                                                                                                             F ILEC
                                                                                                     COURT OF APPEALS
                                                                                                          DIVISION II

                                                    2015 FE s10 AM 3: 56
      IN THE COURT OF APPEALS OF THE STATE OF WASHING . 0
                                                                                                                        ON

                                                 DIVISION II                                         BY


MARGARITA MENDOZA de SUGIYAMA,                                                 No. 45087 -9 -II


                                     Appellant.


            v.



WASHINGTON STATE DEPARTMENT OF                                          UNPUBLISHED OPINION
TRANSPORTATION,


                                     Respondent.




           LEE, J. —      Margarita Mendoza de Sugiyama appeals the trial court' s order granting

summary judgment in favor          of the   Department   of   Transportation ( Department), arguing there are


genuine issues of material fact as to her whistleblower retaliation claim, her hostile work

environment claim, her discrimination claim, and her retaliation claim under the Washington Law

Against Discrimination (WLAD).              She also argues that the trial court erred by striking portions of

her declaration and denying her motion to compel discovery.

           We hold that the trial court properly granted summary judgment as to all of Mendoza de

Sugiyama' s claims. We also hold that the trial court did not abuse its discretion by striking portions

of her declaration, and the trial court did not manifestly abuse its discretion in denying the motion

to compel. Accordingly, we affirm.

                                                      FACTS


            Mendoza de Sugiyama is a Mexican -American woman who was terminated from her


position as the Department' s diversity programs administrator. In June 2003, she was appointed

as   the   diversity   programs administrator    for the Department'   s   Office   of Equal   Opportunity ( OED).
No. 45087 -9 -I1



At the time, OEO was responsible for both internal and external civil rights programs. The internal

civil rights    branch ( ICRB)         addressed civil rights issues regarding state employees while the

external     civil   rights   branch    addressed          civil rights   issues      with   state   contractors.    Mendoza de


Sugiyama was responsible for supervising the ICRB and reported to OEO Director Brenda

Nnambi.

         In April 2007, Shawn Murinko began working for OEO as the Americans with Disabilities

Act /affirmative action coordinator. Murinko has cerebral palsy and is confined to a wheelchair.

Sometime in 2009, there was a fire drill in the building where Mendoza de Sugiyama, Nnambi,

and   Murinko        worked.       During the fire drill, Murinko was told to wait by the stairs, but no one

came   to    help    him   evacuate    the   building. As a result, Murinko' s office was moved from OEO

offices on the second floor to a human resources ( HR) office on the first floor.

            After the office relocation, Murinko began to feel as though Mendoza de Sugiyama was

               against     him. He     noted       that   she referred    to him   as   HR' s "   golden   boy."    Clerk' s Papers
retaliating


 CP)   at   592.     He   also alleged      that   she was     micromanaging him.             On one occasion, she saw him


eating lunch in the second floor conference room and told him he was not supposed to be there.
She    also made a         joke    about   the     size of   Murinko'     s   head.     Murinko believed that Mendoza de


Sugiyama' s hostility toward HR was being directed toward him because his office was relocated

to HR' s floor of the building. Murinko complained about Mendoza de Sugiyama' s behavior to the

Department'        s chief of staff,       Steven Reinmuth.         In February 2010, Murinko transferred to a new

position within HR, handling external disability matters.

            In December 2009, Mendoza de Sugiyama learned that Reinmuth was considering

                                   that the ICRB                  be                         HR.     Nnambi    and    Mendoza de
 reorganizing OEO             so                          would        moved within
No. 45087 -9 -II



Sugiyama objected to the proposed reorganization. In January 2010, Reinmuth notified Nnambi

and HR Director Kermit Wooden that no final decision on the reorganization would be made until

December 31, 2010.


        On February 2, 2010, Mendoza de Sugiyama wrote a letter to the governor. In her letter,

Mendoza de Sugiyama objected to the proposed reorganization of OEO and ICRB, stating that it

violated the Code of Federal Regulations from the Federal Highway Administration. Mendoza de

Sugiyama also stated that she was " personally and professionally offended and disappointed" that

ICRB would be transferred to HR because Wooden, and his supervisor, Assistant Secretary Bill

Ford, had   a   history   of sexual relationships with subordinates and sexual         harassment. CP at 652.


She also accused Wooden of being openly hostile toward her. In addition to her objections to the

reorganization of OEO, Mendoza de Sugiyama complained about Murinko' s move to the position

in HR   and     the   accusations   Murinko   made about   her treatment   of   him.   Ultimately, Mendoza de

Sugiyama accused Reinmuth, Wooden, and Murinko of conspiring to undermine her personal .

integrity and professionalism.

         The governor' s chief of staff, Jay Manning, responded to Mendoza de Sugiyama' s letter

on   February     26, 2010.    In the letter, Manning slated the governor' s counsel had reviewed the

federal regulations and determined that there was no legal impediment to moving the ICRB to HR,

but that he would advise Secretary of Transportation Paula Hammond, to discuss any move with

the Federal Highway Administration. Manning also stated that the letter had been discussed with

Secretary Hammond, and they decided to begin an independent investigation into the accusations
made    by Mendoza        de Sugiyama   and   the complaints made   by Murinko.
No. 45087 -9 -II



         After receiving Chief of Staff Manning' s response to her letter, Mendoza de Sugiyama sent
a   letter to the Federal   Highway      Administration.            Mendoza de Sugiyama reiterated her concerns


about moving the ICRB to HR. As evidence of her concern, she pointed out that Reinmuth was

attempting to      place   unqualified     people (      Murinko) in charge of civil rights issues and was


obstructing OED'     s   ability to   report   to   Secretary    Hammond.        When Mendoza de Sugiyama was


notified that Federal Highway Administration received her complaint, she responded with an

additional e -mail containing documents supporting her assertion that Murinko was unqualified for

his position. She included confidential documents such as resumes, scores from interview panels,

and draft documents that contained Murinko' s edits and comments.

          In March 2010, Claire Cordon was retained to perform an independent investigation into

Mendoza de Sugiyama'           s   and   Murinko'        s   complaints.     To ensure the independence of the


investigation, Cordon was retained by, and reported to, the Department of Personnel, rather than

the Transportation Department.              In the course of her investigation, Cordon interviewed 47

witnesses and reviewed several hundred pages of documents. Cordon performed three interviews

with Mendoza de Sugiyama, exchanged numerous phone calls and e -mails with Mendoza de

Sugiyama, reviewed 44 e -mails with 53 accompanying attachments from Mendoza de Sugiyama,

and interviewed 28 of Mendoza de Sugiyama' s 31 identified witnesses.

          Cordon    completed      her   report     on   July   21, 2010.     Cordon determined that Mendoza de


 Sugiyama' s claim that Wooden discriminated against her based on sex was unsubstantiated.

 Cordon noted that some of Wooden' s conduct was unprofessional and inappropriate, but that there

was no evidence on discriminatory intent. Cordon also noted that both female and male witnesses

 accused   Wooden     of   bullying   or abusive     language       or   behavior. Cordon concluded that there was




                                                                4
No. 45087 -9 -II



no evidence to support Mendoza de Sugiyama' s assertion that Reinmuth, Wooden, and Murinko

were conspiring against her.

          Cordon did, however, conclude that Murinko' s complaints regarding retaliation from

Mendoza de Sugiyama            were substantiated.     Specifically, she determined that evidence supported

Murinko' s contention that Mendoza de Sugiyama treated him differently by subjecting him to

greater scrutiny after his move to the first floor. She also determined that Mendoza de Sugiyama
engaged in retaliatory activity by criticizing Murinko' s qualifications and position to outside

                      the   governor,              general,   and   Federal   Highway   Administration.   Cordon
parties   such   as                     attorney


observed that Mendoza de Sugiyama' s current actions demonstrated a loss of objectivity and

perspective by Mendoza de Sugiyama and a lack of oversight by Nnambi.
          Cordon also addressed Mendoza de Sugiyama' s allegations of two instances of sexual

misconduct by Wooden and Ford against other employees. In a 2005 complaint against Ford, the
complainant alleged that she lost her temporary position because she refused to engage in group

sex with    Ford.      Ford and the complainant had been in a consensual relationship prior to the

complainant coming to work at the Department. Cordon' s report did not identify any action taken

by the Department in response to the allegations against Ford. Also in 2005, a complainant alleged

that Wooden had sexually harassed her; however, Wooden claimed that the complainant was

 actually the person who initiated the sexual contact. There were three additional alleged " victims"

 that Mendoza de Sugiyama identified based on rumors: one alleged victim denied the rumor, one

 alleged victim stated that Wooden once asked her to show him the cool places in town, and one

 alleged victim admitted to starting a consensual committed relationship with Wooden after she left

 the Department.




                                                              5
No. 45087 -9 -II



          On August 13, 2010, Secretary Hammond issued a predisciplinary letter to Mendoza de

Sugiyama. The letter outlined the charges against Mendoza de Sugiyama and specifically stated:

 The charges are based solely upon acts considered to be misconduct and breach of your duties as

a manager in WSDOT, and are not based upon the complaints you have made about agency actions

you consider     to be improper."   CP   at   1402.   The charges were generally related to Mendoza de

Sugiyama' s actions toward Murinko and conduct during the investigation.

          On August 27,       Mendoza de Sugiyama provided a written response to Secretary

Hammond' s predisciplinary letter. Mendoza de Sugiyama disputed all of the charges articulated

in Hammond' s letter. Mendoza de Sugiyama also stated that she believed the investigation and


allegations in the predisciplinary letter were because she was " a Hispanic women over 40" and she

reported her concerns to the governor. CP at 745.

          On September 10, Mendoza de Sugiyama was notified of her termination effective

September 25. The termination notice listed three specific reasons for the termination;


          1.   You responded inappropriately to a disability reasonable accommodation
          proposal, and in spite of your expertise, failed to direct others to appropriate
          considerations.



          2.   You subjected your subordinate to unprofessional comments and heightened
          scrutiny, following consideration of his relocation to another floor. The relocation
          had been initiated in response to workplace safety and disability accommodation
          concerns.



          3.   You publicly criticized Mr. Murinko in written documents, even though you
          were on notice of a complaint of retaliation.




CP   at   697, 699, 701.    In explaining the level of discipline to be imposed, Secretary Hammond

explained:




                                                        6
No. 45087 -9 -II



            Your actions of sending critical letters and confidential information to outside
            parties cannot   be   tolerated.   You possess the expertise to know how to navigate a
            complaint and work toward a resolution, yet you intentionally worked to repeatedly
            undermine Mr. Murinko' s reputation, subjected him to increased scrutiny after a
            reasonable accommodation request was made, and released documents that were
            confidential —all without any recognition that he was a protected complainant. In
            taking these actions, you personally created risk for the agency, and your actions
            could be viewed as efforts to undermine Mr. Murinko' s reputation with people with
            whom and for whom he works.

            I understand you felt a need to address the possible transition of OED' s Internal
            Civil Rights Branch to Human Resources with the Governor' s office, but I cannot
            find any credible reason why you publicly complained about Mr. Murinko in these
            communications....        I find the timeline of events and information you shared about
            him   disturbing. Your actions were repeated and malicious, and appear to be a
            calculated campaign to attack individuals in the agency. What has occurred is not
            a single incident that could be explained as a lack ofjudgment or a mistake.

CP    at   704 -05 ( emphasis     omitted).   Based on Mendoza de Sugiyama' s actions, Secretary Hammond

determined the only appropriate disciplinary action would be termination.

            On September 24, Mendoza de Sugiyama submitted an online whistleblower complaint to

the Washington State Auditor' s Office. Her complaint alleged that the Department spent $ 100, 000

remodeling the HR area and created a " risk to legal and civil rights of members of the public with

disabilities by placing an unqualified person as the lead for all WSDOT external ADA matters."
 CP   at   851.   The auditor' s office declined to open a whistleblower investigation into Mendoza de

 Sugiyama' s complaint.


             After Cordon' s .report, Secretary Hammond and Reinmuth also took action to address the

  clear pattern of abusive behavior and unprofessional conduct by Mr. Wooden toward people

 regardless of     their   race, gender, or age."     CP   at   1016.   But even after Secretary Hammond and

 Reinmuth took corrective action, three managers in HR brought Reinmuth a two page list of




                                                            7
No. 45087 -9 -II



complaints    regarding Wooden' s generally           unprofessional management.                      As a result, Secretary

Hammond terminated Wooden' s employment.


        On July 26, 2011, Mendoza de Sugiyama filed an amended complaint) in Thurston County

Superior Court     against    the Department.       In her complaint, she alleged claims for whistleblower

retaliation, race and gender discrimination, hostile work environment, and retaliation for opposing

discrimination.


        During discovery, the Department filed a motion for a protective order to limit Mendoza.

de Sugiyama' s discovery request for e- mails and other electronically stored information. The same

day, Mendoza de Sugiyama filed a motion to compel the Department to disclose the same e- mails

and electronically stored information. Mendoza de Sugiyama had requested that the Department

disclose   all e -mails    exchanged        between 12 identified individuals.                    The Department identified


174, 754   e -mails   that   were exchanged       between the 12 identified individuals.                    The Department


presented evidence        that it   would   take approximately 62 days        and cost            approximately $ 1, 000, 000


to review all the e -mails for responsiveness and privilege. Mendoza de Sugiyama responded that

the Department had already compiled all the e -mails and simply had to electronically transfer them;

therefore, the request was not overly broad or unduly burdensome.

        On May 18, 2012, the trial court denied Mendoza de Sugiyama' s motion to compel stating:

                   With regard to plaintiff' s motion to compel discovery of electronically
        stored   information (`BSI "), including but           not   limited to   e[- ]   mails, RFP Nos. 27 -42,
        the Court finds that plaintiff's requests are overly broad and unduly burdensome.
        The   request would require            WSDOT to produce 175, 000                  e[- ]   mails, which is too

        many.      Therefore, the      request    is denied.
                                                   This ruling is not intended to preclude
        plaintiff from seeking discovery of ESI, either through a collaborative effort with
        WSDOT to develop and employ key -word search strategies that are tailored to the


 1 The original complaint was filed on June 22, 2011.


                                                           8
No. 45087 -9 -II



        issues in this case, or through discovery requests that are tailored to the issues in
        the case and crafted in such a way that WSDOT can reasonably fashion a search
        strategy designed to gather the ESI plaintiff is seeking, in the absence of a
        collaborative effort.




CP at 397 -98.


        On October 19, the Department filed a .motion for summary judgment. Both parties

submitted extensive affidavits,           depositions,    and exhibits.   On June 7, 2013, the trial court granted


the Department' s motion for summary judgment and dismissed Mendoza de Sugiyama' s claims

with prejudice. Mendoza de Sugiyama appeals.

                                                         ANALYSIS


A.       DISCOVERY AND EVIDENTIARY ISSUES

         Mendoza de Sugiyama argues that the trial court erred by ( 1) denying her motion to compel

discovery      and (     2) striking   portions   of   her declaration.   As a result, she argues, the trial court


considered an       incomplete     record on      summary judgment.        The trial court did not abuse its broad


discretion to manage discovery, and any error the trial court may have made in striking portions

 of Mendoza de Sugiyama' s declaration is harmless.

         1.          Order Denying Motion to Compel Discovery

         Mendoza de Sugiyama argues that the trial court erred by denying her motion to compel

 the Department to provide all 174,000 e -mails between the people identified in her request for

 production. Specifically, she asserts that the request was not overly broad or burdensome because

 the e -mails had already been identified and could easily be transferred to an external hard drive.
 Mendoza de Sugiyama' s assertion misses the salient point in both the Department' s argument and

 the trial    court' s   decision —that    the Department could not determine whether the 174, 000 e -mails




                                                               9
No. 45087 -9 -II



and attached documents were responsive to her request without reviewing each individually.

Accordingly, the trial court did not manifestly abuse its discretion by denying Mendoza de

Sugiyama' s motion to compel.'


        The decision to grant or deny a motion to compel is within the discretion of the trial court,

and we will not reverse the decision absent an abuse of discretion. Clarke v. Office ofthe Attorney

General, 133 Wn.        App.   767, 777, 138 P. 3d 144 ( 2006), review denied, 160 Wn.2d 1006 ( 2007).


The court abuses its discretion when its decision is based on untenable grounds or reasons. Clarke,

133 Wn.     App.   at   777.   CR 26(b)( 1) allows the trial court to limit the scope of discovery if "the

discovery   is unduly burdensome        or expensive."   And, the trial court may grant a protective order

 to protect a party or person from annoyance, embarrassment, oppression, or undue burden or

expense."    CR 26( c).


        Here, the trial court recognized that Mendoza de Sugiyama' s request would require the

Department to      individually    review over   174, 000     e -mails and   corresponding   attachments.   The


Department presented evidence establishing that this review could cost approximately $ 1, 000, 000.

Contrary to Mendoza de Sugiyama' s assertion, compliance with the discovery request was not as



2 Both parties note that Mendoza de Sugiyama has a pending public records request which we
recently addressed and resolved in Mendoza de. Sugiyama' s favor. Wash. State Dep 't of Transp.
v. Mendoza de Sugiyama, 182 Wn. App. 588, 599 -600, 330 P. 3d 209 (2014). Neither party appears

to argue that the Public Records Act (PRA) request has any bearing on the propriety of the trial
court' s ruling on the motion to compel, and with good reason. The scope of the PRA, ch. 42. 56
RCW is significantly broader than the         rules   governing   discovery in   a civil case.   The exceptions

and exemptions under the PRA are narrowly construed, and a public records request is not limited
by considerations such as relevance or breadth. See RCW 42. 56. 080. Because of the significant
differences between the PRA and the civil discovery rules, Mendoza de Sugiyama' s ability to
obtain the documents under the PRA has no bearing on whether the trial court manifestly abused
its discretion by denying Mendoza de Sugiyama' s motion to compel discovery based on the
determination Mendoza de Sugiyama' s request was overly broad and burdensome.


                                                         10
No. 45087 -9 -II



simple as      transferring the   e -mails    to   an external   hard drive. And, the trial court' s order did not


preclude    Mendoza de Sugiyama from                ever   obtaining the   e- mails.    Rather, the trial court' s order


required Mendoza de Sugiyama to take reasonable steps to help narrow the scope of her discovery

request. The trial court did not abuse its discretion in denying Mendoza de Sugiyama' s motion to

compel discovery.

          2.         Order Striking Portions of Mendoza de Sugiyama' s Declaration

          Mendoza de Sugiyama argues that the trial court erred by striking entire portions of her

declaration.        The trial court struck a total of 20 paragraphs from Mendoza de Sugiyama' s

declaration because " they lack foundation, offer only opinion or legal conclusions, or are hearsay."
CP   at   1534.    However, Mendoza de Sugiyama limits her argument to " paragraphs containing her

letter to the     governor as an exhibit (par.       20), her letter to the   governor' s chief of staff (par.    32),   and




her letter to the [ Federal Highway Administration] ( par. 30)."                  Br.   of   Appellant   at   47. Mendoza


de Sugiyama argues that the trial court erred because her letters are properly admitted as exhibits.

Because Mendoza de Sugiyama' s letters to the governor, the governor' s chief of staff, and the

Federal Highway Administration were already properly part of the record before the trial court on

summary judgment, any error resulting from the trial court striking the paragraphs in Mendoza de
Sugiyama' s declaration containing these documents is harmless. See Milligan v. Thompson, 110

Wn. App. 628, 634 -35, 42 P. 3d 418 ( 2002).

B.         SUMMARY JUDGMENT


           We     review a   trial court' s   order on     summary judgment de         novo.    Vallandigham v. Clover


ParkSch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P. 3d 805 ( 2005);                   Domingo v. Boeing Emps' Credit

 Union, 124 Wn.        App.   71, 78, 98 P. 3d 1222 ( 2004). Therefore, we must determine whether, based




                                                                 11
No. 45087 -9 -II




on the record before the trial court on summary judgment, Mendoza de Sugiyama has demonstrated

that there is a genuine issue of material fact that precludes summary judgment. We conclude that

she has not and, thus, affirm the trial court' s order granting the Department' s motion for summary

judgment.


          A trial court' s order granting summary judgment is proper when the pleadings and

affidavits before the court show that there is no genuine issue of material fact and the moving party

is   entitled   to judgment     as a matter of   law. CrR 56( c). "` [ A] complete failure of proof concerning


an essential element ofthe nonmoving party' s case necessarily renders all other facts immaterial.'"

Young     v.   Key   Pharm., Inc., 112 Wn.2d 216, 225, 770 P. 2d 182 ( 1989) (           quoting Celotex Corp. v.

Catrett, 477 U. S. 317, 322 -23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 ( 1986)).

          All of Mendoza de Sugiyama' s claims require her to establish discriminatory or retaliatory

intent. See RCW 49. 60. 030( 1), .           210( 1), . 210( 2).    A plaintiff may establish a prima facie case of

discrimination by either offering direct evidence of an employer' s discriminatory intent, or by

satisfying the McDonnell Douglas3 burden -shifting test that gives rise to an inference of
discrimination.        Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 491, 859 P.2d 26, 865

P. 2d 507 ( 1993).        Here, Mendoza de Sugiyama does not argue that there is direct evidence of

                                4
discriminatory        intent.         Therefore, we apply the McDonnell Douglas burden shifting test to




3 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 ( 1973).

4 An employer' s discriminatory remarks are generally considered direct evidence of discriminatory
intent. See Johnson        v.                     113 Wn. App. 858, 862 -63, 56 P. 3d 567 ( 2002).
                                    Express Rent & Own, Inc.,

Here, there is nothing in the record demonstrating that any discriminatory remarks were made to,
 or about, Mexican- Americans or women in the Department.



                                                               12
No. 45087 -9 -II



determine whether Mendoza de Sugiyama presented evidence supporting an inference of

discriminatory intent that created a genuine issue of material fact.

         Under the McDonnell Douglas burden shifting test, the plaintiff must first establish a prima

facie   case of   discrimination. Hegwine            v.   Longview Fibre Co., 162 Wn.2d 340, 354, 172 P. 3d 688


 2007) ( citing Hill       v.   BCTI Income Fund -I, 144 Wn.2d 172, 180, 23 P. 3d 440 ( 2001)).                        If the


plaintiff establishes a prima facie case under McDonnell Douglas, then a legally mandatory,

rebuttable presumption of discrimination temporarily takes hold, and the evidentiary burden shifts

to the defendant to produce admissible evidence of a legitimate, nondiscriminatory explanation for

the   adverse     employment        action.       Hegwine, 162 Wn.2d             at   354.    If the employer meets this


intermediate production burden, the presumption established by having the prima facie evidence

is   rebutted and    the   presumption          simply drops     out of   the   picture.     Hegwine, 162 Wn.2d at 354.


Once the presumption is removed, the plaintiff is then afforded a fair opportunity to show a

defendant' s stated reason for the adverse action was in fact pretext. Hegwine, 162 Wn.2d at 354.

If a plaintiff cannot present evidence that the defendant' s reasons for the adverse employment

action are untrue or pretext, summary judgment is proper. Domingo, 124 Wn. App. at 78.5


5 We recognize that our Supreme Court recently clarified the different ways to prove that the
 employers' legitimate, nondiscriminatory reason for the adverse employment action is a pretext
for discrimination. Scrivener             v.   Clark College, 181 Wn.2d 439, 441 -42, 334 P. 3d 541 ( 2014). Our
 Supreme Court stated that there are five ways for a plaintiff to demonstrate pretext, rather than the
                                                     the Court         Appeals.       Scrivener, 181 Wn.2d     at   447.   The
 four   ways   previously       articulated     by                of

 plaintiff can demonstrate pretext by showing the allegedly legitimate basis for the employment
 action ( 1) had no basis in fact, (2) was not really the motivating factor for the decision, (3) was not
 temporally       connected      to the    adverse     employment        action, (    4) was not a motivating factor in
 employment        decisions for similarly             situated    employees,         or   that ( 5)   discrimination was    a
                                                                                       Scrivener, 181 Wn.2d at 447 -48.
 substantially motivating factor in the
                                                          employment      action.


 However, Mendoza de Sugiyama baldly asserts that she has rebutted the Department' s " pretextual
 reason,"      and she makes no attempt to demonstrate that the Department' s legitimate,


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No. 45087 -9 -II



        Here, Mendoza de Sugiyama fails to establish a genuine issue of material fact under the

McDonnell -Douglas burden -shifting test.                   Therefore,   the trial court' s order granting the

Department' s motion for summary judgment was proper.

        1.         Whistleblower Retaliation Claim


        RCW 42. 40. 050            and    RCW 49. 60. 210( 2)   prohibit retaliation against a whistleblower.    To


establish    a prima   facie       case   of retaliation, an employee must show         that ( 1)   she engaged in a


              protected   activity ( filing     a whistleblower complaint), ( 2)    the employer took an adverse
statutorily


employment action, and ( 3) the adverse action was caused by the employee' s activity. Milligan,

110 Wn. App. at 638.6 The Department argues that Mendoza de Sugiyama cannot establish a
prima facie case of whistleblower retaliation because ( 1) she filed a whistleblower complaint after

she was terminated from her employment and ( 2) the letters to the governor and the Federal


Highway Administration are not whistleblower complaints for the purposes of establishing a cause

of action under    RCW 42.40. 050            and   RCW 49. 60. 210( 2). The Department is correct.




nondiscriminatory      reasons        for her termination       were a pretext   for discrimination.    Reply Br. of
Appellant at 3, Br. of Appellant at 30. Therefore, our Supreme Court' s opinion in Scrivener does
not affect our analysis here.


6 Although Milligan addresses the standard for establishing a prima facie case for retaliation for
opposing discriminatory practices, the standard is equally applicable to whistleblower retaliation
because a whistleblower retaliation claim is derived from the same statute, RCW 49. 60.210. See
RCW 42. 40. 050( 1)(    Any person who is a whistleblower, as defined in RCW 42.40.020, and
                          a) ( "

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. ").




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No. 45087 -9 -II



                     a. Mendoza de Sugiyama' s September 24, 2010 Complaint to the Auditor' s Office

        Secretary Hammond sent Mendoza de Sugiyama " official notification of [her] termination"
on   September 10, 2010.            CP   at   694. Mendoza de Sugiyama filed her whistleblower' s complaint


with the State Auditor' s Office on September 24, 2010. Because Mendoza de Sugiyama filed her

whistleblower complaint with the auditor' s office after she was notified of her termination, her

termination could not be caused by her whistleblower complaint.

        However, Mendoza de Sugiyama argues that her whistleblower complaint was filed before

her termination because Mendoza de Sugiyama' s last day of employment was September 24, the

                     filed the    whistleblower complaint with                the auditor' s office.   Even if this were an
same   day   she



accurate determination of the date on which Mendoza de Sugiyama was terminated, it does not

establish that Mendoza de Sugiyama was terminated because of the whistleblower complaint.

Regardless    of what       date. Mendoza de Sugiyama                 was "   terminated,"   the decision to terminate her


employment was made and communicated to her well before she filed a whistleblower complaint

with the auditor' s office. Mendoza de Sugiyama cannot establish a prima facie case of retaliation

based on the whistleblower complaint she filed with the auditor' s office.

                     b.    Mendoza de Sugiyama' s Letters to the Governor and the Federal Highway

Administration


         Mendoza de Sugiyama also argues that she meets the definition of a whistleblower based

on the letters she wrote to the governor and the Federal Highway Administration. We disagree.

         Under RCW 42. 40. 020( 10)(              a)(   i),   a   whistleblower is "[   a] n employee who in good faith


reports alleged improper governmental action to the auditor or other public official, as defined in

 subsection (   7)   of   this   section."    RCW 42. 40. 020( 7) defines " public official" as




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No. 45087 -9 -II



         the attorney general' s designee or designees; the director, or equivalent thereof in
         the agency where the employee works; an appropriate number of individuals
         designated to receive whistleblower reports by the head of each agency; or the
         executive ethics board.


Improper government action includes, but is not limited to, gross waste of public funds, violation

of   federal   or state   law,    or gross mismanagement.     RCW 42. 40. 020( 6)(   a).   However, improper


governmental action does not include issues related to personnel actions such as promotions,

demotions,     or claims of      discriminatory behavior. RCW 42. 40. 020( 6)( b). Based on the definitions

in RCW 42. 40. 020, Mendoza de Sugiyama cannot be considered a whistleblower based on her

letters to the governor and the Federal Highway Administration.

         Mendoza de Sugiyama' s alleged whistleblower complaints were not sent to the correct


person designated in the whistleblower statute. The statute clearly states to whom a whistleblower

complaint can      be     made.    RCW 42.40. 020( 7) does not include the governor or employees of a


federal agency. We will not look beyond the plain language of the statute and read words into a

statute that are not there. C.J.C. v. Corp. of Catholic Bishop of Yakima, 138 Wn.2d 699, 708, 985

P. 2d 262 ( 1999).        Therefore, Mendoza de Sugiyama' s letters to the governor and the Federal


Highway Administration are not whistleblower complaints under the statute.

          Similarly, Mendoza de Sugiyama' s claim that a letter becomes a whistleblower complaint

if a designated person ultimately receives it or learns of it fails. The statute explicitly requires that

a whistleblower complaint be reported to the state auditor or a designated public official.

Therefore, Mendoza de Sugiyama' s letters are not transformed into whistleblower complaints


simply because Secretary Hammond ultimately learned of them.




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           Moreover, even if Mendoza de Sugiyama' s complaints were reported to a public official


as   defined in RCW 42. 40. 020( 7), Mendoza de Sugiyama' s complaints about Murinko' s position


and qualifications are personnel issues and are clearly outside the scope of the whistleblower

statute.   RCW 42. 40. 020( 6)( b).         Secretary Hammond repeatedly stated that, to the extent Mendoza

de Sugiyama' s communications to outside agencies played a factor in her termination, it was due

to Mendoza de Sugiyama' s inappropriate criticisms of Murinko knowing that there was a pending

retaliation complaint and her improper disclosures of Murinko' s confidential interview and

application materials. Because the activities that resulted in Mendoza de Sugiyama' s termination

were not protected activities, she cannot make a prima facie case for whistleblower retaliation, and

the trial court properly granted the Department' s motion for summary judgment.

           2.         WLAD Claim: Hostile Work Environment


           To support a claim of a hostile work environment, Mendoza de Sugiyama is required to

make a prima          facie   case   that the actions ( 1)   were unwelcome, ( 2)     were because of the plaintiff' s


status as a member of a protected class, (              3) affected the terms or conditions of employment, and


 4)   could     be imputed to the       employer.    Glasgow     v.   Georgia -Pac.   Corp.,   103 Wn.2d 401, 406 -08,


693 P. 2d 708 ( 1985). "         Casual, isolated or trivial manifestations of a discriminatory environment

do not affect the terms or conditions of employment to a sufficiently significant degree to violate

the law."       Glasgow, 103 Wn.2d at 406.

           Here, Mendoza de Sugiyama cannot establish that she was subject to a hostile work

environment due to either her race or gender. She alleges that she was subjected to a hostile work

 environment because of Wooden' s hostile behavior. But, the evidence establishes that Wooden' s

behavior        was   universally     unprofessional    and   hostile.    Although Mendoza de Sugiyama may be



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able to demonstrate that Wooden' s behavior was hostile toward her, she cannot demonstrate that

Wooden' s behavior          was   based   on   her   race or   her   gender.   Accordingly, Mendoza de Sugiyama

cannot establish a prima facie claim of a hostile work environment.

        Mendoza de Sugiyama also alleges that Reinmuth created a hostile work environment. She

states that Reinmuth required Nnambi to attend meetings with her and that Reinmuth repeatedly

criticized   her. She contends that Reinmuth sought to move the ICRB to HR despite Mendoza de


Sugiyama' s complaints about Wooden and that Reinmuth interjected his opinions about Mendoza


de Sugiyama to Cordon during her investigation. These claims fail to show that Reinmuth created

a hostile work environment.


        First, ICRB' s potential move to HR is irrelevant. Reinmuth was clear that no final decision

would   be    made until     December 2010,          well after      Mendoza de Sugiyama     was   terminated.   Also,


Mendoza de Sugiyama fails to explain how this potential move created a hostile work environment

based   on   her   race or gender.    Second, Reinmuth was interviewed for Cordon' s report because of

his position in the Department and because of his involvement with all the parties in this situation.

There is no basis for Mendoza de Sugiyama' s assertion that Reinmuth' s participation in Cordon' s


investigation contributed to creating a hostile work environment based on her race or gender.

Third, even assuming Reinmuth' s decision to have Nnambi attend meetings with Mendoza de

Sugiyama and his criticism of Mendoza de Sugiyama' s work was done with discriminatory intent,

Mendoza de Sugiyama fails to demonstrate how this conduct was so pervasive that it altered the

terms and conditions of her employment. Therefore, Mendoza de Sugiyama has failed to present

a prima      facie   case   that Reinmuth       created   a    hostile   work environment.    Because Mendoza de




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Sugiyama has failed to demonstrate a prima facie case establishing her hostile work environment

claim, the trial court properly granted the Department' s motion for summary judgment.

          3.           WLAD Claim: Disparate Treatment


          To establish a prima facie case of disparate treatment, Mendoza de Sugiyama must show

that   she (   1) belongs to   a protected class; (    2) was treated less favorably in the terms and conditions

of his employment than a similarly situated, nonprotected employee; and ( 3) the nonprotected

 comparator"           was   doing   substantially the    same      work.    Domingo, 124 Wn.            App.       at   81.   It is


undisputed that as a Hispanic woman, Mendoza de Sugiyama belongs to a protected class.


However, Mendoza de Sugiyama cannot identify comparators that support her claim of disparate

treatment.


                       a.      During Employment

          Mendoza de Sugiyama claims that both Wooden and Reinmuth treated her differently

during her       employment      based    on   her   race and gender.        She alleges that Wooden discriminated


against her because Wooden " spoke to her in a demeaning way, cancelled meetings with her and,

when    he did    attend meetings,      he   refused   to interact   with   her." Br.   of   Appellant   at   41. In her brief,


Mendoza de Sugiyama states that other women complained of similar behavior, but to establish a

prima facie case of disparate treatment, Mendoza de Sugiyama must demonstrate that Wooden

behaved        differently   toward   a nonprotected employee.          Domingo, 124 Wn.           App.       at   81.   Mendoza


de Sugiyama has not demonstrated that Wooden regularly spoke respectfully to nonprotected

employees         or   never   cancelled     meetings     with   nonprotected      employees.        In fact, the record


establishes that Wooden treated everyone poorly and with disrespect. Mendoza de Sugiyama has

not established a prima facie case of disparate treatment based on Wooden' s treatment of her.




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          Mendoza de Sugiyama also claims that Reinmuth discriminated against her based on her

race and gender by treating her differently. However, as with Wooden, she has failed to identify

appropriate     comparators       to   support   her disparate treatment         claim.   She alleges that Reinmuth


treated her differently because nonprotected employees had direct access to him through an open -

door policy, but Mendoza de Sugiyama has not'alleged that she attempted to take advantage of his

open -door policy or that she tried to exercise the same type of direct access as others but was

denied.    Therefore, whatever access nonprotected employees may have had to Reinmuth has no

bearing on Mendoza de Sugiyama' s disparate treatment claim against Reinmuth.

          Mendoza de Sugiyama also alleges that Reinmuth was quick to criticize her in response to

a   Caucasian   male' s (   Murinko)      complaint,    but failed to   act on   her   complaint about   Wooden. She


does not specify what complaint or complaints Reinmuth failed to act on. When the Department
was informed of both Murinko' s complaint against her and her complaint against Wooden, the

same action was         taken —an      independent investigation. Therefore, there is no evidence supporting

a claim of disparate treatment.


                   b.          Termination


          Mendoza de Sugiyama asserts that " her race and/ or gender was a substantial factor in her

termination."      Br.    of   Appellant   at   43.   Mendoza de Sugiyama' s claim fails because she cannot


present a prima facie case of disparate treatment in regard to her termination.


          Mendoza de Sugiyama attempts to use Wooden and Assistant Secretary Bill Ford as

comparators because they had been accused of sexual harassment in the past but were not

terminated. She argues that, in contrast, she was accused of retaliation and then terminated. But

Wooden' s and Ford' s prior cases are not comparable, primarily because Reinmuth was not



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No. 45087 -9 -II



responsible    for the    action    that was or was     not   taken   against   Wooden.   and   Ford.   The sexual


harassment cases against Wooden and Ford occurred five years earlier and Reinmuth was not chief

of staff at   the time.?    Therefore, how Wooden' s and Ford' s cases were handled cannot establish


Reinmuth treated Mendoza de Sugiyama differently.

         Mendoza de Sugiyama also attempts to designate Nnambi and Colleen Jollie as


comparators because they were both women of color who had their authority allegedly reduced or

undermined by Reinmuth. But a comparator must be a nonprotected person. As Nnambi and Jollie

are both women of color, they fall within the same protected class as Mendoza de Sugiyama.

Therefore, Nnambi and Jollie are not appropriate comparators for a disparate treatment claim.

         Mendoza de Sugiyama cannot make a prima facie showing of disparate treatment because

she has failed to identify how she was treated differently than a nonprotected employee. Mendoza

de Sugiyama fails to establish a prima facie case of disparate treatment either during her

employment or as a substantial           factor in her termination. Therefore, Mendoza de Sugiyama has


failed to establish a genuine issue of material fact under the McDonnell Douglas burden shifting

test. The trial court properly granted the Department' s motion for summary judgment on Mendoza

de Sugiyama' s disparate treatment claim.

         4.          WLAD Claim: Retaliation for Opposing Discrimination Claim

         To establish a prima facie case of retaliation, the employee must show that ( 1) he or she

engaged   in   a   statutorily   protected   activity, ( 2) the employer to adverse employment action, and (3)




7 Hammond was chief of staff at the time and, in fact, did recommend Wooden' s termination.
However, the then Secretary of Transportation, Mr. MacDonald, decided that no action would be
taken.




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there was a causal link between the employee' s activity and the employer' s adverse action. Estevez

v.   Faculty Club   of the Univ. of Wash., 129 Wn.     App.   774, 797, 120 P. 3d 579 ( 2005). Mendoza de


Sugiyama alleges that her termination was in retaliation for her complaints about " her own gender

and    race   discrimination   by   Reinmuth    and   Wooden."      Br.   of   Appellant   at   44.   Mendoza de


Sugiyama asserts that she has presented a prima facie case because she was terminated after she

complained. Even assuming that temporal proximity is sufficient to establish a prima facie case

of retaliation, the Department has presented a legitimate, nondiscriminatory reason for Mendoza

de Sugiyama' s termination and Mendoza de Sugiyama makes only conclusory, unsupported

assertions that the Department' s legitimate reason for her termination is pretext.

          Here, Secretary Hammond based her decision to terminate Mendoza de Sugiyama on

Mendoza de Sugiyama' s actions toward Murinko and her disclosure of confidential interview and

employment documents to other agencies. Mendoza de Sugiyama argues that she can demonstrate

pretext   because   she stated she    did   not retaliate against   Murinko.     But, it is undisputed that she


improperly disclosed confidential interview and employment documents to the Federal Highway

Administration.      To the extent that Mendoza de Sugiyama asserts that her termination based on

her own improper actions toward Murinko and her improper disclosure of confidential documents

was pretext for retaliation, she has not provided any evidence or argument supporting that

argument.      Thus, Mendoza de Sugiyama' s claim for retaliation for opposing discrimination does

not establish a genuine issue of material fact under the McDonnell -Douglas burden shifting test.

Accordingly, the trial court properly granted the Department' s motion for summary judgment.




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C.      ATTORNEY FEES


        Mendoza de Sugiyama also requests attorney fees. RAP 18. 1( a) allows this court to award

attorney fees "[   i]f applicable law grants to a party the right to recover reasonable attorney fees or

expenses." "   Argument and citation to authority are required under the rule to advise us of the

appropriate grounds     for   an award of   attorney fees."   Bishop of Victoria Corp. Sole v. Corporate

Business Park, LLC, 138 Wn.        App.   443, 462, 158 P. 3d 1183 ( 2007) ( citing   Austin v. U.S. Bank of

Wash., 73 Wn. App. 293, 313, 869 P.2d 404, review denied, 124 Wn.2d 1015 ( 1994)).

        Mendoza de Sugiyama has not cited to any legal authority for awarding her attorney fees

in this case. Therefore, we do not consider Mendoza de Sugiyama' s request for attorney fees.

        We affirm.


        A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports but will instead be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




 We concur:




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