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

STEPHEN C. SIMMONS,                              No. 72836-9-1


                    Appellant,

          v.



STATE OF WASHINGTON,                             UNPUBLISHED OPINION            «      5S?g

                     Respondent.                 FILED: June 1,2015             T °^V
                                                                               3am   COrri'   "
                                                                               or    5>o
      Verellen, A.C.J. — Stephen Simmons appeals the summary judgment 5              z~
                                                                               —     o2
dismissing his disparate treatment claims. Simmons contends that he was not^?vepp;<
regular performance reviews and that an individual supervisor applied a more rigorous

pay raise standard to him than to others. But Simmons does not establish that his lack

of regular performance reviews resulted in any adverse employment consequence, he

does not establish "comparators" required for a disparate treatment pay raise claim, and

he does not rebut the Department of Social and Health Services's (DSHS) legitimate,

nondiscriminatory reasons for his pay raises with evidence of pretext. Under the well-

defined standards for employment discrimination claims, Simmons fails to establish a

genuine issue of material fact warranting a trial. We affirm.

                                         FACTS


       Simmons, an African American, works within DSHS's Enterprise Risk

Management Office. He holds a Washington Management Service (WMS) position as a

risk management administrator, managing tort lawsuits filed against DSHS. Each WMS
No. 72836-9-1/2


position has a salary range (a "band"). Simmons's position is in Band 2 with a salary

range of $61,200 to $81,600. His current salary is $76,932.

       Bernie Friedman supervised Simmons from 2001 to 2006. Friedman did not give

Simmons any performance reviews. Simmons received a 5 percent raise in January

2002 and another raise in 2004. The size of the 2004 raise is unclear from the record.

       Liz Dunbar supervised Simmons in 2006. Dunbar gave Simmons his first

performance review and a "lump sum payment" of $12,000.1 Simmons could not recall,

and the record is unclear, if he also received a raise after his performance review with

Dunbar.


       Joe Olson supervised Simmons in 2007. Olson did not give Simmons a

performance review, and Simmons did not receive a raise.

       Kevin Krueger supervised Simmons from April 2008 to October 2010. Krueger

gave Simmons a performance review in 2008 and recommended a 3 percent raise for

Simmons. Krueger testified that Simmons "was the only one during that period [in 2008]

that I was advocating for a salary increase" because other employees, such as Kristal

Wiitala and Kevin Doty, had previously received raises.2 Krueger reviewed Simmons's

pay history and learned that he had not had a raise since 2006. Krueger recommended

a 3 percent raise that would "bring him up" even with Kristal Wiitala and Kevin Doty.3

When asked if there was any other reason he did not give Simmons a 5 percent raise,

Krueger testified:




       1 Clerk's Papers (CP) at 127.
       2 CP at 1000.
       3 CP at 1163.
No. 72836-9-1/3


              Because I found his performance, while it was excellent, I think he
      was ~ there wasn't anything extraordinary. And I looked at the criteria that
      we went over in the other document, and it looked like he was doing his
      job. I asked him, "Was there anything extraordinary or different or
      something unusual that was different?"



              I was looking for Steven [sic] to help me answer that question, what
      it was, if there was some unique case or anything, and he wouldn't provide
      me the information.[A]

      Simmons rejected the raise and refused to sign the performance review form.

Krueger did not process the raise. Krueger has not been able to locate a copy of the

2008 performance review. The trial court determined it would "draw an adverse

inference" against DSHS for not producing Simmons's 2008 performance evaluation.5

To the extent the trial court was prepared to draw an adverse inference from the

missing document, we draw the "adverse inference" that Simmons's 2008 performance

review was positive.

      In October 2010, DSHS implemented the 3 percent raise retroactive to 2008.

      Regulations and administrative policies provide for regular performance reviews

of DSHS permanent employees. But performance reviews do "not always happen[,] for

a variety of reasons."6 Krueger did not give Simmons a performance review in 2009 or

2010. Some, but not all, of the Enterprise Risk Management Office's employees

received regular performance reviews.

      A salary freeze on WMS employees prohibited Krueger from recommending a

raise for any WMS employee reporting to him from November 2008 to June 2013


      4 CP at 104 (emphasis added).
      5 CP at 779.
      6CPat19.
No. 72836-9-1/4


except for Simmons, who received 3 percent in 2008, and Sherri Jenkins, who received

5 percent in 2013. Jenkins's 5 percent raise in 2013 was due to her increased job

duties and a redesignation to Band 2. Nadine Selene-Hait received a 7.5 percent

retention raise, over Krueger's objection, in 2011.

       Simmons contends that several DSHS employees are comparators.

       Stephen Dotson, a licensed attorney, worked as Discovery Manager. He

negotiated his starting salary at $78,000, at the top of the Band 2 range, based upon his

prior litigation and public disclosure experience. Wiitala gave Dotson a performance

review in 2009, and Krueger gave him performance reviews in 2010 and 2011.

       Kevin Doty is the Internal Control and Insurance Manager, a Band 2 position.

Doty received four performance reviews.

       Mark Greene worked as the Safety and Claims Program Manager. Greene

negotiated his starting salary of $78,000, at the top of the Band 2 range. He "was very

highly regarded," "had a strong background in safety," and "interviewed extremely

well."7 Greene did not receive a performance review because he was hired in 2008 and

retired in 2009.

       Sherri Jenkins is the Public Disclosure Manager. She received a 5 percent raise

in May 2013 when DSHS redesignated her position to Band 2.

       Nadine Selene-Hait is the Operations Manager, a Band 2 position. Krueger gave

her three performance reviews. She received a 7.5 percent retention raise in 2011.

       Kristal Wiitala, a licensed attorney, is the Public Records/Privacy Officer. DSHS

redesignated her position to Band 3 in 2004. She received 5 percent raises and


       7 CP at 27.
No. 72836-9-1/5


apparently received performance reviews in 2002, 2004, and 2006 (pre-Krueger).

Krueger apparently gave her two performance reviews sometime after 2007.

      Simmons filed an internal racial discrimination complaint against DSHS and

Kevin Krueger. DSHS investigated Simmons's allegations, but did not find any violation

of DSHS's nondiscrimination policies. DSHS later assigned Tracy Guerin to supervise

Simmons. Guerin gave Simmons an excellent rating in a 2012 performance review.

      Simmons sued DSHS for employment discrimination. He asserted multiple racial

discrimination claims under chapter 49.60 RCW. The superior court granted DSHS

partial summary judgment. Per Simmons's request, the superior court nonsuited the

only claim remaining after granting DSHS partial summary judgment.

       Simmons appeals.

                                        ANALYSIS

       We review a partial summary judgment order de novo, viewing the facts and all

reasonable inferences in the light most favorable to the nonmoving party.8 Summary

judgment is proper if no genuine issues of material fact exist.9 "A material fact is one
that affects the outcome of the litigation."10 "We may affirm the superior court's

summary judgment decision on any ground supported by the record."11



      8 Fulton v. State. Dep't of Soc. & Health Servs.. 169 Wn. App. 137, 147, 279 P.3d
500(2012).
       9 CR 56(c); Lowman v. Wilbur. 178 Wn.2d 165, 168-69, 309 P.3d 387 (2013)
(quoting Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794-95, 64 P.3d 22
(2003)).
      10 Owen v. Burlington N. & Santa Fe R.R. Co.. 153 Wn.2d 780, 789, 108 P.3d
1220(2005).
      11 Pacific Marine Ins. Co. v. State. Dep't of Revenue. 181 Wn. App. 730, 737, 329
P.3d 101 (2014).
No. 72836-9-1/6


          RCW 49.60.180 prohibits employment discrimination based on race. An

employer may not "discriminate against any person in compensation or in other terms or

conditions of employment" based on a protected trait, such as race.12 At trial, the

employee "must ultimately prove that [the protected trait] was a 'substantial factor' in an

employer's adverse employment action."13 A "substantial factor" means that the

protected trait "was a significant motivating factor bringing about the employer's

decision," not that the protected trait was the only factor in the decision.14

       "[S]ummary judgment to an employer is seldom appropriate" in employment

discrimination cases.15 To overcome summary judgment, a plaintiff need only show

"that a reasonable jury could find that the plaintiff's protected trait was a substantial

factor motivating the employer's adverse actions."16 "This is a burden of production, not

persuasion, and may be proved through direct or circumstantial evidence."17

       We apply the McDonnell Douglas Corp. v. Green18 burden shifting framework to

employment discrimination cases based on circumstantial evidence.19 Because

Washington discrimination laws substantially parallel Title VII of the Civil Rights Act of

1964, we may look to federal law for guidance.20 Under the McDonnell Douglas



          2 RCW 49.60.180(3).
          3 Scrivener v.Clark Coll.. 181 Wn.2d 439, 444, 334 P.3d 541 (2014).
          4id,
          5 Id, at 445.


          7 Riehl v. Foodmaker. Inc.. 152 Wn.2d 138, 149, 94 P.3d 930 (2004).
          8 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
          9 Hill v. BCTI Income Fund-I. 144Wn.2d172, 180, 23 P.3d 440 (2001),
overruled on other grounds by McClartv v. Totem Elec. 157Wn.2d214, 137 P.3d 844
(2006).
No. 72836-9-1/7


framework, the burden of persuasion, at all times, remains with the employee; only the

burden of production shifts.21

       The employee must first establish a prima facie case of discrimination.22 The

"prima facie burden is 'not onerous.'"23 A minimal evidentiary showing is enough and

"'does not even need to rise to the level of a preponderance of the evidence.'"24 But the

employee "must do more than express an opinion or make conclusory statements."25

The employee must establish "specific and material facts to support each element of his

or her prima facie case."26 If the employee fails to establish a prima facie case, the

employer is entitled to summary judgment.

       Once the employee establishes a prima facie case, the burden then shifts to the

employer to articulate a legitimate, nondiscriminatory reason for the alleged adverse

employment action.27 If the employer provides a legitimate, nondiscriminatory reason,

the burden shifts back to the employee to produce evidence that the employer's




      20 Kumar v. Gate Gourmet Inc.. 180 Wn.2d 481, 490, 325 P.3d 193(2014).
      21 Reeves v. Sanderson Plumbing Prods.. Inc.. 530 U.S. 133, 142, 120 S. Ct.
2097, 147 L Ed. 2d 105(2000).
       22 Hill, 144Wn.2dat181.
      23 Fulton. 169 Wn. App. at 152 (quoting Texas Dep't of Cmtv. Affairs v. Burdine.
450 U.S. 248, 253, 101 S. Ct. 1089, 67 L Ed. 2d 207 (1981)).
       24 jd, (quoting Wallisv. J.R. SimplotCo.. 26 F.3d 885, 889 (9th Cir.1994)).
      25 Hiatt v. Walker Chevrolet Co.. 120 Wn.2d 57, 66, 837 P.2d 618 (1992).
      26 jd. (emphasis omitted).
      27 Hill, 144Wn.2dat181.
No. 72836-9-1/8


articulated reason for the employment action was a pretext.28 But ifthe employee fails

to meet this burden, the employer is entitled to summary judgment.29

       "Evidence is sufficient to overcome summary judgment if it creates a genuine

issue of material fact that the employer's articulated reason was a pretext for a

discriminatory purpose."30 "An employee may satisfy the pretext prong by offering

sufficient evidence to create a genuine issue of material fact either (1) that the

[employer's] reason is pretextual or (2) that although the employer's stated reason is

legitimate, discrimination nevertheless was a substantial factor motivating the

employer."31

       "An employee does not need to disprove each of the employer's articulated

reasons to satisfythe pretext burden of production."32 "[I]t is the plaintiffs burden at trial

to prove that discrimination was a substantial factor in an adverse employment action,

not the only motivating factor."33 "An employer may be motivated by multiple purposes,

both legitimate and illegitimate, when making employment decisions and still be liable"

under chapter 49.60 RCW.34




       28 IdL at 182.
       29 Johnson v. Dep't of Soc. And Health Servs.. 80 Wn. App. 212, 227, 907 P.2d
1223(1996).
       30 Scrivener. 181 Wn.2dat446.
       31 ]d, at 446-47.
       32 id, at 447 (emphasis omitted).
       33 id,
       34 Id.
No. 72836-9-1/9


       "If the [employee] satisfies the McDonnell Douglas burden of production

requirements, the case proceeds to trial, unless the judge determines that no rational

fact finder could conclude that the action was discriminatory."35

                                  Performance Reviews

       Simmons first contends summary judgment was improper because he

established a prima facie claim of disparate treatment. Specifically, he contends DSHS

treated him differently than similarly situated employees because he received fewer

performance reviews. But Simmons did not suffer an adverse employment action

amounting to a "tangible impact" on his workload or pay.

      To establish a prima facie case of racial discrimination based on disparate

treatment, the employee must show his employer treats some people less favorably

than others based on their race.36 The primary inquiry is whether the employee's

circumstantial evidence is sufficient to create an inference that the employer's decision

was based on race.37 In other words, liability depends on whether the protected trait

motivated the employer's decision. And that decision must result in an adverse

employment action The employee must show that (1) he belongs to a protected class,

(2) he and the nonprotected, similarly situated employee, or comparator, did

substantially the same work, (3) he was treated less favorably in his employment than a

comparator, and (4) he suffered an adverse employment action.38


       35 id, at 446.
       36 Domingo v. Boeing Emps. Credit Union. 124 Wn. App. 71, 81, 98 P.3d 1222
(2004); Johnson. 80 Wn. App. at 227.
     37 LlNDEMANN, BARBARA T., GROSSMAN, PAUL & WEIRICH, C. GEOFFREY,
Employment Discrimination Law, at 2-24 to -25 (5th ed. 2012).
       38 Domingo. 124 Wn. App. at 81.
No. 72836-9-1/10




      The elements of a prima facie case are not absolute but vary based on the

relevant facts.39 "Some courts treat the requirement that the job action be adverse as

part of the prima facie case."40 We agree.

      The parties here do not dispute the first two prongs. Simmons is a member of a

protected class.41 DSHS concedes that Simmons's colleagues—Dotson, Doty, Greene,

Jenkins, Selene-Hait, and Wiitala—"were similarly situated to Mr. Simmons" only for

performance reviews.42

      For the third prong, Simmons received fewer performance reviews than others.

Dotson (3), Doty (4), Selene-Hait (3), and Wiitala (5) all received more performance

reviews than Simmons.43 But a disparate-treatment claim also requires "'an actual

adverse employment action, such as a demotion or adverse transfer.'"44

      "Not every employment decision amounts to an adverse employment action,"

even decisions that negatively impact an employee.45 An adverse employment action is

generally limited to tangible employment actions that constitute a "significant change in



       39 Burdine. 450 U.S. at 253; McDonnell Douglas. 411 U.S. at 802; Grimwood v.
Univ. of Puget Sound. Inc.. 110 Wn.2d 355, 363, 753 P.2d 517 (1988).
      40 Lindemann, supra, at 2-21 to -22.
     41 CP at 8; McDaniels v. Grp. Health Coop.. No. C13-1689JLR, 2014 WL
5471991, at *8 (W.D. Wash. 2014); Domingo, 124 Wn. App. at 81.
      42 Respondent's Br. at 2.
      43 While Greene received fewer performance reviews than Simmons, he only
worked one year for DSHS and then retired. The record is unclear how many
performance reviews Jenkins received.
     44 Kirbvv.CitvofTacoma, 124 Wn. App. 454, 465, 98 P.3d 827 (2004) (quoting
Robelv. Roundup Corp.. 148 Wn.2d 35, 74 n.24, 59 P.3d 611 (2002)).
      45 Strotherv. S. Cal. Permanente Med. Grp.. 79 F.3d 859, 869 (9th Cir. 1996);
Huddleston v. Sunshine Mills. Inc., 965 F. Supp. 2d 1298, 1312 (N.D. Ala. 2013).


                                             10
No. 72836-9-1/11


employment status, such as hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a significant change in

benefits."46 An adverse employment action "must involve a change in employment

conditions that is more than an 'inconvenience or alteration of job responsibilities'"47 and

must produce "'a material employment disadvantage.'"48

       No evidence suggests Simmons suffered any harm from DSHS's failure to

provide him as many performance reviews as his comparators. Apart from a 3 percent

temporary salary reduction for all DSHS employees, Simmons's salary was never

reduced, he was never demoted or adversely transferred, his employment conditions or

privileges never changed, and he was not denied a position within or outside DSHS.

       Simmons claims the lack of regular performance reviews constitutes an adverse

employment action because it led to reduced career growth and an inferior salary. The

record here does not support his contention. Simmons's declaration is limited to

generalities about his comparators obtaining promotions because of regular

performance reviews.49 But these generalities do not support a reasonable inference



       46 Burlington Indus.. Inc. v. Ellerth. 524 U.S. 742, 761, 118 S. Ct. 2257, 141 L.
Ed. 2d 633 (1998).
       47 Kirbv. 124 Wn. App. at 465 (quoting DeGuiseppe v. Vill. of Bellwood. 68 F.3d
187, 192 (7th Cir. 1995)); see also Alonso v. Qwest Commc'ns Co.. LLC. 178 Wn. App.
734, 746, 315 P.3d 610 (2013) (an adverse employment action must involve "a change
in employment conditions," such as "reducing an employee's workload and pay").
       48 Higgins v. Gonzalez. 481 F.3d 578, 584 (8th Cir. 2007) (quoting Kerns v.
Capital Graphics. Inc.. 178 F.3d 1011, 1016-17 (8th Cir. 1999)), abrogated on other
grounds by Torgeson v. City of Rochester. 643 F.3d 1031 (8th Cir. 2011).
       49 See, e.g.. CP at 127 ("These performance reviews and development plans are
precursors to advancement and pay raises."); CP at 131 ("Krueger's retaliation and
withholding the original 2008 raise until October 12, 2010 is also actionable and
compensable in the form of lost opportunity costs and interest on the withheld salary.");
CP at 139 ("The absence of the regular reviews and performance plans curtailed my


                                             11
No. 72836-9-1/12



that the lack of regular performance reviews impacted his opportunities for career

growth.

       Simmons relies upon Kirbv v. City of Tacoma. which held that the employer's

failure to promote the employee to captain had a "tangible impact" on the employee's

"workload or pay" because the employee had actually applied for that position.50 But

unlike in Kirbv. Simmons provides no evidence that his lack of regular performance

reviews caused a tangible impact on his career growth. His claims of a hypothetical

impact on opportunities for career growth are inadequate.

       Simmons also claims the lack of regular performance reviews negatively

impacted his raises, but the record does not support a correlation between performance

reviews and raises. For example, Selene-Hait received a 7.5 percent retention raise in

2011, and Jenkins received a 5 percent raise in 2013. But no evidence suggests these

raises were attributed to more performance reviews. Dotson and Selene-Hait received

job offers from other government departments. But no evidence suggests the number

of performance reviews in their files contributed to the job offers. Further, Doty's

performance reviews occurred after his raise in 2007. While Dotson received three

performance reviews, he never received a raise. Because neither Simmons nor any

other WMS employee could receive a raise from November 2008 to June 2013 for

"growth and development," Simmons could not have been denied a raise during that

time period for missed performance reviews.




ability to ascend in the agency in the future."); CP at 141 ("Within DSHS, "excellent"
non-minority employees that are provided performance reviews flourish.").
       50 124 Wn. App. 454, 465, 98 P.3d 827 (2004).


                                             12
No. 72836-9-1/13


       In sum, on this record, receiving fewer performance reviews did not constitute a

"significant change in employment status"51 or a "change in employment conditions."52

Simmons has not shown the lack of regular performance reviews led to a change in

employment conditions or status.53 The failure to issue as many performance reviews

as his comparators does not by itself constitute an adverse employment action.

Simmons's alleged adverse impacts rest on speculation and conjecture. Therefore, we

conclude Simmons fails to demonstrate a prima facie case of racial discrimination

based on a lack of regular performance reviews.

                             Krueger's Pay Raise Standard

       Simmons's disparate treatment pay raise claim is narrowly focused upon the

standard applied by one supervisor, Kevin Krueger. But Simmons does not satisfy the

prima facie requirements for that claim.

       Simmons's disparate treatment claim based on Krueger's pay raise standard is

also subject to the McDonnell Douglas burden-shifting analysis. To establish a prima

facie case of racial discrimination based on disparate treatment, the employee must

show that (1) he belongs to a protected class, (2) that he and the nonprotected, similarly

situated employee, or comparator, did substantially the same work, (3) he was treated




      51 Brooks v. Firestone Polymers. LLC. 2014 WL 5088657, at *9.
      52 Alonso, 178 Wn. App. at 746.
      53 See Higgins. 481 F.3d at 486-87 (determining that the failure to give timely
performance reviews was not an adverse employment action); Wojciechowski v. Nat'l
Oilwell Varco. L.P.. 763 F. Supp. 2d 832, 857 (S.D. Tex. 2011) ("[The] failure to grant
[the employee's] request for a performance review, in and of itself, does not constitute
an 'adverse employment action . . ..'").


                                            13
No. 72836-9-1/14


less favorably in his employment than a comparator, and (4) he suffered an adverse

employment action.54

       The critical question is what comparators Simmons must establish for a prima

facie case. Simmons argues his disparate treatment pay raise claim requires

comparators that have only some rational relationship to the discriminatory conduct at

issue. But in a pay raise setting, the "'similarly situated'" analysis is stringent.55 The

"comparator must be nearly identical" to the employee in all relevant and material

respects.56

       To determine whether employees are directly comparable, we may look to all

relevant factors, including whether the employees held the same job description, were

subject to the same standards, were subordinate to the same supervisor, and had

comparable experience, education, and other qualifications.57 Enough common factors

must exist "to allow for a meaningful comparison" to determine "whether intentional




       54 Domingo. 124 Wn. App. at 81.
       55 Moran v. Selig. 447 F.3d 748, 755 (9th Cir. 2006) (holding that the employee in
the protected class must be "similarly-situated in all material respects" to the employees
who are allegedly treated more favorably) (quoting McGuinness v. Lincoln Hall. 263
F.3d 49, 53-54 (2d Cir. 2001)); Pierce v. Commonwealth Life Ins. Co.. 40 F.3d 796, 802
(6th Cir. 1994) (holding that the employee in the protected class must be similarly
situated "in all relevant aspects" and "nearly identical" to the employees who are
allegedly treated more favorably).
     56 Wilson v. B/E Aerospace. Inc.. 376 F.3d 1079, 1091 (11th Cir. 2004); Aiavi v.
Aramark Bus. Servs.. Inc.. 336 F.3d 520, 531-32 (7th Cir. 2003): see also Coleman v.
Donahoe. 667 F.3d 835, 846 (7th Cir. 2012) ("Similarly situated employees 'must be
directly comparable to the [employee] in all material respects,' but they need not be
identical in every conceivable way." (internal quotation marks omitted) (quoting
Patterson v. Indiana Newspapers. Inc.. 589 F.3d 357, 365-66 (7th Cir. 2009))).
       57 Ajayj, 336 F.3d at 532.


                                              14
No. 72836-9-1/15


discrimination was at play."58 If the employee fails to establish a prima facie case,

summary judgment is proper.

       Krueger supervised Simmons from April 2008 to October 2010. Of course,

Simmons may use any conduct occurring before April 2008 or after October 2010 as

circumstantial evidence to prove a discriminatory motive. But any actionable disparate

treatment based on Krueger's pay raise standard necessarily turns on Krueger's actions

while supervising Simmons.

       Simmons fails to establish that he and his purported comparators were similarly

situated in all relevant and material respects. The superior court concluded Simmons

"has not presented a material question of fact" whether Jenkins and Selene-Hait are

valid comparators.59 There was "no side-by-side comparison of these employees' job

duties, skills, or education in a meaningful way."60 The record here lacks any evidence

that Jenkins and Selene-Hait had the same job description, had comparable

experience, education, and other qualifications as Simmons, and performed

substantially the same work as Simmons. Additionally, Jenkins and Selene-Hait were

not subordinate to the same supervisor. For example, from April 2008 to October 2010,

Simmons reported to Krueger and was the only WMS employee whom Krueger

recommended for a raise. When Jenkins and Selene-Hait received raises, Simmons no

longer reported to Krueger. In light of the record's scant information about his purported

comparators, Simmons fails to offer evidence sufficient to create a genuine issue of


       58 Coleman. 667 F.3d at 847.
       59 RP (Nov. 15, 2013) at 73. Dotson, Green, Doty, and Wiitala did not receive
any pay raises during or after the relevant period and thus are not valid comparators for
Simmons's disparate treatment pay raise standard claim.
       60RP(Nov. 15, 2013) at 72.

                                             15
No. 72836-9-1/16



material fact that he was similarly situated to and did substantially the same work as

Jenkins and Selene-Hait. Therefore, Simmons fails to demonstrate a prima facie case

of racial discrimination based on Krueger's pay raise standard.

       But even if Simmons established a prima facie case of racial discrimination, his

disparate treatment claim would still fail because DSHS has articulated legitimate,

nondiscriminatory reasons for Simmons's pay raises from April 2008 to October 2010,

and Simmons has not presented evidence that these reasons were a pretext for

discrimination.


       The employer must "articulate its nondiscriminatory reason for the challenged

action with some specificity in order to afford the [employee] 'a full and fair opportunity

to demonstrate pretext.'"61 To show pretext using circumstantial evidence, an employee

must put forward specific and substantial evidence challenging the credibility of the

employer's motives.62 "[P]retext may be demonstrated by direct or indirect evidence,

including evidence presented as part of the prima facie case."63 The employee must

show that the employer's articulated reasons "(1) had no basis in fact, (2) were not

really motivating factors for its decision, (3) were not temporally connected to the

adverse employment action, or (4) were not motivating factors in employment decisions

for other employees in the same circumstances."64 In other words, the employee must




       61 Lindemann, supra, at 2-35 (quoting Burdine. 450 U.S. at 255-56); HE 144
Wn.2dat181.

       62 Vasguez. 349 F.3d at 642.
       63 Johnson. 80 Wn. App. at 229.
       64 Fulton. 169 Wn. App. at 161.


                                             16
No. 72836-9-1/17


provide enough evidence for a reasonable fact finder to conclude the employer

undertook the challenged employment action because of the employee's race.65

      A trial court may still grant summary judgment even though the employee

establishes a prima facie case and presents some evidence to challenge the employer's

reasons for its action.66 When the record "'conclusively reveal[s] some other,

nondiscriminatory reason for the employer's decision, or ifthe [employee] created only a

weak issue of fact as to whether the employer's reason was untrue and there was

abundant and uncontroverted independent evidence that no discrimination had

occurred,'" summary judgment is proper.67

      Simmons fails to demonstrate that Krueger applied a disparate treatment pay

raise standard to his detriment. In the two-and-a-half years that Krueger supervised

Simmons, Krueger recommended a raise only for Simmons. With limited exception, a

salary freeze prevented any WMS employees from receiving raises. Simmons focuses

on Krueger's deposition testimony that he did not give Simmons a 5 percent raise in

2008 because, although his performance was "excellent," "there wasn't anything

extraordinary" about his work.68 Krueger also testified that he gave Jenkins a 5 percent

raise for "excellent" but not extraordinary work in 2013.69 But Simmons ignores the

context of these raises.




       65 McDaniels, 2014 WL 5471991, at *7.
       66 Millioan v. Thompson. 110 Wn. App. 628, 637, 42 P.3d 418 (2002).
       67 Fulton. 169 Wn. App. at 161-62 (first alteration in original) (emphasis omitted)
(quoting HN]- 144 Wn.2d at 184-85).
       68 CP at 104.
       69 CP at 105.



                                            17
No. 72836-9-1/18


      The record here conclusively reveals that DSHS proffered legitimate,

nondiscriminatory reasons for Simmons's raises. At best, Simmons raises a "'weak

issue of fact.'"70 For example, Krueger testified that the recommended 3 percent raise

in 2008 would "bring him up" to Wiitala and Doty, to whom Krueger did not give a raise

in 2008.71 After Simmons left Krueger's supervision, only two WMS employees

received raises: Jenkins and Selene-Hait. Krueger objected to Selene-Hait's 7.5

percent retention raise in 2011. Jenkins received a 5 percent raise in 2013 because

she had increased job duties and because DSHS redesignated her position to Band 2.

Krueger never recommended raises for Green or Dotson because they negotiated their

salary to the top of their pay bands. Further, Krueger did not supervise Doty when he

received his 5 percent raise in 2007, and Krueger never gave Wiitala a raise.

       In sum, the record demonstrates that Simmons has received the most raises

since 2001. Simmons received a 5 percent raise in 2002, a raise in 2004, a $12,000

lump sum payment in 2006, and a 3 percent raise in 2008, implemented in 2010

retroactive to 2008. Importantly, from April 2008 to October 2010, while Krueger

supervised Simmons, the only employee who received a raise was Simmons. Simmons

has not rebutted DSHS's explanations with any evidence that Krueger's failure to give

Simmons more or greater raises from April 2008 to October 2008 was a pretext for

discrimination Therefore, Simmons fails to establish a prima facie case of racial

discrimination based on Krueger's pay raise standard.




      70 id,
      71 CP at 1163.



                                           18
No. 72836-9-1/19


       Finally, Simmons raises for the first time on appeal an equal protection claim.

With minimal authority, he generally contends that treating an individual different than

others with or without racial discrimination violates equal protection. But he provides no

compelling authority for this vague proposition. Because we consider only "'issues

called to the attention of the trial court'" when "reviewing an order granting or denying

summary judgment," we reject his contention.72

                                      CONCLUSION


       Simmons fails to establish a genuine issue of material fact for his disparate-

treatment claims. We therefore conclude the trial court properly granted DSHS

summary judgment.

       We affirm.




WE CONCUR:




              /




       72 Bankston v. Pierce County. 174 Wn. App. 932, 941, 301 P.3d 495 (2013)
(quoting RAP 9.12).


                                             19
