptable bound on the neutrino mass.