                                                                FILED
                                                             JULY 24, 2014
                                                      In the Office of the Clerk of Court
                                                    W A State Court of Appeals, Division III



         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

AMANDA SARAH BETH MCIVER and                )        No. 31370-1-111 

JAMIE MCIVER, and the marital               )

community comprised thereof,                )

                                            )

                    Appellants,             )

                                            )

             v. 	                           )        UNPUBLISHED OPINION
                                            )
CITY OF SPOKANE, SPOKANE                    )
PARKS and RECREATION                        )
DEPARTMENT, MIKE AHO and JANE               )
DOE AHO, and the marital community          )
comprised thereof, KIMBRE VEGA and          )
JOHN DOE VEGA, and the marital              )
community comprised thereof; PALADIN        )
ALENT and JANE DOE ALENT, and the           )
marital community comprised thereof,        )
employees of CITY OF SPOKANE,               )
                                            )
                    Respondents.            )

      SPERLINE, J.* -Amanda McIver appeals the trial court's CR 12(b)(6) dismissal of

her defamation claim against the City of Spokane (the City) and the order of summary



      *Judge Evan E. Sperline is serving as judge pro tempore of the Court of Appeals
pursuant to RCW 2.06.150.
No. 31370-1-111
McIver v. City ofSpokane


judgment dismissing her remaining claims of negligent training/supervision and

whistleblower retaliation. She challenges the trial court's (1) refusal to apply judicial

estoppel to bar the City from asserting certain facts disputing her claims, and (2) dismissal

oofher claims pursuant to CR 12(b)(6) and summary judgment. Finding no error, we

affirm.

                                            FACTS

          During the summer of 2008, the City of Spokane hired Amanda Mciver as a

temporary seasonal worker for its Parks and Recreation Department. She was assigned to

the Northeast Community Center (NEYC). On April 23, 2009, Ms. McIver was

transporting children from the NEYC in a City-owned van as part of her duties as a

recreation leader for the Parks Department. While transporting the children, the van she

was driving was struck from behind by another City-owned van. Several young children

in Ms. Mciver's van were not in the required booster seats. The Spokane police

department issued Ms. Mciver a traffic citation for her failure to use booster seats. The

City dismissed the citation on June 10, 2009.

          Shortly after the collision, the Spokesman-Review published an article about the

collision and quoted the NEYC director, Kimbre Vega, as stating, "'I don't know why

[the children] weren't in their booster seats.'" Clerk's Papers (CP) at 93. The article


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No. 31370-1-III
McIver v. City ofSpokane


identified Ms. McIver as a driver of one of the vans, but other than stating that she passed

a postaccident drug test, made no other reference to her. Ms. Vega did not mention Ms.

McIver in the article.

       Ms. McIver remained employed with the City until September 16, 2011, when her

position was eliminated due to a seasonal reduction in force.

       On June 13,2011, Ms. McIver filed this action against the City. The complaint

alleged causes of action for slander and libel, negligent training and supervision, and civil

rights violations under Washington's law against discrimination (WLAD), chapter 42.40

RCW and chapter 49.60 RCW.

       In her complaint, Ms. McIver alleged that the City failed to provide child safety

seats or booster seats and failed to train employees in the use of such safety equipment.

Ms. McIver also alleged that City employees, knowing booster seats were not available,

then misrepresented to local news media that they were uncertain why Ms. McIver had

not used booster seats. Ms. McIver claimed that as a result of these "misrepresentations,"

she was subject to public ridicule and humiliation. CP at 6. As to her WLAD claim, Ms.

McIver maintained that after the collision, she was asked to misrepresent to police that

the booster seats were available but not used. She claimed that after she refused to lie to

public officials investigating the accident, she was removed from her position and


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No. 31370-1-III
McIver v. City ofSpokane


suffered financial loss due to her refusal to lie. She also claimed that as a result of her

disclosure that seats were not provided, she was transferred from her position with the

NEYC.

       Ms. McIver asked for damages for lost wages, pain and suffering, reimbursement

for mental and physical treatments, loss of enjoyment of life, and payment for lost earning

capacity due to loss of employment. The City moved for judgment on the pleadings

under CR 12(b)(6), arguing Ms. McIver's complaint failed to state a claim upon which

relief can be granted.

       The court granted the City's CR 12(b)(6) motion to dismiss as to Ms. McIver's

slander and libel claims, but denied the motion on the remaining claims, finding the

evidence "thin," but sufficient to survive a motion to dismiss on the pleadings. Report of

Proceedings (RP) (Aug. 10,2012) at 33; CP at 130-31. In its oral ruling, the court

explained that the Spokesman-Review quote did not concern Ms. McIver, noting Ms.

Vega's statement "could have been reference to any number of breaches of the duty of

any number of individuals." RP (Aug. 10,2012) at 32.

       The City then filed a motion to dismiss the remaining claims under CR 56. It

attached affidavits from City employees indicating that the City had provided booster

seats and trained its employees, including Ms. McIver, in the use of the seats. The City



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No. 31370-1-III
McIver v. City ofSpokane


argued that Ms. McIver's decision not to use the booster seats was her own choice, stating

"[t]he boosters were available and all drivers were expected to use them." CP at 212.

The City also argued that even if the City could be found negligent, the negligence did not

harm Ms. McIver as she was kept on the payroll and given two raises over the course of

the next two years after the accident.

       The trial court granted the City's summary judgment motion to dismiss the

negligent training and whistleblower claims.

       Ms. McIver appeals the CR 12(b)(6) dismissal of her defamation claim and the

summary judgment dismissal of her remaining claims.

                                         ANALYSIS

       Judicial Estoppel

       Ms. McIver first contends that under the doctrine ofjudicial estoppel, the trial

court should not have allowed the City to advance inconsistent positions regarding the

availability of booster seats. She claims that the City dismissed the infraction against her

based on the fact that it purchased booster seats after the collision, but then reversed its

position in the instant case and claimed the seats were available at the time of the

collision. She maintains, "the City's position that booster seats were not previously

available but subsequently purchased was the sole legal and factual predicate for the



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No. 31370-1-II1
McIver v. City ofSpokane


dismissal." Reply Br. at 1. She further claims that this presents "a genuine factual

dispute that precludes dismissal, or the City has misled one of the two courts." Reply Br.

at 2.

        The equitable doctrine ofjudicial estoppel prevents a party from asserting one

position in a court proceeding and later seeking an advantage by taking a clearly

inconsistent position in another court proceeding. Arkison v. Ethan Allen, Inc., 160

Wn.2d 535,538, 160 P.3d 13 (2007) (quoting Bartley-Williams v. Kendall, 134 Wn. App.

95, 98, 138 P.3d 1103 (2006)). The court focuses on three core factors when deciding

whether to apply the doctrine ofjudicial estoppel: (1) whether a party's current position is

inconsistent with an earlier position, (2) whether judicial acceptance of an inconsistent

position in the later proceeding will create the perception that the party misled either the

first or second court, and (3) whether the party asserting the inconsistent position will

obtain an unfair advantage or impose an unfair detriment on the opposing party if not

estopped. Miller v. Campbell, 164 Wn.2d 529,539, 192 P.3d 352 (2008) (quoting

Arkison, 160 Wn.2d at 538-39).

        We review the trial court's application ofjudicial estoppel for an abuse of

discretion. Miller, 164 Wn.2d at 536. Where a decision of the trial court is a matter of

discretion, it will not be disturbed except on a clear showing that the decision was



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No. 31370-1-111
McIver v. City ofSpokane


manifestly unreasonable and exercised on untenable grounds or for untenable reasons.

State ex rei. Carrollv. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971).

       During the City's motion for summary judgment, Ms. McIver argued that the City

should be judicially estopped from being able to argue that booster seats were available

on the date of the collision because the City had dismissed Ms. Mciver's citation based on

its previous assertion that it did not have booster seats on the date of the collision, but had

corrected the problem by purchasing booster seats later.

       The City responded that its positions were not inconsistent. The City explained

that booster seats had always been available, but that the City upgraded the booster seats

to high-backed seats after the collision, mistakenly believing the existing seats were

inadequate. The City emphasized that although it had dismissed Ms. McIver's citation

based on its subsequent purchase of better quality booster seats, booster seats had been

available on the day of the collision. According to the City:

              A citation like this normally gets dismissed if somebody goes out
       and shows they corrected the problem, because the point of this law is to
       keep kids safe, to make sure that people comply with the booster law.
              So that's exactly what happened. They presented their receipts.
       Okay. Northeast Youth Center is in compliance. Boom. Citations
       dismissed. There's nothing sinister about that, and it is not an admission
       against interest or anything.

RP (Nov. 30,2012) at 28.



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No. 31370-l-III
McIver v. City ofSpokane


       The court denied Ms. McIver's judicial estoppel argument, stating, "I am satisfied

that that was based on the backed seats versus the backless. So it didn't matter what they

did after the fact on the higher-backed seats. I'm focusing on what they had in their

inventory on the backless. I'm accepting the City's position that that satisfied the rule."

RP (Nov. 30, 2012) at 33.

       In view ofthis record, Ms. McIver fails to establish the first factor-that a later

position would be clearly inconsistent with an earlier position. Nothing in the record

before us indicates that the City previously asserted that booster seats were not available

on the day of the collision. As just detailed, the City was clear that booster seats had

always been available, it simply upgraded them after the collision, mistakenly believing

the old seats were out of compliance with the new law. The court was well within its

broad discretion in rejecting Ms. McIver's judicial estoppel argument.

       The trial court did not abuse its discretion in refusing to apply the doctrine of

judicial estoppel to preclude the City from asserting that booster seats were available on

the day of the collision.

       Next, Ms. McIver contends that the trial court incorrectly applied CR 12(b)(6) and

summary judgment standards in dismissing her claims.




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No.3l370-1-III
McIver v. City ofSpokane


          CR 12(b)(6) Dismissal ofDefama!ion Claim

          Next, Ms. McIver contends that the trial court incorrectly applied CR 12(b)(6) and

summary judgment standards in dismissing her claims. Whether dismissal is appropriate

for failure to state a claim under CR 12(b)(6) is a question of law that an appellate court

reviews de novo. San Juan County v. No New Gas Tax, 160 Wn.2d 141, 164, 157 P.3d

831 (2007). The factual inquiry on a CR 12(b)(6) motion presumes the allegations set

forth in the complaint to be true and asks whether any set of facts can be conceived that

would support a valid claim. Halvorson v. Dahl, 89 Wn.2d 673,674-75,574 P.2d 1190

(1978).

       To establish a prima facie claim for defamation, Ms. McIver was required to

demonstrate that (1) the City's statements about her were false, (2) the statements were

unprivileged, (3) the City was at fault, and (4) that the statements proximately caused

damage. Wood v. Battle Ground Sch. Dis!., 107 Wn. App. 550, 567-68, 27 P.3d 1208

(2001). A CR 12(b)(6) motion to dismiss is appropriate in defamation cases where a

plaintiffs complaint fails to demonstrate the existence of one of the elements of

defamation. Clapp v. Olympic View Publ'g Co., l37 Wn. App. 470, 475, 154 P.3d 230

(2007).




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No. 31370-1-II1
McIver v. City ofSpokane


       Ms. McIver does not address the elements of defamation or otherwise explain how

the City's statements are defamatory. Furthermore, she fails to specify the objectionable

statements. She makes a general assertion that City employees told police they were

"uncertain" why booster seats were unavailable, but fails to cite the record in support of

this claim. Later, she simply contends, "Ms. Amanda McIver was given a traffic

infraction ... and wrongfully subjected to public ridicule, humiliation, and community

ridicule because of false statements of Spokane City Parks and Recreation employees."

Br. of Appellant at 8.

       A review of the record suggests that Ms. McIver's defamation claim is based on

Ms. Vega's statement in the Spokesman-Review, quoted above-"'I don't know why [the

children] weren't in their booster seats.'" CP at 93. However, Ms. McIver first fails to

establish that Ms. Vega's statement was about her or was false. A statement must be

considered as a whole to determine whether it is true or false. Clardy v. Cowles Publ 'g

Co., 81 Wn. App. 53,65,912 P.2d 1078 (1996). Ms. McIver did not produce any

evidence indicating that Ms. Vega had any firsthand knowledge as to why Ms. McIver did

not use booster seats. Ms. Vega was merely reciting her state of mind to a reporter,

stating that she was not sure why booster seats were not used. Furthermore, Ms. McIver

failed to show that Ms. Vega's statement was about her. As the trial court pointed out,


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No. 31370-1-III
McIver v. City ofSpokane


Ms. Vega's statement could have been referencing any number of breaches by any

number of individuals involved in providing booster seats. Nothing in the statement or

article individually targets Ms. McIver. The trial court properly dismissed Ms. McIver's

defamation claim pursuant to CR 12(b)(6).

       Summary Judgment Dismissal ofNegligent Training and "Whistleblower" Claims

       We next turn to the remaining claims that were dismissed under CR 56. As to the

negligent supervision/training claim, Ms. McIver reiterates her judicial estoppel

argument, recites the summary judgment standard, and then provides the following single

sentence of argument: "Further, in looking at the many affidavits provided in this matter,

there was a material question of fact about the City of Spokane failing to provide proper

equipment and training." Appellant's Br. at 12. As to her whistleblower claims, she

simply argues, "Additionally, the plaintiff presented adequate evidence as to her other

claims to avoid summary judgment." Appellant's Br. at 12. Our analysis of Ms.

McIver's argument is compromised by her failure to address the elements of her claims or

point to specific evidence in the record to support them. Nevertheless, our review of the

record reveals that summary judgment dismissal was proper.

       We review a summary judgment order de novo, performing the same inquiry as the

trial court, and considering the facts submitted and all reasonable inferences in the light


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No. 31370-I-III
McIver v. City ofSpokane


most favorable to the nonmoving party. Wilson v. Steinbach, 98 Wn.2d 434,437,656

P .2d 1030 (1982). A moving party may satisfy the initial burden by showing that there is

an absence of evidence to support any material issue in the nonmoving party's case.

Youngv. KeyPharm., Inc., 112 Wn.2d216, 225 n.1, 770 P.2d 182 (1989) (quoting

Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).

          In response, the nonmoving party may not rely on the allegations in the pleadings,

but must set forth specific facts by affidavit or otherwise that show a genuine issue exists.

Las v. Yellow Front Stores, Inc., 66 Wn. App. 196, 198, 831 P.2d 744 (1992). Summary

judgment is proper if there is no genuine issue as to any material fact and the nonmoving

party is entitled to judgment as a matter oflaw. Kruse v. Hemp, 121 Wn.2d 715, 722, 853

P.2d 1373 (1993); CR 56(c).

          To establish her negligence claim, Ms. McIver was required to show duty, breach,

causation, and damage. Gurno v. Town ofLaConner, 65 Wn. App. 218,228-29,828 P.2d

49 (1992); Hartley v. State, 103 Wn.2d 768, 777, 698 P.2d 77 (1985). Ms. McIver's

claim fails at the outset because she presents no evidence or argument as to the standard

of care owed by the City to City employees or even, at a minimum, whether such a duty

exists.




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No.3l370-1-III
Mclver v. City ofSpokane


       A negligent supervision claim is a claim for a third party to sue an employer for the

actions of its employee. Rodriguez v. Perez, 99 Wn. App. 439, 451, 994 P.2d 874 (2000).

The Rodriguez court stated, "Negligent supervision creates a limited duty to control an

employee for the protection of a third person." Id.; see also Haubry v. Snow, 106 Wn.

App. 666, 679, 31 P.3d 1186 (2001) (reiterating the theory of liability in a negligent

supervision case is that the employer's negligence is a wrong to the third person). Ms.

McIver presents no authority for her argument that she is permitted to bring a negligent

supervision claim against her employer for her own personal injury.

       However, even if Ms. McIver can somehow establish that she is allowed to present

such a claim, she fails to establish negligent training. Contrary to her general assertion

that the City did not provide training, the evidence amply reflects that the City had

established policies and procedures regarding the use of booster seats and training of van

drivers. Paladin Alent, the Operations Manager for the NEYC and a trainer for the City's

van drivers, submitted an affidavit in which she detailed the training she provided to Ms.

McIver and other drivers:

              7.     . .. At the NEYC, we were aware that the Washington law
      changed regarding the use of booster seats for younger children sometime in
      2003 (and then again twice in the next few years). Based upon that change
      in the law, we trained all personnel who would be driving the younger
      children in the proper use of a booster seat. This occurred during our
      regular van driver training sessions or state-mandated employee

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No. 31370-1-II1
McIver v. City ofSpokane


       orientations.

              9.     I also know that the NEYC had a large supply of backless
       booster seats which were, I believe, donated to us in a new condition.
              10.    On 5/29/08, I personally trained Amanda Mciver regarding
       van driving.

               13.    No employee at the NEYC would have even been allowed to
       work with the children without receiving the state-mandated training.
       Amanda Mciver would have been trained along with 30-50 other new
       employees when she started work in 2008.
               14.    Every driver of [an] NEYC van was required to have a
       driver's license and to adhere to the state law regarding child restraints (aka
       booster seats). Ifwe had received any notice that a driver was not using
       boosters, that employee would have been disciplined.
               15.    By 2008, normally the booster seats were kept in the vans ....
       It was the responsibility of every driver to determine if he/she needed
       boosters for any particular route they were driving.

CP at 147-49.

       Ms. Vega also submitted an affidavit in which she stated that booster seat training

was based on state law. She stated that in order to implement state booster seat laws, she

established procedures and practices for the NEYC drivers. According to Ms. Vega if a

child was less than 4 feet 9 inches, the driver was responsible to ensure that the child was

in a booster seat. She stated, "Starting in 2005, if a child was under 4 '9", they were to be

placed into a booster seat regardless of their age." CP at 161. She also stated that she

never received any complaint from Ms. McIver regarding the lack of booster seats: "I do

not understand why Ms. McIver is stating that there were no booster seats .... If [Ms.]

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No. 31370-1-II1
McIver v. City ofSpokane


Mciver had made ANY complaint to me or my staff regarding any safety issue, I would

have immediately investigated and gotten to the bottom of the issue." CP at 162.

       The City also attached a training checklist entitled, "Child's Safety During

Transitions." CP at 166. The checklist provided that "You must adhere to State

Guidelines regarding Booster Seat Regulations. (see back)." CP at 166. A document

entitled "Booster Seat Procedures (revised 3122/04)" lays out the change in state law

regarding booster seats and instructs the drivers they must weigh and measure the

children to determine if they need a booster seat. CP at 167.

       Ms. Mciver provides nothing to refute the City's evidence but her own statements.

The party opposing summary judgment "may not rely merely upon allegations or self-

serving statements, but must set forth specific facts showing that genuine issues of

material fact exist." Newton Ins. Agency & Brokerage, Inc. v. Caledonian Ins. Group,

Inc., 114 Wn. App. 151, 157,52 P.3d 30 (2002). As such, Ms. Mciver fails to raise a

genuine issue of material fact as to whether the City violated any standard of care.

       Ms. Mciver likewise fails to establish material issues of fact regarding her

"whistleblower" claim under chapter 42.40 RCW and chapter 49.60 RCW of the WLAD.

RCW 49.60.210(1) provides that it is unlawful for a government agency to discriminate

against any person because he or she has opposed any practices forbidden by chapter


                                            15 

No. 31370-1-II1
Mclver v. City o/Spokane


49.60 RCW. It also provides that it is an unfair practice for a government agency,

manager, or supervisor to retaliate against a whistleblower as defined in chapter 42.40

RCW. RCW 49.60.210(2); see also RCW 42.40.050(1) (whistleblower who has been

subjected to workplace reprisal or retaliatory action is presumed to have established a

cause of action for the remedies provided under chapter 49.60 RCW).

       To establish a prima facie case of whistle blower retaliation or discrimination, an

employee must show that (1) she engaged in a statutorily protected activity, (2) her

employer took an adverse employment action, and (3) the employee's activity caused the

employer's adverse action. Milligan v. Thompson, 110 Wn. App. 628, 638, 42 P.3d 418

(2002). Once the employee establishes a prima facie case, the burden shifts to the

employer to produce evidence of a legitimate, nonretaliatory reason for the employment

action. Estevez v. Faculty Club o/Univ. o/Wash., 129 Wn. App. 774, 797-98, 120 PJd

579 (2005).

      Ms. McIver's claim fails at the outset because she fails to establish that she is a

"whistleblower" as defined by the statute. The term "whistleblower" means:

      An employee who in good faith provides information to the auditor
      or other public official ... in connection with an investigation under
      RCW 42.40.040 and an employee who is believed to have reported asserted
      improper governmental action to the auditor or other public official ... but
      who, in fact, has not reported such action or provided such information.


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No. 31370-I-III
McIver v. City ofSpokane


RCW 42.40.020(1 O)(b )(i).

       Ms. McIver's whistleblower complaint consists of allegations that she complained

of a lack of child booster seats to her supervisor, Ms. Vega. However, Ms. McIver

presents no evidence of a complaint to the auditor or other public official in connection

with an investigation. Additionally, Ms. McIver presents no evidence of retaliation or

adverse employment action by the City. To the contrary, the declaration of Becky Davis

establishes that the City kept Ms. McIver on the payroll after the collision and gave her

two pay raises until budget issues required a seasonal reduction in force. The trial court

properly ordered summary judgment dismissal of Ms. McIver's WLAD claim.

       The trial court properly ordered summary judgment dismissal of Ms. McIver's

negligent supervision and WLAD claims.

      Affirm.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                          Sperline, I.P.T.
WE CONCUR:


                 <I
Brown, A.C.J.

                                            17 

