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                                                                                           L" t0 R T OF APPEALS
                                                                                                 Df`' Iti 1          i IT

                                                                                        28114 FEB I I               PUN 8: 38
                                                                                         ST

                                                                                         5' y'




      IN THE COURT OF APPEALS OF THE STATE OF WASHI]

                                            DIVISION II

SUSAN K. BROWN,                                                           No. 43708 -2 -II


                               Appellant,


LANCE B. BROWN,


                               Plaintiff,


        kip




CITY OF TACOMA, a municipal subdivision                             UNPUBLISHED OPINION
of the State of Washington; and
JACQUELINE STRONG MOSS, individually
and in her capacity as Manager of the City of
Tacoma Human Rights and Human Services
Department,


                               Respondents,


JOHN L. BRIEHL, individually and in his
capacity as Executive Director of the City of
Tacoma Human Rights and Human Services
Department,


                               Defendants.


         HUNT, J. —   Susan K. Brown appeals the superior court' s summary judgment dismissal of

her   employment retaliation claim against    the   City   of   Tacoma. She argues that she established a


prima facie case of retaliation and demonstrated that the City' s reason for terminating her

employment ( that she violated   the ethics   code) was a pretext      for terminating her for   having   made
No. 43708 -2 -II



a   hostile   work environment complaint against a                  department   manager.   The City responds that

Brown did not establish a prima facie retaliation case or pretext because her sole evidence was

inadmissible     hearsay.       Holding that the superior court properly granted summary judgment

because Brown did not meet her burden to establish pretext, we affirm.


                                                          FACTS


                                                   I. BACKGROUND


                                    A. Hostile Work Environment Complaint


          In 2003, the City of Tacoma hired Susan K. Brown as an administrative assistant under

the supervision of Human Rights and Human Services Department Director John L. Briehl.

Briehl commended Brown' s work performance on many occasions and recommended her for a

committee       assignment as      extra work.     He described Brown as a hardworking multi -tasker and

later   reported   that    he   was "   very   pleased"    with Brown' s work performance and received no


complaints about "        inappropriate delegation        or   imbalanced   work."   Clerk' s Papers ( CP) at 87.


          In 2008, the City hired Jacqueline Strong Moss as Human Rights and Human Services

Department Manager.             Brown and fellow City employee Frank Gavaldon made a hostile work

environment complaint about Strong Moss' s behavior to the City' s Human Resources

Department.        An outside investigator determined that the conflict between Strong Moss and the

two employees resulted from personality differences rather than from Strong Moss' s creating a

hostile   work     environment.         The investigator found no evidence to substantiate Brown and




                                                                2
No. 43708 -2 -II



Gavaldon' s hostile work complaint or that Strong Moss had discriminated against them on the
                                       1
basis   of a protected status.



                                            B. Ethics Investigation; Termination


          In March 2010, in response to a tip, the City began investigating Brown and Briehl for

Code of Ethics violations relating to Brown' s use of City equipment to run her personal travel

business      during   work   hours. 3        The City hired a digital forensic consultant, who found that ( 1)
                                                                                           4
Brown'    s       work
              non -        related         internet   use "   appear[ ed]   to be high "       and was not isolated to a


particular time of day, such as lunch breaks; and ( 2) Briehl' s non - ork related computer use was
                                                                     w

not   similarly " unusual."        CP at 75.


          Sometime in April, Briehl informed Brown that he had met with City Manager Eric

Anderson       and   discussed the Brown, Gavaldon,                and   Strong   Moss "   situation."   CP   at   262. Briehl


told Brown that Anderson had told him that " someonei5 would be fired " because ` this is going to

end. "'   CP   at    136. When Brown asked Briehl if she would be the person fired, Briehl responded

                                   6
that it   appeared     unlikely.




1
    In February 2010, Brown, Gavaldon, and Strong Moss engaged in mediation to address the
conflict. The record does not include the mediation results.

2
    CITY OF TACOMA CODE OF ETHICS Title 1. 46 ( Aug. 4, 2008).
3
    Gavaldon was not a subject of this investigation.

4
    CP at 76.,


5 Brown interpreted " someone" to mean her, Strong Moss, or Gavaldon.
6
 More specifically, Briehl said that he "` doubt[ ed] it, but                     you never     know, "' CP    at   136;   or "`   I
don' t think so."' CP at 262.



                                                                   3
No. 43708 -2 -II



         The City hired an outside ethics investigator, who, on May 5, concluded that Brown had

violated     the    City' s   Code     of   Ethics in    a number       of   different   ways   by " knowingly" using her

position and        City   resources     to   secure privileges    for her    personal   benefit. CP   at   87.   Specifically,

the investigator          concluded      that Brown ( 1)      engaged in a pattern of leaving work early before

weekends and vacations, claiming sickness before and after weekends, and not reporting frequent

extended      absences        from the      office   during   working hours; (      2) used her personal laptop during

work   hours       to   pursue   her   private   travel business; (     3) asked a subordinate City employee to assist

with   her   personal      laptop during       work    hours; (   4) assigned work to other City employees because

she was unable to complete her work as a result of spending substantial time on personal

activities    at work; (      5) used City -
                                           owned equipment for her personal profit; and ( 6) engaged in

frequent texting and calls on her personal cell phone during work hours.

         The ethics investigator recommended retraining and discipline against both Briehl and

Brown.       On May 12, the Deputy City Manager terminated Brown' s employment for " failure to

meet performance expectations and standards associated with [ her] position and in part upon the

factual findings         of a recent    investigation."     7 CP at 92.

                                                          II. PROCEDURE


         Brown sued the City for wrongful discharge and retaliation; she sued Strong Moss for

intentional infliction           of emotional        distress.$   The superior court granted the City' s and Strong



7 The record does not show that the City disciplined Briehl.
8
 Brown also claimed the City had intentionally and negligently inflicted emotional distress on
her and defamed her; but the parties dismissed those claims by stipulation. Brown also named

Briehl in her lawsuit but later removed him as a party.



                                                                    0
No. 43708 -2 -II



Moss'   s motions       for summary judgment.                   The   superior court ruled   that ( 1)   Brown' s proffered


evidence of pretext        to    support    her   retaliation claim —      Briehl' s telling her that Anderson had said

 someone' s       going to          get   fired" —was inadmissible            hearsay;   and (   2)   thus,   Brown lacked


competent evidence of a material                  issue    of   fact.. Verbatim Transcript of Proceedings ( June 15, .


2012) at 21.      Brown appeals the superior court' s summary judgment dismissal of her retaliation
                                9
claim against     the   City.

                                                            RINOVERMl


          Brown argues that the superior court erred in dismissing her retaliation claim against the

City   because    she (   1)    established a prima facie case of retaliation and ( 2) demonstrated that the


City' s reason for terminating her employment was a pretext for terminating her for having made

a   made   a    hostile    work       environment         complaint.       Assuming, without deciding, that Brown

established a prima facie case of retaliation, we turn our attention to her pretext claim, hold that


she did not establish a material issue of fact about the reason for her termination, and affirm the

superior court' s dismissal of her retaliation claim on this ground.


                                          I.STANDARD AND SCOPE OF REVIEW

                                                    A. Summary Judgment

          We review a superior court' s summary judgment order de novo, engaging in the same

inquiry    as   the   lower     court.    Korslund    v.   DynCorp        Tri- Cities Servs., Inc., 156 Wn.2d 168, 177,


125 P. 3d 119 ( 2005).              Summary judgment is               appropriate   only if the " pleadings, depositions,




9 Although Brown also appealed the superior court' s denial of her motion for reconsideration,
she assigns error to and argues against only the superior court' s dismissal of her retaliation claim
against the City.



                                                                      5
No. 43708 -2 -II



answers         to interrogatories ...           together   with   the   affidavits ...      show that there is no genuine issue


as to any material fact" and that " the moving party is entitled to a judgment as a matter of law."

CR 56( c).           A    material    fact is      one on which     the      outcome of      the litigation depends.        Schmitt v.


Langenour, 162 Wn.                  App.    397, 404, 256 P. 3d 1235 ( 2011).               When determining whether a trial is

necessary, we view facts in the light most favorable to the nonmoving party, here, Brown.

Labriola        v.   Pollard      Group,    Inc., 152 Wn.2d. 828, 833, 100 P. 3d 791 ( 2004). If reasonable minds


could reach different conclusions about a fact, a genuine issue of material fact exists and the case

cannot      be    resolved as         a   matter    of   law.   Michael v. Mosquera -Lacy, 165 Wn.2d 595, 601, 200

P. 3d 695 ( 2009). Such is not the case here.


            To defeat an employer' s motion for summary judgment, the employee must do more than

make "      conclusory        statements."           Marquis v. City of Spokane, 130 Wn.2d 97, 105, 922 P. 2d 43

 1996).         Rather, the employee " must establish specific and material facts to support each element

of   his   or   her   prima       facie   case."    Marquis, 130 Wn.2d          at   105.    Here, Brown fails to establish facts


to support pretext for her employment retaliation claims.


                                    B. Employment Retaliation Burden- Shifting Scheme
                                            10
            RCW 49. 60. 210( 1)                  protects employees from retaliation for opposing an employer' s
                                                                                                                      11
action     forbidden        by     the Washington         Law Against Discrimination,            ch.   49. 60 RCW.         To evaluate




to
     The legislature              amended          RCW 49. 60. 210 in 2011.               LAWS   of    2011,   ch.   42 §    25.   The

amendments did not alter the statute in any way relevant to this case; accordingly, we cite the
current version of the statute.


 11 RCW 49. 60. 21 0( l) provides:
            It is        unfair    practice      for any    employer . . .       to discharge, expel, or otherwise
            discriminate against any person because he or she has opposed any practices

                                                                         G
No. 43708 -2 -II




employment        retaliation     cases,    our courts have adopted the same three -part burden -shifting

scheme used       in discrimination        claims.   Wilmot     v.   Kaiser Aluminum & Chem.            Corp.,   118 Wn.2d


46, 68- 69, 821 P. 2d 18 ( 1991); see also Hill v. BCTI Income Fund I, 144 Wn.2d 172, 180- 82, 23
                                                                    -


P. 3d 440 ( 2001),    abrogated on other grounds            by McClarty      v.   Totem Elec., 157 Wn.2d 214, 222,-


137 P. 3d 844 ( 2006) ( applying burden shifting in the discrimination                   context).       The burden first


rests on   the   employee    to   establish a prima     facie   case of retaliation.   Wilmot, 144 Wn.2d at 68 -69;


Hill, 144 Wn.2d       at   181.   If the employee successfully establishes a prima facie case, the burden

shifts to the employer to demonstrate a legitimate, non -
                                                        retaliatory explanation for its adverse

employment        decision. Milligan         v.   Thompson, 110 Wn.       App. 628, 638,     42 P. 3d 418 ( 2002).      If


the employer establishes such legitimate explanation, the burden shifts back to the employee to

produce admissible evidence sufficient to create a triable issue of fact about whether the

employer' s      stated reason     for its   adverse employment action was pretext.                Barker v. Advanced


Silicon Materials, LLC, 131 Wn. App. 616, 624, 128 P.3d 633, review denied, 158 Wn.2d 1015

 2006).


           When applying this three -part burden -shifting scheme, we, like the trial court, neither

weigh evidence nor assess witness                 credibility. Barker, 131 Wn.       App.   at   624.    Here, we assume


for summary judgment purposes that Brown established a prima facie retaliation case. Thus, the

City was entitled to summary judgment only if it established a legitimate non -
                                                                              retaliatory reason

for terminating Brown and she failed to demonstrate pretext when the burden shifted back to her.
See Hill, 144 Wn.2d at 182.



           forbidden by this chapter, or because he or she has filed a charge, testified, or
           assisted in any proceeding under this chapter.



                                                                 7
No. 43708 -2 -II



     II. ETHICS CODE VIOLATION --LEGITIMATE NON -RETALIATORY REASON FOR TERMINATION


          The City asserts that it fired Brown after the independent ethics investigator concluded

that   she   had    violated     the    City' s   ethics    code    in   several    ways.     In support of its motion for


summary judgment, the City submitted an affidavit from its human resources director, the digital

forensic consultant' s report, and the ethics investigator' s findings and conclusions, all of which

detail Brown' s         misuse of      City   resources.    Brown neither contests the truth of these findings nor


challenges the investigator' s conclusions.


          Instead, Brown contends that she did not commit ethics violations because Briehl


 authorized personal computer work so                      long   as   the   employee' s    City   work was completed."     Br.


of   Appellant      at    10.    Although attempting to offer an excuse for her personal use of City

resources, Brown does not challenge the accuracy of the investigator' s factual findings or

conclusions        that these     actions      violated    the    City' s    Code   of   Ethics.    Construing the facts and

inferences in the light most favorable to Brown, we conclude that ( 1) the City met its burden of

producing evidence of a legitimate non -
                                       retaliatory reason for terminating Brown' s employment;

and ( 2) that when the burden shifts back to Brown to prove this reason was pretext, she fails to

carry this burden.

                                 A. No Genuine Issue of Material Fact about Pretext


          To defeat the City' s summary judgment motion in this third phase of the Hill burden-

shifting scheme, Brown had to produce sufficient evidence of pretextual termination to create a

triable   issue    of   fact.   See Barker, 131 Wn. App. at 624. To show pretext, Brown had to provide

 some     evidence       that the   City' s    reason   for terminating her is " unworthy              of   belief."   Kuyper v.


Dep' t    of Wildlife, 79 Wn.          App.    732, 738, 904 P. 2d 793 ( 1995),             review   denied, 129 Wn. 2d 1011
No. 43708 -2 -II



 1996).       At the summary judgment stage, Brown needed to show only that a reasonable trier of
                                                                                                                             12
fact    could,     but   not   necessarily   would,     draw the inference that    retaliation was a substantial    factor

                                                       13
in the    adverse employment               decision.        See Sellsted v. Wash. Mut. Say. Bank, 69 Wn. App. 852,

860, 851 P. 2d 716 ( 1993),                overruled on other grounds by Mackay v. Acorn Custom Cabinetry,

Inc., 127 Wn.2d 302, 310, 898 P. 2d 284 ( 1995).


             To defeat summary judgment, however, the employee' s evidence of pretext must be

admissible at        trial. Barker 131 Wn.             App.   at   624. Here, Brown'     s   only   evidence of         was




her deposition testimony and an interrogatory answer detailing a conversation she had with

Briehl after he and the City Manager discussed " the situation with [ Gavaldon, Strong Moss and
              15
Brown] ,           approximately three             weeks    before Brown     was      terminated:      Brown testified that,




12 "[
        A]   plaintiff     bringing   suit under [      former] RCW 49. 60. 210 [( 1985)]           must prove causation by
showing that retaliation was a substantial factor motivating the adverse employment decision."
Allison v. Hous. Auth. of City ofSeattle, 118 Wn.2d 79, 96, 821 P.2d 34 ( 1991).

13 Competent employee evidence rebutting the accuracy or believability of the employer' s
asserted legitimate reason for its adverse .employment action is sufficient to create competing
inferences of retaliation and non -retaliation to defeat summary judgment and to send this factual
retaliation        issue to trial. Renz       v.   Spokane Eye Clinic, P.S.,     114 Wn. App. 611, 624, 60 P. 3d 106
 2002).


14 Without citation to the record, Brown argues that the fact that Briehl was not also terminated
from employment ( even though the ethics investigator recommended discipline against him) is
evidence of pretext              for her   termination.       The investigator, however, concluded that Briehl knew
about Brown' s violations and implicitly sanctioned her actions; but the record does not establish
that Briehl used City resources for his own benefit as did Brown. Thus, the bases for the City' s
 allegedly disparate treatment                of   these two persons      differed.    Furthermore, the record' s silence
 about whether Briehl was disciplined is not evidence that he was not disciplined.

 is CP at 262.



                                                                      9
No. 43708 -2 -II




during   this    conversation,          Briehl had        repeated    the   City   Manager'     s    statement    that "   someone "16

 which she believed meant herself, Gavaldon, or Strong Moss) would be fired " because ` this is

going to      end. "'    CP   at   136.       Brown argues that this conversation was admissible to demonstrate


pretext under the agency exception to the hearsay rule and, therefore, the superior court

improperly granted summary judgment to the City. We disagree.

         Even assuming, without deciding, that the conversation between Briehl and Brown was

not ( as the superior court ruled) inadmissible hearsay, we hold that this conversation evidence

did   not create an       issue    of   fact   about pretext       to defeat summary judgment for the               City. The City

produced voluminous documented evidence from its outside ethics investigation detailing

Brown' s numerous and ongoing violations of the City' s Code of Ethics,. especially her pattern of

misusing       City     resources       for    personal    gain.    In contrast, Brown' s conversation with Briehl in


which he relayed comments by the City Manager is speculative, even taken in the light most
                                                                             17
favorable to Brown. These                 alleged vague statements                did not specifically point to Brown as the

target   of   retaliatory     employment action; at            best, they     said   only that "      someone"    18 would be fired

and even included among the possibilities Strong Moss, the person who had allegedly caused the

hostile work environment.


          Considering Brown' s deficient evidence of pretext against the backdrop of the City' s

uncontroverted           evidence        of    her   actions   that   constituted      ethics       violations,   we hold that no




 16CPat136.

 17 Brown offered no direct evidence of these statements by way of declarations from either
Briehl or the City Manager.

 1sCPat136.


                                                                      10
No. 43708 -2 -II




reasonable trier of fact would infer that retaliation was a substantial factor in the City' s decision

to    end   Brown'   s   employment.     See Sellsted, 69 Wn.        App.    at   860.    Thus, we further hold that


Brown did not satisfy her burden to demonstrate that the City' s non -retaliatory reason for

terminating her          employment    was   merely   pretext.      For the foregoing reasons, we affirm the
                                                                                                                        19
superior court' s        summary judgment dismissal        of   Brown' s   retaliation claim against      the   City.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




                                                                      J.




 19
      We may     affirm    the   superior court on   any   ground    that the     law    and   facts support.    Wallace v.

 Lewis County, 134 Wn. App. 1, 12, 137 P. 3d 101 ( 2006).

                                                            11
