    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CYNTHIA ROWLAND,                        )                                                   cl
                                                                                        (pc,
                                        )      No. 74219-1-1                     ..-
                                                                                 cc 7     ::...
                                                                                         -"-4
                    Appellant,          )                                         lz•___ rnc,
                                        )      DIVISION ONE
      v.                                )                                          co,
                                        )      UNPUBLISHED OPINION                         of-no
JOSE BANDA, Superintendent,             )
and SEATTLE PUBLIC SCHOOLS              )                                           41 -4c,
                                        )                                            ...1 .-.
                    Respondents.        )
                                        )      FILED: April 23, 2018

      LEACH, J. — Cynthia Rowland appeals a summary judgment dismissing her suit

against Seattle Public Schools ("District") and superintendent Jose Banda for wrongfully

terminating her employment. Because Rowland's brief on appeal violates our Rules of

Appellate Procedure and because the superior court properly dismissed her claims in

any event, we affirm.

                                        FACTS

      Between September 2009 and May 2011, Rowland worked as a special

education instructional assistant at West Seattle High School.

      In March 2011, the District sent Rowland two letters of reprimand for alleged

unprofessional interactions with students.     She also received a letter about an
No. 74219-1-1/2



investigation into her alleged inappropriate supervision of students.       One incident

involved the alleged physical abuse of a student by dragging her across the floor.

       During the District's investigation, Rowland filed an administrative complaint,

alleging psychological harassment and retaliation by the teacher in her classroom. The

District began an investigation into Rowland's complaint and placed her on

administrative leave.

       A year later, the District notified Rowland that its investigation failed to

corroborate her harassment allegation.           The other investigation, however, had

corroborated the allegation that she dragged her student across the floor. The District

notified Rowland that it intended to fire her.

       On June 1, 2012, the District fired Rowland. She then filed a grievance with her

union, the Seattle Education Association (SEA).

       In March 2013, SEA denied Rowland's request that the union take her grievance

to arbitration. She unsuccessfully appealed that decision.

       Two years later, Rowland filed this lawsuit against the District for "damages for

wrongful termination," "violations of [her] Collective Bargaining Agreement," and

discrimination. The complaint included claims that the District disciplined her "without

just and sufficient cause," and discharged her in "bad faith" and through "arbitrary and

capricious actions." The complaint alleged various violations of the collective bargaining

agreement (CBA). These included alleged violations of investigation and hearing




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No. 74219-1-1/3



procedures, requirements for risk assessment and safety, and prohibitions against sex

discrimination.

       The District moved to dismiss Rowland's claims on summary judgment.                   It

argued that her CBA-based claims should be dismissed because she did not exhaust

administrative remedies. Noting that Rowland's union had elected not to take her

grievance to arbitration, the District argued,

               A court should provide substantial deference to a union's decision
       to terminate a grievance for lack of merit. Lindsey v. Metropolitan Seattle,
       49 Wn. App. 145, 741 P.2d 575, 579-80 (1987), rev. denied, 109 Wn.2d
       1016 (1987) (sometimes the interests of an individual must be
       subordinated to those of the entire membership, and a union's decision in
       this regard will be accorded substantial deference). "In part, this
       requirement arises out of the fact that the union is the agent of the
       aggrieved employee, and in the absence of evidence showing bad
       faith, discrimination, or arbitrary conduct on the part of the union, its
       decision to forgo exhaustion of grievance procedures binds the
       employee and forecloses judicial action on the contract." [Lew v.
       Seattle Sch. Dist. No. 1, 47 Wn. App. 575, 578, 736 P.2d 690 (1987).]

The District argued that because Rowland did not sue the union or allege that it

exercised bad faith, discrimination, or arbitrary conduct in deciding not to arbitrate her

grievance, she was bound by the union's decision and "barred from now bringing a

breach of contract claim in this lawsuit."

       The District asked the court to dismiss "any implied claim of gender

discrimination" because Rowland testified "unequivocally in her deposition that she does

NOT     wish      to   bring   a   claim     of     pregnancy   discrimination    or   gender

discrimination. . . . Rather, she clarified that her lawsuit is for wrongful termination."



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No. 74219-1-1/4



      The District also moved to dismiss Rowland's tort claim for discrimination

because she did not file a notice of claim under RCW 4.96.010 (requiring notice of tort

claims against local government entities).

       Rowland responded that the District's motion for summary judgment was

untimely, she had exhausted her remedies, her deposition statements did not override

or amend the claims in her complaint, and she was not required to file a notice of claim

because she had no tort-related monetary or physical damages when she filed her

complaint and first suffered those damages over six months after she filed this lawsuit.

       In reply, the District asked the court to strike most of Rowland's exhibits because

they were "not properly attached to an affidavit by any witness with personal knowledge"

and were "not authenticated and . . . made up of inadmissible hearsay."1 The District

also asked the court to strike the statement of facts in Rowland's response, arguing that

it was "not properly supported by citations to admissible evidence, affidavits, or

deposition testimony by witnesses."

       The court granted the District's requests to strike and for summary judgment.

The court expressly incorporated its oral ruling by reference. That ruling states in part,

      [T]he first issue [is whether] plaintiff's claims for breach of the [CBA] are
      barred due to failure to exhaust administrative remedies.

              I agree with the defendant .. . on the law. I think it is explicitly clear
       that the union is the agent for the represented party in the dealings with
       the District on claims.



       1 Exhibits 1, 3, 6, 7, 8, 9, 10,11, and 14.

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             For example, L[ewl v. Seattle School District, which I believe
      continues to be good law in Washington, is very clear that the parties[ ]
      bring at least a claim that the union has breached its duty to the individual
      in some fashion, the union's decision not to pursue an administrative
      remedy fails to exhaust that requirement.



            [Counsel for Rowland], you did argue your reasoning as to why the
      union was wrong here. ... That would have given, arguably, the plaintiff a
      ground to pursue a claim against the union that she failed to pursue.

             I do find, under established Washington law, the plaintiff is
      prohibited at this point from bringing her claims in Superior Court for
      breach of the collective bargaining agreement because she failed to
      exhaust administrative remedies.

             The second claim is having to do with the prerequisite before
      bringing a legal action against a local government entity. There is
      agreement between the parties that a School District does qualify as a
      local government entity. It does so qualify under RCW 4.96.020 as a
      condition precedent for bringing a tort claim against the entity.

              Here again, I agree with the defendant. . . . There is no showing
      that a claim was brought. . . .

             I would venture, and this is pure speculation on my part, that most
      of these claims brought as predicates to judicial action against a
      governmental entity, prove quote unquote, "futile." There is no relief that
      comes from those claims. That doesn't eliminate or change in any way
      the statutory requirement that the governmental entity be given the
      opportunity to respond to the allegations before cause of action is filed in
      the court.

             I think here, also, the defendant's summary judgment motion will be
      granted, which should deal with the possibility of a gender discrimination
      claim that is a tort action. However, I'll speak additionally to the gender
      discrimination claim.

              Here is where the defendant's motion to strike comes in. [Counsel]
      is correct, . . . on behalf of the defendants, that the plaintiffs responses to
      summary judgment were not submitted in the proper format that carry with
      them the indicia of reliability that are required on summary judgment and
      as rules of evidence in trial.

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No. 74219-1-1/6




              There would be certification or sworn statements that identify the
      basis for the information that is brought in and give it a qualification of
      reliability.

                 I believe, that the plaintiff did, on the basis of admissible
      evidence on summary judgment, unequivocally testify at her deposition
      that she was not bringing a claim for [gender discrimination].

             I'm afraid, Ms. Lucas, I simply don't agree with your argument that
      the plaintiff, Ms. Rowland, is not an attorney and shouldn't be held to
      knowing what her claims are. To the contrary, the law is that the attorneys
      are agents of the plaintiff and it is the plaintiff's legal action.

             She described that she really didn't believe, in the face of
      questioning, that she had a gender discrimination claim. Based on that
      evidence, where there is no—nothing but conclusory sort of statements
      made in opposition to that evidence. I also would grant summary
      judgment on the defendant's motion to dismiss the gender discrimination
      claim.

(Emphasis added.)

      Rowland appeals.

                                       ANALYSIS

                       Violations of Rules of Appellate Procedure

      Rowland's brief on appeal contains numerous violations of our Rules of Appellate

Procedure. Virtually all of the brief's citations to the record are either inaccurate or

unhelpful because the citation is to the first page, not the relevant page, of a document.

And, as noted in our discussion below, Rowland does not support many of her

assertions with relevant legal authority. These omissions violate RAP 10.3(a)(5),. RAP

10.4(f), and RAP 10.3(a)(6) and hamper review.2        Taken together, Rowland's rule


      2 RAP 10.3(a)(5) (requiring references to the record for factual statements in
statement of the case); RAP 10.4(f) (requiring references to both "the page and part of

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No. 74219-1-1/7




violations are sufficient to preclude review.3 In any case, we have reviewed the issues

raised on appeal and conclude they lack merit.

                                    Standard of Review

       This court reviews summary judgment orders de novo and performs the same

inquiry as the trial court.4 Summary judgment is appropriate when the evidence, viewed

in a light most favorable to the nonmoving party, shows no genuine issue of material

fact remains and the moving party is entitled to judgment as a matter of law.5

       Because Rowland does not challenge the trial court's ruling striking most of her

exhibits below, they are not properly before us and we do not consider them.

                       Extension of Deadline for Dispositive Motions

       Rowland first contends the superior court abused its discretion when it granted

the District's motion to extend the summary judgment hearing date from October 19,

2015, to October 23, 2015. She claims the court erred in failing to "require that the

defendants prove excusable neglect" and in failing to include "any citation of excusable

neglect in its ruling." This claim is meritless.




the record"); RAP 10.3(a)(6) (requiring argument "together with citations to legal
authority and references to relevant parts of the record.").
        3 Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 819, 828 P.2d
549 (1992) (refusing to consider claims unsupported by references to the record or
citation to authority); accord State v. Reeder, 181 Wn. App. 897, 910 n.15, 330 P.3d
786 (2014).
       4 Life Designs Ranch, Inc. v. Sommer, 191 Wn. App. 320, 327, 364 P.3d 129
(2015).
       5 Life Designs, 191 Wn. App. at 327; CR 56(c).


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No. 74219-1-1/8




       CR 6(b) provides superior courts with discretion to enlarge the time periods

required for certain acts:

              (b) Enlargement. When by these rules or by a notice given
       thereunder or by order of court an act is required or allowed to be done at
       or within a specified time, the court for cause shown may at any time in its
       discretion, (1)... order the period enlarged if request therefor is made
       before the expiration of the period originally prescribed . . . or, (2) upon
       motion made after the expiration of the specified period, permit the act to
       be done where the failure to act was the result of excusable neglect.

(Emphasis added.) We review a trial court's decision to enlarge time under CR 6(b) for

an abuse of discretion.6

       Here the case schedule set October 19, 2015, as the deadline for hearing

dispositive motions. When the District filed its summary judgment motion, it noted the

motion hearing for October 23, 2015, not October 19. On October 8, 2015, 11 days

before the October 19 deadline for hearing dispositive motions, the District moved under

CR 6(b) to extend that deadline by 4 days to October 23, 2015. The District noted, and

Rowland did not dispute, that the original October 19 deadline fell on a Monday, that

"the Court generally only considers motions on judicial days, which are every Friday,"

and that "[u]nder LCR 7(b)(4)(a)[7], motions without oral argument that are scheduled for

a nonjudicial day will be considered on the next judicial day." The District asked the



      6 CliPSe   v. Commercial Driver Servs., Inc., 189 Wn. App. 776, 786, 358 P.3d 464
(2015)
        7 KING COUNTY SUPER. CT. LOCAL CIV. R. 7(b)(4)(A). ("A motion must be
scheduled by a party for hearing on a judicial day. . .[I]f the motion is set... on a non-
judicial day.. . without oral argument, the assigned judge will consider the motion on
the next judicial day.").

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No. 74219-1-1/9




court to extend the deadline for hearing dispositive motions to October 23, 2015—the

first Friday after the October 19 deadline.

       Rowland opposed the motion, arguing that the District "missed the deadline for

filing dispositive motions." (Emphasis added.) Rowland asserted that because the

deadline for hearing dispositive motions was October 19, 2015, "the deadline for filing a

summary judgment hearing on a Friday expired on September 18, 2015." (Emphasis

added.) Although her argument was not entirely clear, she appeared to contend that

absent a showing of "excusable neglect" under CR 6(b)(2), the District's motion for

summary judgment was untimely, the motion to enlarge the time for the hearing on the

motion should be denied, and the motion for summary judgment should be stricken.

The District responded that CR 6(b)(1) controlled because it moved to extend the

hearing deadline before it expired; therefore, the District needed to show only "cause"

for an extension under CR 6(b)(1).

       The court granted the District's motion, extending the deadline for hearing

dispositive motions to October 23, 2015.8

       On appeal, Rowland, for the first time, incorporates CR 56(c) into her argument.

She contends that because the deadline for hearing dispositive motions was October

19, 2015, and because CR 56(c) requires that summary judgment motions be filed at


       8  The court adhered to this ruling at the summary judgment hearing, stating in
part, "It's always the Court's preference to deal with issues on the merits rather than on
the basis of technicalities. We have broad discretion in setting our schedule. I'm going
to deny any objection to that and just move into the merits of the summary judgment
motion."

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No. 74219-1-1/10




least 28 days before the hearing, the "deadline for filing a summary judgment hearing

expired on Friday, September 18, 2015." Thus, because the District did not file its

summary judgment motion until September 22, 2015, Rowland concludes the District

had to demonstrate excusable neglect under CR 6(b)(2) to extend the time for hearing

the motion. Accordingly, she maintains the court abused its discretion in granting the

motion to enlarge the time for the hearing. We disagree for several reasons.

      First, Rowland's argument to the trial court was wholly inadequate and properly

rejected by it. As noted above, she argued that "[t]he expiration for hearing dispositive

motions was October 19, 2015. . . . Therefore, the deadline for filing a summary

judgment hearing on a Friday expired on September 18, 2015." (Emphasis added.)

Nothing in Rowland's response supported the emphasized portion of this conclusory

argument. She offered no supporting authority or meaningful analysis. In addition, she

nowhere addressed the District's argument that under King County Super. Ct. Local Civ.

R. 7(b)(4)(A), the motion hearing had to be set on a judicial day.

      Second, Rowland's claim about the timeliness of the District's summary judgment

motion did not alter the fact that the District moved to extend the deadline for a hearing

on the motion before the hearing deadline passed. So, under the plain language of CR

6(b)(1), the District needed only to show "cause," not "excusable neglect," to obtain an

extension. The District made that showing. Rowland has never disputed the District's

assertion that the case schedule inadvertently set the hearing deadline for a nonjudicial

day and that, under the local rules, the deadline needed to be rescheduled for a Irdicial


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No. 74219-1-1/11




day, i.e., a Friday. The court thus had cause to extend the hearing deadline and did not

abuse its discretion in granting the motion to enlarge time.9

       Third, even if the court had abused its discretion, Rowland would not be entitled

to relief because she cannot demonstrate prejudice, i.e., a lack of notice, time to

prepare, or opportunity to provide countervailing argument.19

                         CBA Claims / Exhaustion of Remedies

       Rowland next contends the superior court erred in dismissing her CBA claims

because she did not exhaust administrative remedies. We disagree.

      "In general, where a collective bargaining agreement establishes grievance and

arbitration procedures for the redress of employee grievances, an employee must

exhaust those procedures before resorting to judicial remedies."11          If a grievance

procedure has not been exhausted "due to the union's refusal to press the matter on to

arbitration, la] prerequisite to maintaining a lawsuit against [the employer] is an

allegation that the union acted arbitrarily, discriminatorily, or in bad faith in failing to

exhaust the contractual procedures for settling disputes.'"12 This prerequisite exists



       9 Indeed, "[i]f a motion [for summary judgment] is served and filed too late (i.e.,
less than 28 days before the date set for hearing), any error can normally be cured by
rescheduling the hearing." 4 KARL B. TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE
CR 56 at 402(6th ed. 2013).
       10 See O'Neill v. City of Shoreline, 183 Wn. App. 15, 22, 332 P.3d 1099 (2014);
State ex rel. Citizens Against Tolls (CAT) v. Murphy, 151 Wn.2d 226, 236-37, 88 P.3d
375 (2004).
       11 Lew v. Seattle Sch. Dist. No. 1, 47 Wn. App. 575, 577, 736 P.2d 690(1987).
       12Lew, 47 Wn. App. at 578 (quoting Ploof v. Vill. of Enosburq Falls, 147 Vt. 196,
514 A.2d 1039, 1043(1986)).

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No. 74219-1-1/12




because the union is the agent of the employee, and "in the absence of evidence

showing bad faith, discrimination, or arbitrary conduct on the part of the union, its

decision to forgo exhaustion of grievance procedures binds the employee and

forecloses judicial action on the contract."13

       Relying on Lew, the superior court dismissed Rowland's CBA claims because

she did not exhaust administrative remedies. The court ruled that because Rowland's

union did not take her case to arbitration, Lew required her to "assert an action against

the union" or "claim that the union has breached its duty" to her in order to exhaust her

administrative remedies.14 Rowland's complaint, however, did not assert any claim

against her union and expressly stated that "she does not claim that the union breached

its duty of fair representation."

       On appeal, Rowland does not challenge the trial court's interpretation and

application of Lew. Instead, she makes conclusory statements about the adverse

effects of Lew's holding. But she cites no supporting authority16 and does not expressly

ask this court to revisit or depart from Lew. Our courts have followed the pertinent

holding in Lew for over 30 years.16 Rowland's conclusory arguments are insufficient to



       13  Lew,47 Wn. App. at 578.
        14 Rowland did not name the union as a defendant in her complaint. The
complaint also expressly states that "she does not claim that the union breached its duty
of fair representation."
        15 For example, Rowland claims, without citing authority, that Lew's holding
"eliminates most legal claims for innocent wronged employees."
        16 Ota v. Pierce County, No. 47812-9-11, slip op. at 5-6 (Wash. Ct. App.(Dec. 13,
2016 (unpublished), http://www.courts.wa.gov/opinion/pdf/478129.pdf, review denied,

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No. 74219-1-1113



persuade us to depart from that holding. The trial court did not err in dismissing

Rowland's claims arising from the CBA because she did not exhaust her administrative

remedies.

                                       Tort Claim

       The superior court dismissed Rowland's tort claim for gender discrimination

because she did not file a notice of claim with the School District as required by RCW

4.96. This notice is a "condition precedent to the commencement of any action claiming

damages" against a government entity.17

       In her brief, Rowland devotes five sentences to the dismissal of her

discrimination claim. She admits she did not file a notice of claim with the District. She

argues, however, that she did not have to give notice because she "had no actual

damages until the statute of limitations period had lapsed." The fact that Rowland filed

her complaint against the District for, among other things, tortious conduct and

damages within the statute of limitations undermines this argument. Rowland cites no

authority excusing the filing of a notice of claim where the plaintiff claimed a lack of

damages yet filed a complaint for these damages against a government entity within the

statute of limitations.




188 Wn.2d 1003 (2017); Wilson v. City of Monroe, 88 Wn. App. 113, 119, 943 P.2d
1134(1997); Minter v. Pierce Transit, 68 Wn. App. 528, 532, 843 P.2d 1128 (1993).
      17 RCW 4.96.010(1).


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No. 74219-1-1/14




      In any case, Rowland does not challenge the superior court's alternative bases

for dismissing the discrimination claim, including her admission in her deposition that

she had no claim for gender discrimination.

      Affirmed.



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