       IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

FARIDEH EMAMI,                                  )         No. 77624-0-1
                                                )
                     Appellant,                 )         DIVISION ONE
                                                )
              v.                                )         UNPUBLISHED OPINION
                                                )
SEATTLE SCHOOL DISTRICT, dba                    )
SEATTLE PUBLIC SCHOOLS, a political             )
subdivision of the State of Washington,         )
                                                )
                     Respondent.                )         FILED: February 25, 2019
                                                )

        ANDRUS, J. — Farideh Emami appeals the summary judgment dismissal of

 her retaliation claim against the Seattle School District (the District). The trial court

 dismissed Emami's claim on summary judgment before the Supreme Court issued

 its decision in Cornwell v. Microsoft Corp.,        Wn.2d     , 430 P.3d 229 (2018).

 Because there are genuine issues of material fact whether Emami was denied full

 time employment because the District suspected she had engaged in protected

 activity, we reverse and remand.

                                         FACTS

        Emami was a teacher for the District from 1999 until 2005. Emami worked

 at Martin Luther King, Jr. Elementary School from 1999 until 2004 and moved to

 Dunlap Elementary School for the 2004-05 school year. On September 26, 2005,

 Emami was injured on the job and placed on disability until June 13, 2006. Emami
No. 77624-0-1/2

was unable to return for the 2006-07 school year due to her injuries, so the District

put her on leave without pay.

        Emami filled out a Section 504 Request for Accommodations under the

federal Rehabilitation Act of 1973 for the 2007-08 school year. The District offered

Emami a position at Kimball Elementary School on June 22, 2007, but Emami

claims that when she submitted her Section 504 request to the school principal,

she was told the school could not accommodate her. Emami alleges she told the

District about the principal's failure to accommodate her and that she could not

accept the placement. The District terminated Emami's employment, effective

August 29, 2007. The District contended it did so when Emami failed to appear on

the first day of the 2007-08 school year.

        Emami claims that between 2008 and 2013, she sought a full-time teaching

position with the District on multiple occasions. The District did not offer her a

permanent position during that time. Emami negotiated directly with the District's

General Counsel, Fay Chess-Prentice, who offered Emami a 0.50 full-time

equivalent(FTE)1 certificated teaching position in January 2009. Emami rejected

Chess-Prentice's offer, instead asking for either a full-time position in a school

within 45 minutes of her home or two part-time positions in two different schools.

In response to Emami's counteroffer, Chess-Prentice withdrew the District's offer.

        Emami hired attorney Daniel DeLue to negotiate on her behalf for a position

in the District with her requested accommodations. The parties attempted to settle



         1 A 0.5 FTE basic education certified instructor is one that is either contracted to work 180
partial days during the school year or fewer than 180 full days during the school year. WAC 392-
121-215(2)-(3).

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No. 77624-0-1/3

but were unable to reach a resolution. DeLue then sent an Administrative Claim

for Damages to the District on April 21, 2009. The District rejected Emami's claim.

       Emami hired another lawyer, Farjam Majd, in 2010, to re-open negotiations

with the District. On January 15,2010,the District sent Majd a letter again rejecting

Emami's claim for damages, asserting that it had made numerous offers of

accommodation.      It denied failing to accommodate Emami or wrongfully

terminating her employment. On February 3, 2010, Majd sent a demand letter to

the District. Majd's letter also stated that Emami was no longer in need of special

accommodations and would be willing to settle the dispute if the District offered

her a full-time teaching position or a school principal position. Again, the parties

were unable to reach an agreement.

       Emami testified she visited and corresponded with the District's Human

Resources (HR) department numerous times between 2010 and 2012. Emami

alleged during one visit, she encountered Assistant Superintendent Paul Apostle

in the hallway. Apostle was hired by the District in May 2011. Emami claims she

told Apostle about her trouble securing a job in the District, and Apostle told her

that he would look into it. Apostle did not remember the in-person encounter but

testified that in December 2011, Emami called in a complaint about not getting

hired and that Apostle looked into the matter.

       In January 2012, Emami went to the District's HR department to review her

personnel file, which she claims did not contain a "do not rehire" designation. On

that same day, Emami made an appointment to meet with Denise Williams-

Saunders, the District's HR manager. After reviewing Emami's personnel file and

electronic records, Williams-Saunders told Emami that there was nothing
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No. 77624-0-1/4

preventing her from securing a job with the District. That same month, Emami met

with Employment Services Director Dana DeJarnatt, who again told Emami that

there was nothing in her personnel records or electronic file preventing her from

being hired.

       In early 2012, Emami met with Apostle. Apostle told Emami he could not

find anything in her personnel file preventing her from securing a full-time teaching

job with the District. Apostle did find a letter indicating that Emami had been

terminated in 2007 for failing to accept her position at Kimball. Apostle testified

that at the time of the 2012 meeting with Emami, he did not know about Emami's

threat of a lawsuit against the District in 2009 or 2010. During the meeting, Apostle

hired Emami as a substitute teacher for the District. Apostle denies limiting her to

substitute positions, but Emami presented evidence that her NEOGOV electronic

personnel file, the online application used by the District, indicated she was "only

permitted to substitute per employee/labor relations." Emami also presented

evidence that before being hired as a substitute teacher for the District in 2012,

her NEOGOV electronic record also stated that she was on a "do not rehire" list

"per legal."

       In August 2013, Emami applied for a full-time certificated third-grade

teaching job at Highland Park Elementary School, where Emami regularly worked

as a substitute.    Emami testified that Highland Park Principal Ben Ostrom

interviewed Emami and told her that he wanted to hire her, but there were problems

in her personnel file.

       Emami asked to meet with Apostle again to discuss employment with the

District. On August 22, 2013, Emami called the District in an attempt to set up a
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meeting with Apostle, telling Apostle's assistant that Ostrom wanted to hire her.

Apostle's assistant relayed the message to Apostle, telling him that Emami had

been on the "do not rehire" list before he hired her as a substitute teacher in April

2012.    District records indicate that Apostle instructed staff to put Emami's

application "on hold" for further screening. Emami claims that shortly thereafter,

Ostrom told her he had to hire another applicant due to time constraints.

        Emami contacted Temple Robinson, a representative for the Seattle

Education Association.     Robinson scheduled a meeting with Apostle, which

occurred on November 13, 2013. During the November 13, 2013 meeting, Emami

claims Apostle told her she was on the "do not rehire" list because "they thought

you sued the district" and that it happened in "[Apostle's] pipeline." Apostle also

allegedly told Emami her placement on the list was "wrong." Emami testified when

she told Apostle she had not sued the District, he replied "Now 1 know."

        Apostle has no recollection of the meeting, denies making those statements

to Emami, and claims that he would never have told Emami that the District put

her on a "do not rehire" list because the District thought Emami had brought a

lawsuit against it.

        On January 16, 2014, Emami sent Apostle an e-mail, thanking him for

meeting with her and Robinson on November 13, 2013.              Emami asked for

Apostle's advice for applying for a kindergarten teaching position at Highland Park.

Apostle forwarded the e-mail to DeJarnatt, telling her to call Emami on his behalf

and encourage her to apply to the position at Highland Park. Apostle also told

DeJarnatt that Emami should no longer be on the "do not hire" list. DeJarnatt had

a telephone conversation with Emami two days later, on January 18. DeJarnatt
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No. 77624-0-1/6

then e-mailed Ostrom, telling him that Emami's record contained an error which

had been corrected and that Emami had applied for the open kindergarten

teaching position at Highland Park. Ostrom hired Emami as a kindergarten teacher

in January 2014.2

        Emami filed suit against the District on September 12, 2016. She alleged

that the District placed her on its "do not rehire" list in retaliation for her having filed

a claim for damages in 2009, costing her the August 2013 job opportunity at

Highland Park. The trial court first dismissed all claims prior to three years and

sixty days, or approximately July 12, 2013, on statute of limitations grounds, but

ruled there was a genuine issue of material fact as to the causal link between the

failure to be hired in August 2013 and her protected activity. On reconsideration,

the trial court dismissed all of Emami's claims, ruling the only evidence linking

Emami's protected activity to the August 2013 decision not to hire her was

inadmissible hearsay from Apostle. It also reasoned Emami could not establish

causation because she could not show that she was placed on the list after 2009,

when she filed her administrative claim, instead of in 2007, when she was

terminated from the District. Emami appeals the summary judgment order.

                                          ANALYSIS

        This court reviews a trial court's grant of summary judgment de novo.

Cornwell v. Microsoft Corp.,         Wn.2d       , 430 P.3d 229, 233(2018). Because of

the difficulty in proving a discriminatory motive,summary judgmentfor an employer


        2 Emami was displaced from Highland Park at the end of the 2014 school year and was
placed at Hazel Wolf Elementary for the 2014-15 school year. Her provisional contract was not
renewed at the end of the 2015 school year due to an unsatisfactory rating, and she was terminated
from the District again. She does not challenge her 2015 termination on appeal.

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No. 77624-0-1/7

is seldom appropriate in the employment discrimination context.                     Id. (citing

Scrivener v. Clark Coll., 181 Wn.2d 439, 445, 334 P.3d 541 (2014); Mikkelsen v.

Pub. Util. Dist. No.1 of Kittitas County, 189 Wn.2d 516, 527,404 P.3d 464 (2017)).

When considering a motion for summary judgment, we construe all admissible

facts and reasonable inferences in the light most favorable to the nonmoving party.

Id. Moreover, the de novo standard of review applies to all trial court rulings made

in conjunction with a summary judgment motion, including evidentiary rulings.

Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998); see also

Podbielancik v. LPP Mork!. Ltd., 191 Wn. App. 662, 666, 362 P.3d 1287 (2015).

          The Washington Law Against Discrimination (WLAD) prohibits employers

from retaliating against employees who oppose discriminatory practices.

RCW 49.60.210(1). When evaluating the merits of cases brought under WLAD,

we use the three step McDonnell Douolas3 burden-shifting framework. Cornwell,

430 P.3d at 234. This case, like Cornwell, involves the first step in the case—the

plaintiffs burden to establish a prima facie case of discrimination. To establish a

prima facie case of retaliation, an employee must show (1) the employee took a

statutorily protected action, (2) the employee suffered an adverse employment

action, and (3) a causal link exists between the protected activity and the adverse

employment action. Id. at 234.

          The trial court dismissed Emami's lawsuit before the Supreme Court issued

its decision in Cornwell, a case in which the Court adopted a new standard for

establishing causation, or "that retaliation was a substantial factor motivating [an]




3   McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668(1973).
                                              -7-
No. 77624-0-1/8

adverse employment decision." Id. at 235 (internal quotation marks omitted)

(quoting Allison v. Hous. Auth., 118 Wn.2d 79, 96, 821 P.2d 34 (1991)). First, the

Court made clear "[a]t the summary judgment stage, the plaintiff's burden is one

of production, not persuasion." Id. Second, the Court held a plaintiff need not

produce evidence that the decision-maker for an employer had actual knowledge

of her protected activity. It is sufficient to produce evidence to reasonably infer

that a supervisor either knew or suspected that an employee had taken protected

action and that there was a causal connection between this knowledge or

suspicion and the adverse employment action. Id. at 237 (adopting standard set

out in Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1110-14 (9th Cir. 2003)).

        The District concedes that Emami filed an administrative claim in April 2009

and again in 2010 and that these claims constitute protected activity under the

WLAD. The District also admits it denied her employment in August 2013, an

adverse employment action. The District disputes, however, Emami's allegation it

placed or kept her on a "do not rehire" list because of her participation in any

protected activity. District HR manager Elaine Williams testified that when the

District terminates an employee, he or she is automatically put on a "do not rehire"

list.

        Emami does not contest she was initially placed on a "do not rehire" list in

2007. She contends, however, that the evidence suggests either she was

removed from this list at some point and then relisted by Apostle after discovering

her past claim against the District, or Apostle realized she had erroneously been

placed on this list and chose not to remove her after discovering her past claim.

Thus, Emami's status between 2010, after Emami filed her administrative claim,
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No. 77624-0-1/9

and August 2013, when she was denied the job opportunity at Highland Park, is in

dispute.

       At oral argument, Emami made clear that her sole claim arises out of the

lost job opportunity in August 2013. Emami presented evidence she was on the

"do not rehire" list in August 2013. She also clarified that the decision-maker here

is Apostle because the evidence indicates he instructed District staff to put

Emami's application on hold after she interviewed with Ostrom. Emami contends

Apostle knew or suspected, by August 2013,she had previously asserted a WLAD

claim against the District. On December 22, 2011, Emami left a voicemail for the

District Superintendent, Apostle's boss, stating:

       And I would love to make an appointment with superintendent and
       speak with her about the situation that I am trying to solve with the
       school district for about 3 years now. And 1 need to see her before I
       do the steps that I don't think will be pleasant for me or for the school
       district. And I am going public with the information if I don't hear from
       the superintendent.



       They put me out of work for, after the accident, they never asked me
       to come back to work and that's the reason I keep calling, and they
       are ignoring me, and I don't know what is going on. But with the
       letters and everything I have, I don't think that school district wants
       the media, public, locally and nationally, know about this.

In January 2012, Apostle listened to this message at the request of District staff

and stated "I will follow up. This dismissal occurred in 2007 and there is little

background information. I will share other aspects of this case with you on Friday."

Emami argues this e-mail is circumstantial evidence Apostle was aware she had

threatened to file a "case" against the District.



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No. 77624-0-1/10

       Emami and Apostle met again shortly after Apostle sent this e-mail.

Although Emami admits Apostle hired her as a substitute teacher at that stage, a

reasonable jury could infer from notes in her NEOGOV file that Apostle restricted

her from obtaining full time employment. Apostle denies limiting her to substitute

positions, but Emami presented e-mails dated April 2013 in which District HR staff

discussed Emami's status. One HR analyst wrote:

              Farideh Ozra Emami has been barred from applying for
       positions in Neogov. The comments states [sic] barred from applying
       per legal. I'm not sure if you are aware but wanted to bring to your
       attention that she has been rehired with [the District] as a substitute
       since April of 2012. It was brought to my attention that she had been
       working for [the District] because I received two reference letters
       from [District] employees for the numerous administrative positions
       she has recently applied to. One of the letters stated she filled in for
       the teacher during her absence.

Further e-mails within the HR department confirm Emami had been on the "do not

rehire [list] per legal, but that [Apostle] rehired her."

       Emami also presented e-mails from August 2013 in which a District HR

administrative assistant, Patricia Stambor, informed Apostle that notes in Emami's

NEOGOV electronic file, "show that she is only permitted to substitute per

employee/labor relations." Stambor reminded Apostle he had "met with [Emami]

a few times in the past. She was on the do not hire list and then you told her she

could substitute." CP 246.

       In response to this e-mail exchange, Apostle asked Stambor to "[p]lease

hold on this hire until next week." He informed several members of the HR staff

that "I can provide additional information on this applicant for a follow up meeting

with the principal next week." He asked Stambor to "inform the analyst in charge

that we need to hold the hire until additional screening is completed." The principal
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No. 77624-0-1/11

mentioned in this e-mail is arguably Ostrom, the individual with whom Emami

interviewed for a teaching position. Emami contends a jury could reasonably find

from this e-mail exchange that Apostle spoke with Ostrom who then told Emami

he could not hire her because there was some problem with her personnel file and

he could not wait any longer to fill the open position.

       Finally, Emami testified that in November 2013, she again met with Apostle

to question him as to why the District would not hire her. Emami stated Apostle

told her "they" put Emami on the "do not rehire" list because "they" thought she

had sued the District. She also testified Apostle stated "it happened in [Apostle's]

pipeline." Emami stated when she told Apostle she had not in fact sued in 2009,

he replied,"Now I know."

       Emami contends that Apostle's statements are either direct evidence the

District actually knew, or circumstantial evidence that Apostle knew or suspected,

she had engaged in protected activity. The trial court excluded Apostle's statement

about what unidentified District personnel told him as inadmissible hearsay under

ER 801. We agree evidence submitted in opposition to summary judgment must

be admissible, and hearsay evidence does not suffice to defeat summary

judgment. SentineIC3, Inc. v. Hunt, 181 Wn.2d 127, 141, 331 P.3d 40(2014). We

agree with the trial court that Apostle's alleged statement about what"they" thought

is inadmissible under ER 801(c) if offered for the truth of the matter asserted.

       However,the evidence is not hearsay if offered for the non-hearsay purpose

of establishing what Apostle suspected in August 2013 when he instructed HR to

place Emami's application on hold. After listening to Emami's December 2011

voicemail, Apostle arguably knew or suspected Emami had alleged mistreatment
No. 77624-0-1/12

by the District after sustaining an on-the-job injury. He knew Emami remained on

the "do not rehire" list on August 23, 2013, when HR informed him Emami was

applying for a full time teaching job with Ostrom. Although there is nothing in the

record showing that Apostle and Ostrom communicated directly with one

another—either in-person or via e-mail—about the August 2013 position at

Highland Park, Emami testified that Ostrom told her he had to hire another

candidate because he was running out of time before the new school year started.

Additionally, a jury could infer District HR employees informed Ostrom that

Emami's application was "on hold" based on the content of Apostle's August 23,

2013 e-mail. The question the evidence raises is: why would Apostle place her

application on hold? His statement to Emami in November 2013 that he had

received information she had sued the District and subsequently learned she had

not done so is circumstantial evidence from which a reasonable jury could

conclude Apostle suspected Emami had asserted an administrative claim against

the District. An out-of-court statement may be offered to show a person who heard

it received notice or had knowledge of some fact. Price v. State, 96 Wn. App. 604,

618, 980 P.2d 302(1999)(woman's out-of-court statement to DSHS admissible to

establish DSHS on notice of mother's drug and alcohol use); see also 5C Karl B.

Tegland, WASHINGTON PRACTICE: EVIDENCE LAW & PRACTICE § 803.15 (6th ed.

2016) (out-of-court statements commonly admitted to show hearer or reader

received notice of some fact or had knowledge of some fact as a result of statement

in question).

      The District contended at oral argument Apostle placed Emami's application

on hold because there was some question as to whether her teaching certificate
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No. 77624-0-1/13

remained valid. We cannot find any evidence of this issue in the record before us.

Regardless, Apostle's explanation for his decision to place Emami's application on

hold presents a question of fact for the jury to decide.

       Because a jury could reasonably conclude that Emami was denied a full

time teaching position at Highland Park in August 2013 because Apostle

suspected she had engaged in protected activity, we reverse the summary

judgment dismissal of Emami's retaliation claim.

       Emami also appeals the trial court's statute of limitations ruling. We do not

need to address that issue because Emami confirmed her sole claim for damages

arises out of the District's failure to hire her in August 2013. This claim falls within

the three-year statute of limitations and is not time-barred. RCW 4.16.080(2); see

also Antonius v. King County, 153 Wn.2d 256, 261-62, 103 P.3d 729 (2004).

       Reversed and remanded.




WE CONCUR:




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